In Defense of SEQRA, FOS Files Brief in BKAA Mushroom – Plant Appeal

Friends of the Shawangunks has filed an amicus curae brief with the New York State Court of Appeals, urging the court to allow the Basha Kill Area Association to appeal a lower-court decision.

BKAA and other residents of Mamakating oppose a project of Yukugumi Maitaki Manufacturing to build an 825,000-square-foot mushroom plant adjoining the upper reaches of the Basher Kill and the historic D&H Canal Linear Park. The Mamakating Planning Board approved Yukigumi’s site plan and special-use permit applications in August 2006. BKAA brought an Article 78 suit against the Planning Board, and last March the Sullivan County Supreme Court ruled in favor of the board. The New York State Supreme Court–Appellate Division affirmed that decision in December 2007. Now BKAA wants the State’s highest court–the New York State Court of Appeals–to hear the case, and FOS agrees that it should.

While FOS supports the BKAA position on its merits, we filed the brief for a much broader reason. We believe that the lower-court decision, if not reviewed, could cause serious harm to the State Environmental Quality Review Act (SEQRA) and to New York Environmental Conservation Law. It could seriously limit the duties of state and local government agencies under SEQRA and frustrate one of its legislative goals: to minimize or avoid adverse environmental impacts associated with actions that state and local governments undertake or approve.

The BKAA argument has many elements–people interested in details may phone Paula Medley, BKAA president, at 845-754-0743–but in essence it asserts that the Mamakating Planning Board, having documented significant adverse environmental impacts that the project would cause to both groundwater resources and the scenic resources of the area, then failed to adopt specific mitigation measures. Instead it abdicated the development and imposition of the required mitigation measures to another agency or to a later, unspecified time.

But SEQRA does not permit any agency to defer the development of mitigation measures. SEQRA regulations require that any agency undertaking or approving an action that was the subject of an EIS must adopt certain “Findings.” These include the specific finding “that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable.” Furthermore, agencies must exercise their independent judgment and may not abdicate or defer SEQRA’s decision-making requirements to another
agency.

If this important principle is not affirmed the entire SEQRA process could be compromised. For this reason FOS has joined with BKAA in urging the court to hear its appeal.

UPDATE: In early June 2008, BKAA’s appeal was denied. However, Yukugumi Maitaki Manufacturing has recently modified their plans and part of the approval process may begin anew. See: Mid-Huson News article