Latest York’s Latest Environmental Justice Law
Unless amended or fastidiously implemented, there’s a risk the law could hurt the communities it’s meant to serve.
Latest York has enacted what often is the country’s most stringent environmental justice law. The state deserves credit for its commitment to remedying the unfair pollution burdens placed on disadvantaged communities. The law is so broadly worded, nevertheless, that it could have the potential to stop economic development that will aid those communities, and even recent facilities like hospitals which can be urgently needed by the community. It may additionally impede Latest York’s clean energy program, including its effort to direct green spending to disadvantaged communities.
This language is the core of the Latest York law:
“The department shall not issue an applicable permit for a recent project if it determines that the project will cause or contribute greater than a de minimis amount of pollution to a disproportionate pollution burden on the disadvantaged community.”
There are also provisions that require more extensive environmental study if a facility “may” cross over the de minimis level. (“De minimis” is lawyerese for “trivial”).
One thing to notice is that the trigger is whether or not the power would cause pollution in a disadvantaged community, not whether it’s positioned there. So any ban on recent air pollution sources would apply not locally but upwind.
Why might this provision be an issue: Consider a disadvantaged community that has disproportionate air pollution and in addition lacks good access to a hospital. If read strictly, the supply might prohibit putting a recent hospital in or near the community. Hospitals generate vehicle traffic from patients, staff, supply delivery, ambulances, and visitors. That traffic would add to local air pollution.
Or to take one other example, suppose a community needs a bigger water treatment plant and that the prevailing site isn’t suitable for an expansion. There’s a provision of the law that seems to permit a permit seems to permit an existing permit to be renewed, despite contributing to pollution, if “it might serve an important environmental, health, or safety need of the disadvantaged community for which there isn’t a reasonable alternative.” There’s no similar exception for brand new projects, so the community would need to manage without adequate water treatment.
The potential problem would also extend to other types of development. Suppose an organization wants to construct a recent electric vehicle factory in Latest York. Even apart regardless of the factory itself emits, there’s the identical problem of driving by employees (or extra bus service), deliveries of supplies and equipment, shipping of the finished cars, etc. The lesson appears to be that you simply shouldn’t construct the factory anywhere near a disadvantaged community that has an air pollution problem. That is perhaps the proper answer in a selected case, but it may include serious costs to the community. Putting the factory far-off from the community means those recent jobs will probably be inaccessible to community residents (and additionally they won’t profit from any increase within the tax base.) There’s a statute that exempts some clean energy projects from preparing an environmental impact statement however it doesn’t seem to handle exemptions from other environmental laws.
It’s possible that the drafters and supporters of the brand new law wanted exactly this result: either they didn’t think that useful projects would really be stopped or they prioritized coping with environmental injustice about these other community interests. But I’m guessing that isn’t the case. Listed here are some potential options for avoiding these results:
- Creative statutory interpretation. The state could interpret the “essential environmental, health, or safety” provision even to recent permits, despite the fact that it specifically refers only to renewals. That looks as if an actual stretch, though.
- Narrowing coverage. The department could define disproportionate burden in a way that limited the variety of communities that got here under this provision, and it could define de minimis broadly. This selection would limit the impact of the supply in cases involving projects that profit the community, but at the price of limiting coverage in cases involving undesirable projects.
- Avoiding the necessity for permits. The availability applies only to permits issued by the department somewhat than other authorities, so perhaps the department or the developer could work out ways to avoid the necessity to apply for a permit in the primary place. For instance, if facilities don’t need permits for air pollution they cause but don’t emit themselves, perhaps the hospital can electrify and get all its power off the grid.
- Offsets. Offsets might be used to permit construction. As an example, the brand new hospital might need to purchase some existing pollution sources in the realm and shut them down , in order that the online effect could be only a de minimis increase in pollution levels.
- Project modifications. As a substitute of 1 large facility, you can construct two smaller facilities, neither of which might end in emissions that exceed the di minimis level. In lots of circumstances, nevertheless, this may not be a really practical option. Or perhaps the power could avoid having a major effect on the realm in query by constructing a extremely tall smokestack, so only areas farther down wind could be significantly impacted.
Possibly a detailed reading of the law would reveal another escape hatches. Or, however, perhaps the law really is presupposed to be strict enough to stop the development of hospitals in or near disadvantaged communities and of many facilities that will create jobs for those community. It is going to actually be interesting to see how the implementation of the law proceeds. Alternatively,— and this appears to be what the governor has in mind — the legislature could amend the bill to permit construction of critical infrastructure.
Stay tuned for further developments.
