February 23, 2004 New York County Lawyers’ Association CLE Institute New York State Environmental Quality Review Act (SEQR)

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR2 Challenges to SEQR Determinations CPLR Article 78 proceedings CPLR Article 78 proceedings –Generally used to challenge regulatory or administrative actions Declaratory judgment actions Declaratory judgment actions –May be used in challenging legislative actions

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR3 Standards of Review Procedural Challenges Procedural Challenges –2 lines of cases strict compliance strict compliance more lenient more lenient Substantive Challenges Substantive Challenges –more difficult to win as a plaintiff –deference to agency courts won’t order a different result courts won’t order a different result

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR4 Anything Else? Statute of Limitations Statute of Limitations –General interpretation prior to about 2002 was only began to run with “final agency action” –“Final action” not always easy to determine Especially for non-regulatory actions Especially for non-regulatory actions –Stop the Barge & Gordon v. Rush differed Allowed challenges of neg and pos decs, in special cases Allowed challenges of neg and pos decs, in special cases Ordinarily a 4-month limitations period Ordinarily a 4-month limitations period –Unless otherwise specified in underlying law –30 days for NYS Freshwater Wetlands, NYS Low Level Radioactive Waste Commission, city & town planning boards

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR5 Anything More? Standing Standing –Difference between NEPA & SEQR NY more restrictive NY more restrictive –NEPA claims are raised through federal APA (Administrative Procedures Act) Article III standing has a broader test Article III standing has a broader test –SEQRplaintiffs need to demonstrate special harm more narrow test more narrow test

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR6 Standing Test in NY Injury in fact/Zone of interests test (Dairylea) Injury in fact/Zone of interests test (Dairylea) Zone of Interests: Zone of Interests: –Allegations of purely economic harm are insufficient. Mobil Oil Corp., Sun-Brite Mobil Oil Corp., Sun-Brite Special Harm Requirement in Land Use Matters Special Harm Requirement in Land Use Matters –Plaintiffs must show that they have suffered direct harm Injury that is in some way different from any injury of the general public. Injury that is in some way different from any injury of the general public.

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR7 Special Harm Where did it come from? Where did it come from? –Soc’y of the Plastics Indus., Inc. v. County of Suffolk (Ct. Appeals 1991) –Hints in Sun-Brite and Mobil Oil Corp. Exemptions: Exemptions: –If plaintiff is the target of regulation –If the regulation is area-wide in application –If plaintiff is an adjacent Resident, Landowner, etc Plaintiffs have had increasing difficulty meeting special harm rule. Plaintiffs have had increasing difficulty meeting special harm rule.

February 23, 2004NY Co. Lawyers: Anatomy of an EIS - SEQR8 SEQR v. NEPA: Summary of Key Differences Threshold for requiring an EIS Threshold for requiring an EIS –SEQR = “may” cause impact –NEPA = “will” cause impact Mitigation of identified impacts Mitigation of identified impacts –SEQR requires mitigation to “maximum extent practicable” –No statutory requirement in NEPA Levels of government affected Levels of government affected –Triggered when state or local government entity must make a discretionary decision