SEQRA, Little NEPA - Paceedu

8/2/2019 SEQRA, Little NEPA - Paceedu

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SEQRA'S SIBLINGS: PRECEDENTS FROM LITTLENEPA'S IN THE SISTER STATESNicholas A. Robinson*

Most environmental degradation occurs incrementally and cumula-tively. The small homebuilder blacktops and covers a vacant lot,thereby increasing the flow of casual surface waters on other lots inthe watershed; by itself the effect is not noticed, but when several,

score of homebuilders repeat the event, flooding occurs downstream.The same is true of the isolated discharge of one smokestack's emis-sions into the atmosphere or the seemingly isolated filling of a smallriverside marsh. When one road is sited, few see how it bisects a wild-life habitat or foresee how it triggers further new developments in itswake.Indeed, as the biologist Garret Hardin has observed, a person's ra-tional self-interest may usually be to exploit natural resources orproperty to the maximum extent possible without regard to the cu-mulative effect that ultimately inures to the detriment of the sameperson.' Even when a town arrests adverse trends within its jurisdic-tion: the gasoline alley or fast food strip often locates at the borderof the town in greater or more troublesome concentrations thanwould have otherwise been the case.No single nostrum can establish a healthful and pleasing environ-ment. No statute can legislate a sound environment into existence.Rather, environmental quality will be the result of many isolated anddiscrete decisions, each one structured so as to avert environmentaldegradation. Progress in society can then be realized without the un-intended harm that might otherwise result.As Lord Eric Ashby puts it, human endeavor can become a sympa-thetic part of the natural envir~nment.~n place of a conflict withnature brought on by pollution and other environmental harm, therecan be a reconciliation of human society and nature. This becomes

Associate Professor of Law, Pace University School of Law. A.B., Brown University; J.D.,Columbia U niversity. In 1975, Professor Robinson se we d on the Environmental Advisory TaskForce to Governor Hugh Carey which proposed the adoption of SEQRA to the Governor.Hardin, The Tragedy of the Commons, 162 SCIENCE243 (1968).' ee, e .g., Golden v. Planning Bd., 30 N.Y.2d 359,285 N.E.2d 291,33 4 N.Y.S.2d 138, appealdismissed, 409 U .S. 1003 (1972); Annot., 63 A.L.R.3d 1184 (1975).a E. ASHBY, ECONCILINGAN ITH H EENVIRONMENT1978).

Heinonline - - 46 Alb. L. Rev. 1155 1981-1982


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1156 Albany Law Review [Vol. 46possible "not by heroic long-term megadecision, but by the cumula-tive effect of wise m ediu m- term microdecisions, each decision clarify-ing the shape of the decision that needs to follow."'T he technique of environmental im pact assessment has emerged asthe principal regulatory tool for assuring that each person acts "sothat due consideration is given to preventing environmental dam-age."6 J us t a s the National Env ironmental Policy Act (NEP A)6 re-quires that each of the.federa1 government's agencies assure that itsdecisions will be environmentally sou nd, so have man y of th e variousstates decreed that their agencies and political subdivisions shallmaximize environmental protection.

I. NEPA's PROGENY:EQRA's SIBLINGSNew York's S ta te Environm ental Quality Review Act (SEQRA)' isably described throughout this Symposium. It mandates that NewYork governmental units "conduct their affairs with an awarenessthat they are stewards of the air, water, land and living resources,and that they have an obligation to protect the environment for theuse and enjoyment of this and all future generation^."^In adopting SEQRA in 1975, New York joined a number of statesthat had followed the lead of Congress in enacting NEPA.@The s ta teenvironmental policy acts, often referred to a s "little NEPA's," oc-cassionally copy NEPA almost verbatim.1 Most, however, make ex-tensive adaptations ranging from the Michigan Environmental Pro-tection Act, adopted contemporaneously with NEPA, which makes

unlawful the "pollution, impairment or destruction of the air, water' d. at 87.N.Y. ENVTL.CONSERV.AW $ 8-0103(9) (M cKi nne y Supp. 1981-1982). For a discussion o fthe quality and extent o f "du e consideration," see Ulasewicz, Th e Departm ent of Environm en-tal Conservation and SEQR A: Upholding its Mandat es and Charting Parameters for t he Elu-sive Socio-Economic Assessment, 46 ALB. L. REV . 1255 (1982).42 U.S.C. $ 4321-4369 (1976). For further N EP A details see Or lo ff,SEQRA : New York'sReformation of NE PA , 46 ALB. L. RE V. 1128 (1982).' N.Y. ENVTL.CONSERV.AW $ 5 8-0101 to -0117 (M cK in ne y Sup p. 1981-1982). For back-ground on SEQ RA , see Marsh, Introduction-SE QRA's Scope and Objectives, 46 ALB. L. REV.1097 (1982).' .Y . ENVTL.CONSERV.AW 5 8-0103(8) (Mc Kin ney Supp . 1981-1982). See Marsh, supra

note 7 , at 1104.1975 N.Y. Laws ch. 612. See also Orloff, upra note 6 , at 1129.'O See, e.g., Montana Environmental Policy Act, MONT.REV.C O D E N N . $ 69-6501 to -6517(1971) (current version at id. $$ 75-1-101 to -324 (198 1));Public Policy Environmental Act, P.R. LAWSAN N. i t. 12, $ 5 1121-1140 (1970) (curr ent version at i d. $ 8 1121-1142 (1978 & Supp.1980)).



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19821 SEQRA 1157or other natural resources or the public trust therein" unless thereare no prudent and feasible alternatives," to states with statutes thatrequire an environmental impact assessment by executive order ofthe governor for selected actions only.la

Most of the twenty-eight jurisdictions tha t have little NEPA re-quirements incorporate the same administrative procedures as doesthe federal environmental impact statement (EIS) process.lS For thisreason, there is considerable borrowing of case law and interpretationfrom one state to another. A common body of law guides the EISprocess in whatever jurisdiction it comes to be adopted.In this manner, the EIS process enjoys' a status similar to a uni-.form state law such as the Uniform Commercial Code. When a ques-tion arises as to which types of alternatives should be examined in anEIS, guidance can be found in federal decisions under NEPA, or inleading cases under. little NEPA's such as the California Environ-mental Quality Act (CEQA)14and Washington's State EnvironmentalPolicy Act of 1971 (SEPA).16There are currently twenty-eight jurisdictions with an EIS require-ment. Fifteen states and Puerto Rico have enacted comprehensivelaws like NEPA.16 Michigan has a law more substantial than NEPA,

MICH.STAT.ANN . 14.528(205)(2) (Callaghan 1980). For tex t of the full Thomas J . Ander-son, G ordon Rockwell Environm ental Protection Act of 1970, see M ICH. STAT. ANN. $814.528(201) - .528(207) (Callaghan 1980).la See, e.g., Exec. Ord er of April 23, 1971 (Haw aii); Exec. Ord er No. 53 (N.J. 1973); Adm in.Order No. 33 (N.J. 1973). Hawaii has since enacted an EIS statute. See HAWAII EV.STAT. 8343-1 to -8 (Supp. 1980).'"2 U.S.C. 8 4332(2)(c) (1976). See generally, [I9791 COUNC ILN ENVIRONMENTAL QUALITY

