DEC’s Overlooked Authority to Weigh Cumulative Impacts by Philip Weinberg and Paul M. Bray
Sandwiched in among the broad powers bestowed on DEC by the Legislature in ECL § 3-0301 is the express authority to “[c]oordinate and develop policies, planning and programs related to the environment of the state and regions thereof” and to “[p]romote and coordinate management of water, land, fish, wildlife and air resources to assure their protection, enhancement … and balanced utilization consistent with the environmental policy of the state and take into account the cumulative impact upon all of such resources in making any determination in connection with any license, order, permit, certification or other similar action…”2
This seemingly sweeping but vastly underutilized grant of power conferring the authority to consider cumulative impacts when deciding on licenses or permits was enacted in 1975, the same year as the State Environmental Quality Review Act3 (SEQRA). Why has DEC not made use in a quarter of a century of this weapon designed to furnish authority to consider the cumulative impact of development and to foster the planning of future development that New York so sorely lacks?4
The court in the well-known Town of Henrietta v. DEC , which made clear that SEQRA authorizes the Department (as well as other agencies, state and local) to require project sponsors to mitigate environmental impacts, explicitly noted the powers granted DEC in § 3- 0301(l)(b) to “take into account the cumulative impact” when considering a license or permit. The Appellate Division aptly described this as a “separate grant of authority” in addition to SEQRA. Significantly, this section’s applicability was, the court pointed out, “not raised by the DEC . . .”5
It is striking that DEC, the Attorney General and citizen plaintiffs have ignored the strong mandate of this language. A few reported decisions have relied on § 3-0301 generally as furnishing DEC with broad overall “responsibility to carry out the environmental policy of this State,” as the Court of Appeals held in Flacke v. Freshwater Wetlands Appeals Board6 (sustaining DEC’s right to appeal from an adverse decision of the respondent agency). Again, in Sherwood Medical Co. v. New York State DEC,7 the court cited a related subsection of § 3- 0301 to show it “evident that the legislature intended to confer upon the Commissioner a broad based authority to implement the environmental policy of this State.” Otherwise, the silence is deafening.
The language regarding cumulative impacts was added, according to the State Executive Department, “[t]o confirm the authority of the Commissioner of Environmental Conservation to base determinations relating to licenses, orders, permits . . . or … rules, regulations, standards or criteria on the cumulative impact on fish, wildlife, water, land and air resources of the State of the project or matter involved, where such factors are not otherwise required to be considered.”8 The final clause of this sentence makes crystal clear that the added language was specifically intended to broaden the Department’s authority.
The Memorandum goes on to refer to Ton-Da-Lay, Ltd. v. Diamond,9 where one year earlier the Appellate Division, Third Department, upheld DEC’s denial of a water supply permit to a vacation home developer, but went on to rule that the Department could only examine the project’s own water supply concerns, not its impacts on the environment generally – particularly the nearby Adirondack Forest Preserve. The history behind the Ton-Da-Lay decision is instructive. In the 1960s and early 1970s, in the
aftermath of the building of the Northway interstate divided highway between Albany and Canada along the eastern side of the six million-acre Adirondack State Park, there was a boom of interest in second-home development in the Adirondack Park. One major proposed second home development, the 18,386 acre Ton-Da-Lay project in the Town of Altamont in Franklin County, would have had a significant impact on the forests, waters and mountains of the unique Adirondack Park. At the time few of the many towns and villages within the Adirondack Park had adopted zoning and planning laws and enactment of the State private land use plan for the Adirondack Park (Article 27 of the Executive Law) did not take effect until 1973. In fact, it is likely that the prospect of the State exercising some form of comprehensive land use jurisdiction in the Park hastened developers to act before it took effect.
The only meaningful environmental review that most Adirondack second-home developments were subject to before 1973 was associated with permitting requirements under the Environmental Conservation Law for water supply and sewage treatment system permits under ECL §§ 15-1501 and 15-1503. These permits had essentially been subject to basic engineering standards and not to a broader review of a project’s impact on natural resources or, in special places like the Adirondack and Catskill Parks, the character of the parks. The Ton-Da-Lay developer’s application to DEC for a water supply and a sewage treatment system permit in 1971 marked a watershed in how DEC applied its permitting authority. Following intervention in the permitting proceeding by the Sierra Club, ably represented by attorneys Robert Kafin and the late Ed Needleman, the Department’s traditional narrow consideration of permit applications was expanded to a comprehensive look at the impact of the proposed second-home development on natural resources and the character of the region over a 20-day hearing. In August 1973 DEC denied the developer’s application based on the cumulative impact of the proposed project on the unique and special resources of the Adirondack Park – – the determination the Appellate Division circumscribed. This directly led to the legislation amending § 3-0301.
