By MICHAEL SAHN //
This year’s state budget includes hundreds of millions of dollars for big projects on Long Island, including a proposed bridge or tunnel to Westchester and a deep-water port in Shoreham, a new customs station at MacArthur Airport and money to beef up the Ronkonkoma and Nassau Hub projects.
There’s funding for new R&D facilities, an engineering school, even money for a third track on the LIRR.
If we are going to think seriously about these projects, we also need to consider how to apply SEQRA, the State Environmental Quality Review Act, which provides the ground rules for determining whether a project will have a significant impact on the environment.
The act is now 40 and showing some signs of age.
New York modeled SEQRA after the federal environmental review law, the National Environmental Policy Act, better known as NEPA. But there was one big difference: The federal rules require an environmental impact statement for projects that significantly affect the environment. New York requires identifying and studying projects that may affect the environment.
That’s a big “may.” It means that if a project has potential significant impacts, the approving agency must mitigate them. If the impacts can’t be sufficiently mitigated, the agency will most likely disapprove the project – and if the agency does happen to approve it, litigation challenging the approval is all but certain.
There are, obviously, plenty of good reasons to consider the environmental impacts of projects of regional significance. In fact, failing to consider a project’s environmental impact on ground water, wetlands, traffic and transportation systems – to name but a few – would be irresponsible.
Yet, right or wrong, SEQRA has become known as a major deterrent to big projects. Its procedures are often hugely time consuming and expensive. Everyone who deals with the SEQRA process has horror stories of how long it takes to complete the process – years in many cases.
There are many reasons for delays in SEQRA, and often the project sponsor or applicant is part of the problem. Likewise, the litigation that often follows a review adds significant delays. Over the years, it’s also filled law books with cases interpreting the act and its regulations, whether a sponsoring agency correctly conducted the review, and whether the agency determination was proper.
There is no doubt that Robert Moses could not have accomplished all he did if he had had to deal with SEQRA. If we are going to build all those budgeted big projects, we need to consider how we apply the act going forward.
Here are some suggestions:
- Re-examine the threshold that triggers the need for an environmental impact statement for large-scale projects of regional scope. Instead of identifying a single potential impact that might affect the environment, maybe the federal standard should apply. Or, perhaps there should be a combination of impacts that together are of sufficient significance to trigger the environmental review requirement. We need some standards beyond “may.”
- Require all potentially involved or interested agencies to meet within 30 days of the submission of an assessment request to decide which agency will take the lead in the review and determine the process for analyzing the environmental impacts. This gets everybody on the same page and eliminates time-consuming notice periods that precede the actual review.
- Require “scoping” for all projects. Scoping is the process of determining the issues to be analyzed in the impact statement, and it’s optional under SEQRA. Making scoping mandatory will save time and identify the real issues up front.
- Review and, where practical, tighten up the time frames for preparation of impact statements, scheduling hearings, establishing comment periods – the whole process, really – and make the time frames mandatory. Shorter mandatory time frames will lead to a more concise process and better focus participants on the main issues.
- Codify, by statute, rules that the courts have articulated over the years for when a SEQRA determination can be challenged and what parties have rights to challenge. Defining the legal rights of interested parties will benefit everyone, and ensure that real and concrete issues get litigated.
Think of these as discussion points. The point is, we now have funding for large-scale, visionary projects that could help shape our region for the future. We should have an equally enlightened process for diligent – but timely – environmental review in place now.
Sahn is managing partner of the Uniondale law firm Sahn Ward Coschignano. You can reach him via firstname.lastname@example.org.