Inside Track: Planning, Environment & Sustainability - In the media, In practice and courts, Cases and Legislation - Real Estate and Construction


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  • What Happened: New York State Governor Kathy
    Hochul signed the “Cumulative Impacts Bill” into law. The
    law expands existing environmental review procedures under the
    State Environmental Quality Review Act (SEQRA), the state analog to
    the National Environmental Policy Act, to require environmental
    justice (EJ) considerations and cumulative impact assessments for
    certain agency actions, including permit approvals.

  • Key Takeaways: This law makes New York the
    second state to inject EJ considerations into environmental
    permitting decisions, following New Jersey. Going forward, many New
    York agencies will be required to consider the cumulative impacts
    of their actions on disadvantaged communities. The passage of this
    law manifests a growing trend among states of proposing—and
    enacting—legislation making permit decisions contingent upon
    EJ implications.

The Fine Print

New York’s “Cumulative Impacts Bill” was signed
into law on December 31, 2022, and is set to become effective in
late June 2023. The new law injects environmental justice
considerations into SEQRA, which requires New York government
agencies to examine environmental impacts alongside social and
economic impacts for most discretionary agency decisions to
approve, fund, or directly undertake an action that may affect the
environment. The new legislation does not change the scope of
SEQRA, so if SEQRA covered an activity in the past, it is still
covered, and if it was exempt, it is still exempt.

Under the Cumulative Impacts Bill, agencies must consider a
proposed action’s environmental justice consequences from the
outset, starting with determining whether an Environmental Impact
Statement (EIS) is necessary under SEQRA. In determining whether an
EIS is required, agencies must now consider the action’s
potential to “cause or increase disproportionate or
inequitable or both disproportionate and inequitable burden on a
disadvantaged community that is directly or significantly
indirectly affected by such action.”

Where an EIS is required, state agencies must now assess the
effects of any proposed action on disadvantaged communities,
including whether the action may “cause or increase a
disproportionate or inequitable pollution burden on a disadvantaged
community.” Agencies are prohibited from approving actions
that “may cause or contribute to, either directly or
indirectly, a disproportionate or inequitable or both
disproportionate and inequitable pollution burden on a
disadvantaged community.”

Additionally, when evaluating a permit for any project subject
to SEQRA review that may affect a disadvantaged community, the
Department of Environmental Conservation (DEC) must now prepare or
require an “existing burden report” assessing the
community’s existing pollution burdens. DEC must use the
results of the existing burden reports to determine whether the
project causes or contributes to a disproportionate and/or
inequitable burden on a disadvantaged community. DEC must adopt
regulations that set forth the requirements of an existing burden
report.

The law adopts the Community and Leadership Protection Act’s
(CLCPA) definition of “disadvantaged communities,” as
those communities “that bear burdens of negative public health
effects, environmental pollution, impacts of climate change, and
possess certain socioeconomic criteria, or comprise
high-concentrations of low- and moderate-income households,”
as outlined by the state’s Climate Justice Working Group. The
CLCPA requires the Climate Justice Working Group to establish
criteria for identifying disadvantaged communities and a list of
disadvantaged communities, which it has released in draft form and
aims to finalize this spring.

Conclusion

New York’s law follows New Jersey’s 2020 landmark EJ legislation requiring the New
Jersey Department of Environmental Protection (NJDEP) to consider
the cumulative impacts of certain facilities on overburdened
communities when reviewing many types of environmental permit
applications. While NJDEP generally must deny permits for
facilities that pose disproportionate, cumulative impacts on
overburdened communities, New Jersey’s carves out exceptions
for facilities that serve an essential environmental, health, or
safety function in these communities. New York’s law lacks any
such exceptions, making the most aggressive EJ law enacted to date
and now the second such legislation to directly incorporate EJ in
permitting considerations. Governor Hochul’s approval memo
indicates, however, that the New York law may be amended to narrow
its scope considerably. New York utilizes “chapter
amendments,” which are post-passage negotiations between the
legislature and Governor’s office to agree upon changes that
will avoid a veto. The Governor contends that, as written, the bill
would require significant resources and would lead to widespread
confusion among the regulated community and regulators. She agreed
to sign the bill based on an agreement with the Legislature to make
amendments balancing the need for critical infrastructure with
protecting disadvantaged communities. There is no update on when
said amendments should be expected, but they have the potential to
drastically change the impacts of this law. As with most laws, the
devil will be in the regulatory details, so industry stakeholders
should stay tuned for forthcoming implementing regulations and
comment opportunities.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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