Procedure Over Substance: The Limitations of Environmental Review by SEQRA in New York
Oftentimes, the communities most affected by environmental decisions have the least influence over the formal decision-making process. Although environmental review laws provide opportunities for public participation, affected communities struggle to ensure that their environmental concerns guide government decisions when the court’s review prioritizes the satisfaction of procedure over the substance of said concerns. In the case of the controversy surrounding the proposed Manhattan borough-based jail in Chinatown, the approval of the “Megajail” did not consider public participation meaningfully. Contrary to the decision by the Supreme Court of the State of New York in Matter of Neighbors United Below Canal v Mayor Bill de Blasio (2021), the agency approval should be deemed arbitrary and capricious under Civil Practice Law and Rules (CPLR) Article 78 and annulled.
In early 2017, New York City officials announced the establishment of four borough-based jails to accommodate the closing of the Rikers Island prison complex that can house over 17,000 inmates in an effort to create what New York City government officials claim to be a “smaller, safer, fairer system.” [1] The proposed borough-based jail in Manhattan, which is also regularly referred to as the “Megajail,” would replace the existing Manhattan Detention Complex, located on White Street in Chinatown. [2] While environmental protection should be an ubiquitous concern across New York, it is especially pertinent in Manhattan’s Chinatown. The extensive demolition and construction processes required by the borough-based project greatly threatens Chinatown’s daily life, bringing about harmful particulate matter over fresh produce lined along the sidewalks, major pollution in Columbus Park, and heightened health risks for the vulnerable elderly population living near the site, among many other challenges. [3] Furthermore, the jail’s proposed construction in Chinatown was of particular alarm to the community due to the potential to unearth long lasting chemicals from the September 11th attacks on Chinatown’s air quality. As Chinatown was located close to the attacks, residents experienced increased rates of respiratory illnesses, in addition to displacement and reduced tourism. [4] Despite city officials framing the jail project as an important part towards criminal justice reform in New York, they have failed to give proper due process to individuals and organizations based in Chinatown that this reform would negatively affect. Community-led groups have led campaigns, left public comments, and brought attention to the environmental and public health consequences of constructing such a tall structure in an already densely-populated neighborhood, all to be ignored by city officials. [5] Despite city officials framing the jail project as an important part towards criminal justice reform in New York City, individuals and organizations based in Chinatown led campaigns, left public comments, and brought to attention the environmental and public health consequences of constructing such a tall structure in such an already densely-populated neighborhood. [5]
These concerns formed the foundation of the Article 78 petition filed by the lower Manhattan-based non-profit organization Neighbors United Below Canal (NUBC) in late 2019, which initiated the 2020 lawsuit Matter of NUBC v. de Blasio. [6] The petition addresses the demolition of the existing buildings at the 124-125 White Street site at the time, alleged that the City of New York, which encompasses the City Planning Commission (CPC) and the City Council, violated the State Environmental Quality Review Act (SEQRA), the City Environmental Quality Review Process (CEQR), and the Uniform Land Use Review Procedure (ULURP) during its approval of the jail project. [7] NUBC argued that the city had changed the construction site of the Manhattan jail after the environmental scoping process was conducted, incorrectly assessed the environmental and public health effects of demolition and construction, and approved the project before all required environmental review procedures were completed. The New York Supreme Court initially ruled in favor of NUBC in 2020, but the Appellate Division reversed the decision a few months later, concluding that NYC had satisfied the procedural requirements of both SEQRA and CEQR. [8] From the community’s perspective, these procedural changes undermined the transparency and accountability they expected the city to uphold.
Thus, the legal battle surrounding the construction of the Chinatown “Megajail” underscores a possible gap between environmental review and inclusive community participation: When New York courts review whether a construction project has complied with environmental review laws and standards, how much weight is truly given to the environmental health concerns raised by the affected communities? Despite the enactment of SEQRA and CEQR serving to ensure governmental consideration of environmental factors and provide opportunities for public input, the Appellate Division’s reversal exemplifies how New York’s environmental acts may limit judicial review to compliance with established procedure. [9] While the petition asserted claims under SEQRA, CEQR, and ULURP, this article will mainly focus on SEQRA and CEQR as the Appellate Division’s reasoning focused on an extensive evaluation of procedure, namely the Appellate Division’s reasoning that the lawsuit respondents “performed each of the required steps in the SEQRA review process.” [10]
Enacted in 1975, SEQRA requires New York State and local agencies to consider environmental impacts through a 12-step process before approving any permits or actions that could greatly affect the environment. [11] If the agency determines that the proposal may pose any environmental effects in any way, the action would be subject to SEQRA review. This requires the agency to prepare an Environmental Impact Statement (EIS), which has six objectives that include identifying “potentially significant adverse environmental impacts,” presenting reasonable alternatives, and incorporating “public input” before a final government decision is made. [12] Notably, SEQRA places considerable emphasis on public participation throughout this process. During environmental scoping, in which the issues to be addressed in the EIS are identified, agencies solicit comments from different parties. Community members can review the draft EIS, attend public meetings, and exchange written materials, among other participatory methods. [13] These steps ensure that agencies aside from the main coordinator of the project, such as community members and organizations, can pitch their local knowledge and concerns as part of the environmental review process.
