Ethan I. Strell, Associate Director & Fellow, Columbia Center for Climate Change Law
In a subtle but meaningful shift, the environmental impact review process in New York City is beginning to more systematically consider the potential effects of a changing climate on proposed projects, not just the effects that a project might have on the environment. In other words, rather than just considering the greenhouse gas emissions from individual projects, environmental impact statements are now regularly considering how a proposed project will be affected by anticipated sea level rise, increased storm surges, more intense heat waves, and the like. In the past year, most City environmental impact reviews for projects located in floodplains have explicitly addressed adaptation to climate change.
In 1970, the federal government enacted the National Environmental Policy Act (NEPA), which required federal agencies to evaluate the environmental effects of a wide variety of federal actions, including direct federal undertakings, funding, and permitting. Many states followed suit with so-called “mini-NEPA” laws, requiring evaluation of the environmental impacts of state and often local actions. New York State enacted its mini-NEPA law, the State Environmental Quality Review Act (SEQRA) in 1975. New York City in turn implements SEQRA via its own environmental review procedures, the City Environmental Quality Review (CEQR).
The purpose of all of these laws was to ensure that government agencies were aware of and disclosed to the public the potential impacts of their actions on the “environment.” Although climate change has emerged as among the most important environmental issues, the environmental impact review process has been slow to meaningfully include climate change considerations, and methodologies for analyzing environmental impacts— including climate change—vary across jurisdictions.
Climate Change Analysis and Guidance
In recent years, various federal, state, and local government agencies have proposed or issued guidance on how to conduct a climate change analysis. The problem in assessing a project in terms of climate change under the traditional methodology of environmental impact assessment is that greenhouse gas emissions are a global problem, and the emissions from one project—even a very large one—are not likely to be “significant.”
Given the observed and forecasted changes to the climate, a more practical consideration for many projects is how that project will fare in the future given what today’s best science can tell us about future climatic conditions. For instance, if a housing development is approved now, will rising seas and more frequent floods render that project uninhabitable within its anticipated lifetime? Or how will more frequent and intense heat waves and changing rainfall patterns affect a water supply project, a gas drilling proposal, or a forestry plan?
In a March 2012 New York Law Journal article, CCCL Director Michael Gerrard noted that consideration of the impacts of climate change and adaptation to those impacts was “spotty at best” in NEPA EIS’s, and that only a “small handful” of SEQRA EIS’s addressed those issues. While there still is no definitive policy or guidance document setting forth how or when an EIS should consider adaptation to climate change, New York City has begun to routinely include an analysis of a project’s resiliency to climate change in environmental impact statements over the last year or so.
The City’s environmental impact review guidance document, the 2012 CEQR Technical Manual, includes a chapter instructing city agencies how and when to conduct a greenhouse gas analysis. However, the guidance does not yet include instruction on how to assess the effect of the changing climate on the project, but instead allows agencies to include such an analysis on a case-by-case basis:
Currently, standards and a framework for analysis of the effects of climate change on a proposed project are not included in CEQR; as this area of analysis develops, the Mayor’s Office of Environmental Coordination (“MOEC”) should be consulted about the scope of climate change analyses in CEQR reviews. At the same time, where appropriate, the potential for a proposed project to result in a significant adverse impact to the environment as a result of the anticipated effects of climate change may be qualitatively discussed in environmental review.
2012 CEQR Technical Manual, at 18-2. The Manual goes on to give the example of projects storing hazardous materials in floodplains that could cause a hazardous release from increased flooding. In such a case, the EIS should discuss design measures to prevent such an environmental impact. Additionally, proposed revisions to the City’s local waterfront revitalization program (“WRP”) would require consideration of climate change and sea level rise for projects located in the designated coastal zone.
Recent environmental impact statements have included such an analysis, even where the project did not involve hazardous materials and the like. Specifically, many kinds of projects located in floodplains now include discussions of adaptation and resilience, and also reference the City’s proposed revision to its WRP. The following projects include such a discussion:
• 625 West 57th Street. Rezoning of portion of a Manhattan block to permit 1.1 million gross square feet of residential, commercial, community facility, and parking uses. Final Supplemental Environmental Impact Statement, December 7, 2012 (City Planning Commission).
• Cornell USA Tech. Various approvals to allow for the development of an applied science and engineering campus on Roosevelt Island. Final Environmental Impact Statement, March 8, 2013 (Mayor’s Office of Environmental Coordination).
• Governors Island. Completion of Park Master Plan and the re-tenanting of approximately 1.2 million square feet of North Island historic structures by 2022, as well as expanded ferry service. Final Supplemental Generic Environmental Impact Statement, May 23, 2013 (Mayor’s Office of Environmental Coordination).
• Memorial Sloan-Kettering Cancer Center Ambulatory Care Center and CUNY—Hunter College Science and Health Professions Building. Hospital and City university partnering to acquire an approximately 66,111-square-foot, City-owned site on the Upper East Side of Manhattan to build a new ambulatory care center and Science and Health Professions Building. Final Environmental Impact Statement, August 8, 2013 (Mayor’s Office of Environmental Coordination).
