Are Judges scrutinizing EIS challenges more thoroughly?

May 14, 2010

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With the recent occurrence of environmental and natural disasters, one might imagine that courts would take a more thorough review of Environmental Impact Statements and how they conform to state-legislated Environmental Quality statutes.  With its iconic status as the world’s most famous amusement area, Coney Island in Brooklyn, NY is undergoing a developmental transformation into a year-round amusement destination but at what cost to the environment.  A volunteer grass-roots community organization, Save Coney Island, Inc., brought a lawsuit against the City of New York and the New York City Council in connection with the City’s rezoning of the approximately 47 acres of land that make up Coney Island (Supreme Court, New York County 116672/09).  Save Coney alleged that the City’s rezoning plan violated New York’s State Environmental Quality Review Act (SEQRA) (N.Y. Envtl. Conserv. Law §§ 8-0101 to 8-0117) as well as provisions of the General Cities Law and the New York City Administrative Code governing the adoption of zoning ordinances and amendments thereto.

 Judge Eileen Rakower in her recent opinion dated May 6th, stated that the Court’s role in SEQRA challenges is well settled, as stated by the First Department in Coalition Against Lincoln West v. Weinshall, 21 A.D.3d 215, 222 (1st Dept. 2005)

‘Judicial review of a lead agency’s SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination ‘was affected by an error of law or was arbitrary and capricious or an abuse of discretion‘ (CPLR 7803 [3]… )’ (Akpan v Koch, 75 NY2d 561, 570, 554 NE2d 53, 555 NYS2d 16 [1990]). In applying this standard of review, ‘it is not the role of the court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency’ (Matter of Fisher v Giuliani, 280 AD2d 13, 19-20, 720 NYS2d 50 [2001]). Judicial review is limited to a determination as to whether the lead agency ‘identified the relevant areas of environmental concern, took a ‘hard look‘ at them, and made a ‘reasoned elaboration‘ of the basis for its determination’ (Jackson v. New York State Dev. Corp., 67 NY2d at 417 [1986]).

For the next 8 pages of her opinion, Judge Rakower meticulously sets out a review of all the contentions raised by Save Coney Island and confirms that the City properly identified the relevant areas of environmental concern, took a ‘hard look‘ at them, and made a ‘reasoned elaboration‘ of the basis for its determination.  In contrast to the review of the alleged violations of SEQRA, Judge Rakower spent a scant 3 paragraphs on the zoning issues. Since the City is empowered to enact zoning regulations which are ‘designed to promote the public health, safety and general welfare… in accord with a well considered plan‘ under General City Law Sec. 20(25), Save Coney Island  as the party challenging the City’s zoning regulation had a substantial burden to show the regulation is arbitrary and irrational and they failed to meet this heavy burden.  As pointed out in this dispute and accentuated by recent catastrophic events, challenges to large scale land development projects will have a greater chance of being successful by attacking the thoroughness of the environmental reporting requirements and procedures than overcoming the heavy burden to overthrow a zoning regulation.