Academic journal article Albany Law Review

Judicial Review under SEQRA: A Statistical Study

Academic journal article Albany Law Review

Judicial Review under SEQRA: A Statistical Study

Article excerpt

INTRODUCTION

Nearly 2000 judicial opinions were issued under the State Environmental Quality Review Act ("SEQRA") (1) between its enactment in 1975 and the end of 2000. (2) Almost 700 were issued from 1990 (when the author began undertaking an annual review of SEQRA cases for the New York Law Journal) through 2000. (3) These numbers are large enough to serve as a basis for a statistically valid review of case outcomes.

This article is divided into five parts. Part I presents statistics on the SEQRA cases. Part II reviews the history of how the Court of Appeals has decided SEQRA cases. Part III lists some of the issues that have been litigated over the years and breaks them down into the resolved issues, the open issues yet to be resolved, and the persistently gnawing issues that are not likely to be resolved. Part IV identifies the legal nemeses of the various participants in the SEQRA process. Part V attempts to distill the caselaw under SEQRA into one sentence.

I. STATISTICS ON SEQRA CASES

Table I herein presents an analysis of the court decisions issued under SEQRA from January 1990 through December 2000--a period of eleven years. There were 697 decisions during this period. (4) These are all the cases known to the author; they include all reported decisions, and many unreported decisions. There may well be other unreported decisions not included in this enumeration.

Several conclusions are apparent from these numbers. The number of decisions per year is remarkably constant. The average is sixty-three decisions per year, and it has never varied by more than plus or minus thirteen decisions. (5)

The number of final environmental impact statements ("EISs") dropped after 1993, (6) while the number of cases challenging EISs did not. (7) This means that the percentage of EISs that led to court decisions increased significantly, from about 7% during the first half of the 1990s to about 15% during the second half of that decade.

Unfortunately the New York State Department of Environmental Conservation (NYSDEC) stopped counting the number of negative declarations (i.e., decisions that no EIS is required for a particular action) in 1994. (8) During the first half of the 1990s, however, roughly 2.4% of negative declarations led to court decisions. (9)

The single best indicator of whether the plaintiff (usually, but not always, a project opponent) or the defendant (always at least one government agency, and often one or more project applicants) was more likely to win a particular SEQRA case was whether an EIS had been prepared in that case. Plaintiffs won 11% of the cases in which an EIS had been prepared, whereas plaintiffs won 28% of the cases in which no EIS had been prepared. (10) In other words, plaintiffs in SEQRA cases wherein an EIS had not been prepared won almost three times more often than plaintiffs in SEQRA cases wherein an EIS had been prepared. (11) There was no great change in these percentages over the decade, nor were there any obvious trends.

This last observation may be useful in predicting the outcome of future SEQRA cases. If an EIS has been prepared, plaintiffs apparently start out with about a one-in-ten chance of winning. On the other hand, if there has been no EIS, plaintiffs tend to have closer to a one-in-three chance of winning. Taking these odds into account, one can then look at the specific facts of a particular case to form a judgment about whether that case is going to have a significantly greater or smaller chance of success than these average percentages would indicate.

II. NEW YORK COURT OF APPEALS DECISIONS

Table II herein lists all the decisions issued by the Court of Appeals under SEQRA from 1981 (the year of the first such decision (12)) through 2000. (13) There are a total of forty-four cases listed below. (14) Pro-environmental plaintiffs won eight of these cases; these victories were almost entirely in the 1980s. …

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