Since a general consensus has developed among credible experts that a crisis is looming as a result of climate change and its potentially profound global and localized environmental consequences, an argument could be made—given the apparent inability to predict the timing of the next extraordinary storm event in New York—that a climate-related emergency within the meaning of the SEQRA regulations now exists.
It should be noted, in this regard, that the emergency exemption under SEQRA has been applied not only to sudden catastrophic events, but also to emergency situations that have emerged over time. For example, courts have sanctioned application of the exemption where the city proposed to renovate existing buildings for use as homeless shelters9 and to temporarily deploy a prison barge to ease overcrowding in prisons.10 In such cases, courts have allowed immediate action to address emergencies that had developed over the course of years. However, the courts have indicated that agencies must still proceed with environmental review prior to the completion of permanent measures.11
An agency would be hard pressed to characterize a mega-project such as a multibillion-dollar storm barrier as being "limited" or "temporary" in nature for purposes of the SEQRA regulations. Nevertheless, the exemption could come into play in the event the state and city were to take a phased approach to shoreline and infrastructure protection, with immediate interim steps being taken while longer-term solutions are developed. With such an approach, it is possible that the emergency exemption could be brought to bear to allow implementation of first-phase measures while planning, along with a comprehensive environmental review, is carried forward for the subsequent phases of the effort.
Another important issue is whether agencies should address in their SEQRA review of public or privately sponsored shoreline projects the risks of climate change (such as flooding or erosion). It is not clear from its statutory and regulatory language that SEQRA should cover those sorts of issues because the statute is focused on the impacts that an action would have on the environment, not the impact that the environment (as altered by a warming climate) would have on the action.
Yet for decades agencies have required applicants seeking discretionary approvals to site residential buildings near stationary sources of air pollution, to examine the impacts of those sources on the proposed buildings' future residents. Likewise, agencies regularly require that an EIS assess levels of traffic noise from adjacent highways at the windows of proposed buildings. Some regulatory basis exists for this prior agency practice, since the SEQRA regulations require an EIS to include "a concise description of the environmental setting of the areas to be affected [by an action]." See 6 N.Y.C.R.R. §617.9(b)(5)(ii). It would be a logical extension of such precedent to require analysis of the impacts of sea level rise on a development project proposed for the shoreline.
Moreover, as was well illustrated by incidents occurring during recent storm events, people trapped by floodwaters put first responders at risk. It follows that placing large numbers of new residents in coastal areas without appropriate safeguards could have an indirect effect on emergency services, an area of concern that has long been examined under SEQRA.
Thus, when past agency practice and the indirect effects of climate change are taken into account, it appears that in appropriate cases an agency considering whether to issue a discretionary approval would be acting well within its discretion to require that climate change risks be examined in an environmental review under SEQRA. Indeed, the New York State Department of Environmental Conservation has stated, in guidance issued on greenhouse gas emissions and SEQRA, that "impacts of climate change on a project may be important in some cases," and that "[q]uestions regarding how climate change may potentially affect a proposed project will need to be decided on a case-by-case basis."12
Coastal Zone Management
The federal Coastal Zone Management Act creates a program for the development of "coastal zone management plans" by states, with input from local governments, for the management, protection and enhancement of shoreline areas.13 This program is implemented in the State of New York under Article 42 of the Executive Law, which makes the Secretary of State responsible for administering waterfront policies.14 Under Executive Law section 915, localities are permitted to develop their own local waterfront revitalization plans (LWRPs), which upon approval of the secretary are incorporated into the state's coastal zone management program for that locality.
The policies established under the program, including those embodied in LWRPs, can have real teeth. For example, applicants for federal permits that would authorize activities within or affecting a coastal area must certify that such activities would be consistent with the relevant state coastal zone management program.15 State and local actions must also be consistent with such policies to the maximum extent practicable.16 Indeed, a specific finding to that effect is required upon completion of an EIS, where a state or local action would take place in a coastal area. There have been dramatic examples over the years where a failure to demonstrate coastal zone consistency has been fatal to a project. For example, in 2005, the New York Department of State objected to the consistency certification for a proposed regional cement manufacturing facility in Greenport, N.Y., resulting in the withdrawal of the proposal.
The City Planning Commission (CPC), acting in its capacity as the City's Coastal Commission, first adopted the city's LWRP in 1982. That plan, which was last amended in 2002, touches on climate change-related risks. For example, Policy 6.1 of the plan calls for minimizing "losses from flooding and erosion" through the use of "non-structural and structural management measures appropriate to the condition and use of the property to be protected and the surrounding area," including, for example, locating new development "in a manner that minimizes or eliminates potential exposure to flooding and other coastal hazards."17 With such provisions in place, CPC has ample authority to consider coastal storm-related issues such as flooding and erosion in its review of projects proposed by other public agencies and private applicants.
In September 2012, CPC held a public hearing on amendments to the LWRP that squarely address climate change risks, primarily by amplifying the considerations articulated in Policy 6. Among other things, these amendments would explicitly require assessment of the vulnerability of projects to sea level rise, storm surges and coastal flooding over the lifetime of a development.18 They would also call for the incorporation of design features allowing for resiliency in recovering from storm-related damage. Although the proposed amendments have undergone the requisite public review, CPC has not yet adopted them, pending consideration of lessons learned from Sandy. Once adopted, these amendments will be of significant importance to coastal planning in New York City.
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