March 14, 2014
On March 6, the House of Representatives approved the Responsibly and Professionally Invigorating Development (“RAPID”) Act, a bill that would, for the first time, impose deadlines on environmental impact review under the National Environmental Policy Act (“NEPA”). The bill includes a 4 ½ year deadline for the environmental review process, including an 18-month deadline for an environmental assessment and a 3-year deadline for creation of an environmental impact statement (“EIS”). It would also impose a 6-month statute of limitations on suits challenging an agency’s environmental review, as opposed to the 6-year statute of limitations currently applied under the Administrative Procedure Act. These deadlines would apply to projects that are currently pending, and the bill includes a provision deeming any project approved if the deadlines for NEPA review are missed.
While the legislation is unlikely to be approved by the Senate in the near future – and has received a veto threat from the White House – it joins a list of several recent pieces of legislation seeking to streamline the environmental review process, at both the state and federal level. For example, the House and Senate versions of the 2013 Water Resources and Development Act (“WRDA”) reauthorization bill included provisions requiring the lead agency to established a schedule for the completion of the environmental review process, limiting the length of public comment periods under NEPA for WRDA projects, and, in the House bill, limiting the statute of limitations for challenges to WRDA projects to 150 days. That bill is currently before a conference committee to resolve differences between the House and Senate versions.
In New York, the Department of Environmental Conservation (“NYSDEC”) intends to propose revisions to the State Environmental Quality Review Act (“SEQRA”) regulations, as set forth in a 2012 scoping document. One such change would deem a draft EIS to be final if the lead agency has not acted on it within 180 days of finalizing its response to public comments. While existing SEQRA regulations contain deadlines for the completion of a final environmental impact statement, they are regularly ignored and do not provide for the default issuance of a final environmental impact statement if the deadlines are missed.
For more information about NEPA and SEQRA review, contact David Paget.
April 12, 2013
On April 9, 2013, the New York City Council unanimously approved a proposal to redevelop the historic Pier 57 within Hudson River Park, at the foot of West 15th Street in Manhattan. This followed approval by the City Planning Commission in March, and the environmental review of the project by the Hudson River Park Trust (“HRPT”) and other agencies, through the preparation of an environmental impact statement (“EIS”). SPR is serving as HRPT’s environmental counsel for the Pier 57 redevelopment, continuing the Firm’s representation of Hudson River Park since its establishment in the 1990s.
Pier 57, which was constructed in the early 1950s and comprises three underwater caissons, a head house and a pier shed, is listed on the State and National Registers of Historic Places. It has been vacant since the 1990s. Developer Youngwoo & Associates proposes to lease the Pier from HRPT in order to redevelop it with an urban marketplace (using repurposed shipping containers for small food- and design-oriented retail businesses), restaurants, a large rooftop open space, and public circulation space around the perimeter of the pier. The project may also include cultural space, an educational facility, and a marina.
SPR principals David Paget and Elizabeth Knauer have been advising HRPT regarding all environmental aspects of the project, including preparation of the EIS, consultation with the State Historic Preservation Office, and obtaining environmental permits for work that will be needed within the Hudson River. This representation is the latest example of the firm’s longstanding work on major New York City waterfront developments, dating back to the South Street Seaport and Battery Park City projects and continuing with more recent projects such as Queens West, Brooklyn Bridge Park, the redevelopment of the Battery Maritime Building and Pier A in lower Manhattan, the Whole Foods store and Domino Sugar Refinery redevelopment in Brooklyn, and the proposed expansion of the New York Container Terminal in Staten Island.
March 26, 2013
Earlier this month, the Council on Environmental Quality (“CEQ”) and the Advisory Council on Historic Preservation (“ACHP”) published a new handbook governing the coordination of project review under the National Environmental Policy Act (“NEPA”) and Section 106 of the National Historic Preservation Act (“Section 106”). Drawing from existing rules and guidance from both agencies, the Handbook for Integrating NEPA and Section 106 Reviews (the “Handbook”) summarizes regulatory requirements; provides checklists and flow-charts to assist project sponsors and reviewing agencies; and emphasizes opportunities to synchronize and streamline review under both statutes.
