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Legislative Memo

BILL:

S.3658-A(LaValle)/ A.8866(Rules/DiNapoli)

Support

SUBJECT:

Environmental Review of Leases for Underwater Lands

 

DATE:

January 23, 2006

 

The Business Council of New York State opposes this legislation, which would establish a unique SEQRA-type environmental review requirement for the leasing of underwater lands by the state. We oppose this legislation as it would impose a duplicative environmental assessment on these projects, and apply decision-making criteria that is inconsistent with the longstanding approach applied under the State Environmental Quality Review Act (SEQRA).

The bill would amend the Public Lands Law to require an Environmental Impact Statement (EIS) by the Office of General Services for any state owned lands under water, over one mile from shore, related to commercial use (exempting only marinas).

We believe this approval process is already subject to review under SEQRA, which requires an EIS “on any action they propose or approve which may have a significant impact on the environment” - applicability criteria that should include the leasing of state land for construction of offshore energy facilities. Therefore, the EIS requirement in this statute seems duplicative at best; at worst it would require the development of a separate EIS pursuant to SEQRA and the Public Lands Law, with no method for integrating or reconciling their outcomes.

Further, the new EIS requirement set forth in this legislation establishes decision-making criteria inconsistent with SEQRA. SEQRA requires mitigation of all adverse environmental impacts to the extent practicable, and requires government decisions to balance potential environmental impacts with social, economic and other benefits. In contrast, this legislation directs the state to deny the proposed lease if the project would have “substantial negative effects upon health and welfare [but not environment] of New York State.

This approach is different that the “balancing test” that has been part of the state SEQRA process for decades, and which has been subject to extensive litigation. Unlike SEQRA, this new approach seems to focus only on the potential negative impacts, makes no provisions for mitigation of potential impacts, and fails to consider both impacts and benefits. Under this approach, it is unclear how any large-scale energy-related project could be approved, irrespective of its importance in helping the state meet its energy needs.

This proposal is contrary to the public's interest in securing both a greater supply of cleaner energy sources and reducing the prices for business and residents (as a consequence of increased supply). New York presently suffers from both a supply and price gap, especially in terms of natural gas. If it becomes a matter of New York State policy to set up redundant regulatory schemes to frustrate and block the siting of such projects, we will not be able to meet the long-term energy needs of our state.

By adding this regulatory hurdle to offshore projects, this bill could encourage project developers to favor near shore or onshore locations, even in those instances where these locations would not be the best sites, both from an environmental perspective and that of safety and security.

As an example, future LNG projects that could bring an increased supply of clean natural gas to the energy marketplace, might be encouraged, were this bill to become law, to seek onshore rather than offshore locations, in order to avoid additional regulatory review.

The bottom line is that we should not enact a bill which raises so many questions and provides so few answers as to its impact on necessary energy projects. Fair, predictable and stringent regulatory reviews are essential, but alteration of such processes, via conflicting and duplicative regulatory schemes is not prudent public policy.

For the abovementioned reasons, The Business Council strongly opposes this legislation and urges that it not be adopted.