Foreword
The Wasteful Tangle
of Environmental Review
The straightforward idea that public officials should
understand the consequences of their decisions inspired
the creation of environmental review. Under the environmental
review process, any project that involves discretionary
approvals or the use of public funds is required to
identify and disclose the project’s anticipated
impacts on the community. This includes not only purely
environmental concerns such as air quality and noise,
but also the impact that a project will have on the
area’s transportation system, power and water
supply, school seats, and hospital beds. Environmental
reviews are intended to enable public officials to
understand the full implications of a project and
to plan for any changes to municipal infrastructure
and services that might be needed to integrate the
project into the urban fabric.
Over the years, however, the process has lost its
connection to good planning. Instead, it has become
an expensive and time-consuming annoyance to large
projects and a potentially project-ending burden to
small ones. Environmental review today is a wide-ranging
effort to identify “impacts” for the purpose
of legal disclosure only. It is not the planning activity
that people commonly assume it to be, nor is it the
one that New York desperately needs as its aging infrastructure
struggles to meet the demands of an ever-increasing
population and citizens move into previously underdeveloped
areas of the city—areas that require new access
to transportation, sewage treatment, electricity,
and schools.
The technical term used for the real planning component
of the environmental review process—which over
the past generation has grown into a significant business
for specialized experts in law, transportation, various
environmental sciences, and other consultants—is
“mitigation.” When significant impacts to
the environment—overwhelming demand on roads,
subways, sewage plants, and the electric grid—are
identified during the review, mitigations of those
impacts must be proposed by the developer (public
or private) and approved by the responsible city agency.
There is no mechanism, however, to ensure that proposed
and approved mitigations are, in fact, implemented.
Large projects propose numerous mitigations; some
are implemented, but many are not. Small projects
seldom have any need to propose mitigations but still
must expend the time, effort, and expense of identification
and disclosure before construction can begin.
Moreover, the small projects that get caught in this
wasteful tangle can be very small indeed, in terms
of the scale of New York City. It is an irony of the
environmental morass that the city has adopted the
statewide thresholds for project review (i.e., those
required in small towns and rural areas throughout
the New York State), while absolving itself of the
statewide time limits on the official turnaround of
documents submitted. This means that small projects
in New York City suffer the disadvantage of state
law—namely, getting caught up in the process
in the first place—without enjoying the state
law’s advantage of a predictable timeline. It
also means that New York City’s reviewing agencies
are always buried under an overwhelming backlog of
submissions and unable to allocate their resources
in proportion to the potential impacts of proposed
projects. And delay, especially in these times of
unprecedented annual increases in the costs of construction,
can mean the difference between financial feasibility
and unfeasibility, particularly for small projects.
Additionally, environmental review requirements interfere
with the development of affordable housing in the
city. Since any project with a government role is
subject to the process, subsidized housing projects
must go through review even if identical market-rate
housing would not. It is not surprising that developers
often take the simpler market-rate route rather than
deal with the costs and headaches involved in accepting
government funding.
The reform program put forward in this booklet addresses
all these problems with moderate, effective recommendations
meant to permit the continuation of the development
of the city. Essentially, the program:
- Filters many small projects out of the review
process altogether, including the types of subsidized
housing projects just mentioned;
- Streamlines the materials required to be submitted
when an environmental review is needed and focuses
the review on the investments in infrastructure
and services that will be required to integrate
the completed project into the fabric of the city;
- Imposes New York State’s time limits on the
city’s reviewing agencies for official review
and turnaround of documents; and
- Establishes a mechanism for tracking mitigation
proposals for possible conflicts, approval status,
and, especially, implementation.
There are two strong arguments for the practicality
of these recommendations. First, some version of them
has been proposed previously on a number of occasions
by a variety of experts and interested groups (perhaps
most notably, the Alliance for CEQR Reform, in 2001).
Second, the recommendations are all within the power
of the mayor’s administration to implement—no
changes to state law, no vote by the City Council,
no Uniform Land Use Review Procedure is needed; the
problems were created by executive orders and City
Planning’s CEQR Technical Manual and can be undone
by new executive orders and revision of the manual.
Now is the time to make these changes. Responding
to the demographics of the coming fifty years, the
Bloomberg administration has recognized the vital
importance of the city’s expansion with rezonings
that permit the development of more affordable housing.
Reforming environmental review in the manner recommended
here would advance the growth agenda in a responsible
and sustainable way, emphasizing the need to plan
for and implement the infrastructure required to support
expansion.
The broken process we have was well intended but
ultimately an overreaction to dislocations caused
by certain massive infrastructure and development
projects in the middle of the previous century. In
the ensuing decades, many protections and procedures
were invented to ensure inclusive planning and responsible
building. Environmental review is one process that
got away. Instead of a planning tool, it became a
procedural end in itself that hinders small projects
that don’t need such an effort and demands nothing
concrete from the large projects that do. And the
city needs to build—large projects and small,
everything from new subway lines to six-story apartment
buildings. For where would New York be without the
new subway lines and six-story apartment buildings
built by those who came before?
Richard Ravitch
March 2007
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About Authors
Hope Cohen is Deputy Director of the Center
for Rethinking Development at the Manhattan Institute.
Before coming to CRD, she worked for more than a decade
in New York City government at the Department of Parks
and Recreation and MTA New York City Transit, in areas
ranging from management and budget to urban planning
to information technology. At New York City Transit,
she played a key role in planning the initial implementations
of intelligent transportation systems, including computerized
management of bus and subway service. She supplemented
her professional work as a public servant with voluntary
public service as a Board member, Land Use Committee
Co-Chairperson, and Board Chairperson of Manhattan’s
Community Board 7 (Upper West Side), where she represented
her neighborhood’s land use and zoning concerns
to a variety of city agencies and learned how to wade
through EASs and EISs. Ms. Cohen holds a B.A. from
Harvard and an M.A. from the University of Chicago.
