In August 2011, New York enacted the Power Act of 2011, aimed at encouraging investment in electric generating facilities and creating green jobs. The Act re-established Article 10 of the Public Service Law, relating to the siting process for approving major power plants.  This latest version of