As if he were making a last-ditch effort to avoid receiving a lump of coal from Santa Claus, New York Governor Andrew Cuomo signed legislation (S.2385/A.1564) last December to make Environmental Justice (EJ) more than just a nice slogan.
“Environmental justice” is the idea that minority and low-income communities should not suffer more than their fair share of exposure to environmental contaminants and that they be active participants in making decisions that affect their community’s environment.
The law creates a permanent (EJ Advisory Group (the “EJ Board”)), as well as an EJ Interagency Coordinating Council. This sweeping EJ law touches almost every State agency and will require that State agencies adopt rules and regulations setting forth their EJ policies.
The EJ Board will be made up of at least 11 members coming from (i) community-based organizations that serve minority and low-income communities on environmental matters, (ii) the business community, and (iii) environmental conservation offices of local government. The remaining members will consist of representatives from state or national organizations who promote environmental conservation research and education.
The EJ Board will have the power adopt a model EJ policy applicable to all New York State agencies that engage in activities or operations that may have a “significant effect on the environment.” This could include almost every State agency but will certainly include the Department of Environmental Conservation, Department of Transportation and the New York Power Authority, to name a few.
In addition, the EJ Board has been tasked with advising State agencies of their responsibilities under the new EJ legislation, monitoring State agencies’ compliance with EJ policies, making recommendations to the governor, legislature and State agencies on measures to improve EJ policies, and drafting an annual report on State agencies’ compliance with state and federal EJ laws. The EJ Board will also have the power to “conduct public hearings with respect to any matter within the scope of its functions, powers and duties.” The broad language contained in the foregoing provision suggests that the EJ Board will be able to conduct public hearings with respect to any proposed project, legislation or rule that may have a “significant effect on the environment.”
The Interagency Coordinating Council will serve as a clearinghouse for state agencies and the public for information on EJ policies, and will maintain a website and toll-free telephone number to inform the public on EJ issues. The Council will consist of government officials from various State offices and agencies, including the DEC and DOT Commissioners, the Commissioner for the Department of Economic Development, and the President of the New York State Energy Research and Development Authority (NYSERDA). It is slated to meet at least quarterly, including one annual joint meeting with the EJ Board.
Importantly, the creation of the EJ Board allowed the Climate Leadership and Community Protection Act (CLCPA) (S.6599/A.8429), which is New York’s ambitious and aptly named “Climate Change Law,” to be implemented starting January 1, 2020. There were concerns from EJ advocates that Governor Cuomo would sit on the EJ bill into 2020 or beyond, which would have delayed the implementation of the CLCPA. Thanks to Governor Cuomo’s signing of the law, the EJ and climate change-community have breathed a collective sigh of relief.
CLICK HERE to read the text of the new EJ Law.
Contact the attorneys of Periconi, LLC at 212-213-5500 if you are or your clients are contemplating a project within environmental justice communities and have any questions about potential impacts or legal consequences.