ANN.REP., ENVIRONM ENTALU A L IT Y91, 595-602.CAL.PUB.RES. CODE 8 21000-21176 (Deering 1976 & Supp. 1982) (the uniform require-ment for all California state agencies, boards and commissions).IDWASH.REV.CODE 8 43.21C.010-.910 (Supp. 1981).le The current versions of the statutes for these jurisdictions are as follows: California, seeCalifornia Environm ental Policy Act, CAL. PUB. RES. COD E 8 21000-21176 (Deering 1976 &Supp. 1982); Connecticut, see Conn ecticut Environmental Policy Act of 1973, CON N. EN .STAT.ANN.$8 22a-1 to -7 (Su pp. 1974-1975); Haw aii, see Governor's Executive Order of August 21,1974, as supplemented by HAW AII EV. STAT.$8 343-1 to -8 (Supp. 1980); Indiana, see IND.CODEANN. 8 13-1-10-1to -8 (B urns 1981); Maryland, see Maryland Environmental Policy Actof 1973, MD. NAT. RES . CO DEANN.$8 1-301 to -305 (1974 & Supp. 1981); Massachusetts, seeMassachusetts Environmental Policy Act, MASS.ANN.LAW S h. 30, $8 61-62H (MichieLawCoop. 1973& Supp. 1981); Minnesota, see Minnesota Environm ental Policy Act of 1973, MINN .STAT.ANN. 8 116D.01-.07 (1977& Supp. 1981); Mon tana, see MONT.REV.CODES NN. 8 75-1-

101 to -324 (1981); North Carolina, see No rth Carolina Environ mental Policy Act of 1971, N.C.GEN. STAT. 8 113A-1 to -10 (1978); South Dakota, see South D akota Environmental PolicyAct, S.D. CODIFIEDAW SANN.85 34A-9-1 to -13 (1977 & Supp. 1981); Virginia, see VirginiaEnvironm ental Quality A ct, VA. COD E 8 10-107.107-.112, 10-177 to -186 (1978 & Supp. 1981);Washington, see Sta te Environm ental Policy A ct of 1971, WASH. REV. COD E ANN . 3843.21C.010-.910 (Supp. 1981), as supplemented by 1981 Wash. L aws chs. 278 & 290, Wisconsin,



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1158 Albany Law Review [Vol. 46and New Mexico, which had a little NEPA, repealed it after a shorttime.17 Four sta tes have prom ulgated comprehensive executive ordersestablishing procedures equivalent to t he E IS f u n c t i ~ n . ' ~ine stateshave established an EIS function for specified limited purposes.leCourts in s tate s with legislatively enacted little NEPA's look tofederal case law for authority and guidance by analogy in construingtheir state act.a0There is also a growing literature in the law reviewsabout the operation of these state laws;a1 his body of commentary issee W isconsin Enviro nme ntal Policy Act of 1971, WIS. STAT.ANN.$ 1.11 (Supp. 1981-1982);Puerto Rico, see Public Policy Environmental Act, P.R. LAW S NN. it. 12, 58 1121-1142 (1978& Supp. 1980).

l7 Michigan Env ironm ental Protectio n Act of 1970, MICH. STAT. ANN. $5 14.528(201)-.528(207) (Callaghan 1980); N.M. STAT.ANN.$5 12-20-1 to -7 (Supp. 1973), repealed by 1973N.M. Laws ch. 46. Regarding th e repeal of the New Mexico sta tu te, see Com ment, T he R b ean d Demise of th e New Mexico Environ men tal Quality Act, "Little NEPA," 14 NAT. Rm. J.401 (1974).These four states, with their executive orders and implementing regulations, are as follows:Michigan, see Michigan Executive Directive 1971-10, as superseded by Michigan Executive Or-der '1973-9, as su pers ede d by Michigan O rder 1974-4 (May 1974); New Jersey, see New JerseyExecutive Order No. 53 (Oct. 15, 1973); Texas, see Policy for th e Env ironm ent (Mar. 7, 1972),published in Environment for Tomorrow: The Texas Response, updated by The EnvironmentPolicy-Guidelines an d Procedures for Processing EIS's, (Nov. 1975); Utah, s ee S tat e of UtahExecutive Order (Aug. 27, 1974).'O The states with environmental impact assessment processes limited in scope are the fol-lowing: Arizona, see Game an d Fish Commission Policy of Ju ly 2, 1971, see also Memorandumby the Arizona Game a nd Fish Commission, Requirements for Environmental Imp act State -men ts (Ju ne 9, 1 971); Delaware, see Co astal Zone Act, DEL. CODEANN. tit. 7, $$ 7001-7003(1974, Supp. 1980 & Interim Supp. 1981); Th e T idal W etlands Act, DEL. CODEANN. it. 7, $56601-6620 (1974); Georgia, see GA. CODEANN.$5 95A-101 to -1306a (1976 & Supp . 1981); Ken-tucky, see KY. REV.STAT. 278.025 (1981); Mississippi, see Coas tal Wetlands Pro tection Law,MISS. COD EANN.56 49-27-1 to -69 (Supp. 1981); Nebraska, see N ~ R A S K AEP'T OF ROADS,ACTION LA N 1973), as revised by, NEBRASKAEP'T OP ROADS, NVIRONMENTALCTIONPLAN(1975); Nevada, see NEV.R&v. STAT.$5 321.610-.770 (1979); New Jersey, see Coastal Area Facil-ity Review Act, N.J. STAT.ANN.$8 1319-1 to -21 (West 1979 & Supp. 1981-1982); Th e W et-land s Act of 1970, N.J. STAT.ANN.$$ 139A-1 to -10 (West 1979); N.J. STAT.ANN.s 12:s-3(West 1979); Rhode Island, see Rhode Island Environm ental Righta Act, R.I. GEN.LAWS 10-20-8(b) (Supp. 1981).'O See, e.g., Friends of Mammoth v. Mono County, 8 Cal. 3d 247, 260-61, 502 P.2d 1049,1057-58, 104 Cal. Rptr. 761,769-70 (1972); People v. C ounty of K ern, 39 Cal. App. 3d 8 30,841,115 Cal. Rptr. 67, 75 (1974); Eastlak e Co mm unity Cou ncil v. R oanoke Aesocs., Inc., 82 Wash.2d 475,513 P.2d 36 (1973 ); Wisconsin's En vironm ental Decade, Inc. v. Pu blic Se w. Comm'n, 69Wis. 2d 1, 230 N.W.2d 243 (1975). Se e a b o Secretary of Envtl. Affairs v. M assach usetts Po rtAuth., 366 Mass. 755, 323 N.E.2d 329 (1975); Minnesota Pu b. In teres t Research Grou p v. M in-nesota E nvtl. Qu ality Council, 306 Minn. 370, 237 N.W.2d 376 (1975); Town of H enri etta v.Dep artm ent of Envtl. Co nserva tion, 76 A.D.2d 215, 220, 430 N.Y.S.2d 440, 445 (1980);

H.O.M.E.S. v. New York S ta te Urban Dev. Corp., 69 A.D.2d 222, 231, 418 N.Y.S.2d 827, 832(1979)." On little NEPA's generally, see note 16 supra. S ee ak o [I9771 COUNCILN ENVIRONMENTALQ U A L I T YNN .REP., ENVIRONMENTALUALITY 19-21, 130-35; Hagm an, NEP A's Proge ny I n-habit the S tates- Were the Genes Defective?, 7 URB.L. ANN.3 (1974); Pridgeon, Anderson &Delphey, Sta te Enviro nme ntal Policy Acts: A Surve y of Recent Developments, 2 HARV.NVTL.



