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Continuing the trend toward protecting environmental justice communities, New York Gov. Hochul is expected to sign a chapter amendment to a recently passed bill that would have established new standards under the State Environmental Quality Review Act (SEQRA) – New York’s “Little NEPA” environmental review statute. The bill would also have changed the procedures employed by New York’s Department of Environmental Conservation (DEC) for issuing permits under the Environmental Conservation Law. 

In 2019, the state’s landmark climate law, the Climate Leadership and Community Protection Act (CLCPA), which prohibits administrative approvals and decisions from state agencies from disproportionately impacting disadvantaged communities (DACs), was signed into law. In 2022, consistent with the CLCPA’s intent, the Legislature sought to modify the environmental review and permitting standards for projects with the potential to disproportionately impact DACs. The original bill and recently introduced chapter amendment potentially affect economy-wide industries and leave much to the rulemaking process over the next two years. 

The original bill broadly prohibited DEC from approving or even renewing an existing permit if the project would cause or contribute to, directly or indirectly, a disproportionate and/or inequitable pollution burden on a DAC. Such a broad prohibition would have meant that, for example, a landfill near a DAC could not have its permit renewed by DEC, even if there was no viable alternate disposal site. After industry stakeholders expressed concerns that the proposed amendments to SEQRA and the Uniform Procedures Act (UPA) were overly stringent and impracticable, the governor required a “chapter amendment” to sign the bill into law.

As part of the chapter amendment process, the governor signed the original bill into law with the understanding that the Legislature would introduce a new bill reflecting changes the Legislature and Executive agreed upon to address concerns the regulated community raised while preserving the original bill’s intent. The amended bill has now been introduced, and it is expected that the bill will pass both houses of the Legislature and be signed into law in the coming weeks. Under the agreed upon amendments, within two years of enactment, the bill will amend both SEQRA and UPA to:

  • require environmental impact statements (EIS) to assess the effects of a proposed action on DACs, including whether the action would cause or increase a disproportionate pollution burden on a DAC;
  • require consideration of whether the proposed action would cause or increase a disproportionate pollution burden on a DAC when a lead agency is determining whether an EIS is required;
  • require DEC to amend its Part 617 SEQRA regulations to revise the criteria for determining whether a proposed action may have a significant effect on the environment to include consideration of the extent to which a proposed action may reasonably be expected to cause or increase a disproportionate and/or inequitable burden on DACs;
  • amend the UPA governing DEC’s issuance of permits to ensure that water discharge, certain water withdrawal permits, air, liquid natural and petroleum gas, waste transport, solid waste facility, industrial hazardous waste management, and hazardous waste disposal siting permits include disproportionate impact as a consideration for permit issuance;
  • require “existing burden reports” for applicable new projects to assess environmental burdens and the projected impact, and potential benefits, of a proposed action on a DAC;
  • require reporting for a renewal or modification of applicable permits if DEC determines that the project may cause “more than a de minimis amount of pollution” on a DAC, though DEC may waive this requirement if the permit would “serve an essential environmental, health or safety need” of the DAC; 
  • prohibit DEC from issuing applicable permits if DEC determines that a project will cause or increase a disproportionate pollution burden on a DAC;
  • prohibit DEC from issuing a modification or renewal for an applicable permit if DEC determines that issuance would significantly increase the existing disproportionate pollution burden on a DAC;
  • require DEC to impose operational changes on applicable permits to reduce the pollution burden on DACs, provided such actions are reasonable and practicable. 

Once enacted, this law may significantly alter the landscape for issuance of certain DEC permits and, with the changes to SEQRA, also impact other state and local permits where an EIS is required. The amended bill significantly scales back the criteria as applied to renewal of existing permits, but even in those cases DEC will have to assess the “disproportionate impact” of such renewals and consider changes to those existing permits deemed “reasonable and practicable.” When it comes to new permits, applicants will have to ensure that applications include robust consideration of potential impacts of permit issuance on DACs. This will be especially relevant in New York City, where DACs exist in numerous corners of the city. However, a challenge for both applicants and the regulator will be determining what, precisely, constitutes a “disproportionate impact” on a DAC. As DEC implements the new law, many of these open questions will likely be addressed through the regulatory process, which is sure to impact all sectors of industry from electricity generation to solid waste recycling and disposal. 

Photo of Steven C. Russo Steven C. Russo

Steven C. Russo chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, environmental permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, toxic tort litigation, environmental crimes, Brownfields redevelopment, government, energy and

Steven C. Russo chairs the firm’s New York Environmental Practice. He focuses his practice on environmental law and litigation, environmental permitting, National Environmental Policy Act (NEPA), State Environmental Quality Review Act (SEQRA) review, toxic tort litigation, environmental crimes, Brownfields redevelopment, government, energy and the environmental aspects of land use and real estate law. Steven is equally experienced litigating in federal and state courts, as well as counseling his clients with regard to environmental liability risk and due diligence, permitting, Brownfields, and impact assessment and review. He also practices election and campaign finance law.

Prior to joining the firm, Steven was the Chief Legal Officer of the New York State Department of Environmental Conservation. There, he supervised approximately 90 attorneys in Albany, as well as the agency’s nine regional offices. He also supervised the agency’s legislative affairs department and Office of Environmental Justice. At the agency, Steven initiated a reform of the state’s environmental review regulations and assessment forms, completed the issuance of new power plant siting regulations pertaining to environmental justice and carbon emissions and revised the agency’s environmental audit policy.

Steven also serves as election law counsel to a number of New York State and federal campaigns and political parties.

Photo of Jane McLaughlin Jane McLaughlin

Jane McLaughlin has extensive governmental and legislative experience, having served as Director of Legislative Affairs in the New York Department of Environmental Conservation, Legislative Counsel in the New York State Department of Health, and as Legislative Counsel and Committee Director in the New…

Jane McLaughlin has extensive governmental and legislative experience, having served as Director of Legislative Affairs in the New York Department of Environmental Conservation, Legislative Counsel in the New York State Department of Health, and as Legislative Counsel and Committee Director in the New York State Senate. Jane has also served as counsel to the New York State Conference of Mayors and Municipal Officers (NYCOM), working on various matters pertaining to municipal government. She has worked on a wide variety of matters and legislation, including matters involving the environment, health care, procurement, telecommunications, election law, and water/sewer law.

Photo of Zackary D. Knaub Zackary D. Knaub

Zackary D. Knaub brings deep New York government experience to his Environmental and Government Law & Policy practices. Prior to joining Greenberg Traurig, Zackary served as Interim Chief Counsel and First Assistant Counsel to Governor Andrew M. Cuomo, and before that, as Assistant…

Zackary D. Knaub brings deep New York government experience to his Environmental and Government Law & Policy practices. Prior to joining Greenberg Traurig, Zackary served as Interim Chief Counsel and First Assistant Counsel to Governor Andrew M. Cuomo, and before that, as Assistant Counsel to the Governor for Energy and the Environment. In these roles, Zackary advised Governor Cuomo and his administration on all legal issues related to executive actions, policies, and legislative initiatives. He coordinated the legal affairs and operations of over 100 State Executive Agencies, State Authorities, Public Benefit Corporations, and boards, and oversaw the day-to-day operations of the Office of the Governor’s Counsel. Zackary managed the development and negotiation of major legislation and gubernatorial initiatives. He supervised negotiations of all legislation in the Governor’s annual $175 Billion state budget and managed outside counsel in litigation. His public relations experience includes advising press and operations staff on crisis management strategies and public messaging of complex legal and policy initiatives.

Zackary has also defended and prosecuted environmental and commercial cases in state and federal courts, and before administrative tribunals, arbitration panels, and mediators for a wide range of businesses in areas of law including federal and state environmental laws, intellectual property, Federal Acquisitions Regulations, employment law and policy, insurance coverage, and environmental risk management.