SEQRA After Sandy: From Adaptation To Resilience?

In less than two years, New York State has experienced three significant extreme weather events, resulting in 38 of 62 New York counties being declared disaster areas.[1] First, in August 2011, Hurricane Irene hit New York State, wreaking specific havoc on the Catskills and Mohawk Valley. A week later, Tropical Storm Lee drowned much of the Southern Tier and Schoharie County with nearly a foot of rain, overwhelming waterways and sewage systems and undermining roads and bridges. And, in October 2012, Superstorm Sandy swept through New York State, leaving dozens dead and thousands homeless, to say nothing of massive infrastructure damage.

The severity of the destruction caused by Irene, Lee and Sandy cannot be overstated. Superstorm Sandy alone is estimated to cost New York State in excess of $32 billion in property damage and recovery expenses.[2] But, for all the devastation, Superstorm Sandy was “just” a Category 1 storm, while Hurricane Irene hit New York with “only” the force of a tropical storm.[3] The risk of future weather events of an even greater magnitude hitting New York State is real, and will likely occur as (1) major precipitation causing massive flooding; (2) protracted heat waves; and (3) hurricanes.[4] Whether these events are attributable to climate change, cyclical weather patterns or some other cause remains uncertain. However, they provide valuable context to the evolution of state and city planning review processes.

A decade ago, the climate change conversation in regulatory offices nationwide centered on mitigation. In general, mitigation encompasses measures taken to reduce greenhouse gas emissions (“GHGs”) before and during a project’s implementation. For example, preparation of an Environmental Impact Statement (“EIS”) under New York City’s City Environmental Quality Review (“CEQR”) procedure calls for consideration of GHGs resulting from such project, and their consistency with the City’s overall GHG reduction goals.[5]

In the past few years, scientists and scholars alike have recognized that even if GHG emissions are reduced dramatically over future decades, the impacts from prior emissions are still unavoidable. This recognition shifted the conversation from pure mitigation and towards mitigation and adaptation, which can be roughly defined as the potential of a regulated project to tolerate impacts of climate change. The New York State Department of Environmental Conservation (“DEC”) incorporated adaptation into the State Environmental Quality Review Act (“SEQRA”) process through the DEC commissioner’s “Policy on Climate Change,” which directs that EISs prepared under SEQRA should “identify potential adverse impacts from climate change,” and use “best available scientific information of environmental conditions resulting from the impacts of climate change [on the project] (e.g., increased air and water temperatures, decreased air quality, sea level risk and increased coastal flooding).”[6]

Because of its “reverse” perspective, however, a similar adaptation analysis was recently struck down in California. In March 2012, the California Supreme Court denied review of Ballona Wetlands, a state court of appeal’s decision holding that, under California’s SEQRA-equivalent statute, requiring evaluation of a project’s tolerance of hazardous weather conditions caused by climate change was not appropriate because “the purpose of [California’s equivalent of an EIS] is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.”[7]

While definitions in SEQRA are broader and arguably more encompassing than those at issue in California, the current DEC guidelines nonetheless remain vulnerable to the reasoning of the California Court of Appeal in Ballona Wetlands. However, the post-Sandy emphasis on resiliency, as distinct from adaptation, by certain New York State entities may be a path forward with enough of a distinction to rebut any such challenge.

Most recently, the New York State 2100 Commission’s “Recommendations to Improve the Strength and Resilience of the Empire State’s Infrastructure” defined resiliency as “the ability of a system to withstand shocks and stresses while still maintaining its essential functions.”[8] The Commission identified several qualities of a resilient project, including: (1) the project’s spare capacity or measure of security when a system is under stress to ensure adequate and effective backups; and (2) the project’s capacity to rapidly rebound and re-establish function to contain loss from a disruption.[9]

Because a resiliency analysis draws the focus back onto the project itself, and onto the project’s prospective effect on the environment due to its strong or weak resiliency quotient, a resiliency criterion, if incorporated into the SEQRA review process, may effectively address considerations relevant to state agencies, while also withstanding a Ballona Wetlands-type challenge.

In a post-Sandy world, New York State appears committed to utilizing all regulatory tools available in its proverbial toolshed to address the real threat of extreme weather events. Incorporating resiliency into the SEQRA review process may be just one of the tools utilized by the state in the near future.