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New York State Passes Landmark Environmental Justice Legislation

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On the final day of 2022, New York Gov. Kathy Hochul signed into law the Cumulative Impacts Bill (CIB), which both houses of New York State’s legislature had passed eight months earlier in the year (language here: S.8830 and A.2103D). The legislation amends New York’s Environmental Quality Review Act by now requiring the State to consider during its permitting approval and renewal processes an analysis of the “cumulative impacts” on overburdened communities that could result over time from the introduction or expansion of facilities that are potential sources of pollution and other public health hazards. New York’s CIB is emblematic of increased national attention to environmental justice issues over the past few years.

State agencies looking to approve the building or expansion of facilities in or near disadvantaged communities must now prepare or have prepared environmental impact statements that assess whether a facility’s operations will cause or exacerbate an already disproportionate burden on disadvantaged communities by increasing the likelihood not necessarily of immediately discernible negative effects, but of long-term health and environmental consequences that result from combined cumulative exposures. According to the Senate version of the CIB, environmental impact statements must specifically include:

  • A description of the proposed action and the surrounding environmental setting;
  • The short- and long-term environmental effects of the proposed action;
  • Any adverse environmental effects that “cannot be avoided” if the proposed action occurs;
  • Alternatives to the proposed action;
  • Any irreversible commitments of resources the proposed action would require;
  • Proposed mitigation efforts to minimize environmental impact;
  • Any applicable and significant “growth-inducing aspects” of the proposed action;
  • Effects of the proposed action on the use and conservation of energy resources;
  • Effects of the proposed action on solid waste management;
  • Effects of the proposed action on and consistency with the comprehensive management plan of the special groundwater protection area program;
  • Effects of the proposed action on disadvantaged communities, “including whether the action may cause or increase a disproportionate or inequitable or both disproportionate and inequitable pollution burden on a disadvantaged community”; and
  • A summary of the substantive comments received by the agency, as well as the agency response.

Following on the heels of neighboring New Jersey—which passed similar environmental justice legislation in 2020 (covered by ELM here)—New York is only the second state in the nation to mandate cumulative impact assessments of expanding industry on overburdened communities. These laws, however, are part of a larger trend of government agencies beginning to prioritize communities most burdened by the public-health and environmental hazards that often accompany the companies that set up shop disproportionately throughout the US in low-income neighborhoods and communities of color, as the US Environmental Protection Agency detailed in a 2021 study. Indeed, the EPA itself has created a number of landmark environmental justice initiatives meant to combat the inequitably distributed health and environmental effects of development on disadvantaged communities throughout the US, including the creation within the EPA of an Office of Environmental Justice and External Civil Rights (covered by ELM here).

Although we have yet to learn exactly how the law will be implemented, a determination that regulators will make prior to the law taking effect in late 2023, CIB does seem to add another bureaucratic hurdle for developers, which will likely increase the amount of time and costs that go into development projects. According to supporters of New York’s new environmental justice legislation, however, such investment is worth it because, “For far too long communities of color across the state have been subject to an overburden of pollution sources and facilities. This legislation will help course correct the wrongs perpetrated on environmental justice communities by ensuring a new standard.”