Appl. of Spitzer v. Farrell

In re Application of Eliot Spitzer, etc., Petitioner-Appellant v Kevin Farrell, etc., et al., Respondents-Respondents

Natural Resources Defense Council, Inc., New York Lawyers for the Public Interest, New York Public Interest Research Group, Greenpoint Waterfront Association for Parks & Planning, Inc., Amici Curiae

151

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

Decided on May 28, 2002

Lisa Feiner - for petitioner-appellant,

Kathleen Alberton - for respondents-respondents,

Katherine Kennedy - for amici curiae.

For a Judgment, etc.,

Williams, P.J., Andrias, Buckley, Rosenberger, JJ.

Order, Supreme Court, New York County (Stanley Parness, J.), entered October 13, 2000, which denied petitioner-appellant's Article 78 petition to annul a negative declaration issued by respondent New York City Department of Sanitation under the State Environmental Quality Review Act, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the negative declaration, and respondent directed to conduct a new environmental assessment.

In May 1996, the New York State Legislature adopted an amendment to the Environmental Conservation Law, requiring New York City to close the Fresh Kills landfill on Staten Island by January 1, 2002. In order to comply with this mandate, New York City's Department of Sanitation (DOS) began to reduce the amount of waste deposited in Fresh Kills by implementing interim measures that would continue until the City adopted a final strategy for disposing of the thousands of tons of garbage it collected daily. In 1999, the DOS implemented an interim plan to deal with the approximately 2300 tons of solid waste it collects in Manhattan each day. Pursuant to this plan, the trash collected in Manhattan would be transported to solid-waste facilities in New Jersey. The plan calls for anywhere from 393 to 650 diesel-powered sanitation trucks to carry their collected trash each day to New Jersey and return to Manhattan via the George Washington Bridge and the Holland and Lincoln Tunnels.

Prior to implementing the plan to transport Manhattan's waste to New Jersey, the DOS was required by the State Environmental Quality Review Act (SEQRA), Article 8 of the Environmental Conservation Law (ECL), to assess whether the plan necessitated the preparation of an Environmental Impact Statement (EIS). SEQRA was enacted "to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources." (ECL § 8-0101.) Toward that end, the Legislature directed that "all agencies conduct their affairs with an awareness that they are stewards of the air, water, land, and living resources, and that they have an obligation to protect the environment for the use and enjoyment of this and all future generations." (ECL § 8-0103(8).)

To ensure that government agencies incorporate environmental and health considerations into their decision-making, SEQRA requires them to review the environmental impacts of any non-exempt "action"(FN1) they propose to undertake and to prepare an Environmental Impact Statement (EIS) for any action that "may have a significant effect on the environment." (ECL §§ 8 0105(2)-(3), 8-0109(2) [emphasis added]; see also, Chinese Staff and Workers Assn v City of New York, 68 N.Y.2d 359, 364-65.) "Because the operative word triggering the requirement of an EIS is 'may,' there is a relatively low threshold for the preparation of an EIS" (Matter of Omni Partners v County of Nassau, 237 A.D.2d 440, 442). Agencies are required to "minimize or avoid adverse environmental effects" identified in the EIS "to the maximum extent practicable" (ECL § 8-0109(1)).

If a proposed action poses no potentially significant adverse impacts on the environment, the agency may issue a "negative declaration" and proceed with the action without going through the EIS process. However, before it may issue a negative declaration, the agency "must identify 'the relevant areas of environmental concern' and take a 'hard look' at them.... [and] set forth a reasoned elaboration for its determination." (Merson v McNally, 90 N.Y.2d 742, 751-52; see also, Jackson v New York State Urban Development Corp., 67 N.Y.2d 400, 417; 6 NYCRR § 617.7(b).) SEQRA does not provide any "magical formula or set of fixed objective standards for determining the environmental significance of an action." Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York, § 2.06[2], p. 2-110 (2001). Instead, the agency must identify and thoroughly analyze the relevant areas of environmental concern, 6 NYCRR § 617.7(c)(1), and determine if the proposed action may have a significant adverse impact on those areas.

In conjunction with its obligation under SEQRA, the DOS undertook an initial environmental assessment to determine if adding several hundred diesel-powered trucks to three of Manhattan's already heavily congested exit and entrance points might have a significant adverse impact on the environment. Diesel engines emit a number of pollutants into the air, including "particulate matter," which is a "'generic term for a broad class of chemically and physically diverse substances that exist as discrete particles (liquid droplets or solids) over a wide range of sizes.'" (Uprose v Power Authority of State of New York, 285 A.D.2d 603, lv denied 97 N.Y.2d 605, quoting Wooley, Clean Air Handbook at 1-14, n. 15 [9th ed.], intermediate citation omitted.) Particulate matter is measured in microns. A micron is one-millionth of a meter; a human hair is approximately 70 microns in diameter. Once airborne, particulate matter can enter the lungs through respiration and cause or aggravate pulmonary health conditions, such as asthma. The finer the particles, the deeper they may penetrate into the lungs and the more likely they are to contribute to adverse health effects. More than 90% of the particulate matter in diesel-engine emissions consists of particles measuring 2.5 microns or less in diameter, which is referred to as "PM2.5." Hence, one of the environmental issues facing DOS was whether its plan would have a significant adverse impact on the air quality in the affected areas.

Focusing on the impact in the area around the Holland Tunnel as the point of the plan's "worst case scenario," the DOS concluded that the proposed plan "would not cause a potentially significant adverse traffic-related air quality impact.... [and] no adverse public health impacts would occur as a result of this [plan]." The DOS limited its inquiry to and based its conclusion on whether the exhaust from the diesel-powered garbage trucks would increase the level of PM10 in the air to a degree that would constitute a violation of the Federal Clean Air Act.

Section 109 of the Clean Air Act requires the Federal Environmental Protection Agency (EPA) to promulgate National Ambient Air Quality Standards (NAAQS) for all "criteria" air pollutants, which are pollutants that the EPA has determined "cause or contribute to air pollution which may...