Academic journal article Albany Law Review

Thinking Globally and Acting Locally: Reflections about the Possible Impacts of "Globalization" in the Evolution of SEQRA

Academic journal article Albany Law Review

Thinking Globally and Acting Locally: Reflections about the Possible Impacts of "Globalization" in the Evolution of SEQRA

Article excerpt

INTRODUCTION

New York's landmark 1975 "look before you leap" statute, the State Environmental Quality Review Act (SEQRA), (1) the focus of this edition of the Albany Law Review, (2) was a product of the times in which the state considered and, ultimately, enacted SEQRA into law. During the 1970s, concerns in the United States about environmental issues, and about the existing laws' failure to address these issues adequately, were at an unprecedentedly high level. (3) These cultural forces led to the enactment of what one leading environmental casebook has termed the "Federal Regulatory Infrastructure," (4) beginning with the signing into law of the federal National Environmental Policy Act (NEPA) on January 1, 1970, and arguably culminating with the enactment of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) in 1980. (5) These forces were in evidence in New York State during this period as well; they contributed to the enactment of considerable environmental legislation--including SEQRA, which was enacted right in the middle of this extraordinary decade-long burst of legislative activity. (6)

SEQRA shares its roots with federal environmental legislation in another, more immediate, way as well. SEQRA owes a great deal to its federal counterpart, NEPA, adopted just a few years beforehand, as well as to the laws of other states. As the seminal two-volume treatise on SEQRA, Environmental Impact Review in New York, notes, "SEQRA was derived in large measure from ... [NEPAl." (7)

In this article I consider the possibility that SEQRA's future is likely to be shaped by developments beyond the borders of New York State, including the phenomenon of "globalization." (8) I first discuss the possibility that globalization may affect the content of substantive environmental norms in New York, as contained in SEQRA and other domestic environmental laws. I then consider whether the forces of globalization are likely to impact the State's environmental procedures, as contained in SEQRA and other domestic laws. Finally, I discuss why these forces are more likely in the future to influence domestic environmental laws and practices than has occurred to date.

I. STATE SUBSTANTIVE ENVIRONMENTAL REQUIREMENTS

Almost twenty-five years ago, the Supreme Court concluded that the "mandate" of SEQRA's federal counterpart, NEPA, is "essentially procedural." (9) While many commentators have bemoaned the course that the caselaw has taken (10)--the fact remains that courts routinely apply NEPA to require analysis of environmental impacts. The courts have not insisted that the conclusions of the analysis dictate the outcome of the NEPA process. As the Supreme Court stated in its 1989 decision in Robertson v. Methow Valley Citizens Council, (11) "it is now well settled that NEPA itself does not mandate particular results." (12)

Some prominent observers have claimed that to some extent SEQRA departs from NEPA on this front, suggesting that SEQRA is not merely a disclosure statute. As one commentator put it, in a phrase cited with approval by the New York Court of Appeals, SEQRA "imposes far more `action-forcing' or `substantive' requirements on state and local decisionmakers than NEPA imposes on their federal counterparts." (13)

There is at least the possibility that developments in international law norms may affect the "action-forcing" nature of SEQRA, as it is implemented with other domestic laws. To provide one example, various commentators contend that international environmental law prohibits one country from causing significant environmental harm to another. Indeed, some commentators have characterized this "good neighbor" notion as "the cornerstone of international environmental law." (14) This commitment to "good neighborliness" is embodied in the 1972 Stockholm Declaration as well as the 1992 Rio Declaration, which was signed by many of the countries in the world, including the United States. …

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