Time for the Old Chestnuts Protecting the State’s Environment

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Eye from Albany
January 2007

Time for the Old Chestnuts Protecting the State’s Environment

By Paul M. Bray

The opportunities for change that go with a new administration in Albany give me the feeling of being father time. My shelves are full of old chestnuts that should be trotted out for another try at realizing their great potential. Most were ahead of their time. It is only a matter of time before their time comes.

A successful planner (something so few and far between) once pointed out to me that those plans that have been scorned for “sitting on the shelf” can have great effect if they are remembered when the time is right.

If we wish to protect and have comprehensive management over lands, waters and resources of the state, the time is right for (1)making use of the state’s cumulative impact law, and (2) application of the state’s fiduciary responsibilities for its natural and cultural resources through the public trust doctrine.

The State Environmental Quality Review Act (SEQRA) is not perfect and probably will never achieve its full potential in protecting environmental values. While the courts have enforced SEQRA procedures, they have cut public agencies allot of slack reviewing environmental decisions. All too frequently state agencies and local governments are reluctant to be environmental protectors especially if it will get in the way of their primary missions like building highways and generating local tax revenue. Often environmental interests can’t get into the court house to challenge SEQRA decisions because of the high fence the courts have built when it comes to access.

For the most part state government stepped aside when it comes to land use decision making and we have paid the price in terms of deteriorating environmental quality and the economic inefficiency of sprawl. All of our environmental qualities come from what we do on the land and how we do what we do. If land use decision making is fragmented and parochial, environmental consequences are negative.

This was recognized in the early 1970s when the Adirondack Park was under assault by large second home developers. Local governments were ill-equipped to face this onslaught and for the most part appeared to think all development was good.

The Adirondack Park, now more than a century old, is special in many ways and the state was not going to stand for it to be despoiled. As a result, the Department of Environmental Conservation (DEC) pulled up its pants to stop the proposed Ton-da-lay second home development in Franklyn County and buy time for the legislature to enact the Adirondack Park Land Use Management Plan.

It is interesting how DEC responded to Ton-da-lay, a proposed 20,000 acre project. It had jurisdiction over various aspects of the project like permitting for the proposed water system, sanitation and stream protection. But its practice had been to treat each aspect of a project independently and not look at its whole or cumulative impact on the environment. DEC had at that time and still has an attitude that it does not want to be a land use regulatory agency.

Despite its institutional drag, a long 20 days of hearings on Ton-da-lay with withering questions coming from private environmental attorneys from Sierra Club made the potentially disastrous environmental impact of the project very evident. Governor Huff from Vermont came over to testify for Sierra Club at the end of the hearings and made that point very clear.

To make a long story short, former DEC Commissioner Henry Diamond found summary powers in the Environmental Conservation Law to consider the projects cumulative impact on the environment and to render a decision that withheld necessary permits for the project to go forward. The courts upheld Diamond’s decision.

Ignored by DEC and not known by most in the State, the Legislature when it adopted SEQRA in 1975 also enacted Sec. 3-0301(1)(b) that explicitly granted DEC the authority to “take into account the cumulative impact” when considering a license or permit. Prof. Phil Weinberg and I wrote in an article entitled “DEC’s Overlooked Authority to Weigh Cumulative Impacts” for The New York Environmental Lawyer that declared” A few reported decisions have relied on sec. 3-0301 generally as furnishing DEC with broad overall ‘responsibility to carry out the environmental policy of the State’Otherwise, the silence is deafening.”

On the shelf rests the authority needed “to foster the planning of future development that New York so sorely lacks”. Eliot Spitzer is the first New York Governor since Rockefeller who may have the will and determination to do what is right and nothing is more right than environmentally sensitive land use decision making.

Another avenue toward protecting and fully realizing the potential of the state’s natural and cultural resources is the public trust doctrine (PTD). The doctrine goes back to Roman and English civil law and provides the “title to tidal and navigable freshwaters, and the land beneath, as well as living resources inhabiting these waters is vested in the sovereign for the benefit of the people”.

The definition of what is included under the doctrine, hereinafter referred to as the Common, may change according to the public interest in natural and cultural resources.

PTD is most familiar as protecting public rights in navigability of waterways and allowing public access to the foreshore between high and low tides. In recent decades as a result of the increase of environmental assaults on natural and cultural resources as well as on the world’s climate through man’s causing global warming, PTD has received greater attention as a vehicle for meeting the fiduciary responsibility of government to protect the public’s interest in the natural and cultural environment.

This scope was noted in 1970 by Prof. Joseph Sax who wrote, “Of all concepts known in American law, only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems.”

The time as come for the state to commence application of PTD through area wide management. The National Project on the Public Trust Doctrine’s report found that “area-wide management programs may be structured, using the public trust doctrine and the state’s police powers in tandem, to encourage comprehensive management over lands, waters and resources within the area, and thus avoid the limitations of ad hoc permitting decisions”.

A court in New York State has already declared that, “The entire ecological system supporting the waterways is an integral part of them and must necessarily be included within the purview of the trust.” A court in Iowa noted that PTD has, “emerged from the watery depths [of navigable waters] to embrace the dry sand area of a beach, rural parklands, a historic battle field, wildlife, archeological remains , and even a downtown area”.

In 1994 I proposed how comprehensive management of New York’s Canal System (an area of the state’s common) could be achieved using public trust principle. (Albany Law Journal of Science & Technology, Vol. 4, No. 1) The public’s interest in this common spanned navigation, recreation, public access, environmental quality, protection of cultural resources, open space and economic objectives like tourism, commercial transportation and community development. The public interest forms the basis for identifying, ranking and permitting use of public trust resources. The “doctrine’s traditional flexibility permits States to weigh social {and environmental values and change priorities]at different times.”

Comprehensive management has taken root in different ways in the Adirondack Park, the Catskill watershed and the Long Island Pine Barrens. Many other significant areas like the Hudson River Valley, Catskill Park, the Canal System, Tug Hill and the coastal ecosystem are still subject to hit and miss piecemeal regulation often with very little role for the state to realize its fiduciary responsibility.

With a new Governor and a law enacted in 2006 dedicated “to conserve, maintain and restore coastal ecosystems so that they are healthy, productive and resilient and able to deliver the resources the people want and need”, the long awaited opportunity to apply the state’s cumulative impact law and the public trust doctrine for area-wide comprehensive management may have finally arrived.

Paul M. Bray is President of P.M.Bray LLC, an environmental and planning law firm in Albany, NY. His e-mail address is pmbray@aol.com