On Tuesday, the New York State Court of Appeals clarified many of the standards associated with the New York State Environmental Quality Review Act (SEQRA) in its unanimous decision in the consolidated cases of Friends of P.S. 163 Inc., et al. v. Jewish Home Lifecare, Manhattan, et al. and Wright, et al. v. New York State Department of Health, et al., 2017 NY Slip Op 08621 (2017). These cases, in which Petitioners appealed the January 2017 decision of the Appellate Division, First Department, relate to the construction of a new nursing home facility on an undeveloped lot on the Upper West Side of Manhattan.
SEQRA, which is modeled on the federal National Environmental Policy Act (NEPA), requires state agencies to assess potential environmental impacts of any of their discretionary decisions. The statute and its attendant regulations provide a process for the agency with discretionary authority—known as the “lead agency”—to determine first whether a given action “may have a significant impact on the environment,” requiring the preparation of an environmental impact statement (EIS). The EIS then prepared must identify all relevant areas of environmental impacts and provide sufficient information for the lead agency to “act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects.” The procedures also provide substantial opportunities for public input, ensuring that all potential environmental concerns are addressed. In addition, for actions undertaken in New York City, the New York City Law Department’s City Environmental Quality Review (CEQR) Technical Manual provides additional guidance as to how specific environmental impacts should be assessed.
Petitioners here argued that the New York State Department of Health (DOH), the lead agency charged with complying with the SEQRA process, failed to do so in their preparation of an EIS, which was prepared in accordance with the CEQR Technical Manual. In December 2015, the presiding Justice of the Supreme Court New York, New York County found that “[a]lthough the record indicates that DOH followed proper SEQRA procedures . . . DOH, in certain substantive areas identified above, did not take the requisite hard look at specific environmental issues.” Specifically, the Justice asserted that DOH improperly relied on the CEQR Technical Manual’s standards relating to temporary construction noise impacts and did not properly account for potential lead impacts when it utilized the National Ambient Air Quality Standards (NAAQs) for airborne lead. Friends of P.S. 163, Inc. v. Jewish Home Lifecare, 51 Misc. 3d 1225(A) at 20 (Sup. Ct. N.Y. Co. 2015). Additionally, the Justice found that the EIS did not adequately assess additional mitigation measures, namely the installation of central air condition to mitigate noise and tenting of the site to prevent migration of lead-containing dust. Id.
The Appellate Division reversed, finding that “DOH took the requisite ‘hard look’ at the project’s anticipated adverse environmental impacts, including noise and hazardous material impacts, and provided a ‘reasoned elaboration’ of its basis for approving the project, including the remedial measures to be employed to mitigate adverse impacts” and that the lower court had “erroneously ‘substituted its analysis for the expertise of the lead agency’ simply because the agency rejected what the court considered to be better measures in mitigation.” Friends of P.S.163, Inc. v. Jewish Home Lifecare, 146 A.D.3d 576, 580-581 (App. Div. 1st Dept. 2017)
In its unanimous opinion, the Court of Appeals affirmed the decision of the Appellate Division and found that it was not unreasonable for DOH to rely on either the NAAQs or the CEQR Technical Manual standards and that it had acted “within its ‘considerable latitude in evaluating environmental effects and choosing among alternatives.’” Friends of P.S. 163, Inc., 2017 NY Slip Op 08621 at 5. Moreover, the Court rejected challenges relating to the selected mitigation measures, restating the long-established standard that “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.” Id. at 4. Ultimately, the Court found that “DOH took the requisite ‘‘hard look’ at [relevant areas of environmental concern] and made a ‘reasoned elaboration’ of the basis for its determination.’” 2017 NY Slip Op 08621 at 6.
While largely squaring with existing SEQRA case law dating back to the early 1980s, the decision here reaffirms the degree of deference afforded to lead agencies both in determining the standards with which to assess environmental impacts and in selecting mitigation measures for those impacts. Additionally, this marks the first time the Court of Appeals has approved of an agency’s reliance on the standards outlined in the CEQR Technical Manual, which had previously been approved by both the First and Second Departments of the Appellate Division. As a result, lead agencies and developers in the city will have significantly more clarity as to the appropriate way to conduct environmental reviews moving forward.