DEC Dispatch: DEC Implementation of Legislation Requiring Environmental Justice Considerations in SEQR and DEC Permitting

At the close of 2022 and beginning of 2023,1 Gov. Kathy Hochul signed into law two sets of important amendments to the State Environmental Quality Review Act (SEQR)2 and the Uniform Procedures Act (UPA).3 Together these amendments will require state and local agencies to incorporate consideration of environmental justice into their approval processes through SEQR, and for DEC through both its permitting process under UPA and SEQR. For certain projects and facilities located in or that may affect “disadvantaged communities,”4 the amendments change some long-held paradigms under which agencies have conducted environmental impact review and mark a significant shift toward equity in environmental decision-making. This article provides a basic introduction to the amendments.

1. Meaning of Environmental Justice

As defined by DEC and others, environmental justice means “the fair treatment and meaningful involvement of all people regardless of race, color, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”5 At the heart of environmental justice is the principle of equal treatment under the law as applied to environmental concerns, the idea of which originates in the Equal Protection Clause of the U.S. Constitution6 and Title VI of the Civil Rights Act of 1964.7 Environmental justice also speaks to the importance for considering previous and cumulative environmental harms placed upon disadvantaged communities. At the state level, the notion of equal protection has over time and to a certain extent made its way into SEQR. SEQR created opportunity for decision-makers to formally consider environmental impacts to communities in making decisions about siting of facilities in New York state.8 SEQR has included, and since the 1980s been interpreted to include, a range of community impacts based on the definition of “environment” in ECL Art. 8.9 UPA, DEC’s permitting process, requires DEC to take community concerns into account and provides the opportunity for community feedback to be considered in permit decisions for “major projects” by requiring public notice. Equal protection, UPA, and SEQR intersect more closely than ever in the new environmental justice legislation.10

2. Environmental Justice Legislation

On Dec. 30, 2022, Gov. Hochul signed Senate Bill 8830 into law as Chapter 840 of the Laws of 2022 (Chapter 840) with the objective of addressing historic environmental inequities that resulted from prior siting of certain types of facilities in designated disadvantaged communities. “Disadvantaged communities” is a term defined by the Climate Justice Working Group, a group created by the Climate Leadership Community Protection Act (CLCPA), responsible for establishing criteria that will identify disadvantaged communities. According to the Working Group, Disadvantaged Communities are “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.”11 The Climate Justice Working Group’s statewide draft map of disadvantaged communities is available on the Climate.gov website.12

Chapter amendments to S.B. 8830 (Laws of 2022, Chapter 840) sought to ensure that decisions to site facilities in disadvantaged communities are not only environmentally equitable but are also balanced with the need for “critical infrastructure, such as housing, hospitals, and renewable facilities.”13 S.B. 1317—introduced in January 2023 as a chapter amendment to Chapter 840 of the Laws of 2022—made negotiated changes to Chapter 840 and subsequently passed both houses of the Legislature and was signed into law on March 3, 2023, becoming Chapter 49 of the Laws of 2023 (Chapter 49) (collectively referred to herein as the Environmental Justice Legislation (EJL)).

Implementation of EJL will be challenging,14 as DEC must write implementing regulations for both SEQR and UPA as well as make changes to the SEQR Handbook, the SEQR workbooks,15 and write UPA guidance. Accordingly, the effective date of the amendments was pushed back to January 2025.16 DEC also expects to conduct training and outreach for both DEC staff and municipal bodies on implementing the new law. State and local governments will need to familiarize themselves with the legislation and ensuing rulemaking.

a. SEQR Amendments

Environmental Justice Legislation requires changes to the existing SEQR regulations that will mostly occur through the rulemaking process. To begin with, the EJL directs DEC to promulgate SEQR regulations creating criteria for determining whether actions that will cause or increase a disproportionate pollution burden to disadvantaged communities warrant preparation of an environmental impact statement.17 An environmental impact statement is what agencies, including DEC, use to assess the impact of a discretionary action once the action has been determined to result in potentially significant adverse impacts to the environment.

