Key States To Include Cumulative Impacts In Environmental Permits

Environmental Justice Update: New York and Massachusetts are the latest states to bring cumulative impacts analysis into the permitting process.

New York’s Cumulative Impacts Bill, which was signed into law by Governor Kathy Hochul on December 31, 2022, will take effect in June 2023. It requires that environmental justice be considered early in the permitting process, beginning with a determination of whether an environmental impact statement is needed. The New York State Department of Environmental Conservation (DEC) will also need to prepare or require an “existing burden report.” Although DEC has yet to issue rules for conducting an existing burden report, the rules are expected to be similar to those published by New Jersey. Beveridge & Diamond PC commented that as the New York law currently stands, it is the “most aggressive EJ [environmental justice] law enacted to date,” noting that Governor Hochul has left room for the scope to be narrowed in the future.

The Massachusetts Department of Environmental Protection (DEP) published its proposal to require an evaluation of cumulative impacts in air permitting on December 19, 2022; public comment is open until April 7, 2023.Specifically, the regulation would require projects ranging from construction and substantial reconstruction to alteration and subsequent operation of a facility or emission unit to include a cumulative impacts analysis. Part of the cumulative impacts analysis entails evaluating 33 indicators related to air quality, environment, health, socioeconomic status, and sensitive receptors to derive an overall assessment of existing community conditions. Once the application is submitted, it would be made public so that stakeholders can submit comments and questions prior to DEP’s review. After reviewing the application, DEP would propose an approval or denial and allow for a formal 60-day public comment period. Any project that is determined to have cumulative cancer risks greater than 10 in 1 million (excess lifetime cancer risk) or cumulative noncancer risks equal to or greater than 1 (hazard index) will not be approved.

New York and Massachusetts are just the latest to follow New Jersey’s example in bringing cumulative impacts analyses to the forefront of environmental legislation. With EPA recently releasing its Cumulative Impacts Addendum to EPA Legal Tools to Advance Environmental Justice, and a revised cumulative risk guidance still on the horizon, the new year has already proven that agencies are prioritizing the use of cumulative impacts assessments to advance environmental justice.

Stay up to date with state environmental justice initiatives and regulations with Integral’s state-by-state environmental justice compendium of state regulatory activities: Environmental Justice State Compendium | Integral Consulting (integral-corp.com).