National Environmental (NEPA) and Quality Review (SEQRA) Acts
Increased pollution of air, water, and soil in the mid 20th century prompted environmental movements in the United States to agitate for policies and laws that would protect the environment from further pollution. In response to the need to conserve the environment, the United States enacted numerous policies and laws, which are critical in regulating human activities that pollute environment. Among other laws and policies, the United States enacted the National Environmental Act (NEPA) in 1969 and the State Environmental Quality Review Act (SEQRA) in 1975. Due to the increasing population, urbanization, industrialization and diminishing resources, NEPA intends to restore and maintain the environment for the benefit of humanity. The chief objective of NEPA is to enhance harmonious relationship between humans and environment as a way of preventing and alleviating adverse impacts of human activities on the environment. Since human activities are responsible for environmental pollution, SEQRA provides appropriate legislations that regulate the establishment of projects. Menapace (2009) argues that, since climate change is a serious environmental issue that occurs due to human activities that cause global warming, SEQRA provides the legal framework, which guides agencies in assessing environmental impacts of their projects (10). SEQRA requires all agencies to conduct an environmental assessment impact of all projects that they want to establish. Since NEPA and SEQRA are integral Acts, which the United States is employing to conserve environment, what legal cases have emanated from enactment of these Acts?
Lands Council v. Powell
The case of Lands Council v. Powell occurred when Lands Council sued Powell for violating NEPA regulations in establishing a watershed restoration project, and carrying out timber harvest at Little North Forest. Powell approached the United States Forest Service to prepare Environment Impact Assessment (EIA), which allowed Iron Honey to continue with its project as started in the project proposal. Smith (2005) asserts that, the EIA needs to consider cumulative impacts of projects because past, present, and future activities associated projects have a significant impact on the environment (1). Having sought EIA from the United States Forest Service, Powell thought he had permission to establish the project according to NEPA regulations. Seeing inadequacies in the EIA prepared by the United States Forests Service, Land Council decided to stall the project because it failed to include cumulative impact analysis in its EIA.
In the case, Land Council v. Powell, court ruled that the project should not continue because there were inadequacies in cumulative impact analysis as reflected in the EIA, which the United States Forest Service. The court cited inadequacies in the EIA, such as lack of assessment of past projects within the vicinity of the proposed project. The court expected the EIA to describe how timber harvest has occurred in the past in terms of environmental impacts, acres of land cut, types of cutting, period of harvest and mitigation measures. According to Smith (2005), the court ruled that EIA did not provide sufficient data that show type, place, scale and time of past timber harvest and did not also explain how harvest methods and projects plans affect environment (5). Additionally, the United States Forest Service employed outdated model that does not meet NEPA regulatory requirements in analyzing sediments impacts. Therefore, basing on the above inadequacies, court found Powell to have violated NEPA in conducting EIA.
Sierra Club v. United States Army Corps of Engineers
In the case of Sierra Club v. United States Army Corps of Engineers, Sierra Club sued US Army Corps Engineers for violating NEPA regulations when they wanted to construct a highway across Hudson River. Since the construction of the highway involved filling of shoreline, the Corps conducted EIA, which concluded that filling of shoreline has no adverse impact on environment because shoreline was a wasteland that does not sustain any fishes. However, through Sierra Club, the United States Fish and Wildlife Service protested that EIA findings are false as shoreline was an essential fish habitat. Weinberg (1987) argues that, in spite of protests, the Corps did not change their final EIA that described shoreline as a wasteland (2). Realizing that the Corps would not change their EIA, Sierra Club decided to sue them arguing that shoreline was a significant habitat for the fish contrary to EIA by the Corps.
After examining EIA, the court ruled that it was inadequate because it did not assess the impact of highway construction on fish. The court ordered the Corps to prepare another EIA and consider assessing impacts of the project on fishes and their habitat. According to Weinberg (1987), the Corps violated NEPA and Clean Water Act by erroneously concluding that shoreline was a wasteland, yet it was a brilliant habitat for fishes in the Hudson River (3). The court observed that the Corps violated NEPA procedures of conducting EIA and analyzed their data in bad faith because they described fish habitat as a wasteland. Thus, the court stopped construction of the highway and demanded the Corps to conduct comprehensive EIA with respect to impact of the project on fish habitat.