Gov. Hugh L. Carey’s memorandum approving the 1975 bill, like the Executive Department Memorandum, noted that “[i]n the past, the Commissioner has asserted his authority to consider the overall environmental impact in making his determinations.” After Ton-Da-Lay “raised some doubt as to the Commissioner’s authority to take into consideration environmental factors other than those specifically relating to the permits applied for,” this legislation “would clarify the Commissioner’s authority in that regard, and insure that the total environmental impact of proposed projects will be considered by the Commissioner in making his determinations.”‘ 10
While this legislation, though enacted, languished, several cases reached the Court of Appeals raising the issue whether agencies adequately considered a project’s cumulative impacts under SEQRA. That statute requires state and local agencies to prepare an environmental impact statement (EIS) describing “the environmental impact of the proposed action including short-term and long-ten-n effects,” along with alternatives and mitigation measures.” DEC’s regulations make clear that cumulative impacts must be considered under SEQRA for actions resulting in “changes in two or more elements of the environment, no one of which has a significant effect on the environment, but when considered together result in a substantial adverse impact on the environment.” 12 Similarly, these rules require an EIS for “two or more related actions [J none of which has or would have a significant effect on the environment, but when considered cumulatively would meet one or more of the criteria” for significant impact. 13 Agencies are to weigh “reasonably related” cumulative effects, including actions that are “included in any long-range plan,” or are likely to occur as a result of, or depend on, such a plan. 14
The Court of Appeals has mandated that agencies consider cumulative impacts, notably in Village of Westbury v. Department of Transportation’ 5 where an EIS was ordered for two related highway projects, and in Save the Pine Bush v. City of Albany 16 involving development of parcels in an environmentally sensitive pine barrens. But the courts’ insistence that the projects be part of, or dependent on, an overall long-range plan, has led them to reject suits to require weighing of cumulative impact. For example, in Long Island Pine Barrens Society v. Planning Bd. of Town of Brookhaven 17 the Court of Appeals ruled an EIS to examine the cumulative impact of development in Long Island’s central pine barrens, vital to the island’s water supply, was not required since there was no overall plan to safeguard the pine barrens – – the very reason why weighing the cumulative impacts of that development was so important. And in Stewart Park and Reserve Coalition v. New York State Dept. of Transportation 18 cumulative impacts again were not required to be looked at where, the courts ruled, the impacts of two related actions – – increasing flights at an airport and expanding its size – – were different.
While none of those decisions happened to involve DEC as a lead agency with primary responsibility under SEQRA, many significant environmental determinations of course do. And in those situations, ranging from air and water permits to wetland protection and land use in wilderness areas where DEC has chief responsibility, § 3-0301 imposes on the Department a clear mandate to consider the cumulative impacts on the state’s environment of the action or project before it. The 1975 amendment to this statute, enacted the same year as SEQRA and for largely the same purpose, is really in pari materia with SEQRA. It is a clear, resounding mandate to DEC requiring it to weigh projects’ cumulative impacts, and one that New York’s courts should enforce vigorously. Insuring that DEC shoulder this responsibility the Legislature gave it twenty-six years ago is long overdue.
Philip Weinberg, a former Environmental Law Section chair, is Professor of Law at St. John’s Law School. He writes the Practice Commentary for McKinney’s Environmental Conservation Law and has written several books and many articles on environmental law.
Paul M. Bray, a former bill drafter for the New York State Legislature, was involved in the drafting of both SEQRA and ECL § 3-0301’s 1975 amendment. He writes extensively on environmental subjects.
1ECL §3-0101 (1) (a).
2 Id. (1) (b).
3 N.Y. L. 1975, ch. 532. SEQRA is ECL art.8.
4 76 A.D.2d 215, 430 N.Y.S.2d 440 (4th Dept. 1980).
5 76 A.D.2d at 222, 430 N.Y.S.2d at 447.
6 53 N.Y.2d 537, 541, 428 N.E.2d 380, 381, 444 N.Y.S.2d 48,49 (1981).
7 158 Misc.2d 281, 285, 599 N.Y.S.2d 382, 385 (Sup. Ct. Albany Co. 1993), reversed on other gds. 206 A.D.2d 819, 615 N.Y.S.2d 140 (3d Dept. 1994) (citing § 3.0301  [i] empowering DEC to prevent and abate air, land and water pollution).
8 Mem. Of State Exec. Dept., McK. 1975 Sess. Laws, 1668-69.
9 44 A.D.2d 430, 355 N.Y.S.2d 820 (3d Dept. 1974), app. dism. 35 N.Y.2d 789, 320 N.E.2d 870, 362 N.Y.S.2d 156 (1974), 36 N.Y.2d 856, 331 N.E.2d 695, 370 N.Y.S.2d 918 (1975), and 36 N.Y.2d 646, 332 N.E.2d 362, 371 N.Y.S.2d 1027 (1975).
10 Mem. of Approval, McK. 1975 Sess. Laws, 1756.
11 ECL § 8-0109 (2) (b), (d), (f).
12 6 NYCRR § 617.7 (c) (1) (xi).
13 Id. § 617.7 (c) (1) (xii).
14 Ud-I § 617.7 (c) (2).
15 75 N.Y.2d 62, 549 N.E.2d 1175, 550 N.Y.S.2d 604 (1989).
16 70 N.Y.2d 193, 512 N.E.2d 526, 518 N.Y.S.2d 943 (1987).
17 80 N.Y.2d 500, 606 N.E.2d 1373, 591 N.Y.S.2d 982 (1992).
18 157 A.D.2d 1, 555 N.Y.S.2d 481 (3d Dept. 1990), aff d mem. 77 N.Y.2d 970, 575 N.E.2d 391, 571 N.Y.S.2d 905 (1991).