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Advisory Opinions

Advisory Opinion 2017-1

FACTS
Developers routinely apply to the City of New York (the “City”) for zoning changes or special permits.  They may also seek the acquisition of real property interests from, or the disposition of such interests to, the City.  Such approvals and actions (obtained from the Department of City Planning (“DCP”) and other City agencies) are often subject to the City Environmental Quality Review (“CEQR”).  To prepare those environmental reviews, a developer hires an engineering and planning firm or an entity with expertise in conducting an environmental review.

These firms interact with the DCP and other City agencies during the CEQR process.  Employees of these firms meet with DCP and other City agencies to discuss the environmental review, including potential significant environmental impacts of the proposed action, alternatives to the proposed action and mitigation of significant environmental impacts as well as the conclusions of the environmental review.  In particular, employees of an engineering and planning firm meet with DCP and other involved agencies to discuss the scope of the environmental studies, the methodology of the studies, the technical description of any findings, and a description of any mitigation measures.

ISSUE
Whether communications between the employees of engineering and planning or other professional firms working for a developer and the staff of City agencies  regarding the environmental review of the developer’s project, specifically the preparation of an Environmental Assessment Statement (“EAS”) and an Environmental Impact Statement (“EIS”), constitute “lobbying” or “lobbying activities” pursuant to New York City Administrative Code (“Administrative Code”) §3-211(c) et seq.?

OPINION

SEQRA
The State Environmental Quality Review Act, codified as Article 8 of the Environmental Conservation Law, and its implementing regulations, codified as 6 NYCRR Part 617 (“SEQRA”), require state and local agencies to consider the environmental impacts of their actions before undertaking the same.  “Actions” include projects or physical activities, such as construction, that may affect the environment and that are directly undertaken by, involve funding by or require one or more discretionary  approvals, such as a permit, from an agency.  Environmental reviews inform agency decision-makers about potential environmental impacts resulting from an agency’s actions so they can weigh and balance the environmental impacts with social, economic and other considerations when deciding to undertake, approve or fund an action and whether or not to attach conditions to the approval.  Environmental reviews also serve the purpose of publicly disclosing the significant environmental impacts of proposed actions.

CEQR and the Technical Manual
The City has adopted the Rules of Procedure for CEQR to implement SEQRA.  See 62 RCNY 5-01 et seq.  The City has issued the CEQR Technical Manual (the “Manual”) to provide guidance to City agencies, applicants for City actions, and the public on how to conduct environmental reviews consistent with the standard necessary for adoption by City agencies.  The guidance provided in the Manual describes various subject areas that comprise the “environment” such as air quality, noise, transportation, land use, neighborhood character and socioeconomics.  The Manual also identifies various subject areas or aspects of the environment that may be affected by an action under review, and provides accepted methodologies to use in determining whether actions may result in significant adverse environmental impacts in each of those subject areas.  For those actions under review that are found to result in potentially significant adverse impacts to one or more aspects of the environment, the Manual provides guidance with respect to the selection of reasonable alternatives that may lessen the impacts and measures to mitigate significant impacts.

Lead, Involved and Interested Agencies
City agencies may directly undertake, issue discretionary approvals for, or provide funding for actions.  If there is only one agency undertaking, approving or funding an action, it will act as the “lead” agency for the environmental review.  If there are multiple agencies undertaking, approving or funding the action or parts of the action, each is considered an “involved” agency.  Involved agencies will usually agree on which agency should act as the lead agency regarding the preparation of the environmental review.  Other agencies may be “interested” agencies because they either have expertise in certain aspects of the environmental review (for example, DOT may be an “interested” agency with respect to potential traffic impacts) or have a particular interest in (but lack authority to issue discretionary approval of) a specific action.

The Process of Environmental Review
Actions may be Type I, Type II or Unlisted.  A Type I action is an action identified in a list in 6 NYCRR §617.4   and requires environmental review.  If an action is a Type II action and is identified on a list in 6 NYCRR §617.5,   it does not require environmental review.  All other actions are categorized as Unlisted actions.  Unlisted actions require environmental review.  For both Type I and Unlisted actions, environmental review commences with the preparation and completion of an EAS.  If, on the basis of the EAS, the lead agency concludes that the action will not result in any potentially significant adverse environmental impacts, the lead agency issues a Negative Declaration and concludes the environmental review.  If however, the lead agency concludes that the action may result in one or more potentially significant adverse environmental impacts, the lead agency issues a Positive Declaration, prepares a draft Scope, and issues a final Scope after the comment period has ended.  The final Scope is used as the basis of a Draft Environmental Impact Statement (“DEIS”), which presents analyses of potential environmental impacts, discloses the significant adverse environmental impacts of the action, and describes reasonable alternatives to the action and measures to mitigate the significant impacts of the action to the maximum extent practicable.  After issuance of a DEIS, the lead agency provides a period for public comment, which includes at least one public hearing.  After the public comment period is closed, the lead agency issues a Final Environmental Impact Statement (“FEIS”), which responds to comments on the DEIS and incorporates changes to the text of the FEIS as appropriate.  After issuing an FEIS, the lead agency and each involved agency that decides to undertake, approve or fund an action must issue a “Statement of Findings.”  

