Friday, December 27, 2013

Conservative think tank says state environmental review should be speeded, since it discourages development; I'd call law an Atlantic Yards enabler

A conservative think tank recently took aim at the oft-criticized State Environmental Quality Review Act (SEQRA, or SEQR), arguing that the process--used by state agencies, including the Empire State Development Corporation for the Atlantic Yards project--takes way too long and discourages development.

The irony, from my perspective, is that in the case of Atlantic Yards the process helped enable the project compared to the alternative, and it's still being used at the developer's behest.

The case for speed

As Capital NY reported, in Empire Center proposes 300-day environmental review,
The Empire Center for New York State Policy included the recommendation in a report on Monday detailing ways the New York’s State Environmental Quality Review can be streamlined to reduce delays on development projects.
Center president E.J. McMahon said the process creates delays and uncertainty for businesses.
“SEQR adds an unnecessary layer of red tape to environmental regulations and local land-use laws, discouraging development that New York needs to promote a strong and growing economy,” McMahon said.
The report also says SEQR’s reach is too broad and suggests the process no longer include “community character” and traffic measures. McMahon said the proposed time limit would keep the process from dragging on. Under the center's recommendations, those conducting the review will have 60 days to identify all potential problems, and 180 days to complete an environmental impact statement.
The report has some strong evidence. But I'm sure civic groups and their attorneys have some counter-arguments, so, without hearing that debate, it's tough for me to come to an overall conclusion.

Still, I want to point out that, in the case of Atlantic Yards, the most recent delays in the process have nothing to do with the law and everything to do with the partnership between the state and its business parter, Forest City Ratner.

After all, the ESDC (aka ESD) held a public hearing last February on the Draft Scope for a court-ordered Supplementary Environmental Impact Statement (SEIS) but still has not issued the Final Scope nor the Draft SEIS. And the gap between Draft Scope and Final Scope is longer than it took in 2005-06 for the entire Atlantic Yards project, whereas the current study only deals with Phase 2.

Why has it taken so long? We can't be certain, but I'd bet it was to allow Forest City Ratner to proceed with its deal do have the Shanghai-based, Chinese government-owned Greenland Group invest in 70% of the project going forward. That should give ammunition to respond to public questions about Forest City's capacity to finish the project on a steady schedule.

So, again, it's not law but politics.

A TV interview

In a 12/16/13 interview with Capital Tonight, McMahon said "SEQR is a big ball of red tape wrapped around everything else," calling it "a statewide master planning law... overlayed on top of all the federal and state laws."

Well, perhaps, but in the case of Atlantic Yards, the state process, which involves public hearings and voluminous documents, distinctly avoided the city's Uniform Land Use Review Procedure (ULURP), which would've injected a pesky vote by the City Council. Instead, no elected officials had their say.

McMahon makes the point that "community character" is a fuzzy issue, and he's right. Then again, though it has been used successfully in court, it's so general it should not--as far as I know--provide a huge roadblock. After all, in cases challenging environmental review, all the state needs is a "rational basis," not a convincing explanation, to prevail.

Host Liz Benjamin said that locals would argue that they "need another bite at the apple," since they're facing "deep-pocketed entities."

"I think we have existing laws to protect the environment," McMahon said, "and we have planning and zoning ordinances on the local level." Then again, with Atlantic Yards, the state process was used to bypass and override local zoning.

He said that there's a development deficit in upstate New York, and "SEQR has something to do with it." In fact, five of the state's regional economic development councils specifically cited SEQR as a roadblock.

Outlining their recommendations

In a 12/14/13 Times Union op-ed headlined End unnecessary barriers to state growth, McMahon and colleague Michael Wright, who co-wrote the report, wrote:
In this, as in so many areas of regulatory policy, the Empire State is an outlier. Less than one-third of all states have similarly comprehensive environmental review statutes —and even fewer have laws as broadly applicable as New York's SEQR.
Given its name, New Yorkers might assume that SEQR is strictly an "environmental" law, like the Clean Air or Clean Water Act. In fact, the law defines the term very broadly, going well beyond actions affecting the natural ecology of air, water, flora and fauna to include "noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth."
New York's law also regulates potential impacts on "existing community or neighborhood character"—a concept that, in some cases, has been construed broadly enough to block projects otherwise permissible under existing environmental and local land-use ordinances
This does little to encourage development and job-creation in New York, aside from generating countless billable hours for planners, engineers and lawyers who specialize in advising project sponsors and lead agencies on how to navigate its twists and turns.
They're right that the law has generated much revenue for lawyers and environmental planners, notably the ubiquitous (in New York City) AKRF.

