Court of Appeals Declines to Up the Standards for SEQRA Review

The State Environmental Quality Review Act requires that agencies, municipalities, and local boards that have power to approve or fund projects study the potential adverse environmental impacts of a proposal before they approve it. This makes sense. If a project is going to have adverse environmental consequences for a community, the agency approving it should know that beforehand and factor those consequences and what can be done to mitigate them into its decision. As the Court of Appeals put it, SEQRA “represents an attempt to strike a balance between social and economic goals and concerns about the environment—defined broadly to include ‘land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character'” (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 414 [1986]).

Because this balance is very fact intensive, and differs with every proposal, substantial discretion is left with the agency that conducts the SEQRA review to determine what potential impacts need to be looked at closely, what alternatives should be considered, and what mitigation measures should be imposed.  Judicial review of these decisions is limited. A rule of reason is applied to the agency’s determinations, and they will be upheld so long as the agency has reasonably identified the potential adverse environmental impacts that the project might have, taken a “hard look” at those impacts, and set forth its determination whether the impacts will be significant in a writing based on the agency’s findings.

In Matter of The Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan (No. 128), which I previewed here, the New York State Department of Health reviewed and approved a 20-story nursing home that will be built on the Upper West Side of Manhattan next to P.S. 163, an elementary school with about 600 students between the ages of 3 and 11. During the SEQRA review, DOH identified that the construction could potentially cause noise and toxic dust exposure issues, but concluded that the mitigation measures that were selected would ensure that the exposure would not exceed federally acceptable levels.

Parents’ groups, however, argued that wasn’t enough.  They claimed that DOH’s SEQRA review didn’t take a hard enough look at the noise and toxic dust impacts and that the mitigation measures weren’t enough to protect the students next door. Supreme Court, New York County agreed and annulled the DOH approval. The Court held that DOH “did not address the particular adverse effects of elevated noise levels on children’s learning abilities or performance in school,” nor “take a sufficiently hard look at additional noise mitigation measures.”  The Court held that DOH did not take a hard enough look at the potential environmental impacts in light of the special concerns of having young elementary school students next door to the construction site.

The Appellate Division, First Department, however, reversed on a 3-1 vote. The Appellate Division held that a higher standard of environmental review doesn’t apply to this project because it is located next to a school.  DOH reasonably evaluated the noise impacts, the Court held, and was obligated only to evaluate and impose mitigation measures to the maximum extent practicable.  The best mitigation measures are not always required. Because DOH relied on the federal standards of exposure to determine whether the mitigation measures imposed would be adequate, the Court held that DOH complied with its obligations under SEQRA.

Although the Court of Appeals recognized the particular sensitivities of construction next to an elementary school, the Court declined to hold DOH to a higher standard of review. Particularly, the Court held, DOH, as the SEQRA lead agency, took the requisite hard look at the noise and dust impacts, and determined that they could be appropriately mitigated.

We disagree with petitioners’ lead claims, and, based on the record here, we conclude that DOH took the requisite hard look at the potential risk posed by soil-based lead contamination and potential lead dust migration. Petitioners’ claims that DOH’s soil-sample evidence was insufficient and resulted in unsupported conclusions about the risk posed by lead at the construction site are without merit. DOH relied on 38 soil samples, taken and analyzed according to a technically sound methodology by expert consultants. DOH weighed and resolved the disagreement voiced by the petitioners’ experts regarding the consultants’ methods and opinions. DOH’s conclusions are based on federal and state standards, including accepted EPA standards, on which the agency was legally allowed to rely. Petitioners may have preferred DOH to adopt a different standard, but we cannot say DOH’s determination “was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (Akpan, 75 NY2d at 570 [1990] [internal quotation marks omitted]).

Petitioners’ challenge to DOH’s assessment of lead dust is similarly unavailing. As the record establishes, DOH relied on detailed investigations by experts, and employed appropriate government standards in assessing the risk of airborne lead. The DEIS, FEIS, and Findings Statement all explicitly acknowledged and evaluated the risk that construction would disturb leaded soil, creating airborne lead dust. In assessing how acute a danger the lead dust posed, DOH directly relied on the federal NAAQS for lead exposure, which was a rational choice, particularly as this standard was specifically formulated to protect sensitive populations, like schoolchildren.

Preventing the migration and inhalation of lead dust was one of the environmental risks the agency specifically set out to measure and mitigate in the RAP and CHASP that it adopted. In recognition of the risk, DOH imposed a battery of construction protocols to monitor and contain airborne dust. DOH reasonably concluded that these mitigation measures were sufficient to ensure that airborne lead levels remained within acceptable NAAQS limits, and explained its assessment fully in the DEIS and FEIS.

(Opn, at 13-14).

Had the Court accepted Petitioners’ arguments that the detailed review that DOH undertook just wasn’t good enough, it basically would have re-written all of its SEQRA precedents over the last 40 or so years.  The fundamental premise of SEQRA review is that it is for the lead agency, not the courts, to consider the evidence of environmental impacts and determine how best to mitigate them to the maximum extent practicable.  As long as the agency’s choices are reasonable, the courts properly defer to the lead agency’s decisions. Thankfully, with this decision, the SEQRA treatise need not be rewritten.

The Court of Appeals’ opinion can be found here.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: