The New York State Department of Environmental Conservation (DEC) recently announced the release of a new draft policy to implement the environmental justice provisions of the historic Climate Leadership and Community Protection Act (Climate Act). The proposed DEC Division of Environmental Permits policy, titled "Permitting and Disadvantaged Communities (DEP-23-1)," could serve as a template for other states and permitting officials to use in evaluating and averting disproportionate impacts of permitting actions on disadvantaged communities.

“In March, New York's Climate Justice Working Group (CJWG), which includes representatives from environmental justice groups from across the state and representatives of several State agencies, finalized criteria to identify disadvantaged communities,” states a DEC press release. “The criteria considers environmental burdens and climate change risks, socioeconomic factors, and health vulnerabilities. Using a methodology that worked at the census tract level, the CJWG combined and ranked all indicators into an overall score. A?list of disadvantaged communities, along with maps, is available on the Climate Act website. The criteria and methods for identifying disadvantaged communities will be reviewed annually by the CJWG to ensure the State is accurately targeting emissions reductions and investments.”

The Climate Act, which has a mandated goal of a “zero-emission” electricity industry by 2040, “is known for being the country's most aggressive climate and clean energy statewide agenda,” according to Holland & Knight LLP.

One of the guiding principles of the Climate Act is that disadvantaged communities have been disproportionately impacted by pollution and other environmental impact burdens. To address these injustices, the Climate Act promotes environmental justice through various mechanisms.

The draft DEC policy is the latest of these mechanisms that seeks to “guide DEC's approval process for how and when to consider emissions impacts on disadvantaged communities for various permits, licenses and other approvals under the State Uniform Procedures Act (UPA), Article 70 of the Environmental Conservation Law (ECL),” Holland & Knight continues. “Practically speaking, this means that the [Disadvantaged Communities] Permitting Policy will apply to a broad set of permit applications that involve ‘sources and activities that result in direct or indirect GHG or co-pollutant emissions,’ including ‘major permits’ for the following activities:

• Major Water Withdrawal: facilities withdrawing and using more than 20 million gallons per day (MGD) of water for cooling purposes
• Air Emissions: stationary sources that produce air emissions such as municipal incinerators, power plants and other facilities
• Liquefied Gas: liquefied natural and petroleum gas production or conversion facilities
• Landfill and Waste Management: landfills and other solid waste recovery facilities
• Hazardous Waste Management: industrial hazardous waste facilities.”
• The DEC is also proposed for application to projects not classified as “major projects,” including:
• Projects involving the construction of all energy production, generation, transmission, or storage facilities;
• Projects with sources or activities that mayresult in greenhouse gas (GHG) emissions or co-pollutants directly or indirectly; and
• Generally, non-UPA “major permit” facility registrations “where DEC determines an analysis is necessary or appropriate.”
• The proposed process involves initial review of permit applications to determine if the project is likely to impact a disadvantaged community by using New York’s “Disadvantaged Communities Map.” If a determination is made that a proposed project will increase GHG emissions or co-pollutants, applicants will be required to prepare a disproportionate burden report that includes:
• An identification of GHG and co-pollutant emissions from the project affecting the disadvantaged community;
• Relevant baseline data on existing burdens, including relevant criteria used to designate the disadvantaged community potentially impacted by the project;
• Identification of any environmental or public health stressors already borne by the disadvantaged community because of existing GHG and co-pollutant burdens in the community;
• The potential or projected contribution of the proposed action to existing pollution burdens in the community from GHG and co-pollutants;
• Proposed project design considerations, including a description of actions to be taken to reduce or eliminate disproportionate burdens associated with GHG or co-pollutant emissions, including any proposed permit conditions;
• Existing and potential benefits of the project to the community, including increased housing supply; any essential environment, health, and safety needs of the disadvantaged community; or alleviation of existing pollution burdens that may be provided by the project, as informed by input from members of the community through a Public Participation Plan; and
• Confirmation that a public participation plan has been completed, including any proposed changes to the project resulting from community outreach and participation.

The draft DEC policy includes a list of project design measures that can be implemented to reduce pollutants.

As part of the regulatory process, the draft policy is available for public comment by those impacted until November 27, 2023. Written comments can be sent via e-mail or regular mail to Daniel Whitehead, NYS DEC—Division Environmental Permits, 625 Broadway, Albany, NY 12233-3254.