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Sanity is Returned to the SEQRA Process

In a unanimous decision the Appellate Division (3rd Department) held that when a Town (or any other regulatory body) has participated in a coordinated SEQRA review of a project, it is prohibited from later requiring a second, independent environmental review of the project in conjunction with its consideration of a local permit. Couch White attorneys submitted what proved to be a highly influential amicus brief on behalf of the New York Materials Association and Associated General Contractors of New York in this significant matter.

This important ruling by a unanimous panel reversed a lower court decision that would have allowed any agency considering a local permit for a project that has already undergone a full-scale coordinated SEQRA review to conduct a later and separate environmental review outside and beyond the established SEQRA record, based entirely on the fact that the zoning law at issue used the word “environmental review.” Such a process would inherently create not only additional applicant delay and expense, but it would also cause – whether intended or unintended – confusion as to the set of facts upon which the local determination was based. Because those facts are the yardstick by which a local decision’s rationality and legality is measured, the ambiguous factual record would obstruct and impede an applicant’s ability to challenge such a decision. The lower court’s approach would have allowed virtually any project requiring more than one approval (whether state or local) a second bite the environmental apple, potentially subjecting projects to unlimited sequential environmental reviews. Such a framework would have effectively destroyed all regulatory certainty inherent in, and guaranteed by, the operation of the SEQRA process.

With this significant victory, businesses can more accurately budget the time and expense that will be involved in the environmental (SEQRA) review of their projects. A semblance of order has been returned to the SEQRA review process in New York.

The Memorandum and Order is available or for more information about this matter, please contact Alita Giuda.