F. What is the Concept of "Reasonableness" as it applies to SEQR?
The range of decision making by agencies and the comprehensive nature of SEQR continually present new circumstances that require judgment to apply SEQR. For instance, SEQR asks the lead agency to decide: how many alternatives should be reviewed; how much information is enough; and is the proposed action really "significant"? All lead agencies routinely face these and similar questions. While there cannot be black and white formula answers to such matters, there is one basic principle or rule that can be used -- the rule of reason.
The regulations provide abundant support and tools for basing judgments on how to manage the SEQR process by choosing a reasonable approach. The principle of reasonableness, as put into practice in SEQR decision making, has been upheld by the decisions of the courts (see Landmark Court Decisions on SEQR). In addressing the review of impacts the courts have limited the consideration of impacts to reasonably related potential impacts. The court decisions have also stated that not every conceivable impact needs to be considered; speculative impacts may be ignored.
The EAF and the Concept of Reasonableness:
The Full Environmental Assessment Form assists the agency with applying the reasonableness principle. In the Purpose statement at the beginning of the Full EAF, the instructions recognize that "Frequently there are aspects of a project that are subjective and unmeasurable" and that "those who determine significance may have little or no formal knowledge of the environment or may not be technically expert in environmental analysis" Given these practical limitations, SEQR asks that these decision-makers identify and consider, in an orderly manner, the relevant potential impacts of an action. The Part 1 (Project Information) instructions to the project sponsor state that "It is expected that completion of the Full EAF will be dependent on information currently available and will not involve new studies, research or investigation." However, if an impact is judged relevant and significant, a subsequent EIS may require new studies, research or investigation.
The initial instruction to the lead agency in Part 2 (Analysis) of the Full EAF states that: ?In completing the form the reviewer should be guided by the question: Have my responses and determinations been reasonable? The reviewer is not expected to be an expert environmental analyst." In the instructions for Part 3 (Evaluation) of the Full EAF, the preparer decides "if it is reasonable to conclude that this impact is important." Following that instruction, a series of questions tests the reasonableness of the decision.
Continuing with the determination of significance, the regulations ask that the lead agency identify and address relevant areas of environmental concern. If a potential impact is too speculative, it should not be addressed. The agency's responsibility is to deal with impacts that are reasonably foreseeable.
In the criteria for determining significance, when addressing potentially relevant long-term, short-term and cumulative impacts, the lead agency is directed to consider those that are "reasonably related." The criteria also include the following reasonable qualifiers to the indicators of significance:
- a substantial adverse change
- substantial increase or decrease
- removal or destruction of large quantities
- large number of people
- material conflict
- impairment of character or quality
- a major change
- creation of a hazard
- creation of a material demand
The EIS and the Concept of Reasonableness:
In the scoping procedures of Part 617, the regulations speak about reasonableness in several ways. In 617.8(d) "Failure of an involved agency to participate in the scoping process will not delay completion of the final written scope." Therefore, an applicant can reasonably expect that the SEQR scoping process will continue even if an involved agency fails to fulfill its responsibility in a timely fashion. In 617.8(a) "irrelevant or non significant" issues may (reasonably) be eliminated from further consideration; and in 617.8(f)(5) "the final written scope should include...the reasonable alternatives to be considered."
In Part 617.9(5)(v) the regulations require that the draft EIS describe and evaluate "the range of reasonable alternatives to the action that are feasible, considering the objectives and capabilities of the project sponsor." For private applicants, site alternatives should be limited to parcels owned by, or under option to, a private applicant. To demand otherwise would place an unreasonable burden on most applicants to commit to the control of sites which they do not otherwise have under option or ownership.
When the lead agency receives a draft EIS from the project sponsor, the lead agency's responsibility is to determine whether the document is adequate for public review, in terms of both its scope and content. These are reasonable expectations. The regulations do not demand that the draft EIS be perfect. That would be an unreasonable expectation.
For supplemental EISs, the regulations limit further analysis to issues either not addressed or inadequately addressed in the EIS, and only those dealing with significant adverse impacts. To make it easy to supplement, or to allow supplements to revisit all issues, would be unreasonable.
Finally, in preparing its SEQR findings, each involved agency must apply the following tests. It must consider the reasonable alternatives and choose one which minimizes or avoids adverse environmental impacts to the maximum extent practicable. The findings must incorporate conditions requiring practicable mitigation measures to ensure that the adverse environmental impacts of the least damaging alternative will be avoided or minimized.
More than one agency may be involved in the SEQR process, and each is independently responsible for balancing the project benefits against adverse impacts and mitigation. Since SEQR does not change the jurisdictions of the agencies, this balancing enables the SEQR process to gather and analyze information, then apply this information based on the jurisdictions, interests and concerns of each agency. This flexibility is a further example of the rule of reasonableness incorporated into SEQR.
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