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SEQRAof increasing value to bench and bar,alike.aa

New York's SEQRA was adopted at least four years after the fed-eral, California and Washington statutes. Because of precedent fromthese other jurisdictions,. there was no question in New York aboutapplying SEQRA to private projects requiring a state permit, as hadL. REV.419 (1977); Yo st, NEPA's Progeny: State Environmental Policy Acts, 3 ENVTL . . REP .( E N V T L .. INST .) ll 50,090 (1973); Note, Emerging State Programs To Protect the Environ-ment: "Little NEPA's" and Beyond, 5 EN VTL. FFAIRS67 (1976); Comment, 6 E N V T L .. REP.( E N V T L .. INST.) ll 10,216 (1976); Comment, 7 E N V T L .. REP . EN V TL.. INST . ) ll 10,187 (1977).Note, State Environmental Impact Statements, 15 Washburn L.J. 64 (1976)." For articles on California's law, see H ildreth, Environm ental Im pact Und er the CaliforniaEnviron men tal Qu ality Act: Th e Reports: New Legal Framework, 17 SANTA LARA . REV. 05(1977); Lynch , The 1973 CEQ Guidelines: Cautious Up dating of the Enviro nme ntal ImpactStateme nt Process, Com ment, 11CA LIF . .L. REV.297 (1975); Com ment, Substantive Enforce-ment of the California Environmental Qua lity Act, 69 C A L I F .. REV.112 (1981) [hereinaftercited as Substantive Enforcement];Com men t, Exclusionary Zoning: A Project for the C alifor-nia Environmental Control Act?, 19 SAN TA LARA . REV.777 (1979); Note, California Envi-ronmental Quality Act and Eminent Domain: Failure to Comply with CEQA as a Defense toCondemnation, 8 Lou. L.A. L. REV. 734 (1975); Note, Controlled Burning of Rangeland inCalifornia: Should CEQ A Apply?, 11U.C.D.L. Rev. 649 (1978); Note, Environmental DecisionMaking Und er CEQ A: A Q uest for Uniform ity, 24 U.C.L.A. L. REV.838 (1977) [hereinaftercited as Quest for Uniformity];Environmental Law Symposium, 19 SAN TA LARA . REV.513(1979). For articles on Florida's sta tute, see C omm ent, Environm ental Law: Th e Inapp licabil-ity of the Special Injury Rule to the Florida Environmental Protection Act, 33 U. h a . L . REV.425 (1981). For comm entary on the Michigan law, see N ote, PBB Action Com mittee v. DN R:Th e Feasible and Pruden t Alternative Argum ent Und er the Michigan Environ men tal Protec-tion Act, 1979 DET. C.L. RE V.457; Com ment, New Growth in Michigan's En vironmental Pro-tection Act: State Supreme Court Enjoins Oil Development in Wilderness, 9 ENVTL. . REP.( E N V T L .. INST. ) ll 10,144 (1979). For a discussion o f Minnesota's s tat ute , see Research Project,An Assessment of the Minnesota Environmental Impact Statement Process, 3 HAMLINEL.REV. 63 (1980); Note, Environmental Law: Minnesota Environmental Policy Act, 4 W M .MITCHELL. REV.238 (1978). For an analysis o f the M ontana law, see To bias & McLean, OfCrabbed Interpretations and Frustrated M anda tes: Th e E ffe ct of Enviro nme ntal Policy Actson Pre-existing Agency Authority, 41 MONT.L. REV.177, 234-67 (1980). For commentary onNew Y ork's sta tute, see Manes, Alice in th e Wond erland of S.E.Q.R., 52 N.Y.S.B.J. 115 (1980);Nichols & Robinson, A Primer on New York's Revolutionized Environmental Laws: Part I, 49N.Y.S.B.J. 41 (1977); Robinson, Upd ate on Sta te-Im pac t Review Laws, N.Y.L.J., Aug. 26,1980, at 1, col. 1; Sandler, State Environmental Qua lity Review Act, 49 N.Y.S.B.J. 110 (1977);Weinberg, What Every Real Estate Lawyer Should Know About New York's SEQRA, 52N.Y.S.B.J. 114 (1980); Note, New York S tate Environmental Quality ~ e v i e w ct: An Overviewand Analysis, 41 ALB. . REV.23 (1977). For a discussion of the Was hington statu te, see Roe &Lean, The State Environmental Policy Act of 1971 'cmd Its 1973 Amendments, 49 W A S H . .REV. 83 (1973); Comm ent, Judicial Review of Compliance with th e S tate Environmental Pol-icy Act of 1971: Recen t Dev elop me nts, 10 G O N Z . . REV. 803 (1975); Comment The 1974Amendm ents to W ashington's State E nvironmental Policy Act, 10 GON Z. . REV.787 (1975);Note, Threshold Determination of the S tate E nvironmental Policy Act: W ashington Adopts aMore Flexible Approach-Equ itable Remedies: Laches Defense Restricted, 56 W A S H . . REV.549 (1981); Note, A Stan dard for Judicial Review of A dmin istrative Decisionmaking Und erSEPA, 54 W A S H . . REV. 693 (1979). For a comm entary on W iscon sin's law, see Special Project,Agency Decisionmaking Und er the Wisco nsin Enviro nme ntal Policy Act, 1977 W IS . . REV.111 [hereina fter cited as W isconsin Enviro nmen tal Policy].



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1160 Albany Law Review [Vol. 46been litigated in the seminal California decision in Friends of Mam-m o t h o . Bo a r d o f S u p e r ~ i so r s .~~here was also no question th at t heEIS dut y was a serious and funda men tal administrative responsibil-ity, as described in the federal ruling in Culvert Cliffs' CoordinatingCommit!ee, Inc. v. U n it ed S t a t e s A to mic En e rg y Co m m i ~ s i o n .~ ~CEQA had already been amended once by the time New York en-acted SEQRA. When it did so, New York was able to benefit fromthe experiences of California and twelve other states with littleNEPA'S.'~The legislature actively considered this corpus of jurisprudencewhen i t shaped SEQRA.s6 T he actual operations under th e C aliforniaAct were described t o the legislature by th e chief of th a t state's Officeof Environ me ntal Protec tion, Nicholas Yost." Rep orts from othe rsta tes were solicited an d reviewed.as Assemblyman Oliver K oppel ex-pressed New York's de bt to California on the eve of SEQRA's ta kingeffect June 1, 1976, as follows:

Fortunately, we do have substantial information in the experience ofCalifornia, a state which has had such a law since 1970. The stateshave much in common, apart from the fact that much of the New Yorkact is patterned on the earlier California model. Both states are large,populous and diverse. . . @8 Cal. 3d 247, 502 P.2d 1049, 104 Cal. Rptr. 761 (1972).449 F.2d 1109 (D.C. Cir. 1971).Th e states th at had an E IS requirem ent in 1975 were California, Connecticut, Hawaii,Indiana, Maryland, Massachusetts, Minnesota, Montana, North Carolina, South Dakota, Vir-ginia, Washington and Wisconsin. See note 16,supra.See Koppell, Environ me ntal Protection Laws At Issue, N.Y.L.J., May 6, 1976, a t 1, col. 2(an essay by the chairman of the New York State Assembly Environmental ConservationCommittee).

'' d. Mr. Yost later became general counsel to the President's Council on EnvironmentalQuality in the administration of President Carter.2 V d . (citing M assachusetts Executive Office of Environm ental Affairs and Virginia Councilon the Environment reporta on the number of environmental impact reports and the time usedin considering those re ports).le Id. Assemblyman Koppell further observed that:According to N icholas C. Yost, Deputy Attorney General in charge of th e environmen-tal unit of the Attorney General's Office in California, the California experience is thatenvironmental reporting has w orked, and worked well. Ther e were fears of opening th eflood gates of litigation. These fears have not materialized. Mr. Yost reported that withover 400 cities in California and 58 counties, plus several hundred special districts andall of the agencies of State government, the Attorney General's records indicated someapproxim ately 10 3 suit s since 1970-an average of something over twe nty suite a year.A report of the California Attorney General's office indicated th at California's environ-mental impact reporting statute has not been "a vehicle for delay or frustration ofprojects on nonmeritorious grounds." The Attorney General's report concluded, thatboth in overall numerical terms an d in relation t o the number of agencies implementingtheir environme ntal consulting firm, confirms this conclusion (sic) . . . .



