Long Island Pine Barrens Society, Inc. v. Planning Board of Brookhaven

OPINION OF THE COURT

The Central Pine Barrens is an area of Long Island that once encompassed approximately 250,000 acres in central Suffolk County but has now been reduced to some 100,000 acres of relatively undeveloped land. The Pine Barrens is an indispensable component of the aquifer system that is the sole natural source of drinking water for over two and a half million inhabitants of Long Island. Indeed, because of its critical ecological significance, the Pine Barrens has been the subject of protective legislation at all levels of government. The specific issue presented here is whether the State Environmental Quality Review Act (SEQRA) and its accompanying regulatory scheme should be construed to require the preparation of a cumulative impact statement in connection with the more than 200 development projects that are currently proposed for the Central Pine Barrens region. Contrary to the holding of the Appellate Division, we conclude that the statutory and regulatory criteria for mandatory cumulative impact statements cannot, and should not, be stretched to cover this unique problem. Accordingly, there should be a reversal.

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The sole natural source of drinking water for much of Long Island is its aquifer system, which is comprised of three subsoil water-bearing layers known as the Upper Glacial Aquifer, the Magothy Aquifer and Lloyd Sands. The system is regularly replenished by precipitation, which infiltrates the land surface in the Pine Barrens region, enters the system through the Upper Glacial Aquifer and percolates downward to the lower layers through a hydrological phenomenon known as "deep flow recharge.” Because the Pine Barrens’ soils are highly porous, the region provides an excellent vessel

Unfortunately, the same characteristics that make the Central Pine Barrens an ideal source of recharge also make it especially vulnerable to the risk of pollution, since its permeable soil is not readily capable of filtering or degrading contaminants. As is indicated by at least one study, once the deep recharge system in this area becomes contaminated, it would take centuries to flush it sufficiently to return it to clean groundwater quality. Thus, as a practical matter, contamination would be irreversible. Moreover, because precipitant entering through the Pine Barrens region radiates outward into the rest of the aquifer system, any contamination originating in this area would have serious consequences for the entire Long Island groundwater supply. It is thus apparent that the protection of the Pine Barrens region from sources of pollution is vital to the health of Long Island’s human population.

The Pine Barrens also has unique ecological significance because of its unusually high concentration of species that have officially been classified as endangered, rare or subject to the protection of Federal law (see, 16 USC § 1531 et seq.; see also, ECL 11-0535; 6 NYCRR part 182). The Pine Barrens contains over 300 species of vertebrate animals, 1,000 species of plants and 10,000 species of insects and other invertebrate animals, many of them rare and restricted to Pine Barrens or other similar areas. Among the more important species inhabiting the Pine Barrens are the tiger salamander, the red-shouldered hawk, the northern harrier and the mud turtle (see, 6 NYCRR 182.6). The Pine Barrens’ singular geological and meteorological history, as well as its highly unusual soil, vegetation and water levels, make it particularly hospitable to a wide variety of life forms whose survival could well be threatened by development. The need for caution in this area is especially acute because development in one part of the region could have unforeseen consequences in another, as migratory routes are disrupted, food supplies are destroyed, alien species are given berth to develop and environmentally crucial wetlands are permitted to dry up. Furthermore, development may encourage extinguishment of the ecologically necessary wildfires that periodically burn through the region.

n recognition of the ecological importance and fragility of the Long Island Pine Barrens, laws and policies have been adopted at all government levels to protect the area from unbridled development. In 1978, the Federal Environmental Protection Agency designated the underlying Long Island aquifer a "sole source aquifer” after noting that the aquifer system is the principal source of drinking water for Nassau and Suffolk Counties and is highly vulnerable to contamination (43 Fed Reg 26611 [June 21, 1978]; see, 42 USC § 300h-3 [e]). Additionally, pursuant to the Federal Water Pollution Control Act ( 33 USC § 1288 ), the Long Island Regional Planning Board released a comprehensive waste treatment plan (the 208 study), which mapped Hydrogeologic Zone III as an area virtually coextensive with the Central Pine Barrens and declared that it should be protected from contamination through land use restrictions and other controls.

In 1974, the New York State Legislature adopted the first in what was to become a series of enactments designed to protect the Pine Barrens by amending the Environmental Conservation and Public Health Laws to provide for special review of business, commercial and industrial uses in Suffolk County with a view toward preserving the purity of the groundwater (L 1974, ch 802). Ten years later, the Legislature adopted the Landfill Law, which prohibits the placement of new landfill sites in Zone III and most of the Central Pine Barrens (L 1983, ch 299; see also, Matter of Town of Islip v Cuomo, 64 NY2d 50 ). The same Legislature authorized the Department of Environmental Conservation (DEC) to prohibit land uses involving hazardous wastes in certain portions of Long Island because of the "direct relationship [that] exists between land use activities and the quality of the groundwater reservoir beneath” (L 1983, ch 951, § 1). In 1984, a State-wide framework for water resource planning was established and, pursuant to the new statute, the DEC issued a report, the Long Island Ground Water Management Plan, which singled out the Long Island Pine Barrens for protection (L 1984, ch 509; see, ECL art 15).