Richard Ravitch is a lawyer/businessman/public
official who has been engaged in both private and
public business for more than 40 years. He began his
career in the construction business as a principal
of the HRH Construction Corporation, where he was
responsible for supervising the development, financing,
and construction of over 45,000 units of affordable
housing in New York, Washington, D.C., Puerto Rico,
and other locations. His career has included service
as Chairman of the New York State Urban Development
Corporation (UDC), co-founder and first Chairman of
the Corporation for Supportive Housing, Chairman and
CEO of the Metropolitan Transportation Authority (MTA),
Chairman and CEO of The Bowery Savings Bank, and Co-Chair
of the Millennial Housing Commission. While at UDC,
he designed the first municipal bailout plan, and
subsequently advised New York City and State officials
in resolving the city’s defaults. Mr. Ravitch
completely reorganized the MTA and its functions.
He developed a long term capital plan and budget for
a system-wide upgrading of operating equipment, roadbed
and signal capabilities, and he designed the financing
plan for these improvements. Mr. Ravitch now serves
as principal partner at Ravitch Rice & Company
LLC.
**********************************
A
Call to Reform
New York City’s environmental review system,
originally intended to improve the planning process
and mitigate the negative impacts of construction
projects, has instead become an impediment to good
planning and development. This handbook looks at how
the process was derailed and offers a detailed proposal
for how the city can put it back on track—without
lobbying Albany to change state law.
Herein lies a tale of unintended consequences, overlapping
bureaucracies, and a process unmoored from its reasons
for being. The current system impedes small, environmentally
benign projects; thwarts efforts to expand the city’s
affordable housing stock; causes undue delay; provides
a “weapon of choice” to activists or agencies
seeking to stop projects; and does nothing to aid
in planning or ensure the implementation of agreed-to
impact mitigations.
In the course of a dozen interviews with lawyers,
consultants, planners, and others intimately involved
with the environmental review process, a remarkable
consensus emerged: nearly everyone agreed that the
process has little to do with planning, while at the
same time it serves as an expensive and time-consuming
impediment to construction. Even the people who make
their living navigating this near-impenetrable law
agree, for the most part, that it needs to be reformed.
As proposed in these pages, the review process should
focus on the identification and implementation of
changes to municipal infrastructure or services. By
concentrating on these vital mitigations, we can facilitate
development and ensure that projects receive the public
resources that they require.
Change may at last be on the horizon, as new governor
Eliot Spitzer has called for “smart enforcement”
of state environmental review laws, to keep them from
being used “as a pretext for miring a project
in endless litigation.” The city law, though,
has been an even more effective delaying tool, raising
the question: Will City Hall take up the baton?
A Noble Purpose
Environmental review law was conceived in an attempt
to ensure that the public and public officials could
assess the consequences of proposed construction projects.
The 1975 State Environmental Quality Review Act (SEQRA)
requires any project with a government role—be
it a government project, or one receiving tax breaks,
funding, or zoning exemptions—to disclose its
effect on its environment. The law defines environment
as “the physical conditions that will be affected
by a proposed action, including land, air, water,
minerals, flora, fauna, noise, resources of agricultural,
archeological, historic or aesthetic significance,
existing patterns of population concentration, distribution
or growth, existing community or neighborhood character,
and human health.”
As broad as this may seem, it also created a narrowing
or “scoping” process, through which reviews
could be limited to reasonably likely impacts.[1]
If, however, the agency finds that a significant negative
impact is likely, the developer must submit an Environmental
Impact Statement (EIS), detailing expected impacts
and proposing mitigations. The developer must then
undergo a public review and respond to comments. The
state then has a prescribed period of time to approve,
disapprove, or request further information on the
proposed project.
New York State’s law allowed localities to overlay
their own additional codes, as long as they do not
water down the state law. In 1977, Mayor Beame signed
New York City Executive Order No. 91, which created
New York City’s version of the process, the City
Environmental Quality Review (CEQR). This further
generalized what fell under the purview of an environmental
review, calling on “environmental, social and
economic factors [to] be considered before governmental
approval is given to proposed activities that may
significantly affect our urban environment.”
No matter the city law’s good intentions; its
vagueness of scope and meaning all but ensured that
reviews would mushroom. As Michael Gerrard, the author
of the twelve-volume Environmental Law Practice
Guide and head of the New York environmental practice
for the law firm of Arnold & Porter, explains,
“The city is far more prescriptive and rigorous
than almost anywhere else in the state.”
The problems with New York City’s law go back
to the ambitious and vague preamble to Executive Order
No. 91 of 1977:
WHEREAS, the improvement of our urban environment
is critically important to the overall welfare of
the people of the City; and
WHEREAS, the development and growth of the City can
and should be reconciled with the improvement of our
urban environment; and
WHEREAS, it is the continuing policy of the City
that environmental, social and economic factors be
considered before governmental approval is given to
proposed activities that may significantly affect
our urban environment.…
Is it the law’s intention, then, to allow consideration
of “environmental, social and economic factors
… before governmental approval” is given
to a proposed development? Here, the phrasing seems
to assume that the city will ultimately approve each
project, but only after consideration of a multiplicity
of topics, regardless of their relevance to the project’s
purpose and particulars.
Which proposed projects go through environmental
review today?
Any proposed project that
- is directly undertaken by a New York City
agency, or
- is receiving financial assistance from a
New York City agency, or
- needs some kind of non-ministerial permit
or approval from a New York City agency and
- is not specifically exempted by SEQRA
rules as a Type II action
must enter the CEQR process, which means identification
of a “lead agency” and
preparation of an Environmental Assessment Statement
(EAS).
Type II actions consist mainly of repairs
and replacements in kind (of structures, paving,
utilities, etc.), as well as very small-scale
construction (e.g., up to three-family residences
on approved lots) and such activities as designation
of local landmarks and minor temporary uses
of land that do not involve permanent impacts
on the environment.
