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New York Finalizes Policy for Evaluating Permit Impacts on Disadvantaged Communities
In 2024, the New York State Department of Environmental Conservation (NYSDEC) issued policy guidance for assessing impacts of environmental permits on disadvantaged communities. The policy, DEC Program Policy – Permitting And Disadvantaged Communities Under The Climate Leadership And Community Protection Act (DEP-24-1), outlines the requirements for analyses developed pursuant to section 7(3) of the Climate Leadership and Community Protection Act (CLCPA). This section of CLCPA requires NYSDEC permitting decisions to (i) not disproportionately burden disadvantaged communities and (ii) prioritize reductions of greenhouse gas emissions and co-pollutants in disadvantaged communities.
The policy applies to permit applications designated as “major” under the Uniform Procedures Act (UPA), Article 70 of the Environmental Conservation Law (ECL), in addition to any project requiring a UPA permit from NYSDEC involving the construction of energy production, generation, transmission, or storage facilities, and any project requiring an UPA permit from NYSDEC with sources and activities that may result in greenhouse emissions. For the policy to apply to the project, NYSDEC must also determine that the project is “likely to affect” a “disadvantaged community”. Disadvantaged communities are generally “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” (as identified by New York’s Climate Justice Working Group). The “likely to affect” standard is met where a permit would increase greenhouse gases or co-pollutants in a disadvantaged community, even where the source is located outside of the disadvantaged community. DEP-24-1 describes the analyses and procedures required to be followed by NYSDEC staff when reviewing various permit application types pursuant to the requirements of Section 7(3), including considering potential impacts within a half mile of the facility.
Once a project is determined to be subject to DEP-24-1, facilities operating in “disadvantaged communities” are required to prepare “existing burden reports” identifying information such as existing pollution sources affecting the community and potential routes of human exposure to pollution from those sources, ambient concentrations of regulated air pollutants and regulated or unregulated toxic air pollutants, noise and odor levels, and the projected contribution of the proposed action to existing pollution burdens in the community and potential health effects of such contribution. A permit applicant may propose, or NYSDEC may impose, conditions on the permit to address any disproportionate burden. The analysis will be subject to enhanced public participation opportunities following guidance set out in NYSDEC Commissioner’s Policy 29 (CP-29).
DEP-24-1 is one of several actions taken by New York state to implement the CLCPA. On December 30, 2024, New York’s Cumulative Impacts Bill came into effect, amending the State Environmental Quality Review Act (SEQRA) and the UPA to require consideration of the effects of disproportionate pollution impacts on a disadvantaged community. In 2022, the NYSDEC Commissioner’s Policy 49 (CP-49) / Climate Change and DEC Action, and NYSDEC Division of Air Resources Policy 21 (DAR-21) / CLCPA and Air Permit Applications were finalized.