In a Statement of Findings an agency: (1) states its decision to commit to the action; (2) documents that it has considered the relevant environmental impacts, facts and conclusions disclosed in the FEIS, weighed and balanced relevant environmental impacts with social, economic and other considerations, and provided a rationale for its decision; (3) certifies that the requirements of SEQRA and CEQR have been met; and (4) certifies that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action avoids or minimizes adverse environmental impacts to the maximum extent practicable and adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision to undertake, fund or approve the action those mitigation measures that were identified as practicable.

Experts
Developers often use professional firms to prepare the environmental review documents that are presented to the staff of lead, involved and/or interested agencies.  Both the professional firms and the City agency staff include persons with technical expertise in conducting the various aspects of the environmental review. 

The professional firms often communicate with the environmental review staff of the lead, involved and/or expert agencies during preparation of the EAS, Negative and Positive Declarations, Scope, DEIS, FEIS and Statement of Findings.  The communications may concern introducing the action, establishing the conceptual outlines of the environmental review and preparing preliminary analyses that the lead, involved or expert agencies need to agree upon for further review to proceed.  In addition, professional firms may submit draft documents for review and comment and may communicate about the contents of the documents.  The discussions may relate to all aspects of environmental review including implementation of methodologies employed in the environmental analyses and conclusions reached as outcomes of the application of those methodologies.  There may also be discussions and analyses of alternatives to the proposed action and measures to mitigate the significant, adverse impacts found to potentially result from the action.  Each step is usually iterative until the environmental review as a whole is found acceptable to the agency staff and deemed complete for the agency to adopt. 

Moreover, even after an environmental review is complete, the proposed action may change, and analyses may need to be conducted by technical experts as to whether additional environmental review is needed to determine whether the modified action will result in any significant environmental impacts not disclosed in the completed environmental review.  These additional analyses and decisions may be documented in Technical Memoranda and Supplemental or revised EASs, Supplemental DEISs and Supplemental FEISs.

Lobbying Law
Administrative Code §3-211(c)(1), in pertinent part, defines “lobbying” or “lobbying activities” to mean any attempt to influence:

(iv) any determination made by the mayor, the city council, the city planning commission, a borough president, a borough board or a community board with respect to zoning or the use, development or improvement of real property subject to city regulation, or

(v) any determination made by an elected city official or an officer or employee of the city with respect to the terms of the acquisition or disposition by the city of any interest in real property, with respect to a license or permit for the use of real property of or by the city, or with respect to a franchise, concession or revocable consent.

Ad. Code §§3-211(c)(1)(iv) & (v).

As described above, however, the purpose of the environmental review is to inform decision-makers about the potential adverse environmental impacts of a proposed action, and if needed, to modify the action to eliminate or reduce those impacts.  It is a disclosure process, and does not constitute an approval or disapproval of the proposed action.  As a result, communications between employees of engineering and planning firms and agency environmental review staff relating to the preparation of environmental review analyses do not constitute lobbying. See Advisory Opinion 2012-2 available at http://www.cityclerk.nyc.gov/html/lobbying/2012-2.shtml.


CONCLUSION
It is the determination of the City Clerk that communications between the employees of engineering and planning or other professional firms working for a developer and the staff of City agencies regarding the environmental review of the developer’s project, specifically the preparation of an EAS and an EIS, do not constitute “lobbying” or “lobbying activities” pursuant to New York City Administrative Code §3-211(c) et seq. because such communications are not an attempt to influence a determination made by the City.

MICHAEL MCSWEENEY, City Clerk of the City of New York
DAMARIS ACOSTA, Deputy City Clerk
PATRICK SYNMOIE, Counsel to the City Clerk
JAIME LYNN CHIRICHELLA, Deputy Counsel to the City Clerk

 

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