The centerpiece of the State legislation affecting the Pine Barrens is the Sole Source Aquifer Special Groundwater Protection Areas Law (L 1987, ch 628), which is codified at ECL article 55 and specifically includes the Central Pine Barrens in the Suffolk County Towns of Brookhaven, Riverhead and Southampton as one of the nine listed Special Groundwater

At the local level, the Suffolk County Legislature has adopted laws encouraging towns and villages within the Pine Barrens Zone to develop "unified policies” with regard to land use within that zone (Local Laws, 1984, No. 7 of County of Suffolk), designating the Central Pine Barrens as a Critical Environmental Area pursuant to SEQRA (Local Laws, 1987, No. 24; see, 6 NYCRR 617.4 [former (j)] [now subd (h)]), creating a Pine Barrens Wilderness and a Water Protection Preserve (Local Laws, 1987, No. 40) and establishing funding mechanisms for projects to protect the drinking water (Local Laws, 1988, No. 35). Specialized land use management plans to protect the drinking supply have also been advocated in local legislation adopted in the Towns of Southampton (Local Laws, 1984, No. 1), Brookhaven (Resolution No. 10, adopted June 20, 1989; see also, Brookhaven Town Code ch 80) and Riverhead (Zoning Code art XXXII).

At issue in this appeal are some 224 discrete proposed development projects that are scattered throughout the Central Pine Barrens area in the Towns of Brookhaven, River-head and Southampton. Some of these projects have already received local approval, while others are still awaiting review.

Petitioners, consisting of an incorporated society and several individuals interested in the preservation of the Pine Barrens, commenced the present proceeding to invalidate the approvals that have already been given and to enjoin respondents from taking any further action in relation to the pending proposals without first complying with SEQRA. Specifically, petitioners claim that SEQRA has been and is being violated here be

In a series of recent decisions, this Court has considered the circumstances in which a cumulative impact study is required pursuant to the foregoing rules (Matter of Stewart Park & Reserve Coalition v New York State Dept, of Transp., 77 NY2d 970 , affg 157 AD2d 1 ; Matter of Village of Westbury v Department of Transp., 75 NY2d 62 ; Akpan v Koch, 75 NY2d 561 ; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193 , supra; Chinese Staff & Workers Assn, v City of New York, 68 NY2d 359 ). Although 6 NYCRR 617.11 (a) (11) speaks in terms of "related actions,” this Court has held that common ownership of the pending projects is not necessarily a prerequisite for a mandatory cumulative impact study. Rather, in some circumstances, the "relatedness” element may be satisfied if "the project at issue * * * is * * * part of a larger plan designed to resolve conflicting specific environmental concerns in a subsection of a municipality with special environmental significance” (Matter of Save the Pine Bush v City of Albany, supra, at 206; accord, Chinese Staff & Workers Assn, v City of New York, supra).

Relying on this flexible formulation, petitioners contend that the 224 projects at issue in this case are "related” because they all involve property within the Central Pine Barrens region, an area that is both ecologically sensitive and subject to a large body of protective legislation. However, petitioner’s argument misconstrues our holdings by equating the notion of a general governmental policy of protecting a particular region with the idea of a governmental plan. The distinction is significant because, as will be discussed below, the existence of a broadly conceived policy regarding land use in a particular locale is simply not a sufficiently unifying ground for tying otherwise unrelated projects together and requiring them to be considered in tandem as "related” proposals pursuant to 6 NYCRR 617.11 (a) (11) and (b).

The distinction may best be illustrated by comparing the circumstances presented here with those presented in Matter of Save the Pine Bush v City of Albany (supra) and Chinese Staff & Workers Assn, v City of New York (supra), on which petitioners rely. In each of those cases, the municipality had

It was in those contexts, which both entailed actual municipal development plans, that this Court noted the applicability of 6 NYCRR 617.11 (a) (11) and (b) and held that the "lead agencies” were required to consider the cumulative impact of other pending proposals within the special districts before deciding to approve the individual applications before them. Despite the absence of common ownership or functional connection, we concluded that the requisite "relatedness” among the projects was established because the municipalities’ plans, in and of themselves, provided a sufficiently cohesive framework for mandatory cumulative impact review. In other words, the decisive factor in both Chinese Staff and Save the Pine Bush was the existence of a "larger plan” for development (see, 70 NY2d, at 206, supra), not the proposed projects’ common geographical base or the existence of a generally stated governmental policy to protect the region from unbridled development.

Here, despite the myriad of legislative initiatives involving the Long Island Pine Barrens, there is no plan analogous to the ordinance establishing a special urban zoning district in Chinese Staff or the local statute creating a special light-industry district in Save the Pine Bush. Rather, there is merely a host of Federal, State and local statutes designating the region as an ecologically sensitive one and mandating the development of adequate land-use controls. Consequently, there is no cohesive framework for relating the 224 projects in issue to each other. The only element they share — their common placement in the Central Pine Barrens — is an insuffi

Moreover, there exists an even more fundamental reason why requiring a cumulative impact study would not be an appropriate solution to the very grave environmental and political problems presented by development proposals within the Central Pine Barrens. The cumulative impact assessment that petitioners envision would be, in essence, a vehicle for the many involved "lead agencies” to engage in comprehensive and long-range planning for the development of this vast area of land which has been designated for special protection. While such an exhaustive and thorough approach to evaluating projects affecting this region is unquestionably desirable and, indeed, may well be essential to its preservation, petitioners’ suggestion that it be accomplished through the processes mandated by SEQRA is inconsistent with the very legislation on which petitioners rely.

