Environmental Groups File Comments on DEC Approach to Enforcing Climate Leadership and Community Protection Act

Albany, New York — Today, environmental groups filed a response to two draft policy documents from the Department of Environmental Conservation that will determine how the key environmental regulator will implement and enforce New York’s nation-leading climate law, the Climate Leadership and Community Protection Act (CLCPA). 

The two draft policy documents, DAR-21 and CP-49, propose how the DEC will enforce Section 7(2) of the CLCPA, which determines how new and existing polluting infrastructure would qualify for an air permit. However, DEC delayed providing guidance on Section 7(3), a central component of the CLCPA’s environmental justice rules that rejects any proposed action that would result in adverse impacts to communities already burdened by high levels of pollution and other inequities, and further, prioritizes actions to reduce pollution in these communities.

DEC, who recently cited the CLCPA as a major reason for the denial of permits for two fossil fuel power plants, has an urgent role in enforcing these sections because the rules apply to all state agencies, which will refer to DEC’s finalized guidance before evaluating and determining a proposed action’s compliance and consistency with the State’s Environmental Conservation Law. The current proposal does not make clear that the DEC is obligated to reject applications for infrastructure that will increase emissions. To this end, the organizations assert that DEC must revise the draft policy documents to ensure the agency will uphold the law’s commitment to an equitable phasedown of all greenhouse gas emissions that prioritizes disadvantaged communities. 

“The mandate to rapidly reduce emissions, and to do so in a way that prioritizes the present and historical impacts of polluting infrastructure on disadvantaged communities, is a keystone of the CLCPA,” said Josh Berman, Senior Attorney at Sierra Club’s Environmental Law Program. “Sierra Club welcomes the opportunity to comment, and urges DEC to strengthen DAR-21 and CP-49 to better reflect this foundational CLCPA commitment to rapidly scaling down all greenhouse gas emissions, and to strengthen the guidance to clarify that projects that cannot comply with Section 7(3) cannot be permitted in New York.” 

“These policies will govern how the DEC implements the Climate Leadership and Community Protection Act throughout agency decisions on permit applications and beyond. That’s why it is critical that the agency gets it right: its decisions must be made according to a framework that will ensure the state can deliver on its promises of a rapid and equitable transition to a zero-emission economy,” said Hillary Aidun, Associate Attorney at Earthjustice.

“Environmental justice organizations were integral to the drafting and ratification of the landmark Climate Leadership and Community Protection Act. The communities hit first and worst by climate change and other environmental calamities will not permit their government to punt on, or otherwise treat environmental justice as a peripheral exercise,” offered Anthony Karefa Rogers-Wright, Environmental Justice Director with New York Lawyers for the Public Interest. “To this end, we know that the implementation phase of any policy is the proverbial make or break phase. New York Lawyers for the Public Interest (NYLPI), in coordination with our partners, is pleased to offer comments and recommendations such that the Department of Environmental Conservation and other State agencies enforce the CLCPA from a lens of climate and environmental justice.”

For any technical questions or other background, reach out to: Josh Berman, Senior Attorney, Sierra Club Environmental Law Program, josh.berman@sierraclub.org; Hilary Aidun, Associate Attorney, Earthjustice, haidun@earthjustice.org 

CLCPA Section 7(2) requires all state agencies, when issuing permits, or granting approvals or licenses, to evaluate whether the proposed action is inconsistent with or will interfere with achievement of the CLCPA's emissions mandates (40% reduction in GHGs by 2030, 100% zero emissions electric sector by 2040; 85% reduction in GHGs by 2050). Where an agency finds an action inconsistent, it must determine whether that action is nevertheless justified, and if it is justified, it must establish mitigation measures or identify alternatives.

CLCPA Section 7(3) stipulates that state agencies are not allowed to "disproportionately burden disadvantaged communities" when issuing permits, or granting approvals or licenses. Agencies must also prioritize reductions of GHGs and co-pollutants in disadvantaged communities.