Thus, the EAS stage of CEQR captures a very
wide array of projects, including:
- major city-sponsored rezonings such as
Hudson Yards
- city- or privately proposed reconfiguration
of streets
- requests for larger garages than are allowed
as-of-right in a particular zoning district
- requests for uses not permitted in a particular
zoning district
- any project receiving city or state subsidies.
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Alternatively, is the intention to reconcile the
“development and growth of the city … with
the improvement of our urban environment”? Here,
the phrasing seems to assume the city’s continued
growth and aims to guide that growth.
It is evident that the authors of the process meant
for environmental assessments and impact statements
to be planning and disclosure documents used to ensure
that public officials have knowledge of a proposed
project’s consequences before granting approval
for it to progress.
Equally evident is that the unclear phrasing allowed
for constant expansion. Environmental planning specialists
looking to bill as much as possible, as well as city
bureaucrats, saw no reason to limit its scope. Furthermore,
big developers were willing to absorb the cost of
environmental reviews in exchange for what amounted
to a form of “litigation insurance.”[2]
Big developers, willing to pay big bucks to avoid
time-consuming lawsuits, began filing ever-larger
environmental assessments and impact statements, especially
after the cancellation of Westway, the enormous project
to move the West Side Highway underground and develop
the real estate above it.
The project had approval from all levels of government,
and over a billion dollars in federal funds pledged
contingent on a prompt starting date. A lawsuit was
filed contending that the (federal) environmental
review was incomplete because it did not address the
effect that the project might have on the mating habits
of the Hudson River’s striped bass population.
A judge ordered this factor added to the study, and
because the next mating season would be well after
both the planned groundbreaking date and the federal
deadline, the Westway project was abandoned.
This episode demonstrated the power of the environmental
review process to delay or even kill projects. Proponents
and opponents of projects learned to use environmental
review at all governmental levels—especially
the most local, city level—as a legal weapon
rather than as a planning tool.
A
Broken System
lthough the law allows the scope of review to be
confined to likely environmental concerns, the scopes
of EISs are often unreasonably broad. While the law
allows possible impact areas to be “scoped out,”
meaning that topics that are irrelevant to a given
project need not be studied, city agencies are loath
to do so, preferring to ward off any later blame,
by paying to study every possible area of impact to
avert even the most unlikely lawsuit. The law also
includes highly speculative and subjective “soft”
topics such as “land use, zoning, and public
policy,” “urban design / visual resources,”
“neighborhood character,” and “socioeconomic
conditions,” which range well beyond environment
and infrastructure. As land-use attorney Howard Goldman
explains, “Urban design, context, and impact
are difficult to quantify. And all are covered elsewhere
in the ULURP[3] process.”
He jokes that the “E” in EIS stands not
for “environmental” but for “everything.”
Michael Gerrard concurs, lamenting that “EISs
have become huge because developers are afraid of
having their projects shut down over some trivial
omission.”
A description of the current system’s problems
follows.
Impeding Small, Environmentally
Benign Projects
While large developers can budget in the costs and
delays of the city’s environmental law, its requirements
are particularly burdensome for smaller projects and
developers. Similarly, big developers pay for consultants
with contacts at the appropriate city agencies, while
smaller developers, who cannot afford such access,
are subject to even longer delays. Moreover, because
no office tracks or coordinates mitigations, there
is no guarantee that anyone will perform them or that
different projects will not create offsetting or conflicting
mitigations.
In New York City, a small-scale environmental review
costs an estimated low-end of $100,000, and larger
reviews can cost upward of $2.5 million. Even the
most basic Environmental Assessment Statement (EAS)—the
city’s expanded version of the state’s Environmental
Assessment Form—costs five figures to perform.
And these figures do not consider the cost to the
city in lost direct and indirect tax revenues and
economic activities, as projects are delayed or shelved.
“Why can’t the city use the short form
for the little guy?” asked one consultant, who
requested not to be identified. “Only in New
York City do you do a full EAS for every project in
the history of man. I call this the consultant employment
act. It’s a license to print money.”
The review process, which should be a way to improve
projects, instead often derails them by identifying
reasons for denying approvals and permits, or by creating
long delays to make development financially unfeasible.
It has become what an expert on the state law calls
“a convenient handle” for community opposition
unrelated to environmental concerns; it is a one-size-fits-all
bottleneck that impedes development without addressing
valid environmental concerns.
According to the CEQR rules, the impact statement
must contain:
- a description of the proposed action and
its environmental setting
- a statement of the environmental impacts
of the proposed action, including its shortterm
and long-term effects, and typical associated
environmental effects
- an identification of any adverse environmental
effects that cannot be avoided if the proposed
action is implemented
- a discussion of the social and economic
impacts of the proposed action
- a discussion of alternatives to the proposed
action and the comparable impacts and effects
of such alternatives
- an identification of any irreversible
and irretrievable commitments of resources
that would be involved in the proposed action,
should it be implemented
- a description of mitigation measures proposed
to minimize adverse environmental impacts
- a description of any growth-inducing aspects
of the proposed action, where applicable
and significan
- a discussion of the effects of the proposed
action on the use and conservation of energy,
where applicable and significan
- a list of underlying studies, reports,
or other information obtained and considered
in preparing the statement
- (for the final EIS only) copies or a summary
of the substantive comments received in
response to the draft EIS and the applicant's
response to such comments
In addition, New York City's CEQR Technical
Manual identifies the following as the
technical areas that an impact statement is
typically required to address:
- Land use, zoning, and public policy •
Socioeconomic conditions
- Community facilities and services
- Open space
- Shadows
- Historic resources
- Urban design / visual resources
- Neighborhood character
- Natural resources
- Hazardous materials
- Infrastructure
- Waterfront revitalization program
- Solid waste and sanitation
- Energy
- Traffic and parking
- Transit and pedestrians
- Air quality
- Noise
- Construction impacts
- Public health
|
Thwarting of Government’s
Other Goals
Projects involving New York City agencies or requiring
New York City agency approvals must follow New York
City environmental law. Projects involving state agencies
or authorities or requiring state approvals must follow
New York State environmental law. Projects involving
U.S. agencies or requiring U.S. agency approvals must
follow the National Environmental Policy Act of 1969.
