New York Makes It Easier to Identify Potential Environmental Justice Communities

The New York State Legislature passed legislation on Tuesday, April 30, that requires the state’s Department of Environmental Conservation (DEC) to publish a biennial list of “high local environmental impact zones” – areas that are most adversely affected by existing environmental hazards. The legislation amends New York’s Environmental Conservation Law to more proactively identify, evaluate and understand locations that are disproportionally environmentally burdened. 

The list will identify high local environmental impact zones in as much detail as practical and will identify these areas by census tract, census block group or ZIP code.  In compiling the list, the DEC must consider various types of potentially adverse environmental impacts, including: 

  1. Releases of toxic chemical and petroleum discharges.
  2. Emissions, discharges, and stored waste authorized by permits.
  3. The amount of pesticides sold and used.
  4. The number of DEC-determined impaired water bodies.
  5. The presence of inactive hazardous waste disposal sites.
  6. Whether the area has been designated as nonattainment for any pollutant under the federal Clean Air Act.

In a news conference related to the bill, state Sen. José Marco Serrano (D)—the bill’s Senate sponsor—stated, “This information is critical when citing new facilities, when taking into account the transparency needed for any kind of development in a community, but it will also shine a spotlight on these hot spots, these areas that have an over-saturation of detrimental environmental causes.”

By passing this legislation, New York explicitly recognizes that the residents of communities with a high presence of environmental pollution are more afflicted with associated health problems and that such communities are disproportionally populated by persons of low income and/or persons of color. The legislature’s goal is that local and state agencies rely on the DEC-published list in making future siting decisions and that these decisions engage in “fair treatment” whereby considerations of potential adverse impacts on over-burdened communities is appropriately considered. The legislation furthers New York’s efforts to act consistently with President Bill Clinton’s 1994 Executive Order on Environmental Justice, which requires the consideration of environmental justice issues in certain federal government actions.

Although the new legislation does not mandate consideration of the DEC list in environmental decision-making, it is another example of a growing trend among states prioritizing environmental justice concerns.  Industry, government and other stakeholders, therefore, should remain aware of DEC’s application of this new law, identified impact zones, and any related state legislation that may arise – including among other states that may propose similar analysis.  Implementation of this law may also shed light upon how state regulators define environmental justice communities and will assist in assessing impacts and risks related to these identified areas.

While both houses of the New York State Legislature passed the bill, Governor Andrew Cuomo must sign the measure for it to become law. All signs point to him doing that as both environmental and business groups have expressed support for it.

Beveridge & Diamond’s Environmental Justice (EJ) practice represents multinational companies and municipal clients in complex environmental disputes and high-profile project management, corporate ethics, environmental compliance, and investigative EJ and Title VI matters. We bring together a group of diverse lawyers who have not only advised clients on EJ matters for decades but also who know how to help industry clients proactively address EJ opportunities and challenges.