NEPA requires federal agencies to assess proposed actions’ environmental impacts, and to prepare an environmental impact statement (“EIS”) when potentially significant, adverse impacts are identified. Section 106 requires federal agencies to determine whether proposed actions (or “undertakings”) could affect historic properties, including but not limited to those listed on the National Register of Historic Places. If the undertaking may have an adverse effect, the agency must work with federal, state and tribal stakeholders in order to develop a plan to avoid, minimize, or mitigate such effects on the resource. Because effects on historic and cultural resources are considered environmental impacts under NEPA (though not necessarily significant effects under NEPA), the analyses required under the two statutes often overlap, creating the potential for duplicative study and overlapping procedural requirements if review is not coordinated.
Under Section 106 regulations, agencies may substitute NEPA review for Section 106 analysis in certain circumstances, although substitution requires early notification of ACHP and incorporation of Section 106 requirements into an Environmental Assessment or EIS. The Handbook provides a checklist to determine when substitution is appropriate and whether the substitute procedures have been adequately followed under NEPA.
In the absence of substitution, the Handbook emphasizes how agencies can nonetheless coordinate NEPA and Section 106 review by developing a combined schedule and communications plan; using NEPA analyses and comment periods to fulfill Section 106 documentation and participation requirements; and planning ahead to avoid, minimize or mitigate historic impacts early in the review process. The Handbook concludes: “The current paradigm for environmental reviews advanced by CEQ and the ACHP envision these reviews occurring simultaneously, continually exchanging information, and allowing determinations and recommendations in one to inform the other.”
For more information on the CEQ-ACHP Handbook or project review under NEPA and Section 106, contact David Paget, Mark Chertok or Elizabeth Knauer.
February 8, 2013
In an order dated January 16, 2013, Judge Eileen Rakower of the New York State Supreme Court dismissed an Article 78 petition challenging the Hudson River Park Trust’s lease of an easement for a portion of a natural gas pipeline entering Manhattan through Hudson River Park. The lease – along with the pipeline’s route into Manhattan – was challenged by several environmental groups and individuals, who argued that the Trust was required to conduct an environmental review under the State Environmental Quality Review Act (“SEQRA”) of the pipeline and its connection to Con Edison’s pipeline network. The petitioners also argued that leasing an easement beneath the Park violated the public trust doctrine and provisions of the Hudson River Park Act that restrict the uses to which certain areas of the Park may be put.
Judge Rakower first noted that the Federal Energy Regulatory Commission (“FERC”) had analyzed the environmental impacts of the proposed pipeline under the National Environmental Policy Act and issued an Environmental Impact Statement (“EIS”). That EIS concluded that the local pipeline connection to Con Edison’s network was outside of FERC’s jurisdiction, but nevertheless gave some consideration to the cumulative impacts of connection to Con Edison’s network. After issuing the EIS, FERC approved the route of the pipeline through Hudson River Park. The Trust then negotiated the challenged lease with the pipeline developer.
Judge Rakower concluded that, under the federal Natural Gas Act, FERC had exclusive jurisdiction over the siting of the pipeline, and that any challenges to the siting decision – or the Trust’s lease of the right-of-way through Hudson River Park in accord with that decision – must be brought in federal court. Judge Rakower also ruled that state-law environmental review of the pipeline under SEQRA was preempted by the Natural Gas Act. The court therefore dismissed the petition.
For more information on the Court’s decision, contact Elizabeth Knauer.
November 13, 2012
New York’s highest court recently upheld lower court decisions requiring the New York City School Construction Authority (“SCA”), as lead agency under the New York State Environmental Quality Review Act (“SEQRA”), to consider in the environmental review process the long-term maintenance and monitoring requirements designed to assure the continued effectiveness of the remediation of hazardous substances.
