New SEQRA Environmental Assessment Form Assesses Global Warming Impacts

New York is committed to mitigating the State's contribution to global warming. Consideration of greenhouse gas ("GHG") emission impacts, therefore, is being required by the New York State Department of Environmental Conservation ("NYSDEC") in the newly available short and long environmental assessment forms ("EAFs") used as part of environmental review process under the State Environmental Quality Review Act ("SEQRA").

Although the new EAFs significantly expand the assessment of global warming, as well as other environmental impacts, NYSDEC has postponed the effective date for the new forms until October 1, 2012 in order to give itself time to prepare, and solicit public comments on, detailed guidance instructions for completing the new forms.

The new EAFs will require project applicants and involved state and local agencies to identify elements of a project that may contribute to global warming by increasing GHG emissions or hydrocarbon-based energy use and look for ways to reduce them. GHG scrutiny will be extended to projects not typically associated with significant global warming impacts, including residential, retail, and agricultural facilities.

Under SEQRA, state and local agencies considering whether to approve a project are required to use the EAF as a screening tool to ascertain whether the project has the potential to cause a significant adverse impact on the environment. If the answer is no (i.e., a "Negative Declaration"), then the SEQRA process is concluded. If the answer is yes (i.e., "Positive Declaration"), then the agency is required to prepare and evaluate an environmental impact statement ("EIS"). Now, GHG emissions can trigger a Positive Declaration.

The new Short EAF has been expanded to four pages from its present two-page length. Additions to the Short EAF now inquire: whether the project will "exceed energy code requirements" and, if so, to "describe [the] design features and technologies" used to do so; whether public transportation services, pedestrian accommodations and/or bicycle routes are available on or near the project site; and whether the project may reduce the availability of alternative means of transportation.

The new Short EAF deems a project to have the potential to cause a significant adverse environmental impact, and therefore, to require further scrutiny to determine whether the project warrants a Positive Declaration if there will be: "an increase in the use of energy and it fails to incorporate reasonably available energy conservation or renewable energy opportunities;" or "an adverse change in existing level of traffic or affect existing infrastructure for mass transit, biking or walkway."

The new Full EAF is expanded to 35 pages, from its present length of 21 pages. Those 14 additional pages include a new requirement to calculate a project's anticipated emissions of carbon dioxide ("CO2") and other GHGs, and deems annual emissions of the following GHGs as indicative of a potentially significant adverse environmental impact: CO2 (1000 metric tons); nitrous oxide (3.5 metric tons); perfluorocarbons (1000 metric tons); sulfur hexafluoride (0.045 metric tons); hydroflorocarbons (CO2 equivalent of 1000 metric tons); and methane (43 metric tons). The form also requires a description of any methane capture, control or elimination measures. To calculate the emissions of GHGs and other pollutants, the applicant must account for expected emissions from stationary and mobile sources during project operations (e.g., process emissions, large boilers, electric generation, heavy equipment, and fleet or delivery vehicles).

The new Full EAF also requests information regarding the estimated annual consumption, and anticipated sources/suppliers, of electricity (e.g., on-site combustion, on-site renewable, via grid/local utility, or other), and the approximate amount of building space to be heated or cooled.

The new Full EAF asks applicants to describe whether the project is accessible to public transportation, promotes the use of hybrid or electric vehicles, and accommodates pedestrians or bicycles. However, the final version omits NYSDEC's prior proposal to require estimates of the project's maximum and average new vehicular trips generated per hour, the total number of new trips annually, and the classes of vehicles making the trips.

The new Full EAF deems the following project thresholds as indicative of a potentially significant adverse environmental effect: heating and/or cooling of 100,000 square feet of building area; 2,500 megawatt hours of electricity use; new transmission or supply of energy to serve a commercial or industrial use or 50 residences; and the degradation of access to public transit or of accommodations for pedestrians or bicycles.

NYSDEC backed off its prior proposal to deem the following additional factors as indicative of potentially significant adverse environmental effect: generating certain levels of vehicular trips; and omitting from the project energy efficiency measures, on-site renewable energy sources, bicycle and pedestrian accommodations, or public transit access.

NYSDEC's effort to incorporate GHG assessment and mitigation into the SEQRA process is part of a statewide climate change initiative. Other parts of that initiative include:

• the Governor's "80 by 50" Program, which seeks to reduce GHG emissions to 80% below 1990 levels by the year 2050;
• the Renewable Energy Portfolio Standard, which requires 30% percent of statewide electricity consumption to be supplied from renewable energy sources by 2015;
• participation in the ten-state Regional Greenhouse Gas Initiative's GHG cap and trade system for electric power plants;
• the Power NY Act of 2011, which extends the streamlined Article X power plant siting and approval process to smaller alternative energy projects and requires NYSDEC to promulgate regulations "targeting reductions in emissions of carbon dioxide" for new power plants;
• NYSDEC's 2009 guidance document on Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements; and
• NYSDEC's 2010 guidance document on Green Remediation, which promotes the reduction of GHG emissions in environmental cleanups.

Hiscock & Barclay LLP will continue to monitor NYSDEC's development of guidance applicable to the new EAFs, its climate change initiatives, and its process for assessing GHG emissions during the environmental review, all with an eye on how they will impact new and existing projects in New York State. 

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