The New York State Department of Environmental Conservation recently issued a final policy titled Permitting and Disadvantaged Communities under the Climate Leadership and Community Protection Act, DEP-24-1. The policy outlines new procedural and substantive requirements that various types of regulated facilities in or near disadvantaged communities will be required to follow before DEC will determine their permit applications to be complete for public comment.

Background

On Jan. 1, 2020, the New York State Climate Leadership and Community Protection Act (CLCPA) went into effect. In addition to creating economy-wide requirements for greenhouse gas emission reductions, the Climate Act prohibits all state agencies from disproportionately burdening disadvantaged communities in considering and issuing permits. It requires all state agencies to prioritize reductions of greenhouse gas emissions and co-pollutants, otherwise known as hazardous air pollutants, in disadvantaged communities.

As directed by the Climate Act, the Climate Justice Working Group (CJWG) established state-wide criteria to identify communities that are disadvantaged for the purpose of implementing the Climate Act. Based on the CJWG’s criteria, there are currently 1,736 census tracts across New York state designated as disadvantaged communities, representing 35% of New York state’s census tracts and approximately 35% of New York state’s population. Significant portions of many of New York state’s most populated areas are subject to the designation, including in New York City, Hempstead, Buffalo, Rochester, Syracuse, Albany, and throughout the Hudson Valley. Here’s a map of the designated disadvantaged communities.

DEC’s new policy defines the term “burden” broadly as “something that affects health or quality of life.” Unlike the State Environmental Quality Review Act, which requires assessment of only potential environmental impacts from a proposed project and not its potential economic impacts, DEC’s new policy specifies that “both environmental and socioeconomic factors” will be considered. In addition, the policy defines the term “disproportionate burden” as “a burden within an affected disadvantaged community that is, or would be, significantly greater than that same burden in comparable non-disadvantaged communities, as a result of the proposed action.” The policy defers to case-by-case discretion for the determination of which environmental and socioeconomic factors to consider in identifying a burden on a community and the methods, benchmarks, or other factors by which a disadvantaged community will be deemed comparable to non-disadvantaged communities for the purpose of weighing whether a burden is disproportionate.

For a covered project located in, or that is likely to affect, a disadvantaged community, a permit applicant must submit an analysis to demonstrate whether DEC’s approval of the permit would disproportionately burden a disadvantaged community.

Applicability

Whether the new policy applies to a specific project depends on (1) the project type and (2) the project location.

A. Project Type

The policy applies to certain permit applications designated as “major” under the Uniform Procedures Act at Article 70 of the New York State Environmental Conservation Law and DEC’s regulations, excluding “minor” projects and ministerial registrations. Examples of UPA-major project types that are subject to the policy include:

  1. Applications for Air Title V permits and for certain types of Air State Facility permits, including projects that are subject to New Source Review, that involve emission sources subject to the National Emission Standards for Hazardous Air Pollutants, that require emission reduction credits, or that require the use of a federal enforceable emission cap, among others. This category may include not only industrial manufacturing facilities, but also expansion projects for existing facilities, such as hospitals and universities.
  2. Permit applications for solid waste and industrial hazardous waste management, such as landfills, transfer stations, municipal solid waste processing facilities, composting facilities, and other material recovery facilities.
  3. Permit applications for liquified natural gas and petroleum gas projects.
  4. Permit applications for water withdrawal and use of over 20 million gallons of water for cooling purposes.

In addition, the policy applies to any project requiring any UPA permit from DEC involving the construction of energy production, generation, transmission, or storage facilities, and any project requiring any UPA permit from DEC with sources and activities that may result in greenhouse emissions or co-pollutants, directly or indirectly, including those from mobile emissions from vehicular traffic. This last category of projects potentially includes any commercial and industrial project associated with new or increased vehicular traffic that requires a UPA permit from DEC, such as new construction or expansion projects at wastewater discharge plants or mines, projects impacting freshwater or tidal wetlands, and projects involving the excavation or placement of fill in navigable waters.

B. Project Location

If the project type is subject to the policy, then there must also be a reasonable expectation that, by virtue of the project’s location, its operations are likely to affect a disadvantaged community by increasing emissions in a disadvantaged community. The project will be considered “likely to affect” a disadvantaged community if within one-half mile of each other or are otherwise in “close proximity” based on spatial data or air dispersion impact modeling. While this proximity analysis may be readily achievable for facilities with monitored stack emissions and consultants who are familiar with air dispersion modeling, there may be challenges ahead for other facilities that are not subject to federal or state air permitting requirements, but are nonetheless tasked under this new policy with modeling mobile emissions from vehicular traffic associated with their projects at new and existing facilities. The policy includes an addendum that provides additional details on how to evaluate mobile emissions.