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19821 SEQRA 1161Indeed, shortly after the adoption of SEQRA, commentators were al-ready citing California precedents to assist in the proper interpreta-tion of SEQRA.SO n like vein, the Practising Law Institute provideda continuing legal education course in 1978 on SEQRA featuring theCalifornia and Washington statutes, along with NEPA, as principalsources of authority for construing SEQRA.sl As observed by Profes-sor Phillip Weinberg, who was in charge of the Environmental Pro-tection Bureau in the New York State Attorney General's Office atthe time of SEQRA's enactment:

SEQRA had as its model [NEPA], which since January 1, 1970 hasrequired every federd agency performing, permitting or funding anymajor action with a substantial impact on the environment to weighthe environmental effects of its action and to prepare an environmentalimpact statement-to look, in short, before it leaps, or permits some-one else to. Even more in point, a number of states, notably Californiaand Washington, had also enacted environmental impact laws withparallel mandates. Our Legislature adapted these laws to New York'sneeds, requiring the state, localities and private businesses actingunder state or local permit or funding to consider the impact of theiraction on the environment and to document that consideration by fur-nishing a reviewable record.8PThe teaching of these authorities is obvious. Both the bench andbar should examine the case law under little NEPA's in other statesbefore "recreating the wheel" in New York. In some instances, NewYork ought not to follow case law from a sister state. The provisionsof SEQRA may be so different as to make the authority inapplicable.Similarly, the ruling may be inadequate to the needs of New York.

In general, the fear of increased litigation, as reviewed above, is believed not to be wellfounded. It should be noted that the experience from other states, particularly Califor-nia, is that there simply has not been the degree of litigation stemming from environ-mental reporting which was originally feared. In light.of its stringent rule protectingadministrative decisions, . . .New York is no more likely than California to have excee-sive litigation.Similarly, with respect to reporting delays and costa, studies from Maesachwetta andCalifornia do not appear to suggest that either will be inordinate. If the SEQR Act iaproperly implem ented a t the St ate a nd local agency levels, ita procedures can and shouldbe carried out with and at the same time as other requirements of planning, with mini-mum delay, if at all, and with expense commensurate with other necessary planningcosts and n ot excessive in light of the impo rtance of assuring th at the fu ture growth ofthe state is properly planned in the intereata of both a prosperow and livable state.Id . . a t 4 (footnotes omitted).

SO Sandler, supra note 22, a t 115-16.PRACTISINGAW NSTITUTE,TATE NVIRONMENTALUALITYEVIEW OMPLIANCE:PRAC-TICAL APPROACHT TH E LOCAL OVERNMENTEVEL (J. Sache ed. 1978).'' Weinberg, supra note 22, a t 120 (citations omitted).



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1162 Albany Law Review [Vol. 46Whether or not this analogous case law is followed, however, itshould at least be considered.The strength which a common body of law possesses is the intellec-tual force and perception of each decision's ratio decidendi; espe-cially in rulings of first impression, the advocate and judge should atleast examine prior rulings of the key states having statutes substan-tially similar to SEQRA. Since the environmental problems them-selves are apt to be similar from state to state, and since commercialactivity most often has interstate characteristics, society is bestserved by promoting a common pattern of environmental impact as-sessment. This will lead to predictabilty and shared expectations,strengthening both an ordered society with the rule of law and envi-ronmental protection.

It is beyond the scope, and probably capacity, of this Article toidentify every possible issue under SEQRA for which authority maybe found in a sister state. Nonetheless, it may be instructive to illus-trate how analogous case law from other states may be drawn upon tofurther SEQRA.88Obviously, other states may be drawn upon to fur-ther SEQRA. The little NEPA precedents may most usefully besought not in the context of state agency actions which are oftenanalogous to federal agency actions; rather, the state rulings are mostvaluable in construing the duties of villages, towns, cities, countiesand other political subdivisions of a state. Two examples can demon-strate these matters. The first concerns the realm of the stewardshipwhich the little NEPA's require. The second involves the details ofthe environmental impact assessment process itself.

A. Ethics and StewardshipOne leading case under SEQRA is Tuxedo Conservation and Tax-payers Association u. Tow n Board.84In Tuxedo, the town board hadfinal SEQRA approval authority over a 200 million dollar project,which would quadruple the town's pop~lation.~'One town trustee" Aa well, the large body of federal case law under NEPA should be examined closely. SeeOrloff, supra note 6.96 Misc. 2d 1, 408 N.Y .S.2d 668 (Sup . Ct. 1978), aff'd, 69 A.D.2d 320, 418 N.Y.S.2d 638(1979).a6 Id. at 7, 408 N.Y.S.2d at 671.



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19821 SEQRA 1163was an officer of an advertising agency, employed by the developerp a r e n t c o r p o r a t i ~ n . ~ ~e refused to disqualify himself, however, an dcast the decisive vote despite the probability of his firm's financialin te re ~ t. ~ ' lthough no ethics statutes had been violated, both trialand appellate courts in Tuxedo rigorously condemned the trustee'saction and invalidated the project approval.88The Tuxedo decision held the town board trustee to the standardof "the punctilio of an honor the most sen~itive,"~~n the context ofSEQRA decisions as "stewards of the air, water, land, and living re-sources" with "an obligation" to "this and all future g eneration~. '"~About the same time as Tuxedo, the courts in California were reach-ing a different view. A badly divided California Supreme Court inWoodland Hills Residents Associations v. City Counci141 ailed to in -sist upon the punctilio of honor. T h e court held th at cam paign con-tributions to city council members do n ot prevent th em from decid-ing matters involving contributor^.^^ Finding no literal violation ofthe statute, the court refused to imply a violation from the circum-s t a n c e ~ . ' ~hus, the court ignored even "the amo unt of th e contribu-tion, its timing, its method, as well as the significance of the issuebeing conhidered . . . n judging the appearance of biasmW4'I t may be that the unfortunate recent legislative criticisms of theCalifornia Supreme C ourt have cast it in to a timid m old. T he C alifor-nia court's deference to th e legislature,' in th e face of "th e mother'smilk of politics"46 (th at is, campaign contributions to CEQA deci-sionmakers), does little to ensure a full measure of environmental

8e Tuxed o Conservatio n and Taxpay ers Ass'n. v. Town Bd., 69 A.D.2d 32 0,3 23 ,41 8 N.Y.S.2d638, 639 (1979).Id . The court noted that the trustee had knowingly participated and had even requested alocal committee's ethics opinion. Id. a t 323, 418 N.Y.S.2d a t 639-40." "For, like Caesar's wife, a public official mu st be above suspicion." Id . a t 3 24,41 8 N.Y.S.2dat 640. The trial court expressed a similar view: "Considering the scope of thii application(1,500 acres, 3,900 units an d on e fifth of a billion dollars), only th e naive would no t suspect th atthere could be tacit business pressures conflicting with th e right of the public to a fair hearing."Tuxe do Conservation an d Taxpay ers Ass'n v. Town Bd., 96 Misc. 2d 1, 10, 408 N.Y.S.2d 668,673 (Sup. Ct. 1978), af f 'd ,69 A.D.2d 320, 418 N.Y.S.2d 638 (1979).Tuxe do Conservation a nd Tax payers Ass'n v. Town Bd., 69 A.D.2d 320 ,324,4 18 N.Y.S.2d638, 640 (1979) (citing Mein hard v. Salmo n, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Car-dozo, C.J.)).N.Y. ENVTL.CONSERV.AW 8-0103(8) (McKinney Supp. 1981-1982).41 26 Cal. 3d 938, 609 P.2d 1029, 164 Cal. Rptr. 255 (1980).4s Id. at 947, 609 P.2d a t 1033, 164 Cal. Rptr. at 259." d. a t 946-47, 609 P.2d a t 1032-33, 164 Cal. R ptr. at 259.Id. a t 951-52, 609 P.2d at 1036, 164 Cal. Rptr. a t 262 (Bird, C.J., concurring and dis-senting).46 26 Cal. 3d at 953, 609 P.2d at 1037, 164 Cal. Rptr. at 264 (Newman, J., concurring).



