Annual Survey Of SEQRA Cases: Bad For Plaintiffs, But Important Bill Pending

• Published date: 21 July 2022
• Subject Matter: Environment, Environmental Law, Clean Air / Pollution
• Law Firm: Arnold & Porter
• Author: Mr Michael Gerrard and Edward McTiernan

This past year was the worst ever for parties bringing cases under the State Environmental Quality Review Act (SEQRA). Of the 40 decisions in 2021, plaintiffs won only two, with another two surviving motions to dismiss. Moreover, three plaintiffs' victories in prior years were reversed on appeal.

However, the most important SEQRA development by far will come if Governor Kathy Hochul signs a bill that would amend the statute by requiring far more baseline and cumulative impact review, and barring the issuance and renewal of permits that would have disproportionate impacts.

This annual SEQRA review first examines the pending bill, and then describes the most noteworthy decisions.

Cumulative Impacts Bill

S.8830/A.2103D passed the Senate on April 25 by a vote of 62 to 0, and the Assembly on April 27 by a vote of 141 to 4. Governor Hochul has 30 days to sign or veto the bill, but the clock does not start until the Legislature formally sends it to her; customarily that does not happen until the governor is ready. If she takes no action by the end of the year, that counts as a veto.

The bill provides that every environmental impact statement (EIS) prepared under SEQRA must discuss the "effects ... on disadvantaged communities, including whether the action may cause or increase a disproportionate or inequitable ... pollution burden on a disadvantaged community."

For every project requiring a permit from the Department of Environmental Conservation (DEC), "an existing burden report" must be prepared with "baseline monitoring data collected in the affected disadvantaged community within two years of the application," with data about, among other things, existing pollution sources; ambient air pollution levels; traffic, noise and odor levels; and a description of how the proposed project would add to existing cumulative "pollution burdens."

Most significantly, the bill provides that "[n]o permit shall be approved or renewed by [DEC] if it may cause or contribute to, either directly or indirectly, a disproportionate or inequitable ... pollution burden on a disadvantaged community." This substantive provision goes beyond any other environmental justice law in the United States. The governor is being pressed by both supporters and opponents of the bill.

Statistics

Of the 40 cases decided in 2021, the courts upheld agency decisions not to prepare an EIS in 22, and overturned such decisions in two. In five cases, EISs were upheld; no cases found EISs to be deficient. In...