The remediated site at issue in the case, Bronx Committee for Toxic-Free Schools v. New York City School Construction Authority, was a former railyard in the Mott Haven section of the Bronx, on which SCA built a campus with four public schools that opened in 2010. The remedial measures included several engineering controls, such as vapor barriers under buildings and a hydraulic barrier to prevent contaminated groundwater from re-entering the site. The Environmental Impact Statement (“EIS”) incorporated the Remedial Action Work Plan (“RAWP”), which described the proposed cleanup, but neither document described the plans for long-term maintenance and monitoring. Those measures were later documented in the project’s Site Management Plan, which is required under the New York Brownfield Cleanup Program (“BCP”) to set forth any long-term program designed to ensure that a remediated site continues to be protective of public health and the environment. The lower court directed SCA to prepare a Supplemental EIS to examine those requirements, and the First Department affirmed.
In upholding these decisions, the Court of Appeals acknowledged the “broad discretion” afforded lead agencies in determining “what to include and what to omit” in an EIS, and the level of detail in an EIS, but found that a Supplemental EIS must be prepared because SCA had not disputed that the description of the long-term maintenance and monitoring requirements was “essential to an understanding of the environmental impacts of the Authority’s project” and “too important not to be described in an EIS.” Nor had SCA disputed that the measures were “‘essential’ to protecting the site’s occupants from dangerous contaminants.”
In response to arguments that the details of the maintenance and monitoring program could not reasonably be determined until the cleanup was completed, the Court noted that this was not a case where there was a dispute over whether post-EIS events were significant enough to warrant a supplement. Rather, it found that “[w]here important decisions about mitigation can only be made after the initial remedial measures are complete, a supplemental EIS may be called for, as it is here.” Thus, given SCA’s implicit acknowledgement of the importance of the long-term maintenance and monitoring measures, the EIS had not met SEQRA’s “hard look” standard, which requires that the environmental review identify and assess relevant areas of environmental concern.
Although it may not be possible to detail all of the long-term maintenance and monitoring requirements applicable to a given remediation in an EIS or in an Environmental Assessment Form (“EAF”) (or Environmental Assessment Statement (“EAS”) for New York City’s Environmental Quality Review), the New York State Department of Environmental Conservation’s BCP regulations do require that a description of such measures be included in the RAWP. Thus, in the case of Brownfield sites, it should be possible to include sufficient information to satisfy SEQRA’s “hard look” requirement in an EIS (or an EAF or EAS).
However, this requirement may be more problematic for sites undergoing review under SEQRA at which it is impracticable to conduct investigations necessary to fully characterize a site and identify the necessary long-term maintenance and monitoring measures. For such projects, it will be important to describe such measures to the fullest extent practicable.
For more information on how the Toxic-Free Schools decision may affect your project, please contact Mark Chertok.
October 1, 2012
On September 25, 2012, the Federal Highway Administration, New York State Department of Transportation, and New York State Thruway Authority approved a Joint Record of Decision and Findings Statement for the Tappan Zee Hudson River Crossing Project (the “Project”), concluding the extensive environmental review for the proposed replacement of the existing Tappan Zee Bridge. Sive, Paget & Riesel is serving as special environmental counsel for the Project, which has been designated by the Obama Administration as a high-priority for the nation’s infrastructure needs.
The 3.1 mile-long Tappan Zee Bridge was built in 1955, and it is projected to cost the state approximately $1.3 billion over the next decade in upkeep and repairs. The Project is intended to address the structural, operational, safety, security, and mobility needs of the crossing, maintaining a vital link in the regional and national transportation network while addressing the shortcomings of the existing bridge. An Environmental Impact Statement (“EIS”) for a replacement was prepared to satisfy environmental review requirements under the National Environmental Policy Act (“NEPA”) and State Environmental Quality Review Act (“SEQRA”). After accepting public comment on both the draft and final EIS earlier this year, the lead agencies approved a replacement that includes two new bridge structures (one eastbound and the other westbound) just north of the existing location.
The selected alternative includes multiple Environmental Performance Commitments (“EPCs”) and mitigation measures to avoid, minimize, and offset potential environmental impacts, including - among others - the use of noise barriers, use of ultra-low-sulfur diesel fuel and emissions controls on construction equipment, restricted periods for dredging and pile driving activities, restoration of local oyster habitat, wetlands enhancements at a nearby marsh, tracking and study of endangered sturgeon species, and use of protective measures such as bubble curtains to reduce underwater noise during pile driving.
