End unnecessary barriers to state growth

by E.J. McMahon and Michael Wright

| Albany Times Union

Major residential, commercial and industrial developments throughout the country are subject to an array of federal and state laws designed to protect the environment. They’re buttressed nearly everywhere by local land-use regulations addressing the community impacts of such projects.

In New York, these regulations are wrapped in the added red tape of the State Environmental Quality Review Act.

In this, as in so many areas of regulatory policy, the Empire State is an outlier. Less than one-third of all states have similarly comprehensive environmental review statutes —and even fewer have laws as broadly applicable as New York’s SEQR.

Given its name, New Yorkers might assume that SEQR is strictly an “environmental” law, like the Clean Air or Clean Water Act. In fact, the law defines the term very broadly, going well beyond actions affecting the natural ecology of air, water, flora and fauna to include “noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth.”

New York’s law also regulates potential impacts on “existing community or neighborhood character”—a concept that, in some cases, has been construed broadly enough to block projects otherwise permissible under existing environmental and local land-use ordinances

This does little to encourage development and job-creation in New York, aside from generating countless billable hours for planners, engineers and lawyers who specialize in advising project sponsors and lead agencies on how to navigate its twists and turns.

While it would be difficult to quantify SEQR’s role in discouraging investment and job creation in New York, the added regulatory imposition certainly does little to expedite the building of new homes, businesses, factories and civic facilities. As currently written and interpreted, SEQR can too easily be exploited to produce costly delays and uncertainty for the kind of job-creating projects New York desperately needs.

Small wonder that, in its 2011 strategic plan, the Capital Region Economic Development Council described SEQR as “cumbersome, vague, with little certainty on timetables or grounds for determinations.” Several other regional councils have expressed similar views on the law.

Nearly 40 years after its enactment, can SEQR be reformed to strike a better balance between environmental protection and economic growth? That’s a crucial question when much of New York, especially upstate, is suffering from what could be described as a severe development deficit.

Under Gov. Andrew Cuomo, the state Department of Environmental Conservation has been considering rule designed to improve SEQR in response to years of complaints from private-sector developers. DEC says it is aiming to make the process more efficient and predictable “without sacrificing meaningful environmental review.” However, based on the ideas it has floated so far, the agency needs to go further to achieve this goal.

As explained in a new report to be released by the Empire Center Monday, “Streamlining SEQR,” the law should be revised to:

Reduce the potential for undue delays by imposing hard deadlines and incentives to ensure the process can be completed within a year.

Mandate “scoping” of environmental impacts at the first stage in the SEQR review process, but also more tightly restrict the introduction of new issues by lead agencies later in the process.

Eliminate the law’s reference to “community and neighborhood character” as an aspect of the broadly defined environment potentially affected by projects, since the concept already is defined by local planning and zoning laws.

No one would argue with SEQR’s objectives. But as the Capital Region Economic Development Council pointed out, the law “can also have unintended consequences … lessening New York’s ability to win important ‘game changing’ projects.”

State economic development grants get the headlines, but we’ll never be able to jump-start the development we need, especially upstate, if we don’t clear away unnecessary regulatory obstacles to growth—starting with those created by SEQR.

E.J. McMahon is president and Michael Wright is senior research analyst at the Empire Center for Public Policy, Inc.