Environmental requirements are complex and confusing - New York's Environmental Quality Review Act (SEQRA) is certainly no exception. Sometimes, however, our courts can shed some light and clarify issues when it comes to complying with complex environmental rules.
In December 2017, the New York State Court of Appeals, the highest court in the state, clarified the standards that state and municipal agencies can use when conducting environmental assessments performed pursuant to SEQRA. In Friends of P.S. 163 Inc. v. Jewish Home Lifecare, Manhattan, 2017 NY Slip Op 08621 (N.Y. Dec. 12, 2017), concerned the construction of a nursing home on an undeveloped lot in the Upper West Side of Manhattan next to an elementary school and other residential buildings; the issue was whether the New York State Department of Health (DOH) complied with SEQRA during the environmental assessment process. In a unanimous decision, the Court of Appeals held that the agency did comply with SEQRA, reasonably relying on specific federal and city standards.
For background, SEQRA is modeled after the federal National Environmental Policy Act (NEPA), and requires state and municipal agencies who propose projects or provide discretionary approvals (permits) for a project to assess the potential environmental impacts of such project. A "lead agency" is selected to navigate the procedure detailed in the SEQRA regulations. First, the lead agency must determine whether the proposed action may have a "significant impact" on the environment; if the action may have a significant impact then an EIS must be prepared by the agency or the private party. The EIS must identify all relevant areas of potential environmental impacts and provide sufficient information for the lead agency to proceed and to mitigate, or reduce, the environmental impacts of the project. If the proposed action is in New York City, the New York City Law Department's City Environmental Quality Review (CEQR) Technical Manual includes additional guidance in assessing potential environmental impacts.
In Friends of P.S. 163 Inc., parents of students attending the elementary school near the lot and residents of the adjacent apartment buildings challenged the DOH's SEQRA process in an Article 78 proceeding, alleging it was based on a flawed assessment, and failed to mitigate potential environmental impacts. The trial court found in favor of the parents and residents, holding that DOH improperly relied on the CEQR Technical Manual standards for temporary construction noise impacts and improperly used the National Ambient Air Quality Standards (NAAQs) to account for potential lead impacts. The Appellate Division, however, disagreed with the trial court's finding and reversed.
The Court of Appeals heard the case and unanimously affirmed the Appellate Division decision, holding that DOH had taken the required "hard look" at the areas of environmental concern, namely construction noise and airborne lead, and reasonably relied on the CEQR Technical Manual and the NAAQs in conducting its assessment. The Court determined that where there are no New York airborne lead risk standards, it is appropriate to rely on the national standards and the CEQR Technical Manual, which was developed specifically for agencies to use during the SEQRA procedure for projects in the City of New York.
What does this mean for you? Next time you find yourself navigating SEQRA's requirements or are considering challenging a determination, remember that the lead agency may be able to rely on technical manuals or national standards, such as the NAAQS for airborne lead and the CEQR Technical Manual standards, in making it ultimate decision. Real estate and in-house counsel, as well as real estate developers and citizen or environmental opposition groups, should take particular notice of this decision.
Call the attorneys of Periconi, LLC at (212) 213-5500 if you think your proposed development may trigger SEQRA review or if you have general questions about New York's complicated SEQRA process.