ENVIRONMENTAL JUSTICE PERMITTING LAW: LOCAL GOVERNMENT IMPACTS
Introduction to New York’s Environmental Justice Permitting Law
On December 31, 2022, Governor Hochul signed New York’s Environmental Justice Permitting Bill (S8830) into law, which will go into effect in June 2023. This law updates New York’s State Environmental Quality Review Act (“SEQRA”), which requires state and local government agencies engaged in discretionary decision-making to consider the social, economic and environmental impacts that a proposed action may have. Under SEQRA, if a responsible agency determines that a significant adverse impact is likely to occur, then an Environmental Impact Statement (“EIS”) must be prepared to identify methods to reduce potential adverse impacts and to explore alternatives. When considering if an EIS is required, the Environmental Justice Permitting Law (“the law”) will require a responsible agency to consider whether the action may cause (or increase) a disproportionate and/or inequitable impact on a disadvantaged community (“DAC”). If the responsible agency determines that an EIS is required, the law will require an EIS to include a detailed statement setting forth the disproportionate and/or inequitable effects that the proposed action may have on a DAC.
There are still several unanswered questions about the law, and the answers to these questions will ultimately affect local governments, especially in the Mid-Hudson Region. These issues include (i) determining the criteria that will be used to determine DAC status, (ii) finalizing the list of DACs in New York State and (iii) seeing whether the amendments that Governor Hochul promised in her Approval Memorandum come to fruition.
How will DACs be Determined?
The New York Climate Justice Working Group (CJWG), comprised of Environmental Justice community representatives from different parts of New York, has been tasked with (i) developing the criteria to identify DACs and (ii) creating a list of DACs in New York State. According to the CJWG’s “Draft Disadvantaged Communities Criteria” document, “the CJWG used 45 indicators to identify 35 percent of census tracts in New York as DACs.” In the Mid-Hudson Region, 45% of census tracts were identified as DACs.
During the February 9, 2023 CJWG meeting, several ideas were discussed that could affect how DACs are identified:
- First, the CJWG discussed the possibility of only classifying 25% of New York’s census tracts as DACs as opposed to the current 35% designation. If the CJWG adopted this policy, then the Mid-Hudson Region would have 180 tracts (as compared to 241 tracts at the 35% designation) classified as DACs. Although no decision was formally made during the meeting, most CJWG members appeared to endorse a “leave no DAC behind” approach and favored keeping the 35% designation benchmark.
- Second, the CJWG discussed how “component scores,” which are used to determine DAC status, should be calculated. Currently, component scores are calculated by multiplying a census tract’s “burden” value (i.e. the sum of a tract’s environmental indicators such as climate change risks and potential pollution exposures) by its “vulnerabilities” value (i.e. the sum of a tract’s socio-economic indicators such as race, ethnicity and income). The CJWG discussed that when one of these values is low and the other is high, it can result in a lower overall component score that ultimately prevents the tract from being classified as a DAC. To combat this issue, the CJWG discussed adding a tract’s burden value to its vulnerabilities value. If the CJWG adopts this approach, then the Mid-Hudson Region would have 218 tracts classified as DACs.
- Third, the CJWG discussed that the data used to identify its initial list of DACs was reported at different times (e.g., census data is only available every 10 years) and this can affect how DACs are reclassified in the future, as updated information becomes available. There was a brief discussion regarding how often the DAC list will need to be updated once the law becomes effective, but no formal decision was made.
- Fourth, one CJWG member expressed concern that DACs were being identified using a “census tract” approach as compared to a “municipal approach.” This means that within a municipality, there can be some areas where DACs exist and some areas where there are no DACs, which ultimately complicates how local governments will apply the law.
On February 23, 2023, the CJWG will be voting to finalize the criteria that will be used to classify a census tract as a DAC, and these criteria will be released to the public in March 2023. At that point in time, local governments should be able to better ascertain which DACs, if any, exist within their borders.
Which Amendments did Governor Hochul Promise in her Approval Memorandum?
In her Approval Memorandum, Governor Hochul stated that she signed the Environmental Justice Permitting Bill into law on the basis that certain amendments would be made to the law before it goes into effect in June 2023. Specifically, the Governor stated that she “secured an agreement with the Legislature to make amendments that will ensure we are protecting DACs from disproportionate and harmful pollution burdens, while balancing the need for critical infrastructure such as affordable housing, hospitals, and renewable facilities in the State and ensuring such critical infrastructure does not have to be removed, potentially harming a community in the long term.” If these amendments are achieved, then the law may look similar to New Jersey’s recently enacted Environmental Justice legislation, which requires the New Jersey Department of Environmental Protection to consider cumulative impacts when reviewing permit applications, but which carves out exceptions for essential environment, health and safety purposes. Should these amendments be adopted, Governor Hochul’s Approval Memorandum states that local governments will be provided with “sufficient time to update their current procedures and programs to implement this new law.”
Local Governments should Monitor Environmental Justice Permitting Law Developments
While there are still several issues that need to be finalized prior to New York’s Environmental Justice Permitting Law taking effect in June 2023, local governments should monitor developments from the Climate Justice Working Group, the Legislature and the Governor’s Office to ensure that they are ready to implement the law efficiently in the coming months.
A version of this article appeared in the March 14, 2023 online edition of Chronogram Magazine.
This is not to be considered legal advise. Please reach out to an attorney for information regarding your specific situation.
Alexander Main is an Associate concentrating municipal, environmental and land use law.
He can be reached by phone 845-764-9656 and by email.