The criteria for determining significance are commonly referred to as “significance indicators.” They are set out in 6 N.Y.C.R.R. 617.7 and reflected in the environmental assessment forms codified into 6 N.Y.C.R.R. 617.20, appendices A and B. Thus, pursuant to EJL, SEQR will recognize cumulative pollution burdens on disadvantaged communities as a separate “significance indicator” and will include thresholds or criteria to determine when the preparation of an environmental impact statement will be required. DEC expects these changes to SEQR to be implemented through DEC’s rulemaking processes. Accordingly, the EJL amends ECL Art. 8, which sets forth the standards for the preparation of an environmental impact statement, to include in the existing subjects that may be covered by an environmental impact statement the “effects of any proposed action on disadvantaged communities, including whether the action may cause or increase a disproportionate pollution burden on a disadvantaged community.”18 The addition of this significance criteria, and the concomitant regulations, will ensure that impacts to disadvantaged communities are considered in the SEQR process and could to lead to the preparation of more environmental impact studies for projects that affect disadvantaged communities.

b. UPA Amendments

The EJL changes to UPA are more complex than the changes it makes to SEQR. As an initial matter, the EJL applies to a subset of UPA permits enumerated in the EJL; those that are most likely to affect disadvantaged communities including air, water withdrawal, solid waste and SPDES permits. They are referred to in the EJL as “applicable permits.”

i. Existing Burdens Report

One of the most consequential changes in the permit process that will come about from implementation of the new requirements is the obligation on project sponsors and DEC to prepare an existing burden report—a new tool that is to be used by applicants and DEC to assess the existing pollution burden in a disadvantaged community and any increase that may result from the proposed project.

Under the EJL, DEC will be obligated to require a burden report for a new “applicable permit” that may cause or contribute more than a de minimis amount of pollution to a disadvantaged community. The burden report requirement will most likely be required as part of a complete application19—a potential challenge given the existing UPA time frames that DEC must meet in determining whether an application is complete, 15 days for non-delegated or authorized permits and 60 days for federally delegated or authorized permits.20 There are two possible exceptions to the obligation to create an existing burden report.

First, in the case of an application for renewal of an existing permit, no existing burden report will be required for permit renewals of existing facilities that have prepared a burden report in the past 10 years. Even with this exception, permit renewals will still face greater scrutiny than before when they were treated as purely ministerial actions no matter how many times the permits were renewed.21

Second, for renewals and modifications to an existing permit, DEC can elect not to require an existing burden report for a facility if “the permit [project] would serve an essential environmental, health, or safety need of the disadvantaged community for which there is no reasonable alternative.” The legislation does not specify uses that may constitute “an essential environmental, health, or safety need.” However, given the history of the legislation it is reasonable to conclude that hospitals, housing, and renewable facilities could be considered essential. In defining the uses that serve an “essential environmental, health or safety need,” DEC can also look to analogous laws from other jurisdictions.22

The EJL requires that DEC, in consultation with the state Department of Health, develop a template for the existing burden report—akin to the manner in which DEC prepared model environmental assessment forms for SEQR. Once the template is developed, EJL provides a 30-day public comment period.23 Notably, in developing the template, DEC was given discretion to develop separate models for the burden report depending on whether the report relates to a new or modified project or a renewal. In so doing, the EJL tacitly acknowledges the fact that there is a wide regulatory difference in the way new projects are treated from modification and renewals founded on practical and due process concerns.24

These contents of the report are outlined in the legislation. The EJL provides that the report should include the following: [1] “. . .relevant baseline data on existing burdens, including from relevant criteria used to designate the particular disadvantaged communities . . .; [2] the environmental or public health stressors already borne by the disadvantaged community as a result of existing conditions located in or affecting the disadvantaged community; [3] the potential or projected contribution of the proposed action to existing pollution burdens in the community; and [4] existing and potential benefits of the project to the community including increased housing supply or alleviation of existing pollution burdens that may be provided by the project, including operational changes to the project that would reduce the pollution burden on the disadvantaged community.”25

