New York Environmental Legislation In 2022 – Climate Change

Several significant environmental bills were enacted by the New
York legislature and signed by Gov. Kathy Hochul in 2022, and
several others were vetoed. As a result of measures enacted last
year, New York will see $4.2 billion invested in environmental
protection, restoration, climate resiliency and clean energy
projects; potential disproportionate and inequitable impacts on
disadvantaged communities will become a key factor in determining
whether environmental permits are issued; and apparel containing
intentionally added per- and polyfluoroalkyl substances (PFAS) will
no longer be sold in the state. In addition, important changes were
made to New York’s brownfield and wetlands laws. These and many
other new and amended laws are discussed in this article.

Environmental Bond Act and Other Environmental Funding

In November, New York state voters approved the Clean Water,
Clean Air, and Green Jobs Environmental Bond Act of 2022 (Bond
Act), with 59% of voters supporting the ballot proposal. Earlier in
2022, the budget legislation increased the amount of bonds
authorized under the Bond Act from $3 billion to $4.2 billion. The
funds are to be used for environmental restoration and flood risk
reduction, open space land conservation and recreation, climate
change mitigation, and water quality improvement and resilient
infrastructure (Chapter 58, Parts NN and OO). The budget also
included $400 million for the Environmental Protection Fund, which
provides funding for capital projects that protect the environment,
and increased annual funding of the Environmental Protection Fund
from the real estate transfer tax law to $257.35 million from
$119.1 million (Chapter 58 of the Laws of 2022, Part PP).
Environmental advocates also applauded the budget legislation for
not sending funds from the sale of carbon dioxide allowances under
the Regional Greenhouse Gas Initiative to the State general
fund.

Cumulative Impacts Law

On December 30, Governor Hochul signed a “cumulative
impacts” law (Chapter 840). It is the strongest environmental
justice law in the country. (We wrote about other states’ laws
in 2021.) However, it appears that it is about to be
amended-exactly how, we do not yet know.

The bill is intended to address inequitable siting of polluting
facilities. (We wrote about this legislation in July 2022.) The law
amends the State Environmental Quality Review Act to require that
environmental reviews consider a proposed action’s impacts-
including any disproportionate or inequitable pollution burdens-on
“disadvantaged communities” (as defined under the Climate
Leadership and Community Protection Act (CLCPA)). The cumulative
impacts law also amends the Uniform Procedures Act to require
preparation of an “existing burden report” for projects
that require a Department of Environmental Conservation (DEC)
permit and that may directly or indirectly affect any disadvantaged
community. 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. This substantive provision is highly
unusual.

The bill was strongly supported by environmental and
environmental justice groups, and strongly opposed by several
business groups. Governor Hochul did not announce her decision
until the last possible day-New Year’s eve-and on signing it
she issued an approval memorandum indicating that she and the
legislature have agreed to chapter amendments that “balance[e]
the need for critical infrastructure such as affordable housing,
hospitals, and renewable facilities … and ensur[e] such critical
infrastructure does not need to be removed, potentially harming a
community in the long term.” The chapter amendments also will
provide additional time for state and local governments to update
their procedures and programs to implement the law. The exact
import of the bill as amended will not be clear until the chapter
amendment language is released and enacted.

Air Quality

Another hotly contested law was signed by the governor in
November. It imposes a two-year moratorium on issuance or renewal
of air permits for fossil fuel-fired electric generating facilities
that provide behind-the-meter electric energy for use by
cryptocurrency mining operations that use proofof-work
authentication methods to validate blockchain transactions, unless
renewal would not result in an increase in the amount of
electricity utilized. The law (Chapter 628) also requires
preparation of a generic environmental impact statement on
cryptocurrency mining operations that use proof-ofwork
authentication methods. Other laws with potential impacts on air
quality included a law to deter thefts of catalytic converters
(Chapter 574) and a tax credit for certain businesses that incur
expenses to convert from No. 6 heating oil fuel to biodiesel
heating oil or a geothermal system at any building outside New York
City (Chapter 59, Part I).

Chemical Regulation

New York enacted new restrictions on chemicals in consumer
products. Chapter 820 will prohibit the sale of apparel containing
intentionally added PFAS. Chapter 754 will restrict the sale of
cosmetic and personal care products containing mercury. Chapter 682
prohibits manufacturers from importing or selling cosmetics for
which animal testing was conducted by or on behalf of the
manufacturer or any supplier after Jan. 1, 2023.

In December, New York enacted a law (Chapter 795) requiring the
establishment of an extended producer responsibility program for
carpet. Carpet manufacturers will be required to establish a
program for the collection and recycling of discarded and unused
carpeting. The law also will prohibit sale of carpet containing or
treated with PFAS.

Solid Waste

Laws to reduce solid waste included the carpet collection
program mentioned above and the Digital Fair Repair Act (Chapter
810), which aims to reduce electronic waste and save consumers
money by requiring original equipment manufacturers of digital
electronic equipment to make documentation, parts, and tools
available to owners and independent repair providers for diagnosis,
maintenance, and repair of the equipment. In addition, the budget
law extended until Dec. 31, 2025 the waste tire management
program’s requirement that tire services accept waste tires
from customers, as well as the waste tire management and recycling
fee charged for each new tire sold (Chapter 58, Part MM).

Brownfields

The budget law included a 10-year extension of the deadline by
which sites must be admitted into the Brownfield Cleanup Program
(BCP) to be eligible for tax credits (Chapter 58, Part LL). The
deadline is now Dec. 31, 2032. The budget legislation included
other updates to the BCP, including expanded opportunities for New
York City sites to be eligible for tax credits, extensions of
timelines for taking advantage of tax credits for certain sites,
and a five-percent enhancement of the tangible property credit
component for sites located in a disadvantaged community or
developed as renewable energy facility sites. In addition, the
budget law added a requirement that BCP participants pay a $50,000
non-refundable program fee, to be waived upon a demonstration of
financial hardship. Other brownfield-related measures in the budget
legislation made certain items (e.g., renewable energy feasibility
studies) eligible for state assistance for Brownfield Opportunity
Areas (BOAs) (Chapter 58, Part U).

Wetlands

The 2022 budget legislation made significant amendments to
DEC’s freshwater wetlands program (Chapter 58, Part QQ). The
amended law authorizes DEC to regulate wetlands that are at least
12.4 acres, even if they are not mapped. Formerly, only mapped
wetlands were regulated. The jurisdictional threshold will be
reduced to 7.4 acres in 2028. (Before and now, wetlands formally
determined to be of “unusual local importance” would also
be regulated.) The amendments also create a rebuttable presumption
that mapped and unmapped areas meeting the freshwater wetland
definition are subject to permit requirements. We wrote about the
law in May 2022.

Lead

Chapter 532 requires primary health care providers to conduct a
lead exposure risk assessment questionnaire for children between
the ages of six months and six years at each routine well-child
visit or at least annually. Primary health care providers will also
have to provide guidance on lead poisoning prevention as part of
routine care. Prekindergartens and kindergartens (not just child
care and pre-school, as previously required) will have to obtain
evidence of lead screening from children’s guardians.

Climate Change and Clean Energy

New York enacted several laws intended to help implement the
CLCPA’s mandates to reduce greenhouse gas emissions and ensure
a just and equitable transition for workers. The Advanced Building
Codes, Appliance and Equipment Efficiency Standards Act (Chapter
374) requires greater energy savings from future updates of the
State Energy Code and new efficiency standards for many product
categories. The Utility Thermal Energy Network and Jobs Act
(Chapter 375) addresses legal and regulatory barriers to
utilities’ development of thermal energy networks, which
“have the potential to decarbonize buildings at the community
and utility scale.” Chapter 372 requires a prevailing wage for
renewable energy projects of one or more megawatts (previously
required only for projects of greater than five megawatts). Other
laws require the New York State Energy Research and Development
Authority (NYSERDA) to prepare a report on the potential
establishment of a renewable energy laboratory (Chapter 396);
establish a personal income tax credit of 25% of qualified
geothermal energy system expenditures at residential property
(Chapter 59, Part FF); and make fuel-flexible linear generators,
which use an electromechanical process to produce electricity with
low emissions, eligible for net metering benefits (Chapter 691).
New York’s “Green CHIPS” legislation that provides
incentives for the semiconductor industry will require that
projects include measures to mitigate greenhouse gas emissions over
a project’s lifetime (Chapter 494).

