Law Commons^™

Survey Of 2022 Cases Under State Environmental Quality Review Act, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

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 …

Review Of 2020 Cases Under Seqra, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

The courts decided 47 cases under the New York State Environmental Quality Review Act (SEQRA) in 2020. Of these, in the great majority – 31 – the courts upheld, or at least left alone, agencies’ decisions that a particular action did not require the preparation of a full environmental impact statement (EIS); in seven the courts rejected such decisions; and in eight the courts upheld EISs that had been prepared. (One case was unclassifiable.) The Court of Appeals issued no SEQRA decisions in 2020.

Survey Of 2012 Cases Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts issued 55 decisions in 2012 under the State Environmen­tal Quality Review Act (SEQRA).1 As this annual survey shows, especially important decisions concerned the necessity of supplemental environmental impact statements (EISs), and the relationship of SEQRA to various federal laws.

The State Department of Environmental Conservation (DEC) was also busy. On Jan. 15, 2012, DEC adopted revised short and full environmental assessment forms, which are used in determining whether full EISs are needed. The new forms become effective on Oct. 7, 2013. They will be accompanied by workbooks and by an updated web-based geographic information system search engine to …

Reverse Environmental Impact Analysis: Effect Of Climate Change On Projects, Michael B. Gerrard

Faculty Scholarship

Environmental impact statements (EISs) examine the effect of the proposed action – typically a construction project, but sometimes a government policy or other activity – on the environment. However, increasing attention is now devoted to looking in the other direction – at how changes in the environment might affect a project.

Reverse environmental impact analysis, as I will call it, has been with us for some time. For example, if a building is planned downwind of a smokestack or downstream of a contaminated groundwater plume, this effect of the outside world has long been considered. However, the emergence of scientific …

Recent Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

When a litigant brings a lawsuit under New York’s State Environmental Quality Review Act (SEQRA), the odds of success have never been high. However, the cases decided in 2011 exhibiteda stark exception to this general rule: Project applicants who were frustrated by governmental delays or obstacles won six of the seven cases they brought under SEQRA.

The volume of SEQRA litigation continues to decline. In 2011 the courts decided 35 cases under SEQRA, the lowest number since this column began its annual survey in 1990. The second lowest was 37 in 2010; the third lowest was 45 in 2009. (Previously …

Hurricane Katrina Decision Highlights Liability For Decaying Infrastructure, Michael B. Gerrard

Faculty Scholarship

A March 2, 2012, decision from the U.S. Court of Appeals for the Fifth Circuit, little noticed outside of New Orleans, has broad implications for the liability of federal agencies for injuries caused by the decay or obsolescence of infrastructure due to erosion, sea level rise, and other ongoing conditions, whether of natural or human origin. Less directly, the decision also affects the liability of state and municipal governments, and even private entities in charge of built structures.

This article describes the underlying facts, the decision, and its implications. It also considers how governments and private parties can, to a …

2010 Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts decided 37 cases under the State Environmental Quality Review Act (SEQRA) in 2010. That is the lowest number since this column began its annual survey of SEQRA cases in 1990. The second lowest number was 45 in 2009. This trough is most likely caused by the economic recession, as SEQRA activity primarily relates to real estate development.

As is usually the case, defendants were much more likely to win in cases where an environmental impact statement (EIS) had been prepared than when there was no EIS. Of the 16 cases with an EIS, defendants won 13 (81 percent); …

Litigation Under Seqra Declining, Exemption Use Is Rising, Michael B. Gerrard

Faculty Scholarship

The State Environmental Quality Review Act (SEQRA), the statute that requires the preparation of environmental impact statements (EISs) for discretionary actions by state and local governments that may have a significant effect on the environment, has long been by far the most fertile source of environmental litigation in New York. That is still so, but the volume has declined, probably because much of such litigation grows out of disputes over proposed construction projects, and there are fewer of those in the recent recession.

Court Of Appeals Expands Seqra Standing After An 18-Year Detour, Michael B. Gerrard

Faculty Scholarship

The most controversial decision in New York environmental jurisprudence is almost certainly Society of the Plastics Industry v. County of Suffolk (Plastics), in which the Court of Appeals ruled in 1991 that plaintiffs in suits under the State Environmental Quality Review Act (SEQRA) must show that they are affected differently than the public at large. In the 18 years since that decision, the New York Attorney General, the State Department of Environmental Conservation, the New York State and New York City bar associations, and numerous environmental groups all filed amicus briefs or issued reports calling for the reversal of …

The Effect Of Nepa Outside The Courtroom, Michael B. Gerrard

Faculty Scholarship

The central purpose of the National Environmental Policy Act (NEPA) is not to produce gorgeous or perfect documents; that’s a means to an end. The ultimate purpose is to improve governmental decisionmaking by making relevant information available to officials and by ensuring that everyone affected by the decisions is given a voice. I would like to focus on the effect of NEPA on decisions.