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1166 Albany Law Review [Vol. 46coma,68post-decision employment of a council member by the projectsponsor's attorney, and in Anderson v. Island County," the biasedparticipation of a former owner of the property, caused the courts torescind both the ordinance and the reclassification. Although nowrongdoing was found in any of these cases, the Washington Su-preme Court held that the importance of public trust and confidencemandated that even the appearance of impropriety be avoided.80This stringent standard was interwoven with the requirements ofenvironmental stewardship in local bond use decisions in SAVE aValuable Environment v. B~thell ,~ 'wift v. Island County,8a andNarrowsview Preservation Association u. City of Ta~orna.~~nade-quate environmental review and financially interested board mem-bers caused the Swift and SAVE courts to void both local zoningchange^.^ In Narrowsview, although the environmental review wasadequate, the court found that the participation of a financially in-terested board member tainted the zoning a pp r o~ a l .~ T heontinuingscrutiny of the Washington judiciary under the "appearance of fair-ness" standard encourages fair and impartial land use decisionswhich fulfill the responsibility of each citizen to preserve and en-hance the envir~nment.~~P.2d 594, 602 (1972) (en banc) (prior ownership of property)." 81 Wash. 2d 292, 300, 502 P.2d 327, 331 (1972) (en banc). T he employm ent was enteredinto less than 48 hours after the crucial vote. Id. The trial court observed:Th e time coincidence is devastating. I t is unfortun ate this probably has taken place be-cause this was one of those days that we all have where a problem arose and a man justdidn't think about the whole implications of what he was doing. The appearance of con-flict of interest is here. The appearance of conflict of interest is so strong that I am surethose who oppose the zoning and who thought this thing through will never, never be-lieve that somehow this wasn't kind of wired before the final vote was taken.Id. a t 300, 502 P.2d a t 332.81 Wash. 2d 312, 501 P.2d 594 (1972) (en banc).Fleming v. City of Tacoma, 8 1 Wash. 2d 292, 502 P.2d 327 (1972) (en banc); A nderson v.Island C ounty, 81 Wash. 2d 312 ,50 1 P.2d 594 (1972) (en banc); Buell v. City of Bremerto n, 80Wash. 2d 51 8,4 95 P.2d 1358 (1972) (en banc); Chrobuck v. Snohomish Co unty, 78 Wash. 2d a t858, 480 P.2d 489 (1971) (en banc).

*I 89 Wash. 2d 862, 576 P.2d 401 (1978) (en banc)." 87 Wash. 2d 348, 552 P.2d 175 (1976) (en banc).

84 Wash. 2d 416, 526 P.2d 897 (1974) (en banc)." In Swift, there was no environmental review and in SAVE, there was no mitigation ofadverse environmental effects. SAVE a Valuable Environment v. City of Bothell, 89 Wash. 2d862, 576 P.2d 401 (1978) (en banc); Swift v. Isla nd C ounty , 87 Wash. 2d 348, 552 P.2d 175(1976) (en banc).'' Narrowsview Preservation Assoc. v. City of Tacoma, 84 Wash. 2d 416,526 P.2d 897 (1974)(en banc). The tainted board member was an employee, whose employer would be directlyaffected by t he decision. Id ." WASH.REV. CODEANN.8 43.21 C.020(3) (Supp. 19 81), as su pp lem ente d by 198 1 Wash.Laws chs. 278 & 290.



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19821 SEQRA 1167Taken seriously, the legislative mandate for stewardship is akin tothe common law duty of a trustee to avoid waste. The trustee owesall allegiance to the public, present and future, to conserve and bestmanage the resources a t issue. This task, as New York a nd Washing-ton concur, is incompatible with even the appearan ce of a conflict ,ofinterest.

B. EIS ProcedureTh e heart of SEQRA and all of th e little NEPA's is th e environ-mental impact statement process. This is the "action forcing" ele-ment which makes the stewardship role realistic and p r a c t i ~ a l . ~ ~t isthis process which admits of a shared common law among the littleNEPA's. The key stages of th e SEQRA procedures can be construedin light of the analogous rulings of other jurisdictions. In like vein,New York's growing case law is becoming a part of the body of au-

thority available to assist other jurisdictions.Six principal steps characterize the E IS process. Initially, there isthe threshold question of whether or not SEQRA applies to a givena c t i ~ n . " ~econd is the lead agency de~ignation.~~hird is the nega-tive declaration or the finding of a Type I action requiring prepara-tion of an environmental impact statement.70 Fou rth is the prepara-tion of the draft EIS (DEIS) and review of alternative^.^^ Fifth is thepreparation of the final EIS (FEIS) and full identification of impactsand their possible mitigation.la Finally, the re is judicial review of thisO7 Th ere is ample com mentary on the action-forcing element of 8 102(2)(C) of N EPA and the

little NEPA's. See, e.g., F. ANDERSON,EP A IN THE COURTS: LEG AL NALYSISP THE NA -TIONAL. ENVIRONMENTALOL ICY CT (1973); R. LIRO FP,A NATIONALOLICYOR THE ENVIRON-MENT (1976)." Concerning actions, see 6 N.Y.C.R.R. 8 617.2(b) (1979). See also Marsh, supra note 7, at1099-100,1106-09.'O "When an action is to be carried ou t or approved by two or more agencies, the determina-tion of whether the action may have a significant effect on the environment shall be made bythe lead agency having principal responsibility for carrying out or approving such action andsuch agency shall prepare, or cause to be prepared . . . he environmental impact statement."N.Y. ENVTL. ONSERV.AW 8-0111(6) (McK inney Supp. 1981-1982). Concerning lead agencydesignation, see 6 N.Y.C.R.R. 8 617.6 (1979). Aa to one agency and as to more than one agency,see id. 4 617.2(c) &(d).70 A negative declaration is a decision not to prepare on E IS because the proposed action willnot have a significant effect on the environment. Id. 8 617.12(a). The significance of a n action ie

determined under criteria set forth in id.8 617.10(c); the negative declaration for nonsignificantacts appears in id. 8 617.10(b).Th e required contents of a DEIS are governed by id. 5 617.14(d). O n alterna tives, see id. 8617.14(f).7 s The FEIS contains the comments on the DEIS and the final analysis. Id. $8 617.8 &



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1168 Albany Law Review [Vol. 46process along with the final agency decision itself and the resolutionof who has standing to seek review.?)'Although there is little case law concerning SEQRA's EIS proce-du re to rely on, references can be usefully draw n from California andWashington. Because the little NEPA's from these two states weremodels from which SEQRA was in pa rt adapted," th e judicial glosseson their state environmental impact assessment process are aptsources to guide the evolution of SEQRAY61. Whether the EIS Process Applies to a Given Action

Much rides on the initial decision that an action requires an EIS.Failure to undertake the EIS process frustrates SEQRA's steward-ship and courts will enjoin actions seeking to circumvent the Act.?@The validity of subsequent permits may be subject to i n v a l i d a t i ~ n . ~ ~Several early New York cases ratified exem ptions from the SEQRAWhere facts of the underlying action manifestly constituteda T ype I action under SEQRA, the cases favoring exemptions appear

to be wrongly decided;?@he rule of reason and remedial purposes ofSEQRA militate that actions not be exempted.s0The logic of California's Friends of Mammoth decisione1 shou ld617.14(h). Mitigation must be shown at this time. Id . 5 617.9(~)(2).