Several laws were enacted to move New York towards its vehicle
electrification goals, including zero-emission vehicle mandates for
school buses (Chapter 56, Part B) and the state’s fleet
(Chapter 789). Another law requires that state procurement
standards for zero-emission vehicles include madein-America
requirements (Chapter 836). The Electric Vehicle Rights Act
(Chapter 627) prevents homeowners’ associations from imposing
unreasonable restrictions on charging stations, and Chapter 809
requires that certain construction projects that receive state
capital funding and that include parking facilities be capable of
supporting electric vehicle charging stations for at least 10% (for
facilities of 50 to 200 parking spaces) or 20% (for facilities of
more than 200 parking spaces) of available spaces.

Governor Hochul vetoed a bill (A7696) that would have prohibited
development of renewable energy projects through NYSERDA’s
BuildReady Program on viable agricultural land. She signed a law to
raise awareness of “agrivoltaics” (the use of land for
both solar energy and agriculture) (Chapter 629), as well as a law
to use mitigation payments for conversion of certain agricultural
lands for solar energy projects to fund agricultural and farmland
protection activities (Chapter 652).

Laws addressing climate change impacts included one requiring
DEC to conduct a study on the impacts of the urban heat island
effect on disadvantaged communities (Chapter 563). Another law
requires that the State Uniform Fire Prevention and Building Code
include standards to protect buildings on or near coastlines from
sea level rise, flooding, and other coastal hazards (Chapter
831).

Drinking Water

Chapter 774 allows owners of land in mapped subdivisions not
located on a public road to install public water lines across
mapped but unimproved roads, eliminating the need to obtain
permission from other landowners to gain access to the public water
system. Other drinking water-related legislation included a law
explicitly reviving public water systems’ claims involving
emerging contaminants that were otherwise barred as of the Oct. 5,
2022 effective date because the applicable limitation period had
expired (Chapter 566).

Natural Resources and Agriculture

Governor Hochul signed a bill that sets a “thirty by
thirty” goal of supporting and contributing to national
efforts to conserve at least 30% of U.S. lands, inland waters, and
ocean areas by 2030 (Chapter 747). DEC and the Office of Parks,
Recreation and Historic Preservation must develop a plan to achieve
this goal. Another law requires the Department of Transportation to
develop policies and procedures to encourage use of
pollinator-friendly native plant species in medians along highways
and to reduce the area within medians that is mowed (Chapter
763).

In the fall, Governor Hochul signed laws that promote fiber
farming and other activities to support New York’s textile
manufacturing industry (the New York Textile Act, Chapter 572) and
establish a New York State Council on Food Policy that will, among
other things, provide assistance and input on building
infrastructure and using public lands for local farm and food
products (the Local Food, Farms, and Jobs Act, Chapter 645).

Miscellaneous

A law signed in December adds a disclosure regarding indoor mold
conditions to the property condition disclosure form for
residential real property sales (Chapter 690).

Other 2022 laws permanently extended the revival of time-barred
actions brought by veterans of the Vietnam War era for injury or
death caused by exposure to Agent Orange and other phenoxy
herbicides (Chapter 506) and extended the sunset date of a 2010 law
that requires creation of environmental facility and cancer
incidence maps (Chapter 197).

Environmental and Energy Vetoes

Governor Hochul vetoed bills that would have made Class C
streams (i.e., streams that support fisheries and are suitable for
non-contact activities) subject to DEC regulation (A6652) and that
would have required air quality standards for toxic air pollutants
and fenceline monitoring standards for major sources (S4371-D).
Other vetoed measures included requirements for lead standards for
dust, soil and air (S8050-A); restrictions on materials that may be
used to fill the Jamaica Bay borrow pits (S8816); authorization of
leasing of stateowned underwater lands for seaweed cultivation
(A9938); a ban on non-essential helicopter use from Hudson River
Park in Manhattan (A8473-A); preparation of a report on replacing
decommissioned or dormant electric generating facilities with
renewable energy or energy storage projects (A340-B); setting a
goal of source-reducing, reusing, recycling, or composting at least
85% of solid waste by 2032 (A4117); establishment of the New York
Seawall Study Commission (A5557); and a requirement that NYSERDA
develop recommendations regarding establishment of microgrids
(A8418-A).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

Source

Leave a Reply

Your email address will not be published. Required fields are marked *