Governor Andrew M. Cuomo signed into law the Community Risk and Resiliency Act (the Resiliency Act or Act) on September 22, 2014 in conjunction with Manhattan's Climate Week 2014.
The Resiliency Act reflects a serious effort to increase New York's preparedness and ability to bounce back after suffering a climate change-related event, by establishing the requirement that State agencies first consider future physical climate risks from storm surges, sea level rise, and flooding, before making permitting or funding decisions.
While under the State's Environmental Quality Review Act (SEQRA), state and local agencies have already begun considering the impacts of their funding and permitting decisions on climate change (e.g., the extent to which a future project will increase greenhouse gases), the Resiliency Act begins from the other end, requiring that agencies consider the future impacts of climate risks on the projects they may fund or permit. Thus, the Resiliency Act conditions approvals, support, and financing of public infrastructure projects on conduct of such analyses by all State infrastructure agencies (such as the Department of Transportation, the Housing Finance Agency, Empire State Development, and some public benefit corporations).
The Act also conditions all of the following on state agencies' prior consideration of future climate risks:
- siting of hazardous waste treatment, storage and disposal facilities;
- storage of hazardous wastes;
- design and construction of petroleum and chemical bulk storage facilities;
- acquisition of open space through eminent domain;
- state contracting for maintenance of parkland;
- state assistance to municipalities closing landfills;
- state assistance to municipalities revitalizing waterfronts;
- state provision of assistance to municipalities and not-for-profit corporations conducting coastal restoration projects;
- state assistance for locally led agricultural and farmland protection activities;
- issuance of oil, gas, and solutions mining permits; and
- issuance of all major environmental permits (including Clean Water Act discharge permits, Clean Air Act emissions permits, mining reclamation permits, and wetlands permits).
The Act also directs the State's planning agency (the Department of State, or NYSDOS) to work with the New York State Department of Environmental Conservation (NYSDEC) to develop model climate change adaptation zoning laws for use by municipalities. Additionally, the Act requires NYSDEC to adopt regulations by January 1, 2016 establishing science-based state sea level rise projections, and to update such regulations every five years. Finally, the Act directs NYSDEC and NYSDOS to develop additional guidance on the use of resiliency measures that utilize natural resources and natural processes to reduce risk.
The Act becomes effective on March 21, 2015, and applies to all permit applications received after the adoption of guidance on implementation of the Act, but no later than January 1, 2017.
For more information on the possible impact of this Act, please contact Sue Golden at sgolden@Venable.com or 212.370.6254.