G THE B IN EN V C R H E S A N 8 D 8 B 18 AR CE WWW. NYLJ.COM SIN VOLUME 265—NO. 91 THURSDAY, MAY 13, 2021 Environmental Law Expert Analysis Emerging State-Level Environmental Justice Laws nvironmental justice (EJ) 1994, directed all federal agencies to has grown in prominence make achieving EJ part of their mis- in the political discourse sions. It established various EJ coun- in the last several years. cils and directed agencies to elevate While most of the attention EJ in their organizational structures. Ehas gone to federal actions, several By And It established the “Justice40 Initia- Michael B. Edward states have just adopted their own Gerrard McTiernan tive,” which aims to direct 40% of laws to advance EJ. the overall benefits of certain federal The basic idea behind EJ is that investments toward disadvantaged disadvantaged communities should it is “the policy of my Administra- communities. The diversity of those not be disproportionately exposed tion to secure environmental justice appointed by President Biden to his to environmental hazards, that and spur economic opportunity for administration further highlights his these communities should have a commitment to EJ. say in the actions that affect their The basic idea behind EJ is that These and many other actions aim environment, and that the environ- to advance EJ at the federal level. disadvantaged communities mental laws should be vigorously The focus of this column, however, enforced there. should not be disproportionately is on the EJ provisions in New York During his 2020 campaign Joe exposed to environmental hazards, law and those recently enacted by Biden highlighted the priority he that these communities should other states. would give to EJ if elected, and have a say in the actions that affect New York a week after his inauguration as their environment, and that the President he issued Executive Order environmental laws should be Some aspects of EJ have been 14008, Tackling the Climate Crisis vigorously enforced there. enshrined in New York law since at Home and Abroad. It states that at least 1986, when the Court of disadvantaged communities that Appeals ruled that secondary dis- have been historically marginalized placement of low-income persons MICHAEL B. GERRARD is a professor and direc- and overburdened by pollution and as a result of a proposed project tor of the Sabin Center for Climate Change Law at underinvestment in housing, trans- must be considered under the State Columbia Law School, and Senior Counsel to Arnold & Porter. He is co-editor (with Sheila F. Foster) of The portation, water and wastewater Environmental Quality Review Act Law of Environmental Justice (ABA 2009). EDWARD infrastructure, and health care.” (SEQRA). Chinese Staff & Workers MCTIERNAN is a partner with Arnold & Porter, and a former General Counsel of the New York State This order, amending President Bill Ass’n v. City of New York, 68 N.Y.2d Department of Environmental Conservation. Clinton’s EJ Executive Order 12898 of 359 (1986). In 2000 an administrative THURSDAY, MAY 13, 2021 law judge of the state Department public investments in these areas.” DEC to prepare “a strategy to reduce of Environmental Conservation The CLCPA created a Climate emissions of toxic air contaminants (DEC) ruled that EJ impacts must Justice Working Group that “will and criteria air pollutants in disad- be considered in the SEQRA review establish criteria to identify dis- vantaged communities affected by a of DEC permits for a proposed solid advantaged communities for the high cumulative exposure burden.” waste transfer station. In re Ameri- purposes of co-pollutant reductions, E.C.L. §75-0115. can Marine Rail. In 2003 DEC issued greenhouse gas emissions reduc- Perhaps most significantly, and its Commissioner Policy on Envi- tions, regulatory impact statements, similar to President Biden’s Jus- ronmental Justice and Permitting. and the allocation of investments tice40 Initiative, the CLCPA pro- The first entry of EJ into the stat- related to this article,” E.C.L. §75- vides that “State agencies…shall, ute books also came in 2003, when 0111, and a Just Transition Work- to the extent practicable, invest or EJ was added to the list of factors ing Group to advise on “workforce direct available and relevant pro- for DEC to consider in selecting development and training related to grammatic resources in a manner remedial actions for brownfield energy efficiency measures, renew- designed to achieve a goal for dis- sites. E.C.L. §27-1415.3(i)(vii). able energy and other clean energy advantaged communities to receive The Power NY Act of 2011 modi- technologies, with specific focus on forty percent of overall benefits of fied the procedures for approving spending on clean energy and ener- major power plants, and it required Most states—arguably led gy efficiency programs, projects or applications to include “analysis of by California—have statutes, investments in the areas of housing, environmental justice issues…[and] workforce