Public Comments submitted to
Department of Environment Conservation
April 10, 2009
Mr. John Marscholik
Office of Climate Change
New York State Department of
Albany, New York 12233
Re: Guide for Assessing Energy Use and Greenhouse Gas Emissions in an Environmental Impact Statement
Dear Mr. Marscholik:
The Business Council represents more than 3,000 private sector employers across New York, including numerous businesses that would be directly impacted by this proposed policy for assessing energy use and greenhouse gas emissions under the State Environmental Quality Review Act (SEQRA).
This proposed guidance seeks to address the issue of global climate change by assessing impacts of energy usage and greenhouse gas (GHG) emissions through SEQR.
We have several concerns with this proposal.
Scope of Assessment
First, the proposed guidance will dramatically change the way the Department examines and evaluates project applications, and subject those projects to open-ended evaluations of, and unclear criteria for, total energy usage and direct and indirect GHG emissions.
Under this proposed policy, applicants are required to quantify energy use and direct emissions from stationary and non-stationary sources by estimating fuel usage from the proposed sources included in the project design; quantify direct emissions of GHGs from non-stationary source; quantify indirect and direct carbon dioxide emissions from the project; quantify emissions from waste generation related to the project; and others.
Because this guidance does not suggest any mechanism or threshold for determining the significance of these energy use or emission categories under SEQR, there is no way of consistently and objectively assessing the importance of these emissions and energy usage, nor the need to consider mitigation. Under this proposal, Department staff will have complete discretion to make determinations about the potential environmental impact of a proposed project based on these quantitative estimates of greenhouse gas emissions, provided by applicants.
It is essential that proposals for new standards for SEQRA, such as this, include quantifiable thresholds, standards and criteria to help the regulated community meet the Department’s expectations for impact assessment and mitigation. Without quantifiable thresholds, DEC will be making subjective determinations about the potential environmental impact of projects subject to this new policy.
The lack of more clear criteria could lead to serious inconsistencies in Departmental decisions regarding projects.
This proposed approach will also impose costly and protracted — and potentially open-ended — studies on projects potentially subject to this new policy, further delaying development and expansion projects. For example, businesses proposing highly energy efficient projects would still be subject to extensive analysis under this proposal based on absolute energy usage. With no bright-line standards of review, applications could be held up for long periods of time while the department requests more and more data.
Applicants should have the benefit of knowing that information they submit meets the requirements spelled out in the policy guidelines. In light of the state’s current economic situation, now is not the time for additional policies that will stifle investment and job creation.
Policy versus Regulation
While stated as “policy guidance,” this proposal in fact establishes procedural requirements that the Department must comply with in its evaluations of energy usage and GHG emission impacts. As such, this proposal has the effect of a rulemaking that should be subject to the public notice and comment, regulatory impact assessment, and other statutory requirements as established under the State Administrative Procedures Act (SAPA) before it can be implemented. The Department cannot adopt “policy” that has the force and effect of regulation outside the procedural demands of SEQRA.
A major shift in policy such as this should go through the regulatory review process with hearings and an extended public comment period.
Extended Comment Period
Finally, we request that the 30-day comment period provided for in the March 11, 2009 Environmental Notice Bulletin publication be significantly extended, to allow a more thorough public evaluation of this significant expansion in SERQA assessments. A major shift in the Department’s treatment of permit applicants and the attendant costs warrants additional time for comment. It is in the best interests of both the Department and the interested and affected public to have sufficient opportunity to review draft policies with far reaching implications. For these reasons the Business Council recommends that the draft proposal comment period be extended an additional ninety days.
Thank you for the opportunity to share these concerns with you. Please feel free to contact me if you would like any additional information on the issues discussed in this submission.