Eye from Albany
Twenty Fifth Anniversary of SEQRA
by Paul M. Bray
One could say that the environmental era in New York State truly began in 1975 with the enactment of the State Environmental Quality Review Act (SEQRA). Over twenty five years SEQRA has become an icon for the environmental community and the bane of developers. The twenty fifth anniversary is a good time to look back to look what the impact of the environmental impact law has been and what its future should be.
In 1975 I was the bill drafter for Assemblyman Herbert Posner (D-Queens) who chaired the Assembly Environmental Conservation Committee and sponsored the SEQRA legislation.
Early 1970s efforts to pass environmental impact legislation ended up with the Assembly and Senate at loggerhead. The Senate would pass an environmental impact statement requirement for public infrastructure projects and the Assembly?s bill had only the requirement impact review for certain private projects that required public approval. Each house would not pass the other house?s bill.
While the Democrats where in the minority in 1974, Assemblyman Posner asked me if there was another approach to environmental impact legislation. I pointed out the existence of a state model law that drew heavily from the National Environmental Policy Act making me more of a bill finder than drafter. The model act in effect combined the Assembly and Senate versions to provide for review of significant public infrastructure projects and private projects requiring public approval.
The next year the Assembly went Democratic and Assemblyman Posner became Chair of the Assembly Environmental Conservation Committee. A dedicated legislator, Posner teamed with his Republic counterpart, another dedicated legislator-Senator Bernard Smith who Chaired the Senate Conservation Committee. Posner would take the lead with SEQRA and Smith would advance Environmental Citizen Suit legislation in his house.
That is when the bill drafting really began as the legislation was twinked this way and that way to address conflicting concerns of state development agencies like DOT, private developers and environmentalists.
For example, the environmentalists were nervous at the lack of a policing agency determining when preparation of an environmental impact statement (EIS) would be required and, when required, to determine that it was done satisfactorily. But Posner was not unrealistic to believe that SEQRA had to be self enforcing with the courts as last resort when agencies failed to comply. The compromise was having the Department of Environmental Conservation design guidelines by regulation, but not having policing or compliance authority. That would have killed chances of passing the bill. Compliance would be left to the courts
Governor Carey?s Counsel was protective of the interests of agencies like the Department of Transportation and wanted to have SEQRA to simply be a disclosure and reporting law. Under his formulation agencies would have to disclose environmental impacts but not have to change their plans to respond to the impacts. Here Posner held the line. SEQRA requires agencies to consider alternative actions and mitigate harms giving the law what Attorney Philip Weinberg calls in his Practice Commentaries ?prodigious strength?.
Enactment of SEQRA created what the New York Environmental Law Treatise calls of all the State?s environmental laws ?perhaps the most pervasive and far-reaching in fostering public awareness of local environmental concerns and enabling the public and government to protect a broad range of environmental values?. It does not place the environment above concerns for social and economic values, but for the first time it gave the environment parity with these values.
While SEQRA?s impact has been pervasive and significant on development activities in the State, actually gauging that impact is difficult. Albany attorney Dan Ruzow who has been an active commentator on SEQRA through the Bar Association told me ?intuitively, SEQRA has been incredibly, albeit incrementally, influential by forcing environmental consideration. The environment has been protected not just by stopping big projects, but by the many changes of projects that have been undertaken.?
Because of SEQRA many development projects have been scaled back. The full range of environmental issues have been open for consideration including development impacts on ?human and community resources?. SEQRA has been a force, for example, in having drainage controls viewed in light of the whole watershed rather that simply as an engineering issue. It has created a process that offers the public greater opportunity to be heard.
But SEQRA can be subject to legitimate criticism by both development interests and environmentalists. On the one hand, it subjects development to unnecessary cost while at the same time it has not guaranteed the level of environmental protection it should have.
Private and public developers have legitimate cause to complain about the uncertainty over what will be approveable and time costs that SEQRA has created. The SEQRA process can take six to twelve months or longer and changes in the financial market over that time can take a toll on the project sponsor.
The capability for local and state government to comprehensively plan and establish policies and rules for a clear and level playing field for developers to know what can and cannot be build exists. Only the political will to do so isn?t there.
Laws for the Hudson River Valley Greenway and the Long Island Pine Barrens offer the potential of land use plans subject to generic or anticipatory environmental impact review, but these steps to address the uncertainty issue are modest. Until the State embraces real comprehensive land use planning by its municipalities consistant with state and regional environmental, social and economic interests, SEQRA will continue as a weak substitute at significant cost to developers as well as the body politic.
But if environmentalists think that the uncertainty albatross around the developer?s neck is a win for them, it is at best a pyretic win.
SEQRA in perfect and probably will never achieve its full potential in protecting environmental values. While the courts have been tough on enforcing SEQRA procedures, they have cut public agencies allot of slack reviewing environmental decisions. And frequently state agencies and local governments are reluctant to be environmental protectors.
Perhaps no better example of this exists than the cumulative environmental impact law that was enacted in the same year as SEQRA. The cum impact law empowered the Department of Environmental Conservation to ?take into account the cumulative impact upon all such resources (water, land, fish, wildlife and air) in making any determination in connection with any license, order, permit, certification or other similar action.? Simply state, the Department has the authority to review and act to protect all the environmental resources through any one of its singular permitting actions that might for example be for some aspect of a large regional mall. This is one part of the Department?s arsenal that it prefers to ignore.
The basis for common cause exists for developers and environmentalists to substitute real comprehensive land use planning for SEQRA. Developers would get certainty and environmentalists should get a higher level of protection including cumulative considerations for the environment.
But don?t look for this to happen for many reasons. This magnitude of reform requires trust and little if any trust exists between the developer/business community and environmental activists. Nor is there trust between state and local government when it comes to land use reform. Land use powers represent one of the last bastions of local power and local governments fear that any land use reform will rob them of too much of that power. Besides, despite protestations to the contrary, local officials have found that SEQRA?s ad hoc nature serves them well. They can hide behind it when controversial projects arise.
So for better or worse, SEQRA will probably with us as far into the future as one can see. Certainly, we are better off with it than without it. But let us not forget that we pay an unnecessary price for its benefit that could be lifted if we could get our political act together for the next level of reform.