In the future, applicants, agencies, and the public may obtain data for items “1” and “2” from DEC’s Info Locator maps26 that DEC expects to incorporate information data on disadvantaged communities including population characteristics and vulnerabilities, environmental burdens, and climate change risk. In the interim, the data appears in draft, interactive maps—prepared by the Climate Justice Working Group—that are on the Climate.gov website.27

Item “3” is the heart of the analysis—the calculation of the additional pollution burden that would result to the disadvantaged community. Item “4” is an acknowledgment that projects that may increase a burden in terms of pollution may also have benefits or even alleviate burdens on a community, such as affordable housing and other projects that provide essential needs.

ii. Permitting Standards

Based on the burden report, the administrative record including comments received from persons in the disadvantaged community, the EJL provides that if a new project will cause or contribute to a more than de minimis disproportionate pollution burden on a disadvantaged community, the permit must be denied.

Under the EJL, the permitting standard for renewals and modifications is more lenient than for a new project. A permit renewal or modification must only be denied if it causes a “significant” increase to the existing disproportionate pollution burden on a disadvantaged community. Many renewals and modifications, however, involve little or no change in pollution burden but could still be impacted by the legislation. The EJL allows DEC to require applicants for renewals and modifications that do not result in “significant” increase to the existing disproportionate pollution burden on a disadvantaged community to explore strategies to reduce the existing burden their operations have on the disadvantaged community.

Conclusion

The EJL is a step forward in embedding environmental justice considerations into both SEQR and DEC permitting. Like SEQR when it was enacted into law by the Legislature in 1975, the EJL will take time to develop through regulation and guidance and application along the way. It will have to coexist and be harmonized with existing laws that affect the siting of facilities in disadvantaged communities and other policy goals. The EJL, however, holds the promise that disadvantaged communities will become less burdened by pollution by requiring agencies to take account of existing burdens in making siting decisions. This new consideration, if implemented properly, will help to ensure that going forward no community in New York state will bear a disproportionate pollution burden.

Antonia Pereira was appointed as DEC Region 2 regional attorney in 2022. Before that time, Ms. Pereira served as an assistant corporation counsel in the New York City Law Department. Lawrence H. Weintraub has served as DEC counsel for the Division of Environmental Permits since 2007. Any opinions expressed herein are the authors’ own, and do not reflect the views of the New York State Department of Environmental Conservation.

Endnotes

1 L. 2023, Ch. 49.

2 ECL Article 8.

3 ECL Article 70.

4 See ECL 75-0101(5).

5 See DEC Commissioner’s Policy 29, Definitions,
https://www.dec.ny.gov/public/36929.html; see also NYC Admin. Code Title 3, Chapter 10, Section 3-1001.

6 United States Constitution, Fifth Amendment as made applicable to state and local governments through the 14th Amendment of the United States Constitution.

7 For a scholarly overview of the subject see Gerrard, Ruzow and Weinberg, Environmental Impact Review in New York, §٨.٢٠ (Matthew Bender).

8 SEQRA was modelled on the National Environmental Policy Act of 1969 (NEPA). The following website has useful information on consideration of environmental justice under NEPA:
https://www.epa.gov/environmentaljustice/environmental-justice-and-national-environmental-policy-act.

9 ECL 8-0105(6) “’Environment’ means the physical conditions which will be affected by a proposed action, including. . .existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character.” See also, Chinese Staff and Workers Association v. City of New York, 68 N.Y.2d 359 (1986). For an early application of SEQR to environmental justice concerns, see American Marine Rail, LLC (ALJ Rulings on Issues and Party Status and Environmental Significance, August 25, 2000), at 71.

10 Though beyond the scope of this article, in 2019, the Legislature enacted, and Governor Andrew Cuomo signed into law, another piece of legislation known as the Community Leadership and Climate Protection Act (L. 2019, Ch. 106) — referred to as CLCPA. CLCPA §7(3) provides as follows: In considering and issuing permits, licenses, and other administrative approvals and decisions. . .all state agencies, offices, authorities, and divisions shall not disproportionately burden disadvantaged communities as identified pursuant to subdivision.”

11 ECL 75-0101.