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NY DEC Proposes Environmental Justice-Focused Amendments to SEQRA and UPA—Potential Impacts on Project Permitting
Monday, February 3, 2025

On Jan. 29, 2025, the New York State Department of Environmental Conservation (DEC) proposed amendments to its State Environmental Quality Review Act (SEQRA) (6 NYCRR Part 617) and the Uniform Procedures Act (UPA) (6 NYCRR Part 621) regulations to integrate environmental justice (EJ) considerations into environmental reviews. These amendments, mandated by Environmental Conservation Law (ECL) Article 8, build upon DEC’s final Division of Environmental Permits Policy “Permitting and Disadvantaged Communities” (DEP-24-1), which replaced the draft DEP-23-1 and has guided DEC permit applicants in assessing disproportionate burdens on disadvantaged communities (DACs) since its finalization on May 9, 2024. However, the proposed regulations would expand the scope of these requirements beyond DEC-regulated programs by incorporating disproportionate burden assessments into SEQRA, which applies to all lead agencies conducting environmental reviews, not just DEC. These amendments also align with New York’s 2023-2024 environmental justice siting law, which strengthened EJ protections in state permitting decisions. By codifying and broadening these EJ considerations, the amendments seek to ensure that projects located in or impacting DACs do not exacerbate existing pollution burdens, potentially influencing permitting outcomes and project timelines.

Disproportionate Pollution Burden in SEQRA Determinations

The proposed rule adds a new criterion to the determination of significance under SEQRA: an action that “may cause or increase a disproportionate pollution burden on a disadvantaged community that is directly or significantly indirectly affected by such action” (6 NYCRR § 617.7(c)(1)(xiii)). Under the existing regulatory framework, government actions resulting in at least one significant adverse environmental impact warrants a determination of significance, triggering the preparation of an Environmental Impact Statement (EIS) on the proposed action. Under the proposed changes offered by DEC, a determination of significance may be warranted based on potential disproportionate burdens to an associated DAC, even in the absence of significant adverse environmental impacts, triggering the need to prepare an EIS. Thus, the question of what constitutes a “disproportionate burden” becomes paramount for applicants seeking government funding or approvals subject to SEQRA.

Mandated Cumulative Impact Assessments and DEC Assessment Tools

DEC’s proposed regulations also facilitate preparation of required disproportionate burden analyses. Agencies must now evaluate whether an action would result in an increased burden on DACs by considering “reasonably related long-term, short-term, direct, indirect, and cumulative impacts” (6 NYCRR § 617.7(c)(2)). The proposed rule updates DEC’s Environmental Assessment Forms (EAFs) to require applicants to analyze and disclose potential disproportionate pollution burdens on DACs (6 NYCRR § 617.2(l)). These changes apply to both the Short Environmental Assessment Form (Appendix A) and Full Environmental Assessment Form (Appendix B). The revised EAF requirements place a greater responsibility on project sponsors to conduct detailed environmental justice assessments before submitting applications, which could add to project planning costs and development timelines.

The Role of the Disadvantaged Community Assessment Tool (DACAT)

To facilitate the implementation of cumulative impact assessments, DEC has introduced the Disadvantaged Community Assessment Tool (DACAT), a screening tool designed to identify DAC census tracts at risk of increased pollution burdens. Utilizing data from the Climate Justice Working Group (CJWG) DAC map, DACAT compares disadvantaged communities to statewide and regional non-DAC benchmarks and flags census tracts with a 25% higher pollution burden score for increased scrutiny. Thus, this tool is intended to help applicants and lead agencies identify DACs with existing pollution burdens. Rather than assessing project-specific impacts, DACAT relies on available data to flag areas based on historical environmental burdens, ensuring a standardized approach. Additionally, the tool designates all Indigenous lands as DACs, aligning with the finalized DAC map created by the CJWG, though this approach may prompt discussions about its regulatory implications. The proposed use of pre-set percentile scores to identify pollution burden provides certainty but may also invite feedback during the comment process regarding its flexibility. DEC will need to balance these factors as it evaluates the tool’s implementation.

