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January 18, 2023

New York Adopts New Environmental Justice Law That Requires Consideration of 'Disproportionate Impacts' on Disadvantaged Communities for Permit Issuance and Renewal

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Continuing the trend toward protecting environmental justice communities, New York Gov. Hochul is expected to sign a chapter amendment to a recently passed bill that would have established new standards under the State Environmental Quality Review Act (SEQRA) - New York's "Little NEPA" environmental review statute. The bill would also have changed the procedures employed by New York's Department of Environmental Conservation (DEC) for issuing permits under the Environmental Conservation Law. 

In 2019, the state's landmark climate law, the Climate Leadership and Community Protection Act (CLCPA), which prohibits administrative approvals and decisions from state agencies from disproportionately impacting disadvantaged communities (DACs), was signed into law. In 2022, consistent with the CLCPA's intent, the Legislature sought to modify the environmental review and permitting standards for projects with the potential to disproportionately impact DACs. The original bill and recently introduced chapter amendment potentially affect economy-wide industries and leave much to the rulemaking process over the next two years. 

The original bill broadly prohibited DEC from approving or even renewing an existing permit if the project would cause or contribute to, directly or indirectly, a disproportionate and/or inequitable pollution burden on a DAC. Such a broad prohibition would have meant that, for example, a landfill near a DAC could not have its permit renewed by DEC, even if there was no viable alternate disposal site. After industry stakeholders expressed concerns that the proposed amendments to SEQRA and the Uniform Procedures Act (UPA) were overly stringent and impracticable, the governor required a "chapter amendment" to sign the bill into law.

As part of the chapter amendment process, the governor signed the original bill into law with the understanding that the Legislature would introduce a new bill reflecting changes the Legislature and Executive agreed upon to address concerns the regulated community raised while preserving the original bill's intent. The amended bill has now been introduced, and it is expected that the bill will pass both houses of the Legislature and be signed into law in the coming weeks. Under the agreed upon amendments, within two years of enactment, the bill will amend both SEQRA and UPA to:

  • require environmental impact statements (EIS) to assess the effects of a proposed action on DACs, including whether the action would cause or increase a disproportionate pollution burden on a DAC;
  • require consideration of whether the proposed action would cause or increase a disproportionate pollution burden on a DAC when a lead agency is determining whether an EIS is required;
  • require DEC to amend its Part 617 SEQRA regulations to revise the criteria for determining whether a proposed action may have a significant effect on the environment to include consideration of the extent to which a proposed action may reasonably be expected to cause or increase a disproportionate and/or inequitable burden on DACs;
  • amend the UPA governing DEC's issuance of permits to ensure that water discharge, certain water withdrawal permits, air, liquid natural and petroleum gas, waste transport, solid waste facility, industrial hazardous waste management, and hazardous waste disposal siting permits include disproportionate impact as a consideration for permit issuance;
  • require "existing burden reports" for applicable new projects to assess environmental burdens and the projected impact, and potential benefits, of a proposed action on a DAC;
  • require reporting for a renewal or modification of applicable permits if DEC determines that the project may cause "more than a de minimis amount of pollution" on a DAC, though DEC may waive this requirement if the permit would "serve an essential environmental, health or safety need" of the DAC; 
  • prohibit DEC from issuing applicable permits if DEC determines that a project will cause or increase a disproportionate pollution burden on a DAC;
  • prohibit DEC from issuing a modification or renewal for an applicable permit if DEC determines that issuance would significantly increase the existing disproportionate pollution burden on a DAC;
  • require DEC to impose operational changes on applicable permits to reduce the pollution burden on DACs, provided such actions are reasonable and practicable. 

Once enacted, this law may significantly alter the landscape for issuance of certain DEC permits and, with the changes to SEQRA, also impact other state and local permits where an EIS is required. The amended bill significantly scales back the criteria as applied to renewal of existing permits, but even in those cases DEC will have to assess the "disproportionate impact" of such renewals and consider changes to those existing permits deemed "reasonable and practicable." When it comes to new permits, applicants will have to ensure that applications include robust consideration of potential impacts of permit issuance on DACs. This will be especially relevant in New York City, where DACs exist in numerous corners of the city. However, a challenge for both applicants and the regulator will be determining what, precisely, constitutes a "disproportionate impact" on a DAC. As DEC implements the new law, many of these open questions will likely be addressed through the regulatory process, which is sure to impact all sectors of industry from electricity generation to solid waste recycling and disposal.

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