Climate change, or the alteration of global climate patterns due to increased levels of hydrocarbons in the atmosphere, continues to generate passion among members of the electorate. Environmental activists and politicians push for new policies specifically aimed at limiting the causes of increasing global temperature or mitigating its adverse consequences. In the wake of Hurricane Sandy, for example, Mayor Michael Bloomberg proposed a sweeping set of flood control and storm-proofing policies directed at increasing New York City’s ability to survive another powerful hurricane. At the state level, State Senator Diane Savino and Assemblyman Robert Sweeney advocated an approach that requires consideration of future physical climate risks into the permitting and policy making processes. The bill, entitled The Community Risk and Resiliency Act (SB 6617-B), passed both the Assembly and the Senate earlier this summer and was signed into law by Governor Andrew Cuomo on September 22nd.
The bill amends the portions of the New York Environmental Conservation Law, Public Health Law and the Agriculture and Markets law to require various government agencies, including the New York Departments of Conservation (“DEC”), Department of Health (“DOH”), Department of Agriculture and Markets (“DAM”), and other agencies such as the Department of Transportation and the Dormitory Authority that are required to undertake an analysis of “public infrastructure projects” pursuant to the Smart Growth Public Infrastructure Policy Act, to consider issues of climate change adaptation and resiliency in issuing permits or adopting regulations. Utilizing the system of cost-benefit analysis required in all agency decision-making, the new law requires the impacted agencies to “consider future physical climate risks.” For individuals, private entities or municipalities, this would mean that many permit applications submitted to the covered state agencies would need to include an analysis of greenhouse gas emissions and climate change impacts of the proposed project. This analysis will also be required as part of the approval processes for funding grants, like the Drinking Water Revolving Fund, or the provisions for local waterfront development programs. These types of considerations are also required in the agency rulemaking process, as the collective effect of changed regulation can be far greater than that of an individual permit applicant. In addition to the general approval processes, the law mandates that DEC create model local legislation, develop guidance to ensure compliance with its provision, and establish “science-based sea level rise projections.”
While these changes appear to be imposing a new regulatory hurdle for projects and enhancing environmental protection, it is unclear whether the law will have substantial practical effect given that climate change adaptation and resiliency has already become an established consideration for environmental review conducted pursuant to the State Environmental Quality Review Act (“SEQRA”). The SEQRA process, which is required for all government-sponsored or funded projects or discretionary approvals, already contains a mandate that agencies consider significant adverse impacts that may be caused by the proposed action and that has been interpreted to encompass consideration of potential impacts due to sea level rise or other climate change impacts. For example, in its guidance documents concerning the assessment climate impacts, DEC requires in its own internal agency decision making and analysis that agerncy personnel “use best available scientific information of environmental conditions resulting from the impacts of climate change.” Although the DEC guidance states that it reflects policy based determinations that do not “change the substantive requirements of SEQRA,” as a practical matter the policy and guidance documents produced by DEC, the agency charged with implementing SEQRA, strongly influences how other agencies and courts interpret SEQRA’s substantive requirement that agencies take a “hard look” at the environmental effects of the action subject to SEQRA review. Thus, because climate change and resiliency issues already make their way into most SEQRA reviews, this new law should be seen less as a procedural game changer and more as further confirmation that consideration of climate change adaptation and storm resiliency must be included in submissions supporting permit applications and government funding requests.
There are, however, some potential benefits created by the codification of these requirements for the purposes of notice and predictability. One of the most significant benefits is the mandate for DEC to develop guidance on the manner that such impacts be considered. Under the current SEQRA-based approach the consideration of climate change adaptation and impacts from sea level rise is agency-dependent. DEC’s role in setting statewide guidance on this issue is now codified in this new law, and the agency’s development of science-based sea level rise projections would provide agencies and the regulated community with a common set of assumptions on which to base future actions and development. Of course, it is unclear what resources DEC will be provided to develop the “science-based” projections that have the potential to add significant cost to future governmental and private development projects that are required to account for such sea level rise.