SEQRA under fire from business, DEC
Most developers think it goes too far. Many in the environmental advocacy community think it doesn’t go far enough. But for all the criticism and controversy generated by the State Environmental Quality Review Act SEQRA) over the past four decades, it is still undeniably the primary tool in NY to “inject environmental considerations directly into governmental decision making.”
Those who wish to transform landscapes or emit pollutants into our air and water claim environmental review unreasonably slows the inevitable. Those who wish to protect New York’s natural resources counter that the SEQRA process seldom stops projects that should never have been proposed in the first place.
This past year alone has seen major delays for bad proposals relating to fracking permits, excessive water withdrawals, desalinization plants, and mega developments in wilderness areas. But definitive denials to these needless assaults on our environment are rare. While thousands of development proposals sail through the process annually, a minority of stalled bad proposals is being cited by some in government and industry as justification for undermining SEQRA and public participation in protecting the environment. The Sierra Club has long argued that it is not SEQRA at fault for lengthy delays to bad proposals, but the poorly conceived proposals themselves.
Established by the NYS legislature in 1975, SEQRA establishes a process that systematically considers environmental factors early in the planning stages of actions that are directly undertaken, funded or approved by local, regional and state agencies. A key component to SEQRA mandates an environmental impact statement (EIS) for projects that could harm air or water resources, biodiversity, cultural resources or community planning or function. It is at this stage where public opposition to negative aspects of a proposal can yield the best changes and compromises.
But before an EIS is required on a truly problematic proposal, there has to be a “positive declaration” from a lead agency in charge of the project’s review. Alternatively, if a lead agency deems that a project poses no significant environmental threat, it issues a “negative declaration” or a “neg dec,” meaning that no environmental review is required and issues relating to natural resources will not be substantively considered.
The Department of Environmental Conservation often finds itself in the position of lead agency and one would assume it would follow a standard of erring on the side of caution. But in 2013, the DEC issued a string of unfortunate “neg decs” that have shielded questionable projects from review and public participation.
One could argue that this abdication of DEC responsibility is a function of an agency that has been decimated in recent years by 23% staff reductions and even greater reductions in funding. The DEC’s refusal to conduct environmental reviews could be attributed to lack of funds. But some of the determinations are so egregious that one has to wonder how much influence the development community has injected into an administration desperate to shake off the false reputation that New York is not “open for business.”
Let’s look at some of DEC “neg dec” determinations over the past year:
• Permitting an additional billion gallons of fracked Bakken shale oil from North Dakota to pass through the Port of Albany annually. Determination: no environmental significance.
• Permitting the withdrawal of 1.5 billion gallons of water a day for a power plant cooling system in a sensitive fisheries area. Determination: no environmental significance.
• Changing CAFO regulations by increasing the number of cows on a factory farm by 100 before manure management plans need to comply with water protection laws. Determination: no environmental significance.
• Overhauling 40 years of legislative precaution over the storage and transport of liquefied natural gas (LNG) with lax new regulations. Determination: no environmental significance.
• Fundamental regulatory changes to how the actual SEQRA law is implemented. Determination: no environment significance.
It is this last “Neg Dec” that may be the most troubling because if these reforms go through it will forever weaken environmental standards statewide and further subvert public participation.
The DEC claims that its intention is to “streamline the SEQRA process without sacrificing meaningful environmental review.” But in the reading of the supporting documentation there is little commentary, example or actual cases to justify that changes to SEQRA are needed at all. What unnamed problems will be addressed by streamlining SEQRA?.
What is clear is that the changes themselves, if enacted, will forever mar the effectiveness of SEQRA. Among the most harmful reforms:
• The DEC proposes to constrain the breadth of an EIS solely to issues considered during scoping. Scoping plays a critical role in not only identifying issues germane to the environmental review but as a means to enlist public participation early in the process. In my experience, many issues of local significance are not raised during scoping because the public is still learning about the proposal before them. It is often months after scoping is finalized that a critical mass of public awareness develops and new and important information comes forward.
By placing limitations on the introduction of new information after the completion of the final written scope, the DEC is unnecessarily weakening the thoroughness of reviews, and creating an incentive for applicants to withhold information about a project until after the final scoping document is complete. Facts that come to light afterward will have a difficult time getting included in the draft EIS.
• The DEC proposes to cap the EIS timeframe. For nearly 40 years, SEQRA has been administered with an open-ended timeframe for the completion of environmental impact statements. This makes sense since the amount of time needed to complete an EIS is entirely proportional to the scope of the project or the appropriateness of the action.
But the DEC is now proposing that all EIS’s will be deemed final within 6 months, whether they are complete or not. One only needs to look at the five-year review for high- volume horizontal hydraulic fracturing to understand that any SEQRA-compliant investigation cannot be rushed if it is to be effective. If this change were in effect in 2008, we would be fracking today in New York.
• The DEC proposes to expand the “Type II” list of actions that are always exempt from EIS review. These would include projects that employ smart growth principles, redevelop urban centers, and use “green infrastructure.” While it would seem that promoting certain activities by excluding them from potential environmental review is a worthy incentive, such exclusions come with uncertain and potentially counterproductive results.
Exempting projects that embody apparent “green” attributes will inevitably lead to a rash of proposals that will proclaim “sustainability” but may have clear deficiencies (i.e., a LEED platinum building sited in a critical habitat.) Ultimately, the potential for abuse of green exemptions outweighs the benefit of bypassing environmental review. Again, well-conceived projects seldom get hung up during the SEQRA process.
While there are even more regressive SEQRA reform proposals coming down the pike, these changes alone could potentially undermine nearly 40 years of case law supporting the state’s primary tool for environmental review, planning and protection.
Rewriting and weakening SEQRA to expedite ostensibly worthy projects may have unintended consequences: uncertainty about new regulations will most certainly end up with more projects mired in the courts. And, unless the public gets engaged in a more forceful fashion, the outbreak of “neg decs” will lead to further disenfranchisement of New Yorkers who have a stake in protecting their environment.