Yet, SEQRA’s mentions of “opportunities” for public participation more so serve as procedural measure, rather than a law guaranteeing environmental protection. Scoping—the step before drafting the EIS—requires agencies to identify and determine environmental impacts and solutions, but does not require them to take on the proposed alternative to minimize environmental harm. [14] The steps merely allow for extensive consideration of environmental consequences, which does not necessarily translate into change or action.
New York courts have acknowledged for decades that judicial review under SEQRA is limited, as it requires a certain procedural review, yet doesn’t independently assess the content of public commentary. In the 1987 case Jackson v. New York State Urban Development Corp., the New York Court of Appeals clarified that “SEQRA contains no provision regarding judicial review.” [15] Under SEQRA, instead of evaluating the merits of an agency’s environmental conclusions, the court’s job is “to assure that the agency itself has satisfied SEQRA, procedurally and substantively.” [16] This entails determining whether the agency—the Urban Development Corporation, in this case—took a “hard look” at the areas of environmental concern they have identified. [17] The New York Court of Appeals recognized the large amount of discretion that agencies have in conducting their environmental review processes. More specifically, when the agency provides the required documentation, judicial review appears to be limited to procedural measures and less meaningful analysis. The agencies also control whether or not and how they choose to implement the most environmentally safe option. In other words, SEQRA does not require the agency to take on the most environmentally protective avenue, even if the agency has considered all environmental impacts and proposed different solutions.
The “hard look” requirement under SEQRA is important to consider in this legal case because it provides a judicially developed standard for determining whether an agency has adequately fulfilled its obligations under SEQRA. Although SEQRA itself does not expressly use the term “hard look,” New York courts developed the requirement through case law, beginning with H.O.M.E.S. v. New York State Urban Development Corp. (1979) and later reaffirming it in Jackson v. New York State Urban Development Corp. (1986). [18] However, the court plays no role in performing its own environmental judgement, and instead solely reviews what the agency has already provided.
Consequently, Jackson v. N.Y. State Urb. Dev. Corp. further solidified a procedural precedent of SEQRA that would once again surface in Matters of NUBC v. de Blasio. In the aforementioned case, the Appellate decision did not contain an independent evaluation of whether the City’s Final Environmental Impact Statement (FEIC) accurately addressed and reflected the environmental concerns raised by Chinatown residents. [19] Rather, the Appellate Division focused on whether the City had complied with the procedural requirements established by SEQRA and CEQR. Similar to the statement in Jackson v. N.Y. State Urb. Dev. Corp., the court’s role in the case is in determining if the agency satisfied each step in the environmental review process. As such, it seems that in NUBC v. DeBlasio, the Appellate Division mainly evaluated public input from Chinatown organizations and residents from the perspective of complying with legal procedure, overlooking environmental protection.
Nevertheless, the reversal of the New York Supreme Court’s decision by the Appellate Division reflects that community concerns alone were not substantial enough to overturn the City’s approval of the project. The Appellate Division’s conclusion that there existed no legal reasoning to require additional environmental review due to the City’s demonstrated compliant review process highlights a major limitation of SEQRA. SEQRA emphasizes public participation and environmental consideration, yet allowing for community comments and presence in meetings does not guarantee that their concerns will influence the judicial conclusion. On the other hand, once the Appellate Division determined that the City underwent the “requisite” hard look review, it accepted the City’s expertise on the jail project. [20] There are no provisions within SEQRA that expressly require the agency to determine whether a construction project will disproportionately impact particular communities.
Thus, communities challenging government development projects such as the petition by NUBC and its affiliates often face difficult legal barriers. It is not enough for them to provide evidence of environmental and public harm when the court determines that the agency has completed each step of environmental review. When it comes to Matter of NUBC v. DeBlasio, for petitioners to be able to contest the construction project, they must base their argument on the City’s failure to comply with SEQRA’s procedural requirements. In practice, proving a project’s procedural error would be more effective than arguing about its environmental harm. SEQRA is clearly limited in this legal capacity: it creates a formal avenue for public participation, yet continues to leave these communities with minimal ability to challenge government decisions on the basis of environmental harm. To better protect at-risk communities like Manhattan Chinatown residents, SEQRA should be strengthened to ensure that public input and environmental concerns are directly factored into the decision-making process.
