New York has joined states like New Jersey and Maryland, which have enacted environmental justice laws. New York's Environmental Justice Siting Law (EJSL) (Chapter 840 of 2022 [S8830/A2103-D] amended by Chapter 49 of 2023 [S1317/A1286]), requires agencies reviewing actions under the State Environmental Quality Review Act (SEQRA) to evaluate whether an action may cause or increase a disproportionate pollution burden on a disadvantaged community (DAC) as a part of the SEQRA process, both in the determination of significance and, where relevant, in preparation of an environmental impact statement (EIS).
The EJSL adopts a definition of "pollution" found in New York's Environmental Conservation Law (ECL) to inform SEQRA review— "the presence in the environment of conditions and/or contaminants in quantities of characteristics which are or may be injurious to human, plant or animal life or to property or which unreasonably interfere with the comfortable enjoyment of life and property." [ECL Sec. 1-0303].
I. Environmental Justice Siting Law
The EJSL amends SEQRA, which requires environmental reviews and, when necessary, an EIS for specific actions that may significantly affect the environment.
The EJSL adds a new criterion for determining whether an action requires an EIS—the lead agency must also consider whether the proposed action may cause or increase a disproportionate pollution burden on a disadvantaged community. [ECL Sec. 8-0113]. This assessment can be completed using proposed new questions on the SEQRA environmental assessment form (EAF), described below.
If an EIS is required, the EJSL further expands the required content of the EIS. Where relevant, the EIS must address the effects of any proposed action on DACs, specifically whether the action may cause or increase a disproportionate pollution burden on a DAC. [ECL Sec. 8-0109].
II. Disadvantaged Communities (DACs)
The EJSL incorporates the definition of "disadvantaged community," a term found in New York's Climate Leadership and Community Protection Act (CLCPA)—"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." [ECL Sec. 75-0101.5]. DEC has posted a map of DACs in New York State here.
The map was developed by a Climate Justice Working Group (CJWG), comprising representatives from state agencies and environmental justice groups across the state. The CJWG was formed under the CLCPA to develop criteria for identifying disadvantaged communities and ensuring economic and environmental benefits from the state's clean energy transition efforts. [ECL Sec. 75-0111]. (The CLCPA requires identifying and providing disadvantaged communities (DACs) with at least 35%—with a goal of 40%—of the overall benefits from the state investments and spending on clean energy and energy efficiency programs, pollution reduction, low-income energy assistance, transportation, and economic development, as examples. [ECL Sec. 75-0117].)
The CJWG voted to approve and adopt the final disadvantaged communities' criteria during a March 27, 2023 meeting. The CJWG used 45 indicators to determine that 35% of New York State is classified as within DACs.
III. SEQRA Regulation Amendments Proposed for Public Comment
DEC is now proceeding to amend the SEQRA regulations as directed by the EJSL.
To assist lead agencies in determining the significance of an action, the proposed amendments add questions to the standard DEC's EAF focused on disadvantaged communities (DACs), such as:
- Is this project located within, or within a half-mile of, a disadvantaged community?
- If "No," could impacts from the project affect a disadvantaged community?
- If "Yes" to either question above, identify the potential pollution impacts of the project, either direct or indirect, that may occur within the disadvantaged community (e.g., wastewater discharges, air emissions, noise, odors, solid or hazardous waste generation or management).
For a proposed project to have a "significant adverse impact" on a DAC, the lead agency must evaluate the magnitude and importance of that impact by considering the available information provided in the EAF to trigger the need for an EIS. The lead agency weighs the presence of factors, such as a DAC is identified by the Disadvantaged Community Assessment Tool as having comparatively higher burdens or vulnerabilities, or proposed operations would potentially result in off-site pollution impacts or solid/hazardous waste will be generated in an amount requiring a substantial increase in truck traffic to transport to a permitted disposal facility. An EIS evaluates potential impacts and possible mitigation measures and explores alternatives to avoid or reduce those impacts.
IV. Forthcoming Conflicts with Federal Policy
Inconsistent state and federal priorities could affect permitting guidance, instructions, recommendations, and the necessary documentation to advance future projects requiring federal and state approvals and/or receiving federal and state funding.
New York State addresses environmental concerns for its residents by including the right to clean air, clean water, and a healthy environment in the state constitution and by requiring the consideration of environmental justice analysis in agency decision making pursuant to SEQRA. The DEC regulatory amendments are intended to balance environmental justice for disadvantaged communities while streamlining the agency review process of proposed projects.
However, the current Trump administration has issued a series of executive orders (EOs) that could modify the federal government's policies regarding a wide array of environmental and natural resource issues. Environmental justice analysis has been required in federal decision making for most major infrastructure environmental impact statements and assessments. Such analysis by federal agencies will likely no longer be a mandated consideration in environmental impact statements as the Council for Environmental Quality reevaluates the National Environmental Policy Act regulations to prioritize rapid permitting guidance. (See January 23, 2025, client alert: "Executive Orders Lay the Groundwork for Major Changes to Environmental and Natural Resources Law.")
For further information on these developments, please get in touch with Sue Golden, Hilary Atzrott Hamburg, or Jahmel Martin.