On January 29, 2025, the New York State Department of Environmental Conservation (NYSDEC) announced the release of Draft Amendments to the State Environmental Quality Review Act (SEQRA) regulations, codified at 6 NYCRR Part 617, as well as accompanying proposed revisions to NYSDEC’s Short and Full Environmental Assessment Forms (EAFs).  These proposed amendments incorporate provisions of what has become known as the Environmental Justice Siting Law (EJSL). The proposed amendments also add new categories to the list of “Type II” actions which are exempt from SEQRA review.

Background: 2022 Statutory Changes to Environmental Justice Siting Law

As discussed in greater detail in a previous SPR blog post, on December 31, 2022,  Governor Kathy Hochul signed the EJSL (Chapter 840 of the Laws of 2022), then known as the Cumulative Impacts Bill, into law.  The EJSL was later amended through a chapter amendment approved on March 3, 2023 (Chapter 49 of the Laws of 2023). The EJSL was the second law of its kind to be enacted in the country, following New Jersey’s Environmental Justice Law in 2020.

The EJSL mandates that environmental justice concerns be considered in the SEQRA review process and NYSDEC state permit approval process. Specifically with respect to SEQRA, the EJSL requires the SEQR process to consider the “effects of any proposed action [subject to a determination of significance] on disadvantaged communities, including whether the action may cause or increase a disproportionate pollution burden on disadvantaged community” when making the determination of significance under SEQR (that is, the SEQR lead agency decision of whether to prepare or cause to be prepared an environmental impact statement). NYSDEC’s proposed regulations implement this requirement; NYSDEC will propose regulations addressing permitting at a later time.

Highlights of NYSDEC’s Proposed SEQRA Amendments

The proposed SEQRA regulation amendments present a straightforward implementation of the EJSL’s express requirements. The proposed amendments provide that (1) in making a determination of significance, lead agencies must assess whether the proposed action “may cause or increase a disproportionate pollution burden on a disadvantaged community that is directly or significantly indirectly affected by such action,” and (2) where an environmental impact statement (EIS) is needed, lead agencies must analyze the effects of the proposed action on any affected disadvantaged community, including whether the action “may cause or increase a disproportionate pollution burden on a disadvantaged community.” The fact that an action “may cause or increase a disproportionate pollution burden” on an affected disadvantaged community is an indicator that the action will have a significant adverse impact on the environment.

The proposed amendments use the same definition of “disadvantaged community” as the EJSL and the Climate Leadership and Community Protection Act (CLCPA). An in-depth explanation of how “disadvantaged community” is defined in the CLCPA can be found in SPR’s prior blog post on this issue.

The proposed amendments also add questions to the EAFs addressing a proposed action’s potential impacts on disadvantaged communities within ½ mile of the project location, or further away if potential off-site impacts could be expected within a disadvantaged community outside of the ½ mile radius.  NYSDEC has also created a Disadvantaged Community Assessment Tool (DACAT) to assist agencies in “assess[ing] disproportionality and consider[ing] whether a potentially affected disadvantaged community … has an increased likelihood of experiencing a moderate to large impact based on existing burdens or vulnerabilities as compared to relevant non-DACs,” which is one of the new questions in the Draft EAFs.  The tool maps certain metrics used in identifying disadvantaged communities in comparison to Statewide and regional burdens, and provides separate and combined scores which are used in flagging communities as “having comparatively higher existing burdens or vulnerabilities.”

NYSDEC also issued a draft workbook guidance for the EAFs relating to assessing effects on disadvantaged communities, and a “Frequently Asked Questions” document.  The draft workbook guidance states that in determining whether no or a small impact may occur to disadvantaged communities, one factor is that the community is identified by the DACAT as having comparatively lower burdens or vulnerabilities.  Conversely, if a disadvantaged community affected by the project has comparatively higher burdens or vulnerabilities, the workbook indicates that there is an increased likelihood the proposed action may have a moderate to large impact on that community. The workbook guidance instructs agencies to consider various sources of pollution including air emissions, wastewater discharges, solid and hazardous waste, noise, lighting, and odors in terms of the potential effects on disadvantaged communities.

Notably, pending the finalization of the regulations, EAFs and guidance, agencies are already subject to the requirements of the EJSL, which became effective on December 30, 2024, in making determinations of significance and preparing EISs. The FAQ states: “Completion of a negative declaration or acceptance of a draft EIS before December 30, 2024, will allow an agency to proceed with its discretionary decision (funding, approval or undertaking) without a reevaluation specific to disadvantaged communities. However, any public comments concerning disadvantaged communities received during the public comment period of the accepted draft EIS should be addressed by the lead agency as part of the final EIS.”

Separate from implementing the EJSL, the proposed amendments also amend the Type II list of actions, which are actions that do not require a SEQRA review. Notably, the updated list now includes the construction or expansion of a multifamily dwelling consisting of a three-family residence and residential construction projects involving buildings with four or more dwelling units, provided they:

• Do not exceed 10,000 square feet,
• Are constructed on an approved lot,
• Are connected to an existing public water and sewer system, and
• Constitute a permitted use under the applicable zoning law or ordinance.

The amendments also expand the Type II list to include the construction or rehabilitation of appurtenant structures, including sidewalks, parking areas, playgrounds and landscaping, and actions requiring a major renewable energy facility or a major electric transmission siting permit under article VIII of the New York State Public Service Law, which are provided by the Office of Renewable Energy Siting and Electric Transmission (ORES).

Finally, the draft amendments to the EAFs are also intended to strengthen provisions on climate change, including questions to further implement the Community Risk and Resiliency Act (CRRA, Chapter 355 of the Laws of 2014, as amended by Chapter 106 of the Laws of 2019). The changes to the forms add questions on whether the action is taking place in a 500-year floodplain and areas that may be inundated by sea level rise due to climate change. Alongside those changes are technical corrections and clarifications to the climate change questions added to the forms in 2013 as well as questions related to other air pollution.

In its summary, NYSDEC notes that it intends to propose additional regulations to address the EJSL requirement for NYSDEC to incorporate environmental justice concerns into its permit approval process.

NYSDEC is accepting public comments on its draft amendments until May 7, 2025. Public hearings will take place throughout the month of April, both virtually and in-person.

With contributions from Elizabeth Knauer.