78 Final agency action is the approval or disapproval step which occurs 30 days after theFEIS is filed. Id. 5 617.9(b). Judicial review is available under article 78 of th e CP LR. N.Y. CIV.PRA C. AW 7800-7806 (McKinn ey 1981).74 This Article is not intended to be an exhaustive treatise of the commentary on each ofthese six steps from each of the nineteen sta tes which have little NEPA's akin to SEQRA. Se e

generally authority cited in notes 16 & 18 supra.76 Se e text accompanying note 31 supra.H.O.M.E.S. v. New York Sta te Urba n Dev. Corp., 69 A.D.2d 222 ,41 8 N.Y.S.2d 827 (1979).55 N.Y.2d 41, 432 N.E.2d 592, 447 N.Y.S.2d 699 (1982).77 Se e Citizens Task Force on SOH10 v. Board of Harbor Comm'rs, 23 Cal. 3d 812,591 P.2d1236, 153 Cal. Rptr. 584 (1979). For other agency actions which can be invalidated for lack ofan EIS , see Tri-County Taxpayers h ' n , Inc. v. Town Bd., 55 N.Y.2d 41, 432 N.E.2d 592, 447N.Y.S.2d 699 (1982) (election appropriatin g fund s for a sewer dis trict annu lled for lack of anEIS). See generally N.Y. GEN.MUN.LAW 239-m (McKinney 1974). See abo Rye Town/KingCivic Ass'n v. Town of Rye, 82 A.D.2d 474, 442 N.Y.S.2d 67, appeal dismissed, 55 N.Y.2d 747(1981); We instein v. Nicosia, 32 Misc. 2d 246, 223 N.Y.S.2d 187 (Sup. Ct. 1962), af f 'd . ,18A.D.2d 881, 236 N.Y.S.2d 1023 (1963).See, e.g., Cou nty of Fran klin v. Connelie , 68 A.D.2d 1000, 415 N.Y.S.2d 110 (1979); In reHopkins, 99 Misc. 2d 216, 415 N.Y.S.2d 774 (Sup . Ct. 1979).

See, e.g., County of Fran klin v. Conne lie, 68 A.D.2d 1000, 415 N.Y.S2d 110 (1979).Town of Henrietta v. Dep artm ent of Envtl. Con servation, 76 A.D.2d 215,430 N.Y.S.2d 440(1980).Friends of Monmouth v. Bd. of Supervisors, 8 Cal. 3d 247, 502 P.2d 1049, 104 Cal. Rptr.761 (1972).



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19821 SEQRA 1169serve to guide SEQRA. California courts regularly require applicationof the EIS process in many varied circumstances. CEQA applies topower plant authorizations, to actions with environmental impactsoutside the jurisdiction of the entity preparing the EIS, to annexa-tion of land by a municipality, to permits for subdivisions, and toother local zoning decision^."^ Comparably broad rulings are found inthe State of W a s h i n g t ~ n . ~ ~

Ministerial actions may be exempt from SEQRA," but they mustbe identified as being ministerial beyond cavil. Washington has foundit difficult to draw the line between ministerial and major actions. InEastlake Community Council u. Roanoke Associates,B6Washington'shighest court ruled that where a building permit renewal was"mandatory" no EIS was needed, but where the renewal was "non-duplicative" an d discretionary and there was no prior environmentalreview, then an EIS was required. Care must be taken to define the"ministerial" e x e m p t i ~ n . ~ ~

The California courts have furthered CEQA's remedial purposes byrestricting exemptions through narrow constructions7and by declin-ing to find implied exemption^.^^ Where discretion is involved in anagency decision, there is usually an opportunity to mitigate environ-mental harm. For such action, an EIS is required.

OD See, e.g., Desert Envtl. Conservation Ass'n v. Public Utile. Comm'n, 8 Cal. 3d 739, 505P.2d 2 23,10 6 Cal. Rptr. 31 (1973) (power plants); Co unty of Inyo v. Yorty, 32 Cal. App. 3d 795,108 Cal. Rp tr. 377 (1973) (outside jurisdiction); Boz ung v. Loca l Agency Forma tion Com m'n, 37Cal. App. 3d 842, 112 Cal. Rp tr. 668 (1 974), aff'd, 13 Cal. 2d 483 ,531 P.2d 783, 119 Cal. Rptr .215 (1975) (annexation); People v. Country of Kern, 39 Cal. App. 3d 830, 115 Cal. Rptr. 67(1974) (general land u se plan); Ro senth al v. Bo ard of Supervisors, 44 Cal. App. 3d 81 5,1 19 Cal.Rptr. 282 (1975) (local rezoning).

Loveless v. Y antis, 82 Wash. 2d 754, 513 P.2d 1023 (en ban c) (subdivision plan approva l);Eastla ke C omm unity Coun cil v. Roanoke Assocs., Inc., 82 Wash. 2d 475 ,513 P.2d 36 (1973) (enbanc) (condominium); Stempel v. Department of Water Resources, 82 Wash. 2d 109, 508 P.2d166 (1973) (en ba nc) (withdrawa l of wa ter); Juan ita Bay V alley Com munity Ass'n v. City ofKirkland, 9 Wash. App. 59, 510 P.2d 1140 (1973) (municipal grading permit).6 N.Y.C.R.R. 1 617.13(d) (1979) (exempting routine and maintenance activity).82 Wash. 2d 475, 513 P.2d 36 (1973) (en banc). See also Loveless v. Yantie, 82 Wash. 2d754, 513 P.2d 1023 (1973) (en banc) (on exemption.for ministerial actions).See Note, Aftermath; Friends of M ammoth an d the Amended C alifornia Environmen talQuality Act, 3 ECOLOGY.Q., 349, 386-87 (1973) (critical discussion of C alifornia case law).Natu ral Resource s Defense Council, Inc. v. Arcata Nat'l Corp., 59 Cal. App. 3d 959, 131Cal. Rptr. 172 (1976).Wildlife Alive v. Chickering, 18 Cal. 3d 190, 553 P.2d 537, 132 Cal. Rptr . 377 (1976); Inte r-national Longshoremen's & Ware houseme n's Union v. Boa rd of Supervisors, 116 Cal. App. 3d265, 171 Cal. Rptr. 875 (1981).



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1170 Albany Law Review [Vol. 462. The Designation of a Lead Agency

Where a project must be approved by more than one agency, it isessential for the effective and efficient operation of the EIS processthat, as early as possible, one be identified as the agency responsiblefor conducting the environmental reviewn8@his is the "lead" agency.Not only must one agency assume that burden of EIS responsibility,but other agencies must assist it in doing so. The need for efficientexecution of this stage led to amendments of CEQA aimed at as-signing the burden of EIS resp~nsibil i ty.~~

3. The Decision to Require an EISGuidance from other states can be of assistance in determiningwhen and whether an EIS is needed under SEQRA. ' ' ~ e ~ m e n k -tion,"@lor the division of what would be a Type I action into small

bits and pieces, each with insignificant impact, is usually not al-Even if th e action would have a Typ e I classification, a deci-sion must still be made as to w hen in time th e action exists. A mereplan to act may no t trigger ran EIS.88 If an agency is unsu re w hetheran act is advanced enough to require an EIS under CEQA, it canorder tests and research."' Thi s goes beyond th e adm inistrative envi-ronmental assessment form (EAF) now used under SEQRA.The general criteria for deciding when an impact is significant, soas to require an EIS, have been reviewed often. In Norway Hill Pres-ervation and Protection Association o. K i n g C o u n t y C o u n ~ i l , ~ ~Washington's Supreme Court defined "significantly" as "whenevermore than a moderate effect on the quality of the environment is a

6 N.Y.C.R.R. 8 617 (1979).Pridgeon, Anderson & Delphey, State Environmental Policy Acts: A Survey of RecentDevelopments, 2 HARV. NVTL.L. REV.419, 427-28 (1977).Segmentation is the term derived from th e practice of dividing highways into small linkingunits to avoid reviewing the entire route. See, eg., River v. Richmond Metropolitan Auth., 359F. Supp . 611, 634 (1973), aff'd, 481 F.2d 1280 (4th Cir. 1973).See, e.g., Pla n for Arcadia, Inc. v. Arcadia City Council, 42 Cal. App. 3d 712, 117 Cal. Rptr.96, 105 (1974). The very fact of exercising discretion in m aking this decision may mean th at theEIS must be done. Loveless v. Yan tis, 82 Waah. 2d 754, 513 P.2d 1023 (1973).See, e.g., No Oil, Inc. v. City of Los Angeles, 13 Cal. 3d 68, 529 P.2d 66, 118 Cal. Rp tr. 34(1974); Lake C ounty Energy C ouncil v. C oun ty of Lake, 70 Cal. App. 3d 85 1,1 39 Cal. Rp tr. 176(1977); County of Iny o v. Yorty , 32 Cal. App. 3d 795, 108 Cal. Rp tr. 377 (1973).