For more information on the Tappan Zee Bridge replacement, or the environmental review of other major infrastructure projects, contact David Paget.
July 31, 2012
The New York State Department of Environmental Conservation (“DEC”) has finalized regulations requiring new or expanding power plants in New York to evaluate potential disproportionate environmental impacts on minority and low-income communities. The regulations are the first in the country to require an environmental justice (“EJ”) analysis in the siting of major electric generating facilities; their requirements could provide practical experience for incorporating environmental justice considerations into other governmental decisions.
Some comments from the regulated community in response to the proposed rules found the new EJ requirements to be unduly burdensome, citing the costs and delay the process would incur. (See the full assessment of public comments here.) However, others have praised New York’s efforts, expressing their hope that the regulations could become a good model for what an environmental justice analysis looks like – not just for power plants but for a whole host of environmental actions. Cecil Corbin-Mark, Policy Director for West Harlem Environmental Action, Inc. (WE ACT for Environmental Justice), described the regulations as a “significant improvement over [the previous framework], and one that brings a new level of focus to the impacted communities. It’s a good step forward.”
The regulations, initially proposed in January 2012, are intended to assess and reduce disproportionate environmental impacts in “overburdened” communities. In its response to public comments on the proposed rules, DEC explained that there is no definition of “overburdened” under New York law. However, the regulations use the same long-established demographics on race, ethnicity and income used in CP-29, the Department’s Environmental Justice Policy, which establishes a mechanism for identifying potential “environmental justice areas.”
According to the Department’s policy, an “environmental justice area” is defined as an area containing a minority or low-income community that may bear a disproportionate share of environmental impacts. A “low-income community” means a contiguous area where 23.59% or more of the population has an annual income that is less than the poverty threshold. A “minority community” means a contiguous area where the minority population is equal to or greater than 51.1% in an urban area or 33.8% in a rural area. These percentage thresholds are based on census block groups and may be revised to reflect updated demographic data.
Following the proposed siting of a new plant, the newly finalized regulations establish an “Impact Study Area” of at least a one-half mile radius around the proposed location of the facility, with a greater area considered on occasion due to “site-specific factors.” The applicant must then determine whether the Impact Study Area contains one or more EJ areas by identifying if there is a minority or low-income community within the Impact Study Area, based on the thresholds summarized above. If no area meeting the definition of minority or low-income community is present within the Impact Study Area, an EJ area is still considered to be present if: (1) a contiguous area has a minority or low-income population that is above 75% of the stated thresholds, and (2) reasonably available air quality data reveals that the Impact Study Area may bear a disproportionate share of negative environmental consequences resulting from multiple sources when compared to the county as a whole, or if in New York City, when compared to the city as a whole.
If an EJ area is present in the Impact Study Area, an application to site a power plant there must analyze any significant adverse environmental impacts to the EJ area resulting from the plant’s operation or construction. The requirements for a full EJ analysis are described in an earlier SPR blog post.
The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible. Consistent with the authorizing statute for the EJ rules, the Department has revised its proposed regulations to clarify that if the impacts cannot be avoided or minimized, the applicant must still offset the impacts. While the statutory text requires mitigation and offsets to be evaluated “using verifiable measures,” the regulations offer no further descriptions of mitigation or offset measures and no examples of how the measures must specifically benefit affected EJ areas. Concerned parties await the regulations’ implementation to see how these requirements will be interpreted in practice.
These regulations were issued pursuant to Article X of the Public Service Law (“Article X”), which was reauthorized last summer to reestablish a comprehensive regulatory regime for power plant siting. Article X displaces the State Environmental Quality Review Act (“SEQRA”) process for covered projects, but mandates several of its own environmental analyses of facilities’ impacts. Review under the new Article X process is just beginning this year; it remains to be seen how DEC’s new environmental justice regulations will be implemented, or whether similar requirements will be incorporated into SEQRA in the future.
For more information about DEC’s new EJ regulations for power plants, contact Jeffrey Gracer.
Priya Murthy is a Summer Associate at Sive, Paget & Riesel.
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