Survey Of 2022 Cases Under State Environmental Quality Review Act

• Published date: 17 July 2023
• Subject Matter: Environment, Media, Telecoms, IT, Entertainment, Real Estate and Construction, Environmental Law, Mobile & Cable Communications, Construction & Planning
• Law Firm: Arnold & Porter
• Author: Mr Michael Gerrard and Edward McTiernan

The courts in New York issued 43 opinions in 2022 under the State Environmental Quality Review Act (SEQRA). Of these, the largest number'27'upheld agency decisions not to prepare an environmental impact statement (EIS), and eight overturned such decisions. Six cases upheld actions that had been the subject of an EIS; none overturned such actions. Two cases can't be classified in this fashion.

These numbers are in line with the longstanding pattern that a project's greatest litigation vulnerability under SEQRA is the failure to prepare an EIS; if an EIS has been prepared, very rarely will the approvals be annulled on SEQRA grounds.

The most important SEQRA developments in the past year, by far, were the statutory amendments that required much more detailed baseline and cumulative impact analyses, and banned the construction of some new facilities that would add to the pollution burden in disadvantaged communities. We discussed these amendments in detail in our column of May 10, 2023, "New York Adopts Nation's Strongest Environmental Justice Law," and we will not repeat that here. There are not yet any judicial decisions under these amendments.

The balance of this column will discuss the most important 2022 cases. All the cases will be included in the forthcoming annual update to Environmental Impact Review in New York (Michael B. Gerrard, Daniel A. Ruzow and Philip Weinberg, eds.).

SEQRA as Delay Tactic

One unusual decision was Verizon Wireless of the East LP v. Town of Wappinger, 2022 U.S. Dist. LEXIS 17003 (S.D.N.Y. Jan. 31, 2022). The plaintiff applied to the town planning board for a permit to erect a cell tower. The planning board discussed the project at several meetings and did not raise major objections. The town planner circulated a draft negative declaration (a finding that no EIS is needed) that explained why the proposed cell tower "will not have a significant adverse environmental impact on any scenic or aesthetic resources." After several hearings at which some neighbors raised strong objections, primarily based on visual impacts, the planning board issued a positive declaration (a decision to require an EIS).

Approval of cell towers is governed by the federal Telecommunications Act of 1996 (TCA), which was intended, in the words of the congressional conference committee, "to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services." The TCA provided that state and local governments...