• Willets Point Development Project. Modifications to previously-approved plan for 61-acre district in Queens. Overall project would comprise approximately 108.9 acres and up to 10.34 million square feet of development. Final Supplemental Environmental Impact Statement, August 9, 2013 (Mayor’s Office of Environmental Coordination)
• Hallets Point Rezoning. Mixed-use development on eight parcels on the East River in Astoria, Queens, including publicly accessible waterfront open space, an esplanade, and a supermarket. Final Environmental Impact Statement, August 9, 2013 (City Planning Commission).
• Seaside Park and Community Arts Center. Creation of development of a new recreational and entertainment destination on the Coney Island Boardwalk, including a 5,100‐seat seasonal amphitheater for concerts and other events, the creation of approximately 2.41‐acres of publicly accessible open space, and the reuse of the landmarked former Childs Restaurant Building as a restaurant and banquet facility. Draft Environmental Impact Statement, September 15, 2013 (Mayor’s Office of Environmental Coordination)
Each project listed above is located along the coast, in the current 100-year floodplain, as designated by FEMA. Each one states that since the proposed project is located within the floodplain or in a coastal location, the EIS will assess the project’s resilience to future climate conditions. Most also reference the City’s proposed revision to its local waterfront revitalization program. Citing the projections of the New York City Panel on Climate Change (“NPCC”), which forecasts a local sea level rise of 12-23 inches by the end of this century (up to 55 inches with rapid ice melt), the EIS’s generally consider whether the design of the proposed project would be able to withstand flooding if the 100-year flood level rose by two feet.
For instance, the most recent final EIS to include an adaptation analysis is the Hallets Point Rezoning FEIS, which considers a proposed mixed-use development along the East River in Astoria, Queens. The FEIS states that “[s]ince the proposed site is on the waterfront, the potential effects of global climate change on the proposed project are considered and measures that could be implemented as part of the project to improve its resilience to climate change are discussed.” Hallets Point FEIS at 17-9.
After discussing various federal, state, and local resilience policies, the FEIS states that “the only issue for which the project can prepare, within its context and location, is potential future flooding, i.e., designing the project to withstand and recover from flooding and to ensure that hazardous materials and other potentially dangerous items would not end up in floodwaters.” Id. at 17-13. The FEIS then analyzes the project-area flood elevations using the latest FEMA information, plus sea level rise as projected by the NPCC. The FEIS concludes that while the proposed project would be above the current 100-year flood level and projected mid-century flood levels, it “may be within the range of end-of-century 100-year flood levels.” Although not formally called “mitigation,” the FEIS states that proposed buildings “would be flood-proofed and would utilize flood barriers on an as needed basis (i.e., before predicted severe storm events).” Id. at 17-14.
In the Seaside Park project in Coney Island, the DEIS discloses that the basement areas of the renovated restaurant would be lower than current flood levels and future flood levels could reach the ground floor. However, the DEIS states that in addition to meeting all building code requirements, all mechanical equipment will be at roof level, and electrical switchgear will be on the first level, elevated two feet above the floodplain elevation. Seaside Park DEIS at 11-10.
The western portion of the 625 West 57th Street project in Manhattan, which includes residential, commercial, community facility, and parking uses, would be subject to flood levels two-feet higher than the current levels. The FEIS states, however, that the portion of the project site subject to future flooding would only include non-critical retail frontage, and that no residential areas, critical infrastructure, or opening s leading to lower-lying project areas would be in the areas subject to increased flooding. 625 West 57th Street FEIS at 12-13.
The other EIS’s contain similar discussions of potential future flooding, and all discuss measures to make each project more energy efficient and sustainable. The adaptation analyses are limited to flooding and do not yet include discussion of other potential climate impacts, such as more intense heat waves.
 See, e.g., Council on Environmental Quality, “Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions,” Feb. 18, 2010, available at http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/ghg-guidance; NYS Dept. of Environmental Conservation, “Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements,” July 15, 2009 and Commissioner’s Policy CP-49, “Climate Change and DEC Action,” Oct. 22, 2010, both available at http://www.dec.ny.gov/regulations/56552.html; and Chapter 18 “Greenhouse Gas Emissions,” 2012 CEQR Technical Manual, available at http://www.nyc.gov/html/oec/html/ceqr/technical_manual_2012.shtml.
 Michael Gerrard, “Reverse Environmental Impact Analysis: Effect of Climate Change on Projects,” New York Law Journal, March 8, 2012, available at http://www.law.columbia.edu/null/download?&exclusive=filemgr.download&file_id=61833.
 NYC City Planning Commission EIS’s can be found here: http://www.nyc.gov/html/dcp/html/env_review/eis.shtml
NYC MOEC EIS’s can be found here: http://www.nyc.gov/html/oec/html/ceqr/dme_environmental_reviews.shtml.
 Because the Hallets Point project would involve a property disposition by the New York City Housing Authority, federal approval is required, and, in accordance with Executive Order 19988, a federal floodplain analysis was also completed in accordance with the floodplain regulations of the U.S. Department of Housing and Urban Development, 24 CFR Part 55. See Hallets Point FEIS Appendix D.
Reprinted with permission from Climate Law Blog
For more information about LexisNexis products and solutions connect with us through our corporate site