SEQRA: Effective Weapon, If Used Directed

Abstract

INTRODUCTION After a quarter of a century, the State Environmental Quality Review Act (1) (SEQRA) is firmly in place as an integral part of New York's governmental landscape. It has furnished an absolutely vital fulcrum from which the public can participate in--and if necessary challenge--decisions inflicting environmental impacts on local communities. This statute has bolted the door forever on the notorious era when state and local governments could make land-use decisions in the proverbial smoke-filled room, injuring communities with impunity, exemplified by the oft-quoted line of that consummate builder, Robert Moses, that [o]nce you sink that first stake, ... they'll never make you pull it up. (2) SEQRA has halted---or significantly reduced the impact of--numerous actions of New York State and local government agencies, including shopping mall rezonings, highways, sports stadiums, and large-scale residential subdivisions. (3) The litigated decisions are but the tip of the iceberg; many more agency determinations have been modified mitigate their environmental impacts without--or in order avert--SEQRA litigation. Yet, like most statutes aimed at complex problems, SEQRA is not a panacea. There are several respects in which it could be more effective. (4) This brief article is intended focus on the most salient. SCOPE OF JUDICIAL REVIEW First, the courts accord great deference agency decisions involving the exercise of discretion. (5) After a series of early decisions overturning land-use determinations where agencies ignored SEQRA procedure entirely, (6) or blatantly violated the Act's procedures, (7) local governments learned--some more quickly than others--that courts would not hesitate step in where SEQRA was sidestepped. (8) But, as long as agencies follow SEQRA's procedures, i.e., preparing environmental impact statements (EISs) and weighing alternatives and measures mitigate harms, (9) courts are reluctant interfere with the actual determinations governments make. For example, in Jackson v. New York State Urban Development Corp., (10) the Court of Appeals rejected claims that an EIS for a major office building redevelopment around Manhattan's Times Square failed consider the gentrification and displacement of existing residents that would likely occur (11) (and in fact has). (12) This judicial attitude stems from a long history of judicial deference administrative bodies' expertise, based on the constitutional separation of powers and the hesitancy of judges substitute their judgment for that of the executive branch. (13) This has led, in some SEQRA cases, the courts upholding local government permits for large-scale development, despite the likelihood of severe impacts on traffic, water supply, sprawl and related concerns. (14) It is proper for the judiciary defer presumably expert--and responsible--government agencies when reviewing those bodies' decisions. (15) But this deference places a heavy burden on those administrative agencies--planning boards, town boards, highway departments, and the like--to genuinely take environmental issues into account, and not simply rubber-stamp projects with serious impacts. It also means citizens must be prepared furnish persuasive factual proof of potential environmental harms when opposing a development. (16) In the end, greater sophistication and organization among citizen groups are the best means of making SEQRA work, and, in the long run, of convincing elected officials that responsiveness environmental concerns is good politics. (17) But in addition, the courts ought not hesitate annul agencies' actions that neglect SEQRA's mandates nor should they or defer unduly agencies' expertise where environmental concerns have been given short shrift. (18) As the Second Circuit memorably held in Scenic Hudson Preservation Conference v. Federal Power Commission, (19) a landmark early environmental decision, agencies ought not to act as an umpire blandly calling balls and strikes for adversaries appearing before [them]; the right of the public must receive active and affirmative protection at the hands of the [agency]. …