The New York State Department of Environmental Conservation (“DEC”) has finalized regulations requiring new or expanding power plants in New York to evaluate potential disproportionate environmental impacts on minority and low-income communities. The regulations are the first in the country to require an environmental justice (“EJ”) analysis in the siting of major electric generating facilities; their requirements could provide practical experience for incorporating environmental justice considerations into other governmental decisions.
Some comments from the regulated community in response to the proposed rules found the new EJ requirements to be unduly burdensome, citing the costs and delay the process would incur. (See the full assessment of public comments here.) However, others have praised New York’s efforts, expressing their hope that the regulations could become a good model for what an environmental justice analysis looks like – not just for power plants but for a whole host of environmental actions. Cecil Corbin-Mark, Policy Director for West Harlem Environmental Action, Inc. (WE ACT for Environmental Justice), described the regulations as a “significant improvement over [the previous framework], and one that brings a new level of focus to the impacted communities. It’s a good step forward.”
The regulations, initially proposed in January 2012, are intended to assess and reduce disproportionate environmental impacts in “overburdened” communities. In its response to public comments on the proposed rules, DEC explained that there is no definition of “overburdened” under New York law. However, the regulations use the same long-established demographics on race, ethnicity and income used in CP-29, the Department’s Environmental Justice Policy, which establishes a mechanism for identifying potential “environmental justice areas.”
According to the Department’s policy, an “environmental justice area” is defined as an area containing a minority or low-income community that may bear a disproportionate share of environmental impacts. A “low-income community” means a contiguous area where 23.59% or more of the population has an annual income that is less than the poverty threshold. A “minority community” means a contiguous area where the minority population is equal to or greater than 51.1% in an urban area or 33.8% in a rural area. These percentage thresholds are based on census block groups and may be revised to reflect updated demographic data.
Following the proposed siting of a new plant, the newly finalized regulations establish an “Impact Study Area” of at least a one-half mile radius around the proposed location of the facility, with a greater area considered on occasion due to “site-specific factors.” The applicant must then determine whether the Impact Study Area contains one or more EJ areas by identifying if there is a minority or low-income community within the Impact Study Area, based on the thresholds summarized above. If no area meeting the definition of minority or low-income community is present within the Impact Study Area, an EJ area is still considered to be present if: (1) a contiguous area has a minority or low-income population that is above 75% of the stated thresholds, and (2) reasonably available air quality data reveals that the Impact Study Area may bear a disproportionate share of negative environmental consequences resulting from multiple sources when compared to the county as a whole, or if in New York City, when compared to the city as a whole.
If an EJ area is present in the Impact Study Area, an application to site a power plant there must analyze any significant adverse environmental impacts to the EJ area resulting from the plant’s operation or construction. The requirements for a full EJ analysis are described in an earlier SPR blog post.
The regulations also require the applicant to identify, analyze, and implement mitigation measures that will avoid any disproportionate significant adverse environmental impacts to the maximum extent possible. Consistent with the authorizing statute for the EJ rules, the Department has revised its proposed regulations to clarify that if the impacts cannot be avoided or minimized, the applicant must still offset the impacts. While the statutory text requires mitigation and offsets to be evaluated “using verifiable measures,” the regulations offer no further descriptions of mitigation or offset measures and no examples of how the measures must specifically benefit affected EJ areas. Concerned parties await the regulations’ implementation to see how these requirements will be interpreted in practice.
These regulations were issued pursuant to Article X of the Public Service Law (“Article X”), which was reauthorized last summer to reestablish a comprehensive regulatory regime for power plant siting. Article X displaces the State Environmental Quality Review Act (“SEQRA”) process for covered projects, but mandates several of its own environmental analyses of facilities’ impacts. Review under the new Article X process is just beginning this year; it remains to be seen how DEC’s new environmental justice regulations will be implemented, or whether similar requirements will be incorporated into SEQRA in the future.
For more information about DEC’s new EJ regulations for power plants, contact Jeffrey Gracer.
Priya Murthy is a Summer Associate at Sive, Paget & Riesel.