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What the New York State Climate Leadership Community Protection Act means for New Yorkers:  Insights from an Attorney

 

The New York State Climate Leadership Community Protection Act (CLCPA) adopted in 2019 represents a concerted effort by the New York legislature to combat the effects of climate change.
The purpose of the CLCPA is to reduce greenhouse gas emissions and transition New York to a carbon-neutral economy by 2050. The Act sets ambitious targets, including an 85% reduction in greenhouse gas emissions from 1990 levels by 2050 and a 100% clean electricity target by 2040. Additionally, the CLCPA aims to create green jobs, promote environmental justice, and foster community engagement.

The state’s major electric and gas investor-owned utilities, for example, Central Hudson Gas & Electric, Orange & Rockland Utilities, Con-Ed, and NYSEG, collectively referred to as the “Utilities,” will be responsible for monitoring the state’s greenhouse gas emissions. The Utilities, at the direction of the Public Service Commission, and with the assistance by the Department of Public Services, created a proposal outlining the details for an annual Greenhouse Gas Emissions Inventory Report in which the Utilities would report on upstream, attributable, avoided, and end-user combustion emissions.

The CLCPA provides the New York State Department of Environmental Conservation (DEC) with the authority to promulgate regulations, enforce compliance, and impose penalties for non-compliance. The DEC and the New York State Energy Research and Development Authority have recently conducted webinars to provide an overview of the potential program and are currently seeking to engage with stakeholders to obtain input on the details of the final program.

There is a wide range of opinions regarding the future impact and effectiveness of this Act. Some believe that it will have no impact whatsoever, while others argue that it will function as a mechanism to halt or delay all commercial development in New York State.

A chief concern of many opponents of the CLCPA is the fact that the Act encourages public participation and provides opportunities for citizens and community organizations to enforce compliance. While public involvement in the process is certainly important, the fear is that opponents to a specific development will seek to use the enforcement provision of the CLCPA as a tool to delay and frustrate legitimate well-designed and necessary development such as affordable housing projects and other job-creating tax-positive commercial projects.

Regardless of one’s standpoint, when it comes to legislation like the CLCPA, it is advisable for local governments to adopt a proactive approach. It is in their best interest to, first, review the substance of the Act and submit comments. They can do this by visiting this website. Second, they can review their comprehensive plan to analyze and highlight a plan for compliance with the Act that focuses on their municipality, county, or region, rather than waiting until a specific project is presented, and then grappling with how the CLCPA aligns with the review process.

Issues to consider in any comprehensive review can include:

1. Compliance and Regulatory Frameworks: The CLCPA mandates the establishment of a comprehensive regulatory framework, which includes developing emission limits, clean energy standards, and sector-specific regulations. Strategically positioning areas of concentrated development to enable the utilization of community water, sewer, and other services, while directing development towards easily accessible highway locations and imposing requirements for incorporating alternative energy sources like solar and geothermal, as well as state-of-the-art energy-saving features, will effectively highlight compliance with the CLCPA. Equally significant, having such a plan will offer a level of certainty in the process for prospective developers who wish to establish facilities within your community.

2. Environmental Justice and Equity: The CLCPA places significant emphasis on environmental justice and ensuring an equitable distribution of the advantages and drawbacks associated with environmental policies. Your strategy should incorporate an assessment that equitably distributes the compliance burden in a fair and impartial manner. It is essential to consider whether your plan facilitates the provision of diverse and affordable housing opportunities by allowing for an appropriate density of housing. It’s worth noting that while many may assume that denser housing automatically leads to increased greenhouse gas emissions, denser housing, when accompanied by community services in a walkable community, is often more environmentally protective than large single-family homes with individual well and septic systems.

3. Land Use and Infrastructure Development: Accomplishing the goals set forth by the CLCPA requires substantial transformations in land use and infrastructure development. Your strategy should foster the growth of community solar projects, battery energy storage facilities, and enhanced sewer and water infrastructure to minimize wastage. Furthermore, it should prioritize energy conservation efforts and actively promote sustainable practices.

Over the coming years, we can anticipate gaining a greater understanding of how the DEC and, subsequently, the New York State courts will manage the administration, interpretation, and enforcement of the CLCPA. Nevertheless, it is prudent to be well-prepared with a plan that may require slight adjustments in the future, rather than being caught off guard and unready.

Article collaborated with John C. Cappello, Esq., Partner, and Isabelle Hayes, Legal Intern, J&G Law, LLP.

This article appeared in the Summer (August 23, 2023) edition of the Sullivan County Partnership’s In the Know Magazine.

This is not to be considered legal advice.  You should contact an attorney to discuss your specific situation.


John C. Cappello, Partner of J&G, LLP in Monticello, NYJohn C. Cappello is a partner concentrating in land use, environmental and zoning law.  He can be reached at 845-764-9656 and by email.

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