New York State’s Department of Environmental Conservation (DEC) is jointly co-hosting a series of “environmental justice listening sessions” with the federal Environmental Protection Agency (EPA). The first session takes place on April 15 from 5 to 7:30 p.m. at the Niagara Arts and Cultural Center on Pine Avenue in Niagara Falls. Attendees will be invited to share their environmental concerns and priorities with agency officials to enable DEC to meet its purported goal of establishing stronger relationships with community leaders and people potentially affected by environmental pollution.
DEC defines “environmental justice” (“EJ”) in a 2003 policy statement, entitled CP-29 Environmental Justice and Permitting, as follows:
“Environmental justice means the fair treatment and meaningful involvement of all people regardless of race, color, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Fair treatment means that no group of people, including a racial, ethnic, or socioeconomic group, should bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.”
See CP-29 EJ directive (3/19/2003). As expressed in DEC’s EJ definition, “fair treatment” requires that no group of people bears “a disproportionate share of negative environmental consequences.”
DEC’s CP-29 recognizes that SEQRA – the State Environmental Quality Review Act – and, notably, the preparation of Environmental Impact Statements (“EIS”), play a critical role both in creating an “effective” environmental justice program, and in analyzing disproportionate adverse environmental impacts. Not only is adherence to the requirements of “SEQR” – the DEC regulations implementing SEQRA’s legislative mandates, found at 6 NYCRR Part 617 – “strongly encouraged”, the EJ policy directive calls for:
(1) adoption of regulations to establish additional criteria for determining significance pursuant to 6 NYCRR 617.7 (that is, determining whether a “Positive Declaration” must be issued and EIS prepared), and
(2) DEC’s review of the list of “Type 1 actions” at 6 NYCRR 617.4 – that is, proposed projects or policies that carry the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS – to evaluate the need for amendments to include actions that may bear disproportionately on potential environmental justice areas, and to draft regulations based upon the evaluation.
Despite the passage of 21 years since the issuance of CP-29, DEC has neither added criteria for “determining significance” relating to environmental justice concerns, nor added to its list of “Type 1” actions projects or policies that may bear disproportionately on potential EJ areas. Equally disturbing, DEC has accompanied its failure to affirmatively act to strengthen SEQR’s role in creating an effective EJ program with the adoption of a new category of “Type 2” actions at 6 NYCRR 617.5 that may disproportionately burden environmental justice areas. A “Type 2” action is a class of proposed projects that the DEC determines will never have a significant impact on the environment and, as a result, requires no environmental review under SEQR. The problematic addition to the “Type 2” list is found at 6 NYCRR 617.5(c)(14), and excludes SEQR review for the “installation of solar energy arrays” of 25 acres or less at the site of closed landfills, brownfield sites that have received a Brownfield Cleanup Program certificate of completion (“COC”), inactive hazardous waste disposal sites that have received full liability release or a COC, and currently disturbed areas at public-owned wastewater treatment facilities.
Closed landfills, brownfield sites, inactive hazardous disposal sites, and existing public-owned wastewater treatment facilities are precisely the kinds of sites – in light of their historic uses – that require greater, not lesser, scrutiny as likely to place a disproportionate burden on potential environmental justice areas.
SEQRA – despite its many flaws – is the most effective tool available to the public and government decisionmakers to ensure informed assessment of a proposed project’s potential adverse environmental impacts and, as a result, informed and objective decision-making. SEQRA’s primary weapon – characterized by New York’s courts as “the heart of the SEQRA process” – is the environmental impact statement. Despite the critical role of the EIS, DEC has stood by for decades and done nothing to prevent the near extinction of the usage of environmental impact statements.
Consider the following facts. According to DEC’s own data, in 1989, 385 EIS’s were prepared statewide. By 1995, that number had fallen to 171. In 2023, the statewide figure was a dismal 41 EIS’s. To place that last number in context, in 2023, the various state and local agencies issued 948 Negative Declarations, determining that the proposed action was unlikely to have a significant adverse environmental impact. In other words, only 4.32% of the proposed projects and policies under review resulted in preparation of an EIS despite the fact that there is a relatively low threshold for requiring an EIS: an EIS must be prepared if a proposed action MAY have a significant effect on any one aspect of the environment.
[Note: SEQRA defines “environment” broadly to not only include physical conditions such as land, air, water, minerals, flora, fauna, noise and agricultural resources, it also includes socio-economic factors such as resources of archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health. See 6 NYCRR 617.2(l).]
Western New York’s compliance with SEQRA is worse than the statewide record. In DEC’s Region 9 – consisting of Niagara, Erie, Wyoming, Chautauqua, Cattaraugus and Allegany counties – only two Positive Declarations requiring preparation of an EIS were issued in 2016, one in Niagara County (by the Town of Lockport IDA) and one in Erie County (by the City of Buffalo Planning Board). Similarly, while 66 Negative Declarations were issued during 2023 by Region 9 lead agencies, only two Positive Declarations – 3.03% of the proposed actions under review – were issued, both in Cattaraugus County by the Town of Persia, and both (coincidentally) regarding proposed solar farms.
Until the DEC and state and local agencies – including the City of Niagara Falls – take their responsibility to fully comply with the letter and spirit of SEQRA seriously, there will be no such thing as an “effective” environmental justice program and no ability to adequately assess and compare a proposed project’s disproportionate adverse environmental impacts.
With All Due Respect,
Arthur J. Giacalone, Attorney-at-Law