Their recommendations:
  • Reduce the potential for undue delays by imposing hard deadlines and incentives to ensure the process can be completed within a year.
  • Mandate "scoping" of environmental impacts at the first stage in the SEQR review process, but also more tightly restrict the introduction of new issues by lead agencies later in the process.
  • Eliminate the law's reference to "community and neighborhood character" as an aspect of the broadly defined environment potentially affected by projects, since the concept already is defined by local planning and zoning laws.


The history
These [environmental[ concerns led to the enactment of the National Environmental Policy Act (NEPA), signed by President Richard Nixon on January 1, 1970. NEPA required federal agencies to prepare assessments and impact statements of proposed major projects and policy changes affecting the “human environment,” broadly defined to include both “the natural and physical environment and the relationship of people with that environment."
NEPA would be the primary model for laws in states including New York, whose State Environmental Quality Review Act (SEQR) was enacted in 1975.

While NEPA applies only to federal executive branch agencies, SEQR applies to the actions of state and local agencies in New York. In relatively rare cases where the two jurisdictions overlap, the respective reviews can be coordinated, so that the impact statement required by NEPA can be used to fulfill obligations under SEQR.2
It’s important to note that these laws were not designed as government’s primary line of defense against pollution—a purpose served by other statutes and regulations largely adopted after NEPA in the 1970s.
NEPA’s overarching goals extend well beyond protecting the natural ecology of air, water, plants and animals to encompass the regulation of “aesthetic, historic, cultural, economic, social, or health [impacts], whether direct, indirect, or cumulative.” In similarly broad language, SEQR defines environmental factors to also include “noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth.”

New York’s law goes a big step further by also regulating potential impacts on “existing community or neighborhood character”—an amorphous concept that, in some cases, has been construed broadly enough to block projects otherwise permissible under existing local land-use ordinances.
NEPA and SEQR also differ in several other significant respects.
Federal courts have determined that NEPA mandates for federal agencies are “essentially procedural.” In other words, the law’s principal effect is to describe the process federal agencies must follow to implement a major new policy or project—but not to shape outcomes consistent with its lofty aims.
New York’s SEQR, by contrast, can be used to force changes to “mitigate” environmental impacts—not only dictating how a project is built, but effectively deciding whether it gets built at all. Perhaps even more importantly, SEQR requires an Environmental Impact Statement (EIS) if the project “may” cause a significant adverse environmental impact, whereas NEPA effectively requires an EIS only if a proposed action will “significantly affect the quality of the human environment.” This further expands the scope of actions covered by the state law. And before a project can win final approval, SEQR requires that adverse environmental impacts be “minimized to the maximum extent practicable.”
SEQR’s broader scope and its requirement for “maximum extent practicable” mitigation as a condition for potential approval make it more expansive and stringent than its federal counterpart, NEPA; indeed, as will be shown below, it is among the most expansive and stringent laws of its type in any state.
The timetable
While the SEQR process does have some timelines, they don’t guarantee the process is completed within any particular time period. Most initial steps are given definitive time periods, including appointing a lead agency when multiple agencies are involved (30 calendar days), the significance of action determination (20 calendar days from receipt of application or all information received) and the optional “scoping” process (60 calendar day period for consideration of a draft scope). But while the agency is given up to 45 calendar days to consider a DEIS, or 30 days to consider a resubmitted DEIS, there is no limit on the amount of time it may take to approve it.

Once a lead agency approves a draft impact statement, the clock starts ticking again on the SEQR process, starting with a minimum 30 calendar-day public comment period. Any additional public hearing must occur between 15 and 60 calendar days from the approval, with an additional 10 calendar days for comments afterward. The lead agency has 60 calendar days from the DEIS approval or 45 calendar days following the public hearing (whichever is later) to issue a final impact statement.
The scope

The report argues that, even among the 16 states that have SEQR-like laws, New York is an outlier:
Take, for instance, the issue of applicability. All 16 states with comprehensive laws require their state governments to conduct an environmental impact review in some circumstances. But New York is one of only eight states that apply this requirement to county or local government agency actions as well.32
Likewise, all 16 of the comprehensive environmental laws on the state level apply to development projects proposed or financially supported by state government. However, as shown below, only nine apply to private projects requiring other forms of government permission or approval—for example, zoning variance. In addition, only seven apply to proposed state and local policy changes, such as amendments to local zoning laws.