I will discuss three issues.

First, I will talk about the effect that NEPA has had on internal decisionmaking by agencies.

Second, since NEPA attempts to focus decisionmakers on predictions of future environmental conditions with or …

Survey Of Seqra Cases From 2007, Michael B. Gerrard

Faculty Scholarship

The courts issued 58 decisions under the New York State Environmental Quality Review Act (SEQRA) in 2007.

Typically, plaintiffs have a much greater chance of success in SEQRA cases when no environmental impact statement (EIS) has been prepared: on average, in the cases from 1990 (when this column’s annual survey began) through 2006, plaintiffs won 15.9 percent of the cases where there is an EIS, and 38.6 percent of the cases without an EIS.

But in 2007 the ratio was much different. In the 22 cases with an EIS, plaintiffs won seven, or 31.8 percent. In the 27 cases without …

Harnessing Information Technology To Improve The Environmental Impact Review Process, Michael B. Gerrard, Michael Herz

Faculty Scholarship

In 1970, when the National Environmental Policy Act (NEPA) was enacted, the new and exciting information management technologies were the handheld four-function calculator and the eight-track tape cassette. Three decades later, after the personal computer, the digital revolution, and the World Wide Web, the implementation of NEPA is still stuck in the world of 1970. Other aspects of the bureaucracy have seen reform-the E-Government Strategy, an E-Government Act, the creation of a new Office of Electronic Government within the Office of Management and Budget (OMB), and, to focus on the environmental arena, the breathtaking success of the web-based Toxic Release …

Judicial Review Under Seqra: A Statistical Study, Michael B. Gerrard

Faculty Scholarship

Nearly 2000 judicial opinions were issued under the State Environmental Quality Review Act ("SEQRA") between its enactment in 1975 and the end of 2000. Almost 700 were issued from 1990 (when the author began undertaking an annual review of SEQRA cases for the New York Law Journal) through 2000. These numbers are large enough to serve as a basis for a statistically valid review of case outcomes.

This article is divided into five parts. Part I presents statistics on the SEQRA cases. Part II reviews the history of how the Court of Appeals has decided SEQRA cases. Part III …

How Seqra Cases Fared In 1998, Michael B. Gerrard

Faculty Scholarship

In the annals of the State Environmental Quality Review Act (SEQRA), 1998 should be remembered as the year when developers throughout New York State became frustrated with what they perceived as irrational requirements or excessive delays in the SEQRA process, went to court for redress, and almost uniformly lost. There were 18 attempts at such relief and one highly mixed success.

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

Municipal Powers Under Seqra, Michael B. Gerrard

Faculty Scholarship

The State Environmental Quality Review Act (SEQRA) confers considerable powers on New York State municipalities. In fact, most municipalities are probably unaware of the full scope of authority they are given by this statute.

Environmental Commercial Law – Update On Seqra Lawsuits For 1994, Michael B. Gerrard

Faculty Scholarship

The Courts decided 57 cases1 in 1994 under the New York State Environmental Quality Review Act (SEQRA).2 As in prior years,3 this column presents a statistical summary of these cases and analyzes emerging trends. The 57 cases last year are about the same number as in 1993, but are down from the 70-75 seen annually in the early 1990s.

The Dynamics Of Secrecy In The Environmental Impact Statement Process, Michael B. Gerrard

Faculty Scholarship

The environmental impact review laws – the National Environmental Policy Act (NEPA) and its state counterparts – are premised on the idea of full and open disclosure. The notion underlying these laws is that if the government and the public are fully informed of the impacts of and alternatives to proposed actions, they will make wise decisions about whether and how to proceed. The Freedom of Information Act and its state counterparts even more explicitly seek to open up governmental deliberations to the public. Considered together, these two types of laws would lead one to believe that secrecy has little …

Disclosure Of Hidden Energy Demands: A New Challenge For Nepa, Michael B. Gerrard

Faculty Scholarship

The specialization of the American economy obscures the identity of the ultimate users of energy, even from themselves. As a result consumers remain ignorant of the amount of energy which they use, and of the efficiency of that usage. Direct personal use of energy in the United States, such as electricity and natural gas for home heating, cooking and lighting, and gasoline for private automobiles, accounts for only about one-third of national energy use. Usage by industry and government to provide for the intermediate and final goods and services, for which we as individuals ultimately pay through our purchases and …