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March 24, 2020

COVID-19's Impact on NYS Environmental Compliance

In an effort to address the COVID-19 pandemic and slow down exposure rates in New York State, Governor Andrew Cuomo issued Executive Order 202 on March 7, declaring a state of emergency until September 7. Governor Cuomo has since supplemented Executive Order 202 with additional directives, invoking his authority to temporarily suspend any “statute, local law, ordinance, or orders, rules or regulations, or parts thereof of any agency during a state disaster emergency if compliance with such provisions would prevent, hinder, or delay action necessary to cope with the disaster or if necessary to assist or aid in coping with such disaster.”

While Governor Cuomo has temporarily suspended a number of state statutes and regulations, he has not yet suspended any provision of the Environmental Conservation Law (ECL) or its implementing regulations at Title 6. As such, all requirements of the ECL and Title 6 continue in full force and effect as well as all valid permits issued by the NYS Department of Environmental Conservation (NYSDEC) under the ECL or delegated federal permitting programs. Interestingly, unlike other state agencies that have issued guidance regarding COVID-19, the NYSDEC has remained silent.

While in some permitting regimes, the ECL provides relief from civil liabilities associated with “violations that were caused an act of God, war, strike, riot, catastrophe, or other condition as to which negligence or willful misconduct,” this anticipates a demonstration of nexus between the emergency and the violation. Most important, it is not preemptive authority for a permittee to violate conditions of a validly issued NYSDEC permit.

Given the above, it is important that permittees continue to comply with all of their NYSDEC permits. If compliance is impossible (i.e., because key employees or consultants cannot perform their duties due to the governor’s workforce reduction directive), please reach out to one of our environmental attorneys for guidance.

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental and Lobbying & Election Law Compliance Practice Areas co-chair and co-team leader of the Oil & Gas, Linear Infrastructure, and Energy Markets Teams, at yhennessey@barclaydamon.com or another member of the firm’s Environmental Practice Area.

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