Riverkeeper v. Planning Board of the Town of Southeast
The case of Riverkeeper v. Planning Board of the Town of Southeast occurred when panning Board applied for a permit to build residential project in 1988 and prepared EIA in 1991. The project delayed for a long period of over 10 years because it received approval in 2002. Since Planning Board conducted EIA in 1991 and received approval in 2002, Riverkeeper objected that approval is against SEQRA regulation because there is a long period between EIA and approval of the project. According to Gerrard (2008), Riverkeeper requested for supplementary EIA since numerous changes have occurred within the vicinity of the project such as expansion of wetland, increase in the number of storms and designation water resources (1). Trial court advised Planning Board to determine whether it can offer supplemental EIA, but it decided to use original EIA. Thus, Riverkeeper found original EIA to be inadequate and filed a case against Planning Board.
Following an appeal by Planning Board, the appellate court ruled that supplemental EIA is not essential because original EIA could suffice. Gerrard (2008) asserts that, the determination of the need of supplemental EIA lies in the lead agency because it has discretion of ascertaining relevance of EIA (1). Approval by SEQRA was enough to allow Planning Board to continue with their project in spite of difference in the period of conducting EIA and approval of the project. The court further ruled that it has no jurisdiction to duplicate responsibilities of lead agency because it would be a futile process, which would results into same conclusion.
Lowe’s Home Centers, Inc. v. Venditto
The case of Lowe’s Home Centers, Inc. v. Venditto shows how developers experience serious challenges from the government that involves getting approval, obtaining a permit and going through the review process of projects. Lowe experienced delays when he handed over draft EIA to Oyster Bay Town Board for approval. Due to delay, Lowe decided to issue a writ of mandamus to compel Oyster Bay Town Board to expedite the process of reviewing draft according to stipulations in SEQRA. According to Guardino (2007), Lowe claimed that, from the onset of the project, the Board issued positive declaration in spite of operating outside the mandatory periods (2). Thus, the Board did not comply with requirements of SEQRA.
When Lowe sued the Board, Supreme Court noted the delays and ruled that issuing of writ of mandamus is applicable only before four months from the time a client demanded an action then ignored. According to Guardino (2007), since Lowe made his formal demand within a period of one month by writing a letter to attorney, his complaint was timely (2). Therefore, the court held that Lowe was right to issue a writ of mandamus to compel the Board to determine the adequacy of draft EIA. Nolon and Bacher (2004) add that, SEQRA declarations are valid within the stipulated period after which they expire (6). Hence, the court ruling means that developers need to make urgent writ of mandamus before a period of four months expire from the date they make formal demand of their requests.
Since human activities cause environmental pollution, which threatens the existence of humanity and wildlife, the United States’ government has been gradually formulating various policies and laws to conserve the environment. NEPA and SEQRA are two critical Acts, which have played an integral role in regulating human activities because they demand various agencies to conduct EIA before performing any project. Since their enactment in 1970s, NEPA and SEQRA have brought many cases to the court that has set a precedent for subsequent cases. Overall, NEPA and SEQRA have significantly regulated human activities and prevented haphazard construction of projects.
Gerrard, Michael. 2008. Survey of SEQRA Cases from 2007. New York Law Journal 239, no. 60: 1-2.
Guardino, Anthony. 2007. When Government Fails to Act. New York Law Journal, 239, no. 56: 1-2.
Menapace, Ralph. 2009. SEQRA and Climate Change. The Municipal Art Society of New York, 1-52.
Nolon, John, and Bacher, Jessica. 2004. SEQRA Challenges: Court Creates New Rule on Statute of Limitations. New York Law Journal, 206, no. 16: 1-6.
Smith, Michael. 2005. Recent Trend in Cumulative Impact Case Law. National Association of Environmental Professionals Annual Conference, 1-23.
Weinberg, Philip. 1987. A Powerful Mandate: NEPA and State Environmental Review Acts in the Courts. Pace Environmental Law Review 5, no.1: 1-23.