EHS Administration, Regulatory Developments

New York’s Cumulative Impacts Law

On December 31, 2022, New York Governor Kathy Hochul signed a cumulative impacts bill (S.8830/A.2103D) into law for the state, which amends the State Environmental Quality Review Act (SEQRA) to require the consideration of both long- and short-term effects of any proposed action “on disadvantaged communities, including whether the action may cause or increase a disproportionate or inequitable or both disproportionate and inequitable pollution burden on a disadvantaged community (DAC).”

The new legislation was not supported by industry because the original bill directed the state Department of Environmental Conservation (DEC) to reject permit applications or refuse to renew permit applications that would in any way contribute to placing additional pollution burdens upon DACs.

“Such a broad prohibition would have meant that, for example, a landfill near a DAC could not have its permit renewed by DEC, even if there was no viable alternate disposal site. After industry stakeholders expressed concerns that the proposed amendments to SEQRA and the Uniform Procedures Act (UPA) were overly stringent and impracticable, the governor required a ‘chapter amendment’ to sign the bill into law,” says Greenberg Traurig LLP in its E2 Law Blog. “As part of the chapter amendment process, the governor signed the original bill into law with the understanding that the Legislature would introduce a new bill reflecting changes the Legislature and Executive agreed upon to address concerns the regulated community raised while preserving the original bill’s intent.”

The scope of the SEQRA was unchanged by the new legislation. Previous coverages and exemptions under the SEQRA remain in effect.

The law, set to become effective in June 2023, is reported to be “the strongest environmental justice law in the country,” according to the New York Law Journal.  New York was the second state to impose a cumulative impact law, following its sister state New Jersey.

“The cumulative impacts law also amends the Uniform Procedures Act to require preparation of an ‘existing burden report’ for projects that require a [DEC] permit and that may directly or indirectly affect any disadvantaged community,” the New York Law Journal continues. “DEC will issue regulations specifying the form and content for the existing burdens report. Significantly, DEC may not approve or renew a permit if it may directly or indirectly cause or contribute to a disproportionate or inequitable pollution burden on any disadvantaged community (DAC). This substantive provision is highly unusual.”

According to Greenberg Traurig, when the law becomes completely effective within 2 years of enactment, the changes to the SEQRA and the UPA require:

  • The submission of environmental impact statements (EISs) to include information as to whether the action would cause or increase a disproportionate pollution burden on a DAC;
  • Consideration of whether the proposed action would cause or increase a disproportionate pollution burden on a DAC when a lead agency is determining whether an EIS is required;
  • The DEC to amend its Part 617 SEQRA regulations to revise the criteria for determining whether a proposed action may have a significant effect on the environment to include consideration of the extent to which a proposed action may reasonably be expected to cause or increase a disproportionate and/or inequitable burden on DACs;
  • “Existing burden reports” for applicable new projects to assess environmental burdens and the projected impact, and potential benefits, of a proposed action on a DAC;
  • Reporting for a renewal or modification of applicable permits if the DEC determines that the project may cause “more than a de minimis amount of pollution” on a DAC, though the DEC may waive this requirement if the permit would “serve an essential environmental, health or safety need” of the DAC; and
  • The DEC to impose operational changes on applicable permits to reduce the pollution burden on DACs, provided such actions are reasonable and practicable.

Changes to the UPA also include an amendment to “ensure that water discharge, certain water withdrawal permits, air, liquid natural and petroleum gas, waste transport, solid waste facility, industrial hazardous waste management, and hazardous waste disposal siting permits include disproportionate impact as a consideration for DEC permit issuance,” advises Greenberg Traurig.


Impacted industry is advised to take note of a growing trend among state lawmakers to consider environmental justice when enacting regulations. In order to be proactive, the regulated community should prepare its own EISs to include the mitigation and removal of harmful pollution impacts to DACs.

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