Substantive Analysis

If a project is subject to the policy based on the project type and location, then the applicant must analyze whether DEC’s approval of the permit would disproportionately burden a disadvantaged community. The analysis will be subject to enhanced public participation opportunities and must:

  1. identify the direct and indirect greenhouse and co-pollutant emissions from the project that are likely to affect a disadvantaged community,
  2. identify available and relevant baseline data on existing burdens in the community, including in reference to any air quality or air-related health indicators the CJWG used to identify the community as disadvantaged,
  3. evaluate qualitatively and, if possible, quantitatively whether, and to what extent, the project’s emissions would result in any air quality or air-related health effects on the community or increase an existing air quality or air-related health burden in the community, and
  4. for any such increase, submit proposals for project design considerations that are “real, quantifiable, permanent, verifiable, and enforceable” to “reduce or eliminate disproportionate burdens” associated with greenhouse gas or co-pollutant emissions from the project, including proposed permit conditions that prioritize the reduction of greenhouse gas and co-pollutant emissions in the disadvantaged community.

The policy provides certain examples of potential project design measures, including financial and operational mitigation options, and stipulates that design measures may be required for a project beyond what is already required by law or regulation. After the analysis is submitted to DEC and approved for the purpose of public notice, and after the application is otherwise determined to be complete, the application and any applicable draft permit will be subject to enhanced public participation opportunities before any final determinations are made on the application.

The public participation requirements are governed by another DEC policy, Commissioner’s Policy 29, Environmental Justice and Permitting, which went into effect more than 20 years ago and sets forth certain procedures for incorporating environmental justice concerns into the permitting process. Consistent with CP-29, a project that is subject to DEP 24-1 will need to develop a public participation plan and submit it to DEC for approval. At a minimum, the plan needs to identify key stakeholders, including residents adjacent to the proposed project site and local elected officials; describe how the project sponsor will distribute information about the permitting process to the community; describe the public information meetings the sponsor will host to keep the community informed about the project; and establish a public document repository that is easily accessible to the public. The project sponsor must then implement the plan according to its approved terms and conditions.

Impact

This policy creates a new layer of administrative review and permitting uncertainty for new facilities and projects at existing facilities that involve direct or indirect greenhouse gas or co-pollutant emissions, including from vehicular traffic. Additional open questions include how emissions from facility construction (as opposed to facility operation) will be accounted for in the screening or substantive analyses under this policy (if at all), whether offsetting or netting of emissions will be approvable, how a project’s potential maximum emissions will be weighed against its projected actual emissions. Based on discussions with DEC’s Office of General Counsel, DEP-24-1 appears destined to become a component of the Public Service Law Article VII process for consideration of utility-scale energy renewable generation and transmission projects, even if the only UPA permit required from DEC is coverage under the State Pollutant Discharge Elimination System General Permit for Stormwater Discharges from Construction Activity.

In addition to the role that DEP-24-1 will likely play in the PSL Article VII process, it appears that the policy will also be invoked in the routine renewal of UPA permits, even when there is no substantive change proposed to the terms of the reissued permit, in order to ensure such renewals do not negatively impact disadvantaged communities. DEC counsel advised us that even in the absence of a material change to the terms of these permits, the DEC deems this to be mandated by section 7(3) of the CLCPA, which requires that all state agencies, offices, authorities and divisions shall not disproportionately burden such disadvantaged communities and shall prioritize reductions of greenhouse gas emissions and co-pollutants in disadvantaged communities.

Next Steps

To minimize potential project permitting and construction delays, sponsors of proposed facilities and owners of existing facilities in or near disadvantaged communities that are subject to potential DEC jurisdiction should be consulting with qualified attorneys and technical consultants in developing a permitting and risk mitigation strategy that fully accounts for the procedural and substantive requirements of this new policy. Sponsors and owners will want to carefully assess the applicability of this new policy, be prepared to demonstrate that the permitting of their proposed projects would not disproportionately burden a disadvantaged community, and be prepared to field public engagement inquiries from local communities in a manner that facilitates the appropriate exchange of accurate information about their proposed projects.

If you have any questions about the matters in this Legal Alert, please contact attorney Gene J. Kelly of our Environmental Practice Group (518) 701-2740 and GKelly@HarrisBeach.com, or the Harris Beach attorney with who you most frequently work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.