Sometimes, project sponsors (including, in some cases,
city government agencies) desiring to avoid the city’s
public land-use process have passed the buck to state
agencies to shift jurisdiction from the city environmental
review to the state. The process is so expensive and
onerous that agencies have been known to drop projects
if another agency requests an EIS.
While we generally think of environmental law as
applying to public projects or projects requiring
discretionary approval by public agencies, the third
trigger is city funding or any city role in a proposed
project. Thus, the very same proposal, with the same
environmental impact, receives different treatment
based solely on whether public subsidies are involved.
A recent report by the Furman Center for Real Estate
and Urban Policy notes the irony for development of
affordable housing in New York:
Of all major topics covered in this 2005 Cost Study,
the area of environmental regulation has seen the
least improvement in the last five years since the
1999 Cost Study was completed. As described in more
detail in the last report, New York State law requires
environmental review of any public actions or grants
of discretionary approvals that are required in conjunction
with a housing development. Therefore, any project
that is not built “as-of-right” under the
Zoning Resolution (i.e., involves a change in use
or bulk) or that receives affordable housing subsidies
or publicly owned land/buildings requires review under
the State Environmental Quality Review Act (SEQRA).
In New York City, this review is performed pursuant
to the City Environmental Quality Review (CEQR), which
is an Executive Order implementation of SEQRA. The
expense and delay of complying with CEQR is what must
be considered in reducing the cost of new residential
construction in New York City. This becomes more important
as the inventory of available City-owned land for
housing development dries up…. In those cases,
more and more residential projects are likely to be
developed on land that is either not zoned for residential
use or requires some other type of discretionary approval
that will trigger a CEQR review.
Environmental review under CEQR is meant to provide
information to government decision makers so that
they take potential environmental consequences into
account when making public decisions. These environmental
consequences include not only physical environmental
impacts such as air quality and noise, but also softer
social impacts as discussed below. Claims of both
physical impacts as well as these broader and more
amorphous environmental factors have invited litigation
that has been used by project opponents to halt or
delay development, whether or not they truly are concerned
about the environmental impacts. In interviews with
project developers, attorneys and consultants, the
consensus remains that this litigation or the threat
of litigation remains the largest impediment to developing
projects that would trigger a CEQR review.[4]
Because any project with a government role is subject
to the environmental review process, government-subsidized
affordable housing must undergo an environmental review
even if identical market-rate housing would not, thereby
making affordable housing and other projects that
the city has reason to favor considerably less appealing
for developers to pursue.
Landmark preservation is another area where multiple
experts identified a tension between environmental
review requirements and widely accepted public policy.
A project requiring a variance to protect a nearby
landmark would require review, while an “as of
right” project (i.e., one needing no official
actions or approvals to go forward) that might interfere
with the landmark would not require such review.
A developer who requested anonymity warned, “As
the city rezones and downzones, it becomes more difficult
to build housing as EASs become more common. In one
Queens neighborhood that has been downzoned, we want
to do affordable housing and need more density to
make it work, and have to go through the process.
There’s no impact, really, since the area downzoned
for political purposes. The city’s really vastly
downzoned over the last few years. The problem is
there’s no differentiation.”
Another example of the law’s self-defeating
nature is the attempts by Catholic Charities and the
Metropolitan Council on Jewish Poverty to build affordable
senior housing at Staten Island’s Sea View, on
the site of what had been a Health and Hospitals Corporation
sanatorium. The review took three years and cost $300,000—none
of which would have been required for a private, unsubsidized
development.
Needless Expense
Both the state and the city’s environmental
laws allow lead agencies to charge for their review
of application materials. The NYC Department of City
Planning (DCP), which serves as the staff for the
City Planning Commission (CPC), collects fees for
the filing/review of city environmental review applications
other than those submitted by governmental or not-for-profit
applicants. A project’s square footage determines
the fees, which currently range from $370 to $253,000.[5]
The CEQR fee money goes into the general pot, even
though the planning department is perennially understaffed
and unable to respond in a timely fashion to any but
the squeakiest wheels.
Impenetrable Environmental
Impact Statements
At least the government filing fees are clearly stated
and predictable. The real money goes to paying for
the expertise needed to perform the study. There is
an industry of environmental consultants who write
draft EISs, staff the hearings on them, record and
account for comments, and produce the final EIS. Very
often, developers employ such consultants from the
early stages of the project to produce the EAS, which
itself can be a substantial document. For complex
projects or issues, developers hire additional specialists
to contribute to the study, such as transportation
engineers, preservation experts, archaeologists, or
acousticians. The project architect generally conducts
shadow studies. Even when lawyers do not actually
write the documents, they certainly review them before
any official submission.
The disclosure documents produced through this process
are often too broad in scope, wasting time and money
on unreasonable concerns and creating a priesthood
of specialized professionals to create thousand-page
tomes incomprehensible to the general public. These
documents are meant to provide litigation insurance
by offering hugely detailed technical specifications
and expertise. A consultant who requested not to be
identified explained:
There are those in the legal profession who believe
that the more paper you have, the more protected you
are. Which is true, because what judge or clerk wants
to go through boxes of this stuff? The legal standard
is “a comprehensive look.” There are two
ways to prove you’ve achieved this. The easy
way is to write 200 pages, and then say, “Look,
we spent 200 pages on this. How could it not be comprehensive?”
Of course, time is money when it comes to lengthy
and unpredictable procedures. Thus, just as no one
can reliably predict the timetable for environmental
review, neither can anyone predict the expense of
going through the process, which produces documents
that our interviewees repeatedly called “counterproductive.”
