Incorporates environmental justice considerations into major utility transmission facility siting

Summary of specific provisions

Bill § 1 amends § 122 of the Public Service Law (PSL) to require an application for a certificate of environmental compatibility and public need to include an evaluation of any significant and adverse disproportionate environmental impacts of the proposed facility on any environmental justice area. Such evaluation shall be conducted in accordance with rules and regulations promulgated pursuant to new PSL § 131 and shall identify and include any studies relied upon. Bill § 2 amends PSL § 126 to provide that, if the Public Service Commission (PSC) finds that the facility results in or contributes to a significant and adverse is proportionate environmental impact in a community in which an environmental justice area is located, the applicant will avoid, offset or minimize the impacts caused by the facility upon the local community for the duration that the certificate is issued to the maximum extent practicable using verifiable measures. Bill § 3 amends PSL § 128 to provide that the grounds for judicial review shall include whether the PSC order and opinion was made in accordance with procedures established in the DEC rules and regulations promulgated pursuant to 1.31, and was made pursuant to a process that afforded meaningful involvement of citizens affected by the facility regardless of age, race, color, national origin or income. Bill § 4 adds a new PSL § 131 requiring the Department of Environmental Conservation (DEC) to promulgate rules and regulations guiding the evaluation of environmental justice impacts of proposed transmission facilities. Such rules and regulations shall include the definition of "environmental justice area" promulgated by DEC pursuant to PSL § 164 and shall at a minimum, require a comprehensive demographic, economic and physical description of any such area which will be significantly and adversely impacted by construction and operation of the facility, compared and contrasted with the county in which the facility is proposed and with adjacent communities within such county. The evaluation shall include reasonably available data on population, racial and ethnic characteristics, income levels, open space, and Public health data, including Health Department data on incidence of asthma and cancer. DEC may make appropriate distinctions in such rules and regulations for different types of transmission facilities. Bill 5 provides that on and after the 366th day after the bill becomes law, the PSC shall not accept any application for a certificate pursuant to PSL § 122 until DEC has promulgated the rules and regulations required by § 131.

Justification

The Legislature and Governor recently enacted new legislation to streamline power plant siting (PSL Article X, added by Chapter 388 of the Laws of 2011). One key component of this legislation was the addition of explicit requirements for the analysis of environmental justice issues associated with the siting of such

facilities. It was important to include consideration of environmental justice issues because the new power plant siting process replaced the review of such facilities under the State Environmental Quality Review Act (SEQRA), including specific consideration of environmental justice under DEC's Commissioner Policy 29 ("Environmental Justice and Permitting"). Environmental justice is defined as the fair treatment and meaningful involvement of ail people regardless of race, color, national origin or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies. Fair treatment means that no group of people should bear a disproportionate share of the negative environmental consequences of such policies. Meaningful impact means that people have an opportunity to participate in and impact a regulatory agency's decisions, and require the decision makers to seek out and facilitate the involvement of those potentially affected. Historically, previous versions of the power plant siting law (variously, PSL Article VIII or X) did not have an explicit environmental justice component, but the Governor and Legislature felt that the addition of such provisions was necessary to reduce disproportionate environmental impacts in overburdened communities. The original power plant siting laws were based on the process for transmission facility siting in PSL Article VII, which also exempts applicants from compliance with SEQRA. However, the need for consideration of environmental justice issues is no less compelling in siting major energy transmission facilities than it is for power plants or other facilities which require DEC permits. This bill would apply the model for analysis of environmental justice issues adopted in the new Article X to future applications under Article VII. Such analyses will be governed by DEC regulations, which will be similar to those the agency is currently promulgating for reviews under Article X. As with Chapter 388, this bill provides that such regulations must be adopted and applied to Article VII applications 12 months after its effective date. Enactment of this b ill will also fulfill the commitments made in the 2009 State Energy Plan that "future energy-related decisions made by state agencies and authorities must consider the environmental and health impacts agency actions will have on environmental justice communities."

Prior legislative history

2013-2014: S.5417/A.2521 - Died in Energy & Telecom / Died in Energy 2012: A.10604

Fiscal implications for state and local governments

None.

Effective date

Immediately; provided that nothing in the bill shall be construed to limit any administrative authority, with respect to matters included in this act, which authority existed prior to such effective date. Within 12 months of the effective date, all rules and regulations are required to be adopted.