New York State's Department of Environmental Conservation (DEC) has issued draft guidance intended to implement provisions of the Climate Leadership and Community Protection Act (CLCPA) intended to reduce disproportionate burdens on disadvantaged communities (DACs). The guidance is available here.    

Section 7(3) of the CLCPA requires state agencies to avoid disproportionate burdens on  DACs, and to prioritize reductions of greenhouse gas emissions and co-pollutants in such communities. The State Legislature also passed a comprehensive environmental justice statute in 2022 (amended in 2023) (which is nameless, but we’ll call the “Cumulative Impacts Bill,” or CIB), which goes into effect December 31, 2024.  DEC’s new proposal provides guidance to DEC Staff on how to manage environmental justice considerations in permit applications until the CIB goes into effect.  

The proposed policy (known as DEP 23-1) applies to new and renewal applications for air and wastewater permits, liquefied natural gas and petroleum gas facilities, and solid waste and industrial hazardous waste management facilities.  While that much is consistent with the scope of the CIB, the current draft of DEP 23-1 goes even further - as currently drafted it applies to any project requiring a permit under the Uniform Procedures Act that may cause GHG emissions or co-pollutants, directly or indirectly.  Thus, unless changed, DEP 23-1 will apply to almost all facilities with direct or indirect GHG or co-pollutant emissions until the end of 2024.    

The policy requires DEC to perform a preliminary screening of a permit application (new or renewal) for potential impacts on DACs.  If potential impacts on such communities are identified, then the applicant must prepare a "Disproportionate Burden Report" (DBR) before its application for a permit is considered complete.  The DBR must (i) analyze the proposed emissions from the facility and data on existing burdens in the affected DACs, (II) analyze environmental or public health "stressors" borne by the DACs, (iii) determine how the emissions from the proposed facility will affect the DACs, (iv) describe project design considerations intended to reduce expected burdens, (v) describe the project’s benefits, and (vi) confirm a public participation plan has been completed.  

If the project is determined to have a disproportionate burden, then the report must also include project design measures that result in measurable greenhouse gas and co-pollutant reductions.  As currently drafted, the guidance requires the applicant to include design considerations that offset 100% of any increased GHG or co-pollutant emissions from the project.     

In addition to any voluntary measures agreed to by the applicant, the Department may impose further conditions that address the disproportionate burdens, including requiring further reductions in greenhouse gases and co-pollutants. Thus, it is clear that the Department believes it has the authority to impose emissions limits below what would otherwise be authorized by applicable regulations.  This is significant, given that it applies not just to new but also existing facilities, who may see their emissions limits reduced below what would previously been authorized under New York’s air emissions regulations.  

The deadline for written comments on the proposed guidance is November 27, 2023.