One lawyer summarized the consensus, pointing out
that “half the point is to be sure that nobody
reads it.”
Politicians have no time to read thousand-page volumes
of technical data, and bureaucrats are overwhelmed
with their workload, which means that only projects
with a patron get far fast. The revolving door between
powerful government and highly paid private-sector
CEQR jobs means that no one wants to go on record
blowing the whistle. As one developer explained, “Ninety
percent of EASs are done by a small circle of firms
where you’re buying the ability to influence
the bureaucrats—whom they hire. A guy works for
the city, then goes to work for AKRF [a leading consulting
firm for environmental review], and you can’t
get out of the circle.” In fact, the largest
consulting firm won a contract to write the city’s
CEQR handbook. It is a good deal for everyone involved
in the process—that is, except for developers
and the public.
Failures to Address the
Real Impacts That Projects May Have
Frustration with the process and its products is
not limited to developers and other applicants. Community
boards, interested neighbors, environmental groups,
and others with an interest in reading an EIS or a
substantial EAS must wade through hundreds, even thousands,
of pages, tables, and charts to find the information
of interest to them. Groups often hire lawyers to
go through the documents, which can be incomprehensible
to the lay reader. While the rules require that the
city assess the environmental impacts for some radius
around the project (dependent upon the project scale
and determined during draft EIS scoping), there is
no similar guideline for assessing the area-wide impacts
of proposed mitigations. Nor is there any repository
of agreed-upon mitigations that one could consult
to ensure that the appropriate party implements them.
For example, among the topics traditionally of greatest
interest to non-agency reviewers is the traffic analysis,
which developers perform street by street and intersection
by intersection. They propose mitigations, if necessary,
at that level of granularity, with signal retiming
as a favorite technique, since the Department of Transportation
implements those at no cost to the applicant. It is
perfectly possible for a retiming, proposed to address
congestion at an intersection within the study area,
to make things worse in the larger neighborhood just
outside the study area. Moreover, different projects
may propose conflicting impact mitigations (e.g.,
extend east-west green time on a traffic signal for
one project and extend north-south green time on the
same signal for another project).
One consultant mentioned what he described as a typical
exchange in which a developer told him, “I already
cut my deal for the mitigation. Now find me an impact.”
As Hunter College professor of urban affairs Tom
Angotti has put it, “[The environmental review]
methodology is flawed. It looks at environmental impacts
as a series of simple short-term cause-effect relations,
not as a complex of interrelated factors. It doesn’t
deal with the cumulative impacts of many similar developments
over a long period of time—spanning generations,
not years.” It also uses thresholds that make
little sense. As one planner put it, “How can
you say that thirty vehicle trips will have no impact,
but forty will?”
A “Weapon of Choice”
to Stop Projects
The vast scope of the studies has made them the “weapon
of choice” for activists looking to kill a project.
Opponents can endlessly demand more studies. Political
and activist pressures may also redirect the applicant’s
attention toward “social” impacts and mitigations.
The very same types of interest groups that have been
using environmental review to derail projects have
now come up with a way for applicants to get back
on track: community benefit agreements (CBAs).
CBAs result from negotiations between developers
and communities, where developers promise to include
social programs such as child-care centers, senior-citizen
services, and even construction jobs (as well as arguably
more impact-related items such as subsidized housing)
in exchange for the community’s agreement not
to oppose the application. Indeed, community groups
that benefit directly from such agreements often advocate
for the projects. And in expending energy (and money)
on negotiating CBAs, it is all too common for parties
to lose sight of the very real need to plan for infrastructure
improvements and other “traditional” mitigations
required to support these developments. Adding thousands
of residents to a neighborhood means demands on roads,
schools, buses, parks, and so on, and no amount of
job-training programs and subsidized housing is going
to change that fact.
After watching CBA negotiations for projects from
Atlantic Yards to Yankee Stadium, Mayor Michael Bloomberg
reached his limit when it seemed that community groups
might hold the new Mets ballpark hostage for social
payoffs: “Every development project in this city
is not going to be a horn of plenty for everybody
else that wants to grab something.” The public
purpose and process of identifying and mitigating
impacts on municipal infrastructure and services are
lost in all this side-dealing with public officials
and private groups. Yes, developers still prepare
environmental documents, but reviewers need not muck
around in all those technical details once the project
has been effectively ransomed and preapproved. Therefore,
the real question remains: Will the city’s infrastructure
be adequate to support the new development?
Failure to Implement Agreed-To
Mitigations
While developers are required to propose mitigations
for whatever negative environmental impact their projects
may cause, they are not required to implement those
mitigations. It is enough to say, “Here’s
the problem and here’s how it can be solved,”
without, in fact, acting to solve it. New York City’s
environmental law perversely encourages developers
to focus on detailing all possible environmental impacts,
however unlikely, while requiring nothing of them
by way of implementing solutions.
There is no mechanism to ensure that developers implement
approved mitigation proposals. Thus developers, whether
public agencies or private applicants, must go through
a lengthy and expensive process, imagining how their
proposals could remake the face of the city, and recommending
ways to prevent, or at least moderate, any negative
changes that their projects may bring, without any
guarantee (and often no expectation) that this effort
will have any real-life outcome.
Community groups, after going through this process,
might reasonably assume that after developers have
proposed and analyzed mitigations, and the city has
commented on and approved them, someone will perform
those mitigations. However, the reality is that it
is up to those same concerned citizens to follow up
with the relevant agencies and the applicant to ensure
that the transportation department changes the signal
timing and restripes the streets, that the sanitation
department adds the truck route deemed necessary for
the increase in the neighborhood’s population,
that the developer pays the parks department for the
promised upgrade to the local playground, and so on.
While new EISs are now available online, there is
still no simple way to go through proposed mitigations,
let alone mitigation agreements; a process intended
to be transparent has become increasingly inscrutable.
