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Proposed Amendments to New York’s State Environmental Quality Review Act Do Little More Than Provide Lip Service to Sustainability

Posted in Green Building, Renewable Energy

Over the last two years, the New York State Department of Environmental Conservation (DEC) has proposed and adopted changes to the State Environmental Quality Review Act’s (SEQRA) environmental assessment forms and implementing regulations. After more than a year of public review and comment, DEC adopted revised environmental assessment forms on January 25, 2012. Before last year, the forms had not been substantially revised since 1987. The SEQRA environmental assessment forms are appendices to the SEQRA regulations and are used by public agencies to evaluate whether proposed actions will result in significant adverse environmental impacts, which would require further study. The forms solicit information about the components of a project and are designed to aid and focus the agency’s attention on relevant impacts. The new SEQRA forms include questions designed to highlight new areas of environmental concern, such as climate change, smart growth, use of renewable energy, and brownfield redevelopment. For example, the forms now require information about:

  • State energy code compliance
  • The use of mass transit
  • The availability of biking or pedestrian facilities
  • Greenhouse gas emissions
  • The use of green infrastructure
  • Whether a brownfield site will be remediated
  • The quantity of energy to be used

There may be new forms requesting additional information, but there is no corresponding directive on how this information should be used by an agency, and little that would result in fast-tracking sustainable projects.

While the new forms signal DEC’s effort to incorporate sustainable growth into agencies’ decision-making, it is unclear how such changes will encourage sustainable projects and the use of renewable energy. The consensus among those in the regulated community is that the forms are exceedingly burdensome, which has resulted in frustrating the review of applications, including those that incorporate sustainability and renewable energy. In fact, the outcry was so strong that DEC determined not to require use of the forms until corresponding workbooks could be developed to aid in the forms’ completion. These workbooks are detailed manuals, which provide extensive guidance for each of the forms’ questions. The new forms are currently scheduled to go into effect on April 1, 2013 (extended from October 1, 2012).

DEC has also proposed changes to the SEQRA regulations and has made a weak attempt to streamline the environmental review for sustainable projects. There are no changes to guide agencies’ consideration of most renewable energy projects, little encouragement for the use of green building techniques, no direction on consideration of impacts from greenhouse gas emissions, and few provisions to fast-track green projects. The question that must be raised is, why ask for more information in the new forms if there is no corresponding directive on what to do with such information? These omissions are especially surprising given that DEC has previously shown some leadership in this area by adopting a policy governing DEC’s assessment of energy use and greenhouse gas emissions in environmental impact statements. Agency guidance on the use of this information is particularly critical given that the failure to consider climate change has led to rejection of some environmental assessments under the National Environmental Policy Act (NEPA) [see Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety Administration, 538 F.3d 1172 (9th Cir. 2008)]. SEQRA review, guided by the environmental assessment forms, needs to be complete to avoid a similar result.

While the proposed changes leave much to be desired, some efforts are laudable, such as encouraging development on previously disturbed sites in municipal centers with supporting infrastructure, promoting green infrastructure projects, and streamlining review of some solar energy development. For example, DEC has proposed to add some redevelopment on previously disturbed sites, small-scale solar energy development, and construction to incorporate green infrastructure techniques to its “type II” list. These actions are deemed not to have a significant adverse impact on the environment, and further environmental review is not required. The “type II” list is the likeliest avenue to encourage certain projects, because to be on the list is to be categorically excluded from further environmental review, which could lead to delays, significant expenditures, and litigation. But while the additions proposed are a step in the right direction, they are relatively modest and fall short of encouraging sustainable development on a broader scale.

DEC has other weapons in its arsenal that it, so far, has declined to use. In addition to expansion of the “type II” list, DEC could modify the regulations to utilize the new information gleaned from the revised forms. One possibility would be to modify the criteria for determining whether an action would result in a significant adverse impact by mandating consideration of the benefits derived from sustainable projects. But there is not even a hint that those portions of the regulations will be touched. DEC’s proposed regulatory changes are currently under review, and a formal notice of proposed rulemaking is expected in March 2013. DEC will also be issuing a generic environmental impact statement before the regulations become final. Public comment will continue to be accepted throughout the process.

 

Charles Malcomb is a senior associate in the Environment & Energy Practice at Hodgson Russ LLP. You can reach him at cmalcomb@hodgsonruss.com.