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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

December 10, 2021

New York State DEC Interprets CLCPA With New Policy

Ever since the Climate Leadership and Community Protection Act (CLCPA) was enacted in 2019, questions arose as to how it would be applied on a project-by-project basis. The specific statutory language in question is Section 7(2), which requires all state agencies to consider whether the decision to issue permit(s) is inconsistent with or will interfere with the attainment of the statewide greenhouse gas emissions limits. If there is an inconsistency, the state agency must provide “a detailed statement of justification as to why such limits/criteria may not be met and identify alternatives or greenhouse gas mitigation measures to be required where such project is located.” 

On December 8, 2021, the New York State Department of Environmental Conservation (NYSDEC) purported to address these questions by releasing for public comment a draft policy document, DAR-21, titled “The Climate Leadership and Community Protection Act and Air Permit Applications.” This proposed policy describes the content of analyses an applicant will be required to submit to the Division of Air Resources (DAR) in accordance with Section 7(2). It further describes the procedures staff in the DAR will follow when reviewing those analyses for conformance with the requirements of the CLCPA. Previously, NYSDEC’s interpretation of Section 7(2) has only been gleaned by an NYSDEC internal DAR Technical Guidance Memo, which was not released for public comment, and its project-by-project permitting decisions.  

DAR-21 describes NYSDEC’s interpretation of the analyses that will be required by the DAR pursuant to the requirements of Section 7(2) and the procedures that NYSDEC staff will undertake when reviewing an applicant’s analyses to determine consistency with the CLCPA. It also proposes to establish the types of air pollution control permit actions required to prepare such analysis and details what emissions calculations applicants must include for NYSDEC review. Notably, DAR-21 includes some potential causes of inconsistency or interference, examples of acceptable justifications, and potential alternatives as well as the types and extent of mitigation that would be acceptable. The full text of the proposed policy can be found here.

Also on December 8, 2021, NYSDEC issued for public comment draft revisions to NYSDEC’s Commissioner Policy (CP) 49, titled “Climate Change and DEC Action,” originally issued in 2010. CP-49 provides guidance regarding the incorporation of climate change considerations into agency activities. The proposed revisions seek to update CP-49 to take into account the CLCPA and provide guidance on implementing Sections 7 and 9 of the CLCPA so that state agencies can properly integrate climate change into their departmental activities, consider impacts of agency actions on disadvantaged communities, and consider future climate risks in all decisions and actions. The full text of the proposed revisions can be found here

Combined, the NYSDEC proposals provide the public and regulated community with NYSDEC’s interpretation of the CLCPA for all sectors, not just the electricity generation sector. DAR-2 applies to both new and renewal air permit applications. As these proposals will have far-reaching implications across all sectors, the public comment period will be key to shaping how the CLCPA is applied. Interested parties can submit comments by mail or by email until 5:00 p.m. on January 7, 2022. 

If you are interested and need assistance on drafting and submitting comments on either of these proposed policies, please do not hesitate to reach out to one of our team members at Barclay Damon. 

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Angela Sicker, associate, at asicker@barclaydamon.com; Dan Krzykowski, law clerk, at dkrzyowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area.

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