Thus, the question is not only whether the right
mitigations are planned but if anyone actually delivers
those mitigations. One lawyer offered this dour, but
common take: “If somebody checks, then the mitigation
happens. Or if it’s a condition of the certificate
of occupancy, then it happens. Otherwise, good luck.”
Failure to Distinguish between
New York City and Less Developed Parts of the State
Incredibly, the city’s standard for which projects
must undergo an environmental review are the same
as the state’s, as though there were no difference
between Oneida and Manhattan.
The state law allows localities to adopt their own
additional rules as long as they do not create a lower
standard of environmental impact, but New York continues
to employ the same thresholds as the rest of the state,
so that a project must meet the same standard in the
counties of Cattaragus and Kings. Yet while in Cattaragus,
the state has set up a time frame for replying to
environmental reviews, in New York City, city agencies
often delay reviews indefinitely, especially for smaller
projects, making the city’s process uniquely
unpredictable and inefficient. As one consultant put
it, while New York City could raise the thresholds
that trigger review, “the problem is that no
politician has been bold enough to risk the charge
of being environmentally unfriendly.”
The city law failed to up the thresholds for review
(which localities are explicitly entitled to do under
the state law), so that projects that have little
or no impact on city services or their surroundings
routinely go through the process. However, when outside
the city, an individual developer or lawyer can easily
fill out the two-page state form, while within the
five boroughs, an EAS can cost anywhere from $10,000
to upward of $100,000 to prepare—a tidy little
bundle for environmental review specialists at the
expense of smaller projects.
While the state law has strict time requirements
for moving the process forward, the city law has none
for several crucial steps, which results in a vast
and frequently uninterested or even hostile bureaucracy
operating on no set time frame, creating a mountain
of paperwork for the developer and a golden goose
for the new class of environmental law specialists.
Indefinite Lags
While state law allows thirty days to identify the
lead agency and an additional thirty days in the event
of a jurisdictional dispute, the city has no prescribed
time frame for this determination.
Nor is there any time limit on the preparation of
an EAS and, more importantly, on the EAS review. It
is not unusual for the applicant to produce a detailed
document at the EAS stage answering all anticipated
questions in an attempt to forestall an EIS. The research
and analysis are up to the applicant, but the reviewing
agencies can require repeated resubmissions before
they are satisfied with the content. Land-use attorney
Howard Goldman estimates that six months of city land-use
pre-certification is associated with environmental
review. For smaller projects, the waiting times are
often even greater, as the squeaky wheel gets the
attention from city agencies often inundated with
applications, and with no required time limit in which
to return them.[6]
Similarly, there is no time limit on preparation
of an EIS, should one be required. The research and
analysis are up to the applicant, but, of course,
the reviewing agencies can require repeated resubmissions
before they are satisfied with the content.[7]
This means that smaller projects without direct access
to agency heads and functionaries often sit at the
bottom of the pile unnoticed for months, if not longer.
Because the city has limitless time in which to respond,
agencies also can and do endlessly delay projects
that they oppose. All queries and edits, however late,
must be addressed. This is one of many points in the
process where consultants with access to city agencies
are crucial, as one consultant explains: “It’s
up to the consultant to make sure the agencies respond.
That’s what he’s paid for—to get agencies
to do what they’re supposed to do.”
The public comment period on a draft EIS (DEIS) may
be as short as thirty calendar days or as long as
eighty calendar days from the filing of the DEIS Notice
of Completion.
The city publishes the final EIS (FEIS) within thirty
days of the close of the comment period.
The purpose of producing a FEIS is to provide informational
input into the lead agency’s decision on whether
to approve, fund, or implement a proposed action.
Under city environmental law, there is no limit on
the time that the lead agency may take to consider
this input. (For privately sponsored projects, state
law has a limit of thirty calendar days from filing
of the FEIS.)
Not only can this be a time-consuming process; it
is also an indefinite and unpredictable one. If the
project requires only an EAS, it could take as little
as two months; however, it could also take much longer.
If an EIS is required, the timetable is at least many
months—just the defined time frames easily add
up to four months or longer—and often well over
a year. In one particularly egregious example, a judge
ordered the city to publish an EIS after over 500
days of review.
Because the review process overlaps substantially
with other pre-certification requirements for construction,
interviewees reported that it typically takes six
months to complete an environmental review in the
city, doubling the average time that it takes a project
to begin construction.
Several interviewees complained that “commenting”
agencies other than the lead agency respond slowly
and often request multiple negligible changes, with
months wasted between the requests. As Frank Fish,
a principal with the environmental review firm of
BFJ Planning, explains, the process can be used “to
rubber-stamp or to bleed you to death.” Another
consultant elaborated: “You can’t let a
letter go unanswered,” even if it’s irrelevant.
He went on:
The problem is that there’s no retribution for
not skipping the scope or for not getting comments
back to the applicant. And when you do suddenly get
a response three months later, you basically have
to agree with everything, which is part of the game.
It shifts the risk from them to you. If they’d
made comments earlier, you could have responded, but
they don’t want you to respond and give the risk
back to them.
All of that does not even include the time and trouble
added if anyone files a lawsuit against a project.
The Furman Center report made several recommendations
to reduce the number of lawsuits, most notably restricting
the standing to sue and reducing the statute of limitations.
The state environmental law’s current 120-day
statute of limitations “is simply lost time waiting
for the tolling of a legal deadline.”[8]
Such extended timetables can slowly destroy a project,
as financing and key personnel can be lost amid all
the waiting. Even if the original financing remains
available, the market may have changed enough to make
the project financially unfeasible. Indeed, the environmental
circumstances themselves may have changed enough to
require significant revisions to the document.
Making matters worse, developer Paul Travis noted,
while the law was intended to create disclosure,
the agency part of the process [the EAS] is not at
all public. People don’t know what’s going
on and there’s no time limit.… Time limits
really do force people to act in a more rational way.
Without [time limits], there’s no reason not
to ask for more paper, and the developer has no leverage
in that process. The point isn’t that developers
should control city planning but that it becomes a
very irrational process, once the developer has no
leverage because of the time frame.