Edited by Stella Dull
Sources:
[1] Beyond Rikers, Towards a Borough-Based Jail System, (NYC Office of the Mayor, June 2017), 3, https://www.nyc.gov/assets/doc/downloads/pdf/Rikers_Brochure.pdf.
[2] Closing Rikers, Manhattan Detention Site, (NYC A Roadmap to Closing Rikers), https://rikers.cityofnewyork.us/manhattan-detention-facility/.
[3] Design Principles & Guidelines, (NYC Department of Design and Construction, January 2022), https://rikers.cityofnewyork.us/wp-content/uploads/BBJ-MN-FAC-Design-Guidelines-Public-Version-211221-1.pdf.; Verified Petition, Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, Index No. 100250/2020 (New York Supreme Court, February 13, 2020), 9-16.
[4] Verified Petition, Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, Index No. 100250/2020 (New York Supreme Court, February 13, 2020), 11-32.
[5] Design Principles & Guidelines, (NYC Department of Design and Construction, January 2022), https://rikers.cityofnewyork.us/wp-content/uploads/BBJ-MN-FAC-Design-Guidelines-Public-Version-211221-1.pdf; Sienna Trice, Negative Impacts of Major Construction in Senior Communities and The building of New York City’s Borough-Based Jail System, (The Chinatown Core Block Association, February 2019), https://static1.squarespace.com/static/5df7b9e3264d2f2dac3c6394/t/5dfbc0c1cbff7f222daac514/1576779971541/Negative-Impacts-of-Major-Construction-in-Senior-Communities-3-21-19-FINAL-FINAL.pdf.
[6] Verified Petition, Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, Index No. 100250/2020 (New York Supreme Court, February 13, 2020).
[7] Verified Petition, Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, Index No. 100250/2020 (New York Supreme Court, February 13, 2020), 2.
[8] Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, 192 AD3d 642 (N.Y. March 30, 2021).
[9] Department of Environmental Conservation, “Stepping Through The SEQR Process,” New York State, https://dec.ny.gov/regulatory/permits-licenses/seqr/stepping-through-process.
[10] Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, 192 AD3d 642 (N.Y. March 30, 2021).
[11] Gerald M. Levine, “The New York State Environmental Quality Review Act of 1975: An Analysis of the Parties' Responsibilities in the Review/Permit Request Process,” Fordham Urban Law Journal vol.12, no.1 (1984): 5.
[12] Stepping Through The SEQR Process, (New York State Department of Environmental Conservation), https://dec.ny.gov/regulatory/permits-licenses/seqr/stepping-through-process.
[13] Stepping Through The SEQR Process, (New York State Department of Environmental Conservation), https://dec.ny.gov/regulatory/permits-licenses/seqr/stepping-through-process.
[14] Stepping Through The SEQR Process, (New York State Department of Environmental Conservation), https://dec.ny.gov/regulatory/permits-licenses/seqr/stepping-through-process.
[15] Jackson v. New York State Urban Development Corp., 494 N.E.2d 429 (N.Y. May 8, 1986).
[16] Jackson, 494 N.E.2d 429.
[17] Jackson, 494 N.E.2d 429.
[18] H.O.M.E.S. v. New York State Urban Development Corp., 418 N.Y.S.2d 827 (N.Y. 1979); Jackson v. New York State Urban Development Corp., 494 N.E.2d 429 (N.Y. May 8, 1986).
[19] Judd Fielder Howard, NOTICE OF COMPLETION of the FINAL ENVIRONMENTAL IMPACT STATEMENT for the BOROUGH BASED JAIL SYSTEM PROJECT, (New York City Department of Correction, August 23, 2019), https://a002-ceqraccess.nyc.gov/Handlers/ProjectFile.ashx?file=MjAxOFwxOERPQzAwMVlcZWlzXGZpbmFsX2Vpc1wxOERPQzAwMVlfRkVJU19Ob3RpY2Vfb2ZfQ29tcGxldGlvbl8wODIzMjAxOS5wZGY1&signature=720a313a1bda90672ead19b8fcf9afa87c240b22.
[20] Matter of Neighbors United Below Canal v. Mayor Bill de Blasio, 192 AD3d 642 (N.Y. March 30, 2021).