Legal challenges
Challenges to the outcome of a SEQR process can be filed in state Supreme Court under Article 78 of the state Civil Practice Law and Rules, following the lead agency’s final determination or decision. Practically speaking, this means a SEQR challenge must commence at the very end of the process, after the lead agency has either approved a final impact statement or made a “negative” declaration (meaning no impact statement is required). All administrative remedies must be exhausted before an Article 78 proceeding can be initiated.
This “ripeness” requirement usually thwarts challenges to interim agency actions. For instance, anyone challenging an agency for missing one of SEQR’s deadlines will find out that “these limitations essentially are unenforceable.” Even an agency’s positive declarations are not considered to be final determinations; therefore, with few exceptions, they have not been held subject to challenge.
In addition, an Article 78 proceeding must commence within four months of the agency’s final determination —the only time period when an agency action is subject to challenge. Some cases suggest that shorter time periods are acceptable if a separate statute governing the agency determination has a shorter statute of limitations. There is also considerable disagreement over when the statute of limitations period begins, which further complicates matters.
To challenge an agency under SEQR a person or organization must first have “standing,” which means they have a right to bring legal action under the statute. Traditionally, New York courts relied on the 1991 decision in The Society of the Plastics Industry, Inc. v. County of Suffolk.”48 Legal scholars note that some lower courts have “simplified and limited [this test] … into a requirement that a petitioner live in close proximity to the challenged project.”
As long as the Plastics Industry standing test applied, New York was “effectively one of the most restrictive jurisdictions for environmental plaintiffs,” as one legal expert put it. More recently, in the case of Save the Pine Bush, Inc. v. Common Council of the City of Albany the state Court of Appeals held that individuals could have standing to challenge a government action involving a natural resource if they could demonstrate “repeated, not rare or isolated” recreational use of that natural resource.
...For those with standing, Article 78 review is limited to whether the agency’s decision was an error of law, an abuse of discretion, or arbitrary and capricious. Courts interpreted this to mean they should “review the record to determine whether the agency identified the relevant areas of environmental concern, took a `hard look' at them, and made a ‘reasoned elaboration’ of the basis for its determination.”
Courts in such cases have been deferential to lead agencies, holding that an FEIS does not need to consider every impact and every mitigation measure or alternative to satisfy SEQR.56 Consequently, they rarely disturb agency decisions when the challenge is to a FEIS. There were 55 court decisions on SEQR in 2012, including a dozen involving challenges to completed impact statements. In all 12 cases, the FEIS survived the challenge. Government agencies were overturned in seven of 34 cases that were challenged for lack of an original or supplemental EIS.
By the same token, courts typically insist on strict compliance with the SEQR process and allow agencies little discretion as to the steps they must complete. However, some cases suggest that this standard might be loosening, given instances where courts allowed minor procedural irregularities as long as the public had full involvement in the process.
...In sum, since the 1990s—despite the restrictions on standing and ripeness under Article 78—SEQR has given rise to enough litigation to generate an average of one court decision a year for each of the 57 counties outside New York City.
Statistics have not been kept on the number of SEQR-related lawsuits dismissed or withdrawn before trial—much less the number of development disputes in which a SEQR lawsuit is threatened. Nonetheless, the potential litigation related to SEQR can be as significant as any precedents generated by cases pursued through trial.

As seen in the case of the Irondequoit Public Library (see box, page 10), the threat of a lawsuit can have a significant effect on the decision-making process. Although precedent and judicial deference likely would have supported Irondequoit’s initial determination, it still decided to spend $9,500 to complete a second full environmental assessment form.64 Such costs can be especially significant to small upstate municipalities.
Reforms
Since its inception, the most common complaint about SEQR has been the way it can unnecessarily delay a project—which, if the process takes long enough, can be tantamount to denial. This is especially true for small developers or project sponsors who lack the financial wherewithal to pay for repeated rounds of technical changes and studies demanded by lead government agencies.
...With such limited enforcement mechanisms, the statute’s deadlines become nothing more than guidelines—as the Fortress Bible Church learned when the town of Greenburgh delayed its proposed building project for five years (see box "SEQR trumps worship in Westchester on previous page), which led to more years of litigation. Among other things, the town took more than a year and a half to produce an FEIS—a process that SEQR requires to be completed in under 105 days.
In contrast, proponents explain that the project sponsor dictates the process’ speed because the sponsor controls the DEIS content. This certainly can be true when the agency and sponsor collaborate, as was the case with the Verizon project described on page 9. A developer helps its cause by being organized and responsive, but there is little it can do if the lead agency has no incentive to act quickly.
So the process is, in fact, reasonably friendly to deep-pocketed developers like Forest City Ratner.

Streamlining SEQR: How to Reform New York’s “Environmental” Planning Law, by Empire Center

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