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Legislative Memo

BILL:

A.471 (Brodsky)

Support

SUBJECT:

Siting of Environmental Facilities

 

DATE:

January 25, 2001

 

The Business Council opposes this legislation which is intended to address concerns regarding "inequitable" environmental impacts on minority and low income communities. We oppose it for several reasons:

 

  • it could force project sponsors to prepare Environmental Impact Statements, and to implement mitigation measures, when a proposed project poses no adverse health or environmental effects;
  • it will make it more difficult for facilities that are located in economically depressed urban areas to expand their operations; and
  • by establishing ambiguous requirements for the review of projects under the State Environmental Quality Review Act, it will undoubtedly add to the already heavy volume of litigation in this area.

It should also be recognized that the concerns addressed in this legislation are also being addressed by ongoing Administrative actions in New York State. For example:

 

  • The Department of Environmental Conservation has appointed an statewide environmental justice coordinator, and has added staff to assist their regional offices in assessing and responding to environmental justice concerns posed by projects requiring DEC approval.
  • The DEC is developing an environmental justice permit policy with the help of a diverse advisory group involving environmental justice advocates, environmental groups, municipalities and business. The policy being developed by that advisory group will address a wide range of environmental justice issues, including earlier notice of proposed projects, expanded citizen participation efforts in minority and low income communities, and the consideration of disproportionate impacts on environmental justice communities when projects pose potential adverse impacts.
  • The DEC is in the process of developing a "geographic information system" database that will include information on demographics, the location of "environmental facilities" and available information on ambient environmental conditions and ongoing releases into the environment. It is anticipated that this database will be available to the public by the end of 2001.

Finally, this legislation is inconsistent with the environmental justice policy being developed and implemented by the U.S. Environmental Protection Agency. For example, the EPA Region 2 office has recently issued an interim approach to assessing environmental justice issues related to federal actions. While The Business Council does not fully support that interim policy, that policy makes clear that a finding of potential adverse impacts is necessary before mitigation measures are considered.

Considering these ongoing efforts, The Business Council believes that this legislative measure is unnecessary. Moreover, as mentioned above, and discussed in detail below, A.471 proposes a flawed approach to assessing potential environmental justice issues.

Existing Law - The State Environmental Quality Review Act, or SEQRA, already requires that:

 

  • mitigation measures be proposed to minimize environmental impacts identified in an environmental impact statement (ECL Section 8-0109.2(f)); and
  • "adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided" to the maximum extent practicable (ECL Section 8-0109.8).

Under SEQRA, environmental impacts must be assessed and adverse impacts must be mitigated to the extent possible. In addition to these requirements under SEQRA, project sponsors must also meet the state's stringent air, water and waste management regulations. These requirements presently apply irrespective of the racial composition or economic status of the affected community.

Bill Summary - The key provision of A.471 would expand SEQRA assessments by requiring environmental impact statements to identify whether actions will "cause or increase a disproportionate and/or inequitable burden on those minority communities and/or economically distressed areas affected by the action." Importantly, neither of these two key terms, "disproportionate" and "inequitable," are defined in the bill.

Business Council Concerns - It is unclear what would constitute a "disproportionate" or "inequitable" burden under this proposal, and under what circumstances a facility would be required to mitigate impacts that may be "disproportionate" or "inequitable," but that do not pose a risk of adverse health or environmental impacts. In addition to increasing the time and costs involved in new development projects, this lack of clarity will inevitably result in significant additional litigation.

Two examples illustrate our concern:

 

  • An expansion proposed at an existing manufacturing facility will produce increased air emissions, but total emissions will remain well below the maximum emissions allowed under state law (i.e., the facility will have no harmful environmental or health impacts.) The facility has been at the same location for many years, and since its initial siting, the area has become either "economically distressed" or a "minority community," as defined by A.471.
  • A new manufacturing facility is proposed to be located in either an "economically distressed area" or a "minority community," and this area is already the site of several similar types of facilities. Again, the plant will produce increased air emissions, but they will not exceed the state's ambient air concentration limits.

Under these two scenarios, the new project will have some environmental impact because of increased emissions, but such impact will not pose a health or environmental threat.

However, since their impact can be described as "disproportionate" or "inequitable," (although not harmful), A.471 would require additional mitigation measures, or even lead to the project being disapproved. The provisions of A.471 are not necessary to address the actual or potential effects on public health or the environment - SEQRA already requires mitigation of these adverse effects, regardless of the nature of the effected community. The provisions of A.471 also run counter to ongoing state efforts to remediate and redevelop industrial sites within economically distressed areas.

For these reasons, The Business Council opposes the approval of this legislation.