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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 15, 2022

NYSDEC Releases Final CLCPA Interpretation for Air Permits

New York State continues its efforts to implement the Climate Leadership and Community Protection Act (CLCPA) as the state awaits the Climate Action Council’s Final Scoping Plan. As part of this effort, the New York State Department of Environmental Conservation (NYSDEC) finally issued their Division of Air Resources (DAR) policy document interpreting the CLCPA for purposes of air permitting. As previously reported, that document, “DAR-21 The Climate Leadership and Community Protection Act and Air Permit Applications,” describes the content of the analyses an applicant will be required to submit when seeking an air permit from NYSDEC. Following months of comments and numerous high-profile denials, on December 14, 2022, NYSDEC issued the final DAR-21 policy document. 

The final DAR-21 policy document retains much of the same language as the draft document but includes a few important changes. For example, the final DAR-21:

  • No longer includes examples of potential alternatives and mitigation
  • No longer includes financial mitigation as a mitigation option for applicants
  • Adds additional language and clarification on justification for projects that are found not to be consistent with the CLCPA

DAR-21 applies to all new Title V and Air State Facility permits, Air Facility Registrations, and all pending permit applications and registrations to the extent feasible, including modifications and renewals of existing permits. Although DAR-21 is technically effective immediately, NYSDEC has been requiring applicants to comply with it since it was released in draft form last year.

On December 14, 2022, NYSDEC also issued as final an updated version of its policy related to the incorporation of climate change considerations in agency activities, known as the Commissioner Policy on Climate Change (CP-49), to reflect requirements under the CLCPA.    

Attorneys in Barclay Damon’s Environmental Practice Area will continue to monitor how NYSDEC implements these policies and other developments regarding the CLCPA.

If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Danielle Mettler-LaFeir, partner, dmettler@barclaydamon.com; Dan Krzykowski, associate, at dkrzyowski@barclaydamon.com; or another member of the firm’s Environmental Practice Area.
 

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