*' See, e.g., Society for Cal. Archaeology v. Cou nty of Bu tte, 6 5 Cal. App. 3d 832, 135 Cal.Rp tr. 679 (1977 ); People v. Cou nty of Kern, 2 Cal. App. 3d 761, 133 Cal. Rptr. 389 (1976).*' 87 Wash. 2d 267, 552 P.2d 674 (1976).



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19821 SEQRA 1171reasonable p r~ ba b i l i t y . "~ ~actors considered by the court were thesize of the project, th e typ e of environm ental change, and the classifi-cation of th e project under SEPA .e7 If no E IS had been prepared andthe action was significant, then even extensive prior discussion andthe attachment of the protective conditions would be insufEcient ac-cording to the court.BBTh e court held t ha t SE PA mandates full dis-closure and investigation before decisionmaking precisely to ensureth at adeq uate protective measures could be taken." Ultimately,whether an EIS is required is a mixed question of law and fact. Arule of reasonableness should govern review of th is de termination .lo0

4. T h e Draft EI S and Consideration of A lternativesT he D EIS is intended to be a com prehensive and fair review of allthe adverse environmental effects of the proposed action. Th e centralanalytic tool for highlighting these impacts is a discussion of a lterna -tives. By requiring a discussion of the effect of no action or a modi-fied action, the decisionmaker identifies a way to avoid adverse im-pacts and is less reluctant to describe the range of realisticallypossible adverse effects in a candid fashion.The EIS process must consider all aspects of a proposed action.Under CEQA, close scrutiny is given to such consideration. Thus , inCounty of Inyo v . Los Angeles,lol th e court found a num ber of defi-ciencies in the consideration of alternatives and impacts. The courtfound two major deficiencies in the environmental impact report(EIR).'OP First, the court held that consideration of alternatives must

Id . at 278,552 P.2d a t 680 (quoting City of Davis v. Coleman, 521 F.2d 661,673-74 & n.16(9th Cir. 1975)).Id . at 275-76 & n.8, 552 P.2d at 679 & 681 n.8.Id. The court noted earlier that it chose the "clearly erroneous" administrative standard ofreview because SEPA's intent could easily be frustrated by declarations of no significance. Id.at 276, 552 P.2d at 679.Id . at 275,552 P.2d a t 679. The court recognized that the "most important aspect of SEPAis the consideration of environmental values . . . SEPA] 'is an attempt by the people to shapetheir future environment by deliberation, not default.' " Id. at 272, 552 P.2d at 677 (quotingStempel v. Department of Water Resources, 82 Wash. 2d 109, 118, 508 P.2d 166, 172 (1973)).

loo Wisconsin's Envtl. Decade, Inc. v. Public Sew. Comm'n, 79 Wis. 2d 409, 256 N.W.2d 149(1977). For a similar ruling under SEQRA, see Town of Henrietta v. Department of Envtl.Conservation, 76 A.D.2d 215, 430 N.Y.S.2d 440 (1980).lo' 71 Cal. App. 3d 185,139 Cal. Rptr. 396 (1977). See abo Laurel Hills Homeowners Ass'n v.City Council, 83 Cal. App. 3d 515, 147 Cal. Rptr. 842 (1978).lo' An EIR is an environmental impact report and is the equivalent of SEQRA's EIS. Com-pare CAL.PUB.RES. CODE 21100 (Deering 1981) with N.Y.ENVTL. CONSERV.AW 8-0101to-0117 (McKinney Supp. 1981-1982).



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1172 Albany Law Review [Vol. 46include a "no project" alternative.lo8 Second, the court held that theEIR was void because it was based on an inaccurate project descrip-tion.lO' The court noted that the revised EIR described a small scalegroundwater project and that the final EIR dealt with large scalephases of the City's aqueduct management program.'06 The Countyof Inyo court recognized that the interim EIR's may be based on newinsights requiring revision. It refused, however, to validate the projectwhen its scope was known in advance but was deliberately misstatedto confuse the public.'OB The court reemphasized that the scope ofthe project and all reasonable alternatives must be included in theEIR.'07An alternative can be feasible and merit review in the EIS eventhough the applicant would reject undertaking such a course.10BAnalternative must, therefore, be examined in the EIS even though theagency may later make an independent decision as to whether or notto make the alternative a condition of approval as a form of mitiga-tion to comply with SEQRA's substantive mandate discussed below.The scope of the EIS must include secondary and cumulativeimpacts.lo9One useful technique, first developed in Massach~setts,"~s "scop-ing," a means of focusing on important issues and streamlining themethod of review. When NEPA was enacted, it did not include ascoping provision but the revised implementing regulations now ad-dress the issue."' SEQRA has no specific provision on scoping, butthe concept can be read into the Act."% Scoping is especially useful at

lo ' County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 193, 203, 139 Cal. Rpt r. 396,401, 408.IM Id . a t 192-93, 199-200, 139 Cal. R ptr. a t 401, 406.

I0"d. at 190-91, 199, 139 Cal. Rptr. at 399-400, 406.Id . a t 199-200, 139 Cal. Rp tr. a t 406.

lo r Id .lo' Arcata Redwood Co. v. Sta te Bd. of Fore stry, 7 ENV TL. . REP. (ENV TL. . INST.) l 20,755(Cal. Super. Ct. Sept. 8, 1977).'Oe Bozung v. Local Agency Formation Comm 'n, 13 Cal. 3d 263, 283-84, 529 P.2d 1017, 1030,118 Cal. Rptr. 249, 262 (1975). Cf. Wisconsin Envir onm ental Policy Act, sup ra note 22 at 153-56 (describing the Wisconsin experience).no MASSANN.LAW S h. 30, 88 61-62H (M ichieL aw C o-op 1973 Supp. 1981)."I 40 C.F.R. 8 1501.7 (1981). See also notes 131-32 and accompanying text infra.11' N.Y. ENVTL. ONSERV.AW 8-0109(2) lists specific considerations to be included in theEIS and provides that it "should not contain more detail than is appropriate." Id . This section

also provides that "agencies may make their own independent judgment of the scope, contentsand adequacy of an environmental impact statement." Id . 8 8-0109(3 ). DEC's impleme ntingregulations provide th at im pact state me nts should not be "encyclopedic," 6 N.Y.C.R.R. 8617.14(b) (1979), and "should not contain more de tail than is appro priate considering the na-ture and magn itude of th e proposed action and the significance of its poten tial impacts." Id . 8



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19821 SEQRA 1173the beginning of the EIS process where a scoping conference is oftenheld with the lead agency.l18

5. The Final EIS Proposals for MitigationNot only must an FEIS under SEQRA fully review adverse envi-

ronmental effects and identify alternatives, but viable steps for miti-gating those effects must also be discussed. The final agency decisionshould make appropriate mitigation a condition for project approval.The failure to select a feasible alternative which would avert envi-ronmental harm gives the agency the option in some jurisdictions todeny the requested approval.ll' This is ultimate mitigation. There isauthority under CEQA that an agency need only impose feasible mit-igation, not the most environmentally superior alternative.ll5 WithSEQRA's social and economic compatibility provisions,116 his CEQArule may be appropriate in New York.

