This article addresses two key legal requirements that must be considered by New York City and State as they implement measures needed to improve New York City's infrastructure so that it is better adapted to high-impact events such as the catastrophic storm surge caused by Hurricane Sandy.
The devastation caused by Sandy may have stunned most New Yorkers, but it came as no surprise to the climatologists, urban planners and government officials who have been focusing with an ever-increasing level of concern on the implications of a changing climate on the long-term well-being of New York City.
In August 2008, Mayor Michael Bloomberg convened a panel of experts to assess the risks posed to the city by climate change. That group, the New York City Panel on Climate Change (NYPCC), issued its first report on climate risks 18 months later.1 The report concluded that "[w]armer temperatures are extremely likely in New York City" in the coming years, with mean annual temperature levels rising by up to 3 degrees Fahrenheit by the 2020s and by up to 5 degrees by the 2050s; that "[r]ising sea levels are extremely likely," with mean annual sea levels rising by up to a foot by mid-century and by up to 23 inches by the 2080s (with the possibility that, if there is a rapid melting of polar ice, those levels could skyrocket, increasing by up to 29 inches by the 2050s and by up to 55 inches by the 2080s); and that "[s]torm-related coastal flooding due to sea level rise is very likely to increase."
The report added the understatement that such climate changes "have consequences for New York City's critical infrastructure." Responding promptly to the NYPCC report, the mayor empanelled the Climate Change Adaptation Task Force, with the mission of developing plans to prepare for risks associated with the projected incremental changes in temperature and precipitation, and for high-impact events such as catastrophic storm surges exacerbated by sea level rise.
In September 2012, the City Council enacted Local Law No. 42, which institutionalized both the NYPCC and the Climate Change Adaptation Task Force.2 Under the law, the task force is to meet at least twice a year to evaluate, in light of updated NYPCC projections, the potential impacts of climate change on the city; to identify the city "rules, policies and regulations" that may be affected by climate change; and to develop "coordinated strategies to address the potential impact of climate change on the city's communities, vulnerable populations, public health, natural systems, critical infrastructure, buildings and economy."
These efforts take on a new sense of urgency in the wake of Sandy. In light of the destruction that storm caused, the city and state are focusing on whether and how they can provide for the safe and productive development of coastal areas. New York City alone has 578 miles of coastline shouldering residential, commercial and industrial neighborhoods in all five boroughs. On a larger scale, they will also be working on plans to protect the city's infrastructure from sea level rise, storm surges and the other dangers that climate change is increasingly certain to bring. Thus, Governor Andrew Cuomo recently announced the formation of the NYS 2100 Commission, which has been tasked with finding ways to improve the resilience and strength of the state's infrastructure in the face of natural disasters and other emergencies. Bloomberg has asked various city officials to take the lead in, among other things, investigating ways to contend with future storm surges and working with the city's hospitals to develop better preparedness and recovery plans.3
As these city and state efforts move forward, government officials must address how the strategies they devise fit within the mandates established by the State Environmental Quality Review Act (SEQRA) and the programs established under the Coastal Zone Management Act of 1972. Simply stated, SEQRA and the coastal zone management program require state and local agencies to "look before they leap"to think through their actions before they take them, and to consider their environmental impacts and whether they would be consistent with the officially adopted plans for a coastal area. The relevance of these statutory programs to climate change adaptation is discussed below.
It is fair to say that SEQRA (which is implemented by New York City agencies under the City Environmental Quality Review procedures) dramatically changed how government agencies in the State of New York go about their business. Under SEQRA, a state or local agency may not undertake a discretionary action (such as directly undertaking a project, issuing a discretionary permit or providing funding) without first making a determination as to whether that action "may have a significant effect on the environment."4 If the agency determines that the action may have at least one significant adverse environmental impact, it cannot proceed without first preparing an environmental impact statement (EIS) that thoroughly examines such impacts and identifies how they could practicably be minimized or avoided. This is a broad and flexible mandate that has made SEQRA a fundamental planning tool for addressing emerging environmental issues.
One pressing question is whether the immense projects that may be necessary to protect our coastal city from the ravages of climate change over the coming decades are subject to the environmental review requirements of SEQRA. As a general rule, the answer to that question would be in the affirmative, unless the project is federally funded and an EIS is prepared under the National Environmental Policy Act, in which case state and local agencies could discharge their responsibilities under SEQRA by relying on federal documents.5 However, there are a number of exceptions to this general rule with relevance to climate change adaptation.
For example, the New York Public Authorities Law exempts from SEQRA transportation projects carried out by the Metropolitan Transportation Authority (MTA) on property previously in transportation use or on an insubstantial addition to such property, so long as the project would not substantially change the nature of such prior transportation use.6 Accordingly, projects undertaken by MTA to protect subway tunnels or other essential infrastructure from flooding may enjoy an exemption under this statutory provision, even if their cost were to run into the billions. Moreover, replacements of existing structures in kind, on the same site, may be exempt from environmental review under a "Type II" category established by the SEQRA regulations.7 This exemption could cover much of the reconstruction needed in the aftermath of an extraordinary storm event.
SEQRA also includes an emergency exemption, which applies to actions that are immediately necessary on a limited and temporary basis to protect or preserve "life, health, property or natural resources," provided that such actions are directly related to the emergency and are performed to cause the least disturbance practicable to the environment.8 Thus, for this exemption to apply there must be a real emergency, the agency action must be tailored in scope and duration to address that emergency, and the action must be urgently required and must cause as little environmental disruption as practicable.