Letter To The Editor: Proposed Changes To Environmental Review Law Need Modifications

More than 40 years have passed since New York implemented the State Environmental Quality Review Act, commonly known as SEQRA. The State Legislature enacted this sweeping law in 1975 to “establish a process to systematically consider environmental factors early in the planning stages of actions that are directly undertaken, funded or approved by local, regional and state agencies.” The State Department of Environmental Conservation (DEC) then promulgated the SEQRA regulations.

Over the years, SEQRA has become the major component of the planning and zoning process across the state. Unfortunately, the regulations, which were last updated in 1996, are frequently used by opponents and/or municipalities to delay or defeat development projects that they oppose. While this is done in many ways, the most common are to require endless “studies,” to continually request additional information before deeming a SEQRA document to be complete or ready for a public hearing, and to keep public hearings open month after month.

This year, DEC has proposed additional amendments to the SEQRA regulations with the stated goal of streamlining the process without sacrificing meaningful environmental review. Public comments concerning the amendments are being accepted through May 19th, after which it is anticipated that the amendments will be adopted.

According to the DEC, the proposed changes are modest in nature and are not intended to alter the basic structure of an environmental review.

They include:

• Expanding the number of actions not subject to further review. Known as “Type 2 actions,” these are projects that the DEC has deemed have no significant environmental impacts. In addition to existing Type 2 actions such as repair and maintenance of existing structures, facilities and roads, construction of one, two or three-family residences, and license, lease and permit renewals, the DEC proposes adding additional actions including installation of cellular antennas on non-historic listed structures, installation of small solar energy arrays, minor subdivisions of four or fewer lots, and adaptive reuse of previously disturbed sites meeting certain criteria.
• Modifying certain thresholds for actions deemed more likely to require the preparation of an Environmental Impact Statement (known as “Type 1 actions,) by reducing the number of residential units and parking counts that trigger Type 1 designation.
• Making “scoping” of Draft Environmental Impact Statements (DEIS) mandatory. By requiring that every DEIS have a “scope”, which essentially is an outline of the relevant potential environmental issues to be studied in detail, DEC’s intent is to weed out irrelevant or minor issues, making the process more efficient and focused.
• Making the acceptance procedures for DEISs more predictable by better defining the criteria under which the agency reviewing a DEIS must deem the document complete for the purposes of commencing the required public hearings. This will give applicants greater certainty in the process, and will give municipalities and agencies reviewing the DEIS more guidance in determining that the document is ready for a public hearing.

It is a positive development that DEC is updating the SEQR regulations in order to streamline the process, while encouraging the development alternative energy, green infrastructure and affordable housing, and continuing to identify and mitigate potentially significant environmental impacts in a fair, efficient framework. However, the DEC should consider several additional amendments to the SEQRA regulations in order to further these goals while facilitating meaningful and fair environmental review processes.

Specifically, the lack of an enforcement mechanism for the failure to comply with the timeframes set forth in the SEQRA regulations will render them meaningless in actual practice. This lack of certainty is one of the biggest issues with the current implementation of the regulations and often leads to a lengthy and open-ended review process. If the DEC would consider additional provisions that make the process more certain (without being any less protective of the environment), for example, by imposing default acceptance of a DEIS after a certain number of days or requiring that the public hearing be closed after a specific time period, it would go a long way toward achieving the stated goals of the proposed amendments to the SEQRA regulations.

— Seth Mandelbaum, a partner with McCullough, Goldberger & Staudt.