SEQRA, unlike NEPA, expressly embodies the requirement of sub-stantive mitigation."' As in Washington, this means that a permitmay be denied on the grounds that i t would degrade the environmentexcessively in contravention of SEQRA's stewardship responsibili-ties.l18 Among all the little NEPA's, Minnesota's statute probablyimposes the greatest substantive burden."@Even after an action has gone forward without a valid EIS or ab-sent all feasible mitigation, the SEQRA duty to assure that feasiblemitigation be considered and applied must be discharged. This maymean retrofitting a project. Both Californialao and New Yorklalcourts have reached this EIS implication in their rulings.617.14(c).In fact, DEC's regulations governing procedures for DEC permit approvals strongly rec-ommend th.at the applicant request a scoping conference where an EI S is necessary. Id. 5 621.3(1977).

l L 4 I n re City of White Bear La ke, 311 Minn. 146, 247 N.W.2d 901 (1976).11' Laur el Hills Hom eowners Ass'n v. City Council, 83 Cal. App. 3d 515, 147 Cal. Rpt r. 842(1978). Th is ruling is criticized in Note, CEQA's S ubst antiv e Man da te Clouded by AppellateCourt, 8 ENVTL. . REP. (ENVTL. . INST.)U 10,208 (1978).l I e N.Y. ENVTL. ONSERV.AW 8-0109(1) (McKinney Supp. 1981-1982).l L 7See Gitlen, T he Sub stan tive I mp ac t of SEQRA, 46 ALB. L. REV. 1241 (1982); Ulasewicz,sup ra note 5. As to CEQA, see Su bstantive Enforcement, supra note 22.See, e.g., Polygon Corp. v. City of Seattle, 90 Wash. 2d 59, 578 P.2d 1309 (1978).118 State v. Erickson, 285 N.W.2d 84 (Minn. 1979).lS0 San Diego Tru st & Savin gs Ban k v. Fr iend s of Gill, 121 Cal. App. 3d 203, 174 Cal. Rp tr.784 (1981).la' Rye To wnIK ing Civic Ass'n v. Town of .Rye , 82 A.D.2d 474, 442 N.Y.S.2d 67, a pp ea ldismiss ed, 55 N.Y.2d 747 (1981 ).



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1174 Albany Law Review [Vol. 466. Standing and Judicial Review

The entire EIS process is enforced through recourse to the courtsby way of judicial review of the agency action. The lead agency mustcompile a careful record documenting th e E IS process.1aaTh is recordis the basis for determining both the procedural correctness and thesubstantive reasonableness of the agency's decision.Judicial review is contemplated as the principal means for enforc-ing agency adherence to SEQRA's s tewardship responsibil i t ie~.~~~Th e criteria for any citizen's standing to so enforce SEQRA is foundin the pre-SEQRA ruling of Douglaston Civic Association v. Gal-vin.la4While courts have occasionally found th at th e stand ing criteriaof Douglaston have not been met,la5 he pattern of New York stand-ing cases follows th e fed eral lead in liberally construing environmen-tal noneconomic interests as being of sufficient weight to accordstanding to their champions to enforce SEQRA.lS6 In this respect,most jurisdictions in zoning and land use cases analogous to EIScases today accord standing to civic groups.la7The literature on the scope of judicial review of an EIS processunde r little NEPA's has been ex tensively developed.la8 Since SEQ RArelies on each state agency and local government to remake its ownprocedures to assure tha t its stewardship duties will be met, only th ecourts can assure that a uniform statewide process will eventuallyemerge.la8 Th is will take time and will ultimately call for the guidinghand of the court of appeals. Uniformity of EIS application will

la' Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wash. 2d 267,275-76,552 P.2d 6 74,6 79 (1976); Wisconsin's Env tl. Decade v. Public S erv. Comm'n, 79 Wis. 2d409, 419, 256 N.W.2d 149, 155 (1977).la8 See als o Wisconsin's Env tl. Decade v. Pu blic S ew . Comm 'n, 79 Wisc. 2d 409, 256 N.W.2d149 (1977); author ity discussed in Wisconsin Environm ental Policy Act, supr a no te 22, a t 161-66. Th e pa ttern was fixed under NEPA with Calvert Cliffs' Coordinating Comm., Inc. v. UnitedSt ate s Atomic Ener gy Comm 'n, 449 F.2d 1109 (D.C. Cir. 1971).la' 36 N.Y.2d 1, 324 N.E.2d 3 17,364.N.Y.S.2d 830 (1974). For f urth er discussion of stand ingto sue under SEQRA, see Crary, Procedural Issues Under SEQRA, 46 ALB.L. REV. 1211, 1211-23 (1982)."".W.A.R.E., Inc. v. No rth H emp stead, 81 Misc. 2d 1010, 367 N.Y.S.2d 374 (Sup. Ct.1975).la0 United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669(1973); Sie rra Clu b v. Morto n, 405 U.S. 727 (1972). See also S imons v. City of Los Ang eles, 100Cal. App. 3d 496, 161 Cal. Rptr. 67 (1979); Residents of Beverly Glen, Inc. v. City of Los Ange-les, 34 Cal. App. 3d 117, 109 Cal. Rptr. 724 (1973); SAVE a Valuable Environment v. City ofBothell, 89 W ash. 2d 862, 576 P.2d 401 (1978).Ia 7 Se e Annot., 8 A.L.R.4th 1087 (1981)."' ee, e.g., Roe & Lean, supra note 22, at 533-40.lag Uniformity of application has been criticized under other little NEPA's. See, e.g., Questfor Uniformity, supra note 22.



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19821 SEQRA 1175therefore be enhanced by following the precedents of sister stateswhere applicable.

Recurring patterns of new land uses and development existthroughout the United States. It is only natural, therefore, that statelegislatures have sought to regulate and control these developmentsin similar ways. The environmental impact assessment process at itsbest is a technique not just to protect environmental.quality, but alsoto promote the ordered growth of society. The courts do much to ad-vance both wise use of natural resources and social and economic de-velopment by reinforcing the legislative judgment that environmentalimpact analysis shall be a part of all governmental decisionmaking inthe federal government and in states such as New York, Californiaand Washington.Jus t as the experiences under the ~a ss ac hb se tt s ittle NEPAISOgave the Council.on Environmental Quality the idea of "scoping" tonarrow an EIS,lS1and the NEPA regulations now include a require-ment for scoping,lsa so also the NEPA process can guide the states'little NEPA's. An evolving and symbiotic relationship exists betweenNEPA and the comparable state laws, just as there is one among thestate enactments.The New York Legislature should' seek to improve. and streamlineSEQRA by considering the strengths in other states' little NEPA's.For one thing, a New York oversight body, analogous to the Presi-dent's Council on Environmental Quality,lsS should be created to fa-cilitate the work of SEQRA. Such a body could exist in either theDepartment of Environmental Conservation or the Department ofState. A similar proposal has been made for C,alif~rnia.'~~In like vein, the New York courts should draw on the wealth of EIScase law around the nation in shaping.SEQRA. A common body oflaw, adapted mutatis mutandis for each state, now exists. The judici-

IB0 MASS.ANN. LAWS h. 30, 88 61-62H (MichieLaw Co-op 1973 & Supp. 1981).la' Se e 40 C.F.R. 83 1500.4, 1501.1, 1501.4, 1501.7, 1502.9, 1506.8 (1979); [I9781 COUN CILNENVIRONMENTALUALITYNN. REP., ENVIRONMEN TALUALITY96, 398 (discussing Council on

Environmental Quality revisions to NE PA regulations). For a further discussion of scoping, seenotes 110-13 and accompanying text supra."' 0 C.F.R. 8 1501.7 (1981).ma 42 U.S.C. $8 4341-4347. See also Crary, supra note 124, at 1231-32.I" Quest for Uniform ity, supra note 22, at 873-76.



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1176 Albany Law Review [Vol. 46ary can and should do much to mold this corpus of ordered commonlaw which environmental impact laws make possible.

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