Written by Steven C. Russo and Robert M. Rosenthal
On June 19th, the New York Legislature passed the Community Risk and Resiliency Act in both houses by wide margins. The Act would likely be submitted to the Governor in the next two months for signature. The Act has a laudable goal, to seek to encourage advance planning for extreme weather events and to promote the consideration of climate change effects when state agencies fund projects or issue permits. It mandates agency consideration of climate change risks, including sea level rise, storm surges, and flooding, in connection with certain specified state agency funding and permitting decisions. For example, the Act would inject consideration of climate change adaptation into the green infrastructure programs administered by the New York State Department of Environmental Conservation (“NYSDEC”), including the Clean Water and Drinking Water Revolving Fund programs and the Environmental Protection Fund. The Act would also require NYSDEC to consider climate change impacts in the context of major permits issued under the Uniform Procedures Act, which encompasses most major environmental permits sought by applicants, including Clean Water Act SPDES permits, RCRA treatment, storage and disposal siting permits, and Clean Air Act permits. The requirement to consider climate adaptation would also apply in connection with any funding or permit decisions that require a review under the New York State Smart Growth Infrastructure Act, which applies to a number of state agencies, including NYSDEC, the New York State Department of Transportation, the Thruway Authority and the Dormitory Authority of the State of New York.
In addition, the Act requires NYSDEC and the Department of State (“DOS”) to work together in preparing model local laws concerning climate risk and to make such model laws available to municipalities. The Act also requires the DOS and DEC to develop additional guidance on the use of resiliency measures that utilize natural resources and natural processes to reduce risk, and to adopt regulations establishing science-based state sea level rise projections by January 1, 2016.
The original bill was prompted by above-average temperatures and extreme storms such as Superstorm Sandy and Hurricanes Irene and Lee. Projections anticipate that the sea level rise will exceed the global average, which could result in a significant increase in the number of coastal flood events in the northeast. However, in a number of instances the studies required by this now passed bill would merely codify an analysis that is typically already undertaken pursuant to existing agency policy or the requirements of SEQRA. For example, NYSDEC already considers climate change adaptation as part of its funding and permitting actions, both pursuant to the New York State Environmental Quality Review Act and pursuant to the NYSDEC’s Commissioner’s Policy on Climate Change (CP-49). Thus, from the perspective of NYSDEC, the bill, if signed into law by the Governor, would merely convert an already-administered agency policy into a mandate required by statute. By contrast, the bill’s greatest impact would be felt by those state agencies that do not currently require consideration of climate change adaptation in the context of their funding and permitting decisions.