Under SEQRA, the individual agency having the primary authority to approve or disapprove a particular project application is responsible for making the environmental impact assessment (see, ECL 8-0105 [7]; 8-0109, 8-0111). With regard to the Central Pine Barrens, in contrast, the Long Island Regional Planning Board is designated as the over-all "planning entity” (ECL 55-0113 [5]). Acting with the advice of the statutorily mandated Special Groundwater Protection Area Advisory Council (ECL 55-0113 [6]), the Regional Planning Board is responsible for devising a "comprehensive management plan” that includes "specific watershed rules and regulations,” "detailed boundaries] of the special groundwater protection area,” "[a] resource assessment [of] * * * the amount and type of human development and activity which the ecosystem can sustain,” "[p]roposal[s] of limits on land uses that might have an adverse impact on water quality and/or recharge capabilities,” "specific techniques [such as] clustering, large lot zoning * * * and other innovative measures * * * to achieve the objectives of this [statute],” and, most significantly, "[a] program for local governmental implementation of the comprehensive management plan” (ECL 55-0115 [3]-[5], [8], [9], [11]). Thus, the Legislature plainly contemplated a centralized approach to planning in this area, rather than individual decision-making by the various "lead agencies,” acting in accordance with their own local policies and priorities. While the Regional Planning Board lacks the authority to require local

Finally, the facts in this case demonstrate the need for centralized planning by a single regional agency, as mandated by ECL article 55. The Central Pine Barrens area spans three separate townships within Suffolk County and affects the aquifer system on which much of Long Island depends. The 224 projects that are at issue in this litigation involve a diverse range of activities requiring approvals by a wide number of agencies at different levels of government. As Justice Thomas Sullivan observed in his dissenting opinion below ( 178 AD2d 18 , 47-48), there currently exists no legislatively prescribed mechanism for these agencies to pool their information or share their respective decision-making prerogatives. Thus, as the Legislature foresaw, the existing system of land-use planning in the region is plainly not equal to the massive undertaking that effective long-range planning would require, and some other system devised by a larger planning entity must be substituted.

Petitioners would have us effect this substitution by mandating the preparation of a cumulative impact study, designating the Suffolk County Health Department as "lead agency,” recommending the use of a "Generic Environmental Impact Statement” where feasible (see, 6 NYCRR 617.15), and directing that the required studies be funded principally by imposing the cost on the applicants pursuant to ECL 8-0109 (7) (a) (see, 6 NYCRR 617.17 [a]). However, even if this proposal were sufficient to overcome the many existing hurdles — a proposi

For similar reasons, we reject petitioners’ contention that a legislative intent to mandate cumulative impact review under SEQRA may be inferred from ECL 8-0109 (9), which provides that an Environmental Impact Statement for projects affecting the Central Pine Barrens "shall meet the requirements of the most detailed environmental impact statement required by this section or by any * * * rule or regulation promulgated pursuant to this section.” This general directive certainly was not intended to mandate the substitution of SEQRA’s methods for the comprehensive, bicounty planning process contemplated by article 55.

Petitioners have expressed frustration because of the prolonged delay in the creation of the comprehensive management plan that was mandated by ECL 55-0113 (5) and 55-0115. Although article 55 was adopted in 1987, it was apparently not until August of 1991 that the Regional Planning Board produced a preliminary draft for informal circulation (see, 178 AD2d, at 42, n 1 , supra [Sullivan, J., dissenting]), and it remains unclear when a final plan will be ready for submission to the Department of Environmental Conservation (see, ECL 55-0117). In view of the gravity of the risk of irreversible harm to the environment, as well as the urgency of the problem (as demonstrated by the pendency of at least 224 development projects affecting the region), such a leisurely pace is clearly counterproductive, particularly in light of the protective values long espoused by the Legislature. We in the judiciary are not free to piece together statutes and regulations that were never meant to address a problem of this magnitude in order to fill the gap left by the responsible planning entity’s inaction. As was noted by the dissenter in the Court below, the cumulative impact statement requirement of 6 NYCRR 617.11 (a) (11) and (b) is not fairly applicable in these circumstances, and, further, is not an adequate substitute for the specific ameliorative measures that the Legislature has expressly prescribed. To the extent that those measures have proven deficient, the solution must be devised by the Legislature, which is responsible for crafting sensible deadlines and mandating prompt action by the designated

Accordingly, the order of the Appellate Division should be reversed, with costs, the order and judgment of the Supreme Court reinstated, and the certified question answered in the negative.

Acting Chief Judge Simons and Judges Kaye, Hancock, Jr., Bellacosa and Smith concur.

Order reversed, etc.