Survey: 2011 Environmental Law

Mark Chertok and Jonathan Kalmuss-Katz overview developments in the state of New York in the area of Environmental Law.

This Article will discuss notable developments in the law relating to the New York State Environmental Quality Review Act (SEQRA) for the Survey period of 2010-2011.  While there have been no major SEQRA decisions from the Court of Appeals since 2009, a series of regulatory proposals, new legislative enactments, and appellate division and supreme court rulings have updated, clarified, and, in some instances, changed SEQRA practice in the interim.

In 2010, for the first time in two decades, the Department of Environmental Conservation (DEC) proposed revisions to its Full Environmental Assessment Form and Short Environmental Assessment Form, aimed at bringing those documents up to date with current SEQRA practice. Environmental Assessment Forms are widely used in SEQRA practice as they comprise the principal factual predicate upon which a government agency will determine whether a proposed action requires an Environmental Impact Statement (EIS), or whether the agency can issue a negative determination (i.e. that no EIS is required) and terminate the SEQRA process. DEC also published a new edition of its “SEQRA Handbook” in August 2010, providing an updated resource for practitioners and reviewing courts.

In June 2011, the New York State Legislature reauthorized Article X of the Public Service Law, establishing an alternate environmental review process for new and substantially modified power plants. Article X, which was previously in effect from 1992 through 2003, displaces SEQRA for covered projects, though the two regimes share many common elements.

Case law also continued to develop on key issues such as the supplementation of environmental review and the concomitant need for a supplemental EIS (SEIS), the “hard look” standard under which SEQRA challenges are judged, and private party standing to pursue a SEQRA claim. In Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Appellate Division, First Department, required an SEIS analyzing the maintenance and monitoring requirements within a Site Management Plan (SMP) prepared pursuant to the State Brownfield Cleanup Program (BCP). That decision marked a significant change to the SEQRA review for remedial projects and the procedure and standards for requiring an SEIS, and set the stage for the Court of Appeals’ next SEQRA ruling. A series of recent decisions in state and federal court addressed a lead agency’s obligations in determining the environmental significance of proposed actions, or lack thereof, under SEQRA.  Finally, in Rizzo v. Verizon CCC LLC, the Supreme Court, Niagara County, upheld a landowner’s standing to challenge the SEQRA review concerning a neighboring parcel of land, despite the petitioner’s lack of residence or physical presence on the property.

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Mark A. Chertok is a partner, and Jonathan Kalmuss-Katz an associate, at Sive, Paget & Riesel, P.C., in New York, NY (www.sprlaw.com).  Both authors practice environmental law at the firm.

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