SEQRA and global warming: A changing climate for environmental assessment

Global warming has received significant attention in recent years on both a national and international scale. In addition to the occasional debates over the size of the global warming problem, there has been much discussion over the best way to effectively reduce the production of greenhouse gases, predominantly carbon dioxide. Up until this point, most of the focus has been on international agreements which would limit the amount of carbon dioxide that individual countries could emit. An alternative approach that is gaining momentum is to examine the generation of greenhouse gas emissions on a more localized scale. The State Environmental Quality Review Act (SEQRA) is a law designed to inject environmental considerations into the decision-making processes at every level of government in the state of New York. Any "action" that falls under the purview of SEQRA, which includes proposals requiring government approval or government funding, must undergo the SEQRA review process. Because the scope of SEQRA is set forth broadly, it allows for the incorporation of changing understandings about environmental science including, some would argue, global warming. Upon processing an application for an action, the agency overseeing the SEQRA process, which is called the lead agency, must first determine whether the action will result in a significant adverse environmental impact. If such an adverse impact will occur, further analysis is required and the lead agency must coordinate and oversee the review process. The New York State Department of Environmental Conservation (NYSDEC) has recently applied SEQRA to the emission of greenhouse gases. In two recent examples, one in December of 2007 and another in February, the NYSDEC, as lead agency, requested that the applicant provide information about the production of greenhouse gases from the construction and operation of two large, mixed use projects. By focusing their analysis on both the build-out and the use of the development, NYSDEC is indicating a preference towards examining the life-cycle greenhouse gas emissions of a project. This raises questions about how a project sponsor could compare the greenhouse gas emissions of its project to other potential use for the land. For instance, if a project consists of a large number of units that are tightly grouped, does this have a positive or negative effect on greenhouse gas emissions? On the one hand, a large number of units will demand more electricity than a smaller number of units and therefore more greenhouse gases will be released during power generation. However, if those people were living in the area anyway and the alternative to a small, dense development is having the same number of people spread out over large distances, requiring heavier use of automobiles, would the small, tightly packed homes actually lower carbon dioxide emissions? Courts have not yet had the opportunity to determine whether the examination of greenhouse gases is appropriate under the SEQRA's current statutory construction. It is likely that this judicial review will occur soon. But, in the meantime, there are steps that project sponsors can take to prepare for the evaluation of greenhouse gases. First, it is very important that the project sponsor be involved early on in the SEQRA process in order to clarify the information that the lead agency will be examining. Second, if the lead agency determines that greenhouse gases should be evaluated, the project sponsor should seek an explanation on exactly what phases of development are being examined, be it construction, operation, transportation, or a combination of other activities. Third, the project sponsor should seek direction from the lead agency in how to calculate and compare different greenhouse gas emissions rates. There are a number of different ways to calculate the "carbon footprint" of an activity and the project sponsor should understand the process that the lead agency will be using. Finally, the project sponsor should be able to evaluate the cost-effectiveness of mitigation techniques and propose alternatives that will meet the requirements of the lead agency while also resulting in a profitable project. By taking steps to proactively address the concerns of the lead agency, a project sponsor will be in a better position to quickly respond to new issues as they arise and proceed with their application as expeditiously as possible. Kevin Walsh practices as an associate in the environmental practice law group at Certilman Balin Adler & Hyman, LLP, Hauppauge, N.Y.