Last year, New York joined New Jersey in passing one of the nation’s toughest environmental justice laws. The Environmental Justice Permitting Bill (S8830), which Governor Kathy Hochul signed into law on December 31, is aimed at curbing the systemic legacy of industries placing polluting facilities—from power plants to landfills—in minority or low-income communities.
To learn more about the Environmental Justice Permitting Bill that goes into effect this June, we turned to Alexander G. Main, an associate attorney at Walden-based J&G Law, LLP who concentrates in land use, municipal, and environmental law.
Here, Main provides valuable insight to anyone interested in the state’s environmental justice efforts as well as for New York municipalities that will be navigating this important new legislation in the coming months.
What Is the Environmental Justice Permitting Bill?According to Main, New York’s Environmental Justice Permitting Bill (S8830) is an update to New York’s State Environmental Quality Review Act (commonly known as “SEQRA”), the 1975 law that began requiring state and local government agencies to consider the social, economic, and environmental impacts that any new developments may have in the community they are placed in.
“Under SEQRA, if a significant adverse impact is likely to occur, an Environmental Impact Statement (“EIS”) must be prepared to identify methods to reduce potential adverse impacts and to explore alternatives,” Main explains.
As of this June, the Environmental Justice Permitting Law will become part of the process to determine if an EIS must be prepared.
According to Main, the new law will require the agency responsible for undertaking the EIS to consider whether the proposed 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, he says, the law will also require the EIS to include a detailed statement defining 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 those answers will ultimately affect local governments, especially in the Mid-Hudson Region,” Main says. “These issues include determining the criteria that will be used to determine DAC status; finalizing the list of DACs in New York State; and seeing whether the amendments that Governor Hochul promised in her Approval Memorandum come to fruition.”
How will Disadvantaged Communities (DACs) be Determined?
According to Main, the New York Climate Justice Working Group (CJWG), which is comprised of environmental justice community representatives from different parts of the state, has been tasked with developing the criteria to identify DACs and creating the list.
“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,” Main says. He notes that in the Mid-Hudson Region, that number is higher—with 45 percent of census tracts identified as DACs.
On February 23, 2023, the CJWG voted 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,” Main says.
He also notes that during a February 9, 2023 CJWG meeting, several ideas were discussed that could affect how DACs are ultimately identified.
“The CJWG discussed the possibility of only classifying 25 percent of New York’s census tracts as DACs as opposed to the current 35 percent designation,” says Main. If the CJWG adopted this policy, then the Mid-Hudson Region would have fewer tracts classified as DACs (180 compared to 241 tracts at the 35 percent designation, he notes). “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 percent designation benchmark,” he says.
Main also says that the CJWG discussed how “component scores,” which will be 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),” he says.
“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,” Main says. “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.”
“The CJWG also 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,” Main continues. “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.”
According to Main, one CJWG member also expressed concern that DACs were being identified using a “census tract” approach as compared to a “municipal approach.” “This means that within a single municipality, there can be some areas where DACs exist and some areas where there are no DACs,” he says. “That will ultimately complicate how local governments will apply the law.”
Governor Hochul Promised Amendments to the Environmental Justice Permitting Bill
In Governor Hochul’s Approval Memorandum (the document that outlines her reasoning behind signing legislation), Main notes that she 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.
He says that Governor Hochul 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, Main says, 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 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,’” Main says.
What Municipalities Need to Know
While Main says that there are still several issues that need to be finalized prior to the law taking effect in June 2023, he advises local governments to stay ahead of the learning curve by continuing to monitor any developments about the legislation 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.
You can learn more about the law firm of J&G Law at Jglaw.law.