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September 28, 2023

NYSDEC Issues Draft Guidance on Permitting Projects in or Likely to Affect a Disadvantaged Community

On September 27, 2023, the New York State Department of Environmental Conservation (NYSDEC) issued for public comment its long-awaited guidance describing the content of analyses that it will require according to the requirements of Section 7(3) of the Community Leadership and Community Protection Act (CLCPA) as well as the procedures it will follow when reviewing those analyses for conformity with the requirements of the CLCPA. Previously, NYSDEC issued separate guidance regarding the requirements of Section 7(2) of the CLCPA in December 2022, as we previously reported here.

CLCPA Section 7(3) requires that disadvantaged communities not be disproportionately burdened and that reductions of greenhouse gas emissions and co-pollutants in disadvantaged communities be prioritized by all state agencies when issuing permits, licenses, and other administrative approvals and decisions. Disadvantaged communities are defined in the CLCPA as 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. The Disadvantaged Communities Criteria, which are used to identify disadvantaged communities for purposes of the CLCPA, were finalized by the Climate Justice Working Group on March 27, 2023.

NYSDEC’s draft guidance is proposed to apply to major permit applications under specifically identified permitting programs (e.g., solid-waste management and air pollution control permits) as well as certain types of projects, including projects involving the construction of energy production, generation, transmission or storage facilities, or projects with sources or activities that may result in greenhouse gas emission or co-pollutants. The draft guidance would also apply to renewals to existing permits as well as to all pending permit applications to the extent feasible. 

For projects or facilities that are determined to be located in or likely to affect a disadvantaged community, a disproportionate burden report would be required. Any disproportionate burden report, which will be made available for public review as part of the permitting process, would be required to identify and address disproportionate burdens by including, among other things:

  • Relevant baseline data on existing burdens
  • Identification of any environmental or public health stressors already borne by the disadvantaged community
  • Proposed project design considerations, including a description of actions to be taken to reduce or eliminate disproportionate burdens 
  • Existing and potential benefits of the project to the community

Enhanced public participation, similar to what is currently required for environmental justice communities, also would be required with the added requirement that the applicant solicit input from members of the disadvantaged community on the proposed project design and the existing and potential benefits of the project.  

An applicant would also be permitted to propose conditions that would address any disproportionate impact and, in turn, NYSDEC could impose its own conditions. These conditions or other measures proposed by an applicant or required by NYSDEC, as well as public input, would guide NYSDEC’s ultimate determination under CLCPA Section 7(3) as to whether the proposed project imposes a disproportionate impact on a disadvantaged community.

NYSDEC is accepting comments on the draft guidance until November 27, 2023.

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com, or another member of the firm’s Environmental Practice Area.
 

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