EJ Issue to Watch: Governor Hochul Sitting on Passed Cumulative Impact Analysis Bill

This piece is part of our Student Blog Series, featuring posts on climate, clean energy, and environmental issues from the State Impact Center’s legal interns and other students working with the Center.

The passage of New York’s cumulative impacts analysis bill (“Cumulative Impacts Bill”), New York Bill S8830/A2103D, was heralded by environmental justice groups as groundbreaking after the state’s legislature voted for its enactment at the end of April 2022. The bill, not yet signed by Governor Hochul, would amend the State Environmental Quality Review Act (“SEQRA”)¹ (i) to require analysis of a project’s cumulative impacts on “Disadvantaged Communities”² before a permit³ is approved or renewed, and (ii) to prohibit the approval or renewal of a project which “may cause or contribute to, either directly or indirectly, a disproportionate or inequitable or both disproportionate and inequitable burden on a disadvantaged community.”⁴ The National Environmental Policy Act’s regulations state that cumulative impacts “are the effects on the environment that result from the incremental effects of [individual] action[s] when added to the effects of other past, present, and reasonably foreseeable actions….”⁵

New York’s Cumulative Impacts Bill requires responsible agencies to consider a proposed project’s potential burden on a Disadvantaged Community both when determining if an Environmental Impact Statement is necessary and as part of the Environmental Impact Statement if one is required.⁶ The bill also tasks New York State Department of Environmental Conservation (“NYSDEC”) with preparing an “existing burden report”⁷ describing the existing pollution burden in a Disadvantaged Community. NYSDEC must consider such report when determining whether a project will directly or indirectly cause a disproportionate and/or inequitable burden in the community.⁸

Most importantly, this bill strengthens SEQRA to prohibit NYSDEC from approving any permit or renewal if the project may exacerbate the inequitable and/or disproportionate burden that an affected Disadvantaged Community carries.⁹ SEQRA generally requires an evaluation of a project’s potential significant impacts. However, without the proposed amendments, SEQRA does not explicitly prohibit the approval or renewal of permits for projects that impose additional inequitable/disproportionate environmental burdens on a Disadvantaged Community.

There is one analogous statute in a different state. New Jersey’s Environmental Justice Law of 2020 (“EJ Law”) similarly requires an assessment of the potential environmental and public health stressors that would result if a permit¹⁰ is approved or renewed in what the state defines as an “Overburdened Community.”¹¹ The analysis culminates in an Environmental Justice Impact Statement, which must be published to provide an affected Overburdened Community an opportunity to weigh in on the permitting/renewal decision. New Jersey’s Department of Environmental Protection recently issued a proposal for regulations implementing the statute. (See the June 6, 2022, Proposed Rule.)

There are a couple significant differences between the two statutes. First, in contrast to the New York bill, under New Jersey’s EJ Law, the NJ DEP “is not authorized to deny a permit renewal on the basis of cumulative impacts, but can impose specific conditions to minimize impacts in the overburdened community.” New York’s bill, on the other hand, prohibits the renewal of any such permits that may impose an additional inequitable and/or disproportionate burden on a Disadvantaged Community.¹²

In another contrasting point, New Jersey’s EJ Law provides that the NJ DEP shall deny a permit for a new facility if it would “cause or contribute to the adverse cumulative” impacts on an overburdened community unless the department finds the new facility “will serve a compelling public interest in the community where it’s to be located,” in which case a permit may be approved with conditions to protect public health.¹³ The language of New York’s Cumulative Impacts Bill does not include a similar “compelling public interest” exception, either for new facility permits or for permit renewals. The compelling public interest exception requires NJ DEP to consider whether the community supports the proposed facility permit “without considering economic benefits or tax revenue.” Some find the exclusion of an economic benefits consideration to be contradictory, however, since one of the stressors that the EJ Law focuses on is unemployment, and the Overburdened Community might find the economic benefits of a proposed facility, such as job creation, to be an important consideration in the permitting/renewal decision.

Governor Hochul has not signed New York’s Cumulative Impacts Bill, and – considering that many facilities currently sited in Disadvantaged Communities would be affected by it – the bill is likely being discussed between her office and stakeholders. If Governor Hochul does not sign the bill before the end of this year and before the start of the next legislative session, the bill will have to be reconsidered and passed by the legislature again during its session next year. Briana Carbajal from WE ACT for Environmental Justice, an organizational leader and strong supporter of the bill, explained in an interview that this past session, the bill passed with overwhelming support from both houses in the legislature. The advocacy group wants the Governor’s office to prioritize this bill and the protections that it affords to Disadvantaged Communities by codifying the bill into law before the end of this year.

States will need to conduct a thorough analysis of how overburdened communities may be further subjected to an inequitable distribution of environmentally impactful projects, and stemming the flow of these projects to these communities is a crucial piece of their environmental justice work. By addressing the disproportionate pollution and health burdens faced in communities of color and low income communities, and providing meaningful roadblocks to additional siting inequities, New York can pave the way toward environmental equity in the state with this Cumulative Impacts Bill.