development, pollution regulations, executive orders, an evaluation of significant and reduction, low income energy assis- adverse disproportionate impacts or guidance on some aspects tance, energy, transportation and of the proposed facility,” a “cumula- of EJ. Some of these merely call economic development, provided tive impact analysis of air quality for studies or establish advisory however, that disadvantaged com- within a half-mile of the facility,” and committees; others go further. munities shall receive no less than a “comprehensive demographic, In the last year, four states have thirty-five percent of the overall ben- economic and physical description passed strong new EJ legislation, efits of spending on clean energy of the community…within a half- while two other states adopted and energy efficiency programs, mile radius.” Pub. Auth. L. §164. DEC projects or investments…” E.C.L. more modest EJ bills. issued implementing regulations in §75-0117 (emphasis added). (The 2012. 6 N.Y.C.R.R. Part 487. training and workforce opportuni- meaning of “overall benefits” is the Much stronger EJ provisions were ties for disadvantaged communi- subject of much discussion today.) included in the Climate Leadership ties,” E.C.L. §75-0103. Section 7.3 of the CLCPA dictates, and Community Protection Act The CLCPA directed DEC to issue “In considering and issuing permits, of 2019 (CLCPA), which we have regulations that “ensure that activi- licenses, and other administrative written about in a prior column. ties undertaken to comply with the approvals and decisions…all state It declared that “[a]ctions under- regulations do not result in a net agencies, offices, authorities, and taken by New York state to mitigate increase in co-pollutant emissions divisions shall not disproportionate- greenhouse gas emissions should or otherwise disproportionately ly burden disadvantaged communi- prioritize the safety and health of burden disadvantaged communi- ties…All state agencies…shall also disadvantaged communities, con- ties,” and “prioritize measures to prioritize reductions of greenhouse trol potential regressive impacts of maximize net reductions of green- gas emissions and co-pollutants in future climate mitigation and adap- house gas emissions and co-pol- disadvantaged communities.” The tation policies on these communi- lutants in disadvantaged commu- legal significance of this provision ties, and prioritize the allocation of nities.” E.C.L. §75-0109. It also told has yet to be tested in the courts. THURSDAY, MAY 13, 2021 The CLCPA directs the Public measures to avoid such impacts. 19 located in or near EJ communi- Service Commission to “design pro- N.Y.C.R.R. §900-2.20. ties to install fence line monitor- grams in a manner to provide sub- The statute that would imple- ing systems (S.4378A, A.6251). stantial benefits for disadvantaged ment the “Restore Mother Nature” Further EJ provisions are in the communities…including low to environmental bond act, which will Climate and Community Investment moderate income consumers,” and be on the ballot this November, Act (S.4264A, A.6967), which is cur- to direct at least 20% of investments requires DEC to “make every effort rently under consideration in both in residential energy efficiency to practicable to ensure that thirty-five chambers. go to disadvantaged communities. percent of the funds…benefit envi- Other States Pub. Serv. L. §66-p. ronmental justice communities.” In 2019, New York enacted a new 2021 NY Laws ch. 59 part UU. Most states—arguably led by Cali- Article 48 of the Environmental Con- On March 3, 2021, the New York fornia—have statutes, regulations, servation Law, focused entirely on State Senate passed a package of executive orders, or guidance on EJ. It states, “It is hereby declared bills pertaining to EJ. Each has a some aspects of EJ. Some of these to be the policy of this state that counterpart in the State Assembly, merely call for studies or establish all people, regardless of race, color, whose environmental committee advisory committees; others go religion, national origin or income, is now considering them. These further. In the last year, four states have a right to fair treatment and include bills that would: have passed strong new EJ legisla- meaningful involvement in the • Require fossil-fuel burning tion, while two other states adopted development, implementation and power plants located in or near more modest EJ bills. enforcement of laws, regulations EJ communities and which oper- New Jersey: On Sept. 18, 2020, and policies that affect the quality ate only during peak periods to Gov. Phil Murphy signed “An Act of the environment.” E.C.L. §48- convert to renewable energy on Concerning the Disproportionate 0101. It creates a Permanent Envi- a set timetable (S.4378A, A.6251) and Public Health Impacts of Pol- ronmental Justice Advisory Group • Require an environmental lution on Overburdened Communi- (whose members have still not been impact statement for projects ties,” Senate No.