And It COULD Be Used for
Planning, but Isn’t
Planning officials deluged with thousand-page reports
have no time to read them, and public officials rarely
bother. Going through an EIS is time-consuming and
dull, sometimes requiring the reviewer to read hundreds
of pages of highly technical charts. Developers treat
the review process as “litigation insurance,
not a planning document,” as Sam Schwartz, the
principal of Sam Schwartz LLC, a prominent traffic-consulting
firm, put it. Even on the rare occasions when the
review shows a better idea, as long as the lead agency
will approve the project as it is, it is rarely worthwhile
to go back, generate hundreds of pages, and spend
hundreds of thousands of dollars to implement it.
We will give the last word to one planner who asked
to remain unnamed and who complained that during the
EIS process, “Every so often, a planning issue
pops up. It’s just the amount of time and money
that is wasted and spent. The cost-benefit analysis
is really bad.” He continued:
As a planner, I was concerned that the planning was
not affected by the EIS. The 42nd Street EIS was massive,
a landmark in EISs; it explored uncharted territory;
it was a 300- or 400-page document. It was the most
terrible abuse. It looked at stuff that was so stupid.
It was a real waste of taxpayer money. It was two
volumes in 1984, when no one was doing squat. It started
a whole cottage industry, and it’s always looking
at extremes; there’s no nuance in an EIS. I just
wonder how useful it is—what does it really do
at the end of the day? Has it ever actually solved
an environmental problem?
Reconceiving Environmental
Review
he environmental review process has become a clear
and present danger to New York City’s continued,
sustainable growth. The city needs to refocus the
process on the identification of environmental impacts
and implementation of approved mitigations.
Mitigations are changes to municipal infrastructure
or services to accommodate the impacts that a project
is likely to create. Among the most commonly recommended
mitigations are changes to the signal timings in order
to offset a proposed project’s anticipated effect
on traffic patterns. However, mitigations could range
from building a school to accommodate the children
who will live in a proposed development to adding
a sanitation route to collect trash that the new population
will generate. While the city claims responsibility
for managing operational adjustments such as sanitation
routes and police, there is room for the existing,
occasional practice of developers paying for or building
infrastructure such as school buildings, parks, and
subway stairs.
By focusing on mitigations, we can restore purpose
to the city’s environmental law and transform
the law into a useful step in the planning process,
one that facilitates development while at the same
time ensuring that developers are doing their fair
share to provide the additional public resources that
their projects will require.
Instead of a time- and paper-consuming spy-versus-spy
exercise in project obstruction and counter-obstruction,
the process should be a step in project implementation
and improvement—the step that ensures that the
required municipal infrastructure and services will
be in place to support integration of the completed
project into the broader urban fabric.
With this goal in mind, we can begin to refine the
environmental review process by addressing five key
problems.
1. What should be the threshold for requiring
an environmental review and plan for mitigation?
The city should modify its CEQR Technical Manual
to include its own list of so-called Type II actions
exempted from environmental review (an activity that
New York State specifically permits local agencies
to undertake) to ensure that review only occurs when
appropriate in a dense urban environment and is not
needlessly burdening small developments and developers.
If the city filters out projects that do not matter,
it can apply resources to the projects that do matter.
At present, the process burdens small projects and
does not adequately examine the large ones.
2. Which topics should each environmental review
cover?
The city should adopt the state’s two-page Environmental
Assessment Form. This would filter many small projects
out of the process from the start. The project’s
developer or attorney can fill out the form easily
without paying costly consultants. For projects that
require an EIS, the city needs to take “scoping”
more seriously. State law provides for scoping to
determine what does not need study, as well as what
does, but in practice New York City’s impact
statements tend to cover all possible topic areas,
no matter how unlikely they are to affect the project’s
environment. Instead, New York City should establish
a standard scoping checklist and limit study to those
review topics determined during the assessment phase
to be relevant for the project. There is no need to
repeat the CEQR Technical Manual’s complete
table of contents.
The far more common EASs need a more targeted scope
as well. In addition, for small projects, the city
should allow qualitative responses rather than requiring
expensive and time-consuming quantitative studies
for air quality, noise, and other impacts.
As developer Paul Travis explained:
What’s worst about the process is that the
smaller projects are getting buried. You don’t
do five-page EASs any more. A decade ago, we did EASs
ourselves. You can’t do that now, and you should
be able to—that was the whole point, to set up
an easy process that was transparent and that the
public would easily understand. For the small guy,
time is incredibly important. A year in interest and
carrying costs, consultant fees, and the lawyer to
supervise the environmental guy, and it adds up to
a whole empire of people you have to hire.
3. What should the time frame be for the developer
to complete the EIS? How much time should the public
and government agencies have to respond?
Establish time limits for each stage of the process,
making it more predictable and manageable. In many
cases, the time limits from the New York State rules
could apply. If the city fails to meet its obligation,
projects should be free to self-certify, distributing
their documents directly to interested entities for
review.
4. What responsibilities and obligations should
the developer have under the EIS? What responsibilities
and obligations should the government have under the
EIS?
These should continue to vary from case to case,
but in all cases, it is crucial to have a clear agreement
from all parties of either restrictive declarations,
or likely solutions, documented and made publicly
accessible, so that citizens, the press, public officials,
and other interested parties can monitor them.
5. How will the city enforce implementation of
the approved and agreed-to mitigation plan?
Michael Gerrard suggested one way to improve this
process, which is currently handled case by case:
have all mitigations reported on the Mayor’s
Management Report, published by the Mayor’s Office
of Operations, home of the Office of Long-Term Planning
and Sustainability and the Office of Environmental
Coordination. Ideally, the office would also be responsible
for tracking mitigations and ensuring their implementation,
which at present is no one’s responsibility.
The city requires all EISs—though not yet EASs—to
appear online. This is a first step toward the transparency
required.
An Agenda for Reform:
A Four-Point Program to Fix Environmental Review
1. Exempt Some Projects from Review
The state environmental rules specifically permit
state and local agencies to exempt Type II actions
from environmental review.[9] Thus, it is entirely within
New York City’s power to implement a significant
reduction of the city’s environmental review
burden. The city should:
- Exempt projects whose government funding is
the trigger for review.
- Exempt smaller residential projects. The
Furman Center points out that “development
of no more than a three-family house is currently
deemed to be a Type II action. Given the built environment
and the density of housing in New York, this cutoff
is ridiculously low and should be increased to encompass
a single development of no more than a certain number
of housing units. Various measures could be used
to define this higher cutoff. For example, a new
housing project in a mid-rise zone like R7-2 on
a medium-size site of 100 by 200 feet would permit
development of 70 to 90 units.”[10]
- Exempt building modifications that do not increase
density. Among these Type II actions are applications
to the Board of Standards & Appeals (BSA) for
variances in height and bulk distribution. Such
applications change a building’s shape without
affecting its density, and smaller applicants often
propose them without the kind of wherewithal of
major developers and institutions to weather the
review process.
- Exempt variances that do not increase infrastructure
demands. These include Type II applications to BSA
for variances in yard requirements that may increase
a building’s density somewhat, but without demanding
more from city services and infrastructure. The major
concern with such applications is the impact on the
light, air, and views of neighboring buildings and
streets. Fair evaluation of these factors does not
require a technical environmental study.
2. Narrow the Scope of Review to Services and
Infrastructure
New York City mandates far more detailed study topics
than those that the state requires, in response to
the perceived requirements of 6 NYCRR, Section 617.7(c)(1).
The city should work with the New York State Department
of Environmental Conservation (the agency responsible
for state environmental review law implementation)
to understand what is actually needed to meet state
requirements, and to reduce its own topics and scope
of study accordingly. It should revise the CEQR Technical
Manual’s thresholds and topics for review. It
should drop topic areas that do not relate to the
natural environment, infrastructure, or municipal
services.
The Review Process Should Include:
- Community facilities and services
- Open space
- Shadows
- Natural resources
- Hazardous materials
- Infrastructure
- Waterfront revitalization program
- Solid waste and sanitation
- Energy
- Traffic and parking
- Transit and pedestrians
- Air quality
- Noise
The Review Process Should Exclude:
- Land use, zoning, and public policy
- Socioeconomic conditions
- Historic resources
- Urban design / visual resources
- Neighborhood character
- Construction impacts
- Public health
Discussions of “land use, zoning, and public
policy,” “urban design / visual resources,”
and “neighborhood character” are mainly
descriptions of existing conditions and reassurances
that the proposed action will not have a negative
impact on them. Discussion of “socioeconomic
conditions” tends to consist of claims that the
project will not cause the area to lose jobs and,
in fact, will likely bring new jobs with it. These
four topic areas often overlap. They have no bearing
on whether the city’s existing infrastructure
and services can support the proposed action.
Some specialized projects may benefit from analysis
of historic resources (e.g., if the project site itself
is historically or archaeologically significant) or
public health (generally covered in analyses of hazardous
materials, solid waste, and air quality).
The developer should plan for construction impacts
but not as part of the environmental review, which
should focus on the impact and mitigation of the completed
project.
3. Set Time Limits for Reviews
The only time limits in the current city environmental
review process are on procedural activities—for
example, notification to the applicant of application
completion, or notification to the public of document
publication and public hearings. Unlike the state
process, the city process has no limit on how long
reviewing agencies can take to review, comment on,
and consider the content submitted. Agencies need
to be accountable to the public (which includes applicants)
about their review activities.
This is an area where New York City could easily
adopt the state’s own requirements directly:
- 45 [presumably, but not specifically stated as,
calendar] days for agency review of the initial
DEIS submission
- 30 [presumably, but not specifically stated as,
calendar] days for agency review of each DEIS resubmission
- 30 calendar days from filing of FEIS for agency
decision on approving the application.
Agencies will no doubt argue that they lack the personnel
resources to meet specific deadlines. However, the
adoption of Recommendation 1 (exempting projects)
would result in fewer applications to review. If the
city adopts Recommendation 2 (narrowing the scope
of review) as well, the applications that remain will
be shorter and simpler to understand and evaluate.
Taken as a package, Recommendations 1–3 should
reduce CEQR burdens on agency personnel as well as
private applicants.
The city should also allow developers to self-certify
if the city fails to meet its obligations under this
schedule, which would create a real incentive for
the city to abide by them.
The Furman Center report’s recommendation to
reduce the statute of limitations on filing lawsuits
is also worth pursuing. However, that recommendation
would require changing the state law, a heavier lift
than implementing time limits on review, which is
entirely within the city’s jurisdiction.
4. Designate an Office to Implement Mitigations
Some entity needs to be empowered to track mitigation
proposals for possible conflicts, approval status,
and implementation. Since implementation responsibilities
may range across multiple agencies—or fall squarely
into the lap of the developer or proposing agency—the
tracking entity needs to have access to all those
organizations and their agreements. An obvious candidate
for this role is the Mayor’s Office of Operations,
which publishes city management statistics in the
Mayor’s Management Report and whose Office of
Environmental Coordination assists city agencies in
carrying out their environmental review responsibilities
and houses all city environmental review documents.
It is also the home of the new Office of Long-term
Planning and Sustainability, which is charged with
figuring out how the city can grow in an environmentally
responsible and sustainable way in the next generation.
And that is really what environmental review should
be used for—planning for the infrastructure and
services needed to support new development. It would
put attention and resources where they’ll pay
off in planning for the city’s growth, while
allowing affordable housing projects and smaller projects
in general some regulatory breathing room. The program
outlined here can be implemented by New York City
right now. What better time to make environmental
review meaningful, just when the city is focused on
planning its sustainable future?