Increased Permitting Hurdles

While a project’s environmental justice impacts have been considered under SEQRA, the proposed regulations require a more fulsome review of impacts to the surrounding community by requiring that an applicant assess whether a project or action poses a “disproportionate burden” on a DAC and, if so identified, include mitigation measures or alternative project designs.

Additional Substantive EJ Obligations Contained in Amendments to the Uniform Procedures Act (UPA)

In addition to SEQRA, DEC is proposing amendments to its Uniform Procedures Act, 6 NYCRR Part 621 (UPA), which governs how the agency processes permit applications, to further integrate environmental justice considerations into New York’s permitting reviews. These changes expand the scope of required environmental justice reviews by formalizing how “existing burden reports” are prepared in connection with certain DEC permit applications, including air facility permits, water discharge permits and solid waste permits. This change is required by the 2023 amendment to ECL Article 70, enacted as Chapter 49 of the Laws of 2023, which mandates that permit applicants prepare an existing burden report where the applicable permit “may cause or contribute more than a de minimis amount of pollution to any disproportionate pollution burden on a disadvantaged community.” ECL 70-0118(2)(a). Applications for permit renewals and modifications are also required to prepare existing burden reports, though DEC may exempt the applicant from such requirement if it determines that “the permit would serve an essential environmental, health, or safety need of the disadvantaged community for which there is no reasonable alternative.” ECL 70-0118(2)(b). See GT Alert,“New York Regulator Releases Draft Policy to Implement Environmental Justice Provisions of NY Climate Law,” October 2023.

Pursuant to ECL 70-0118, DEC must consider the existing burden report when considering any new permit application and provides that the agency “shall not issue an applicable permit for a new project if it determines that the project will cause or contribute more than a de minimis amount of pollution to a disproportionate pollution burden on the disadvantaged community.” ECL 70-0118(3)(b). Neither the amended statute nor the proposed regulations define that level of pollution as greater than de minimis. For permit renewals and modifications, the statute and proposed implementing regulations would preclude DEC from issuing permit renewals or modifications when permit renewal or modification “would significantly increase” the disproportionate burden on the DAC. ECL 70-0118(3)(c) and (d).

The proposed regulations also emphasize community participation, requiring applicants to demonstrate how they will mitigate disproportionate pollution impacts and engage with affected communities. Under the proposed rule, applicants must “provide opportunities for meaningful community engagement” and incorporate public feedback into project designs (6 NYCRR § 621.4(f)). This provision introduces potential new legal and regulatory risks for developers, as failure to meet these standards could result in permit challenges or denials.

As proposed by DEC, the amendments to SEQR and UPA could present challenges to applicants seeking air, water discharge or solid and hazardous waste permits implicating non-de minimis impacts on DACs. However, the recent statutory changes, as implemented by the draft regulations, could also impact projects in or near that DACs that aren’t commonly understood as burdensome to a community. Although these proposed regulations attempt to clarify the process DEC will apply for preparing and considering existing burden reports, many permittees may find themselves in uncharted waters under the new regulatory framework.

For example, renewable energy projects such as solar farms or wind turbines are generally considered environmentally beneficial, yet under the proposed framework, their siting within or near a DAC may trigger heightened scrutiny. While these projects aim to reduce carbon emissions, they could still introduce localized environmental concerns, such as land use changes, noise, or other cumulative burdens, requiring additional evaluation. Similarly, infrastructure improvements, including road expansions or public transit enhancements, may face greater regulatory hurdles. Although these projects often provide public benefits, their potential to contribute to temporary construction-related pollution, increased traffic congestion, or altered community dynamics could necessitate a more comprehensive review process.

While the draft regulations seek to provide clarity regarding how DEC will assess existing burden reports, many permit applicants may find themselves navigating an increasingly complex regulatory landscape. As a result, projects that historically may not have raised significant environmental justice concerns could now be subject to more stringent review, adding new layers of uncertainty to the permitting process. See N.Y. Dep’t of Envtl. Conservation, Program Policy DEP 24-1: Permitting and Disadvantaged Communities (2024).

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