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D. Challenges

In This Section You Will Learn:

  • how is SEQR enforced; and,
  • how SEQR decisions may be challenged.

1. How is SEQR enforced?

The SEQR statute (Article 8 of the NYS Environmental Conservation Law) did not provide DEC, or any other agency, with administrative or enforcement authority to review SEQR implementation or decisions by other agencies. DEC is charged with administration of SEQR, including promulgation of statewide regulations and model assessment forms pertaining to SEQR, but cannot force another agency to comply with SEQR. Therefore, actual oversight and enforcement of SEQR falls to interested citizens and groups.

To enable citizens to monitor and provide input to SEQR proceedings, specific notices and public comment periods are required at certain steps, primarily during the scoping and review of environmental impact statements (EISs). The only mechanism by which SEQR decisions can be challenged is through a court proceeding, governed by Article 78 of the New York State Civil Practice Law and Rules (CPLR), brought in a NYS Supreme Court.

2. What is a CPLR Article 78 proceeding?

A CPLR Article 78 proceeding (commonly called an "Article 78") is a formal legal challenge to a final decision by an administrative agency, which can be a state agency or authority, or local board or agency. A challenge under Article 78 must be based on one or more of the following four grounds:

  • The agency failed to perform a required duty;
  • The agency exceeded its jurisdiction;
  • The agency violated lawful procedure in making its determination, the determination was affected by an error of law, the determination was arbitrary and capricious, or the determination constituted an abuse of discretion; or
  • The determination was not supported by substantial evidence contained in the hearing record.

3. When can a SEQR decision be challenged?

An agency's SEQR record is only one component of the agency's record in support of its final decision based on its underlying jurisdiction (such as a permit, site plan review, or subdivision approval). Therefore, a SEQR decision must generally be challenged based on the agency's final decision, and the challenge must be filed within the statute of limitations applicable to the agency's final decision.

The statute of limitations is the time period established by law during which the action of an agency is subject to challenge. A statute of limitations begins to run when the agency makes its final decision. The statute of limitations in NYS is typically four months, but periods as short as 30 days are prescribed by some NYS statutes (for example, site plan review and state freshwater wetlands permits). Where there are multiple approvals required for a single action, the shortest statute of limitations has generally been held to apply.

Be aware that this is an area of law for which several courts have recently issued decisions providing revised interpretations of what agency decisions are "final", in the context of challenges including agency application of SEQR, and of when the statute of limitations starts to run. Individuals or entities considering legal action, therefore, should consult with an attorney regarding their specific circumstances.

4. Is there a separate statute of limitations that applies to SEQR decisions?

No. The SEQR statute does not create a separate statute of limitations, because the SEQR review is considered a part of the record in an underlying jurisdiction. Thus, the statute of limitations for the underlying jurisdiction generally applies.

5. Who can challenge a decision under an Article 78 proceeding?

Individuals or groups who can demonstrate that they are sufficiently environmentally harmed by an agency's decision may seek judicial review under Article 78. If the party or parties that bring an Article 78 proceeding against an agency cannot sufficiently demonstrate to the court that they suffered "harm" by the actions of the agency, the lawsuit may be dismissed before the subject of the agency's conduct and decision is even discussed. There are a number of NYS court decisions which have interpreted "harm" fairly narrowly, although some recent cases have interpreted "harm" more broadly. Thus, as with questions of statute of limitations and final decisions, this matter should be discussed with an attorney if one may seek to challenge an agency decision under Article 78.

6. Since DEC issues the regulations, doesn't it have the authority to at least notify a lead agency that they are not correctly meeting the requirements of SEQR?

No, because the SEQR statute did not provide any such oversight authority, to DEC or to any other entity. If an agency contacts DEC with questions regarding the SEQR process, staff can give them informal advice regarding the SEQR process in general, or informal interpretations related to their review of a particular action. However, DEC cannot intervene in any lead agency's conduct of SEQR, nor stop any agency from conducting its SEQR review, even if the review is not following the correct procedures as set forth in ECL Article 8 or the SEQR regulations.

Affected citizens, interested groups and other involved agencies can monitor lead agencies' application and implementation of SEQR, including active participation in SEQR proceedings to ensure that the SEQR record contains all relevant information. In fact, if a challenge is brought under Article 78, many courts will look to the SEQR record to see if the parties bringing the challenge did participate in the lead agency's proceedings, and are less likely to be sympathetic to the challenge if those parties did not initially raise their concerns within the lead agency's SEQR process.

E-mail us if you wish to submit comments. Please be sure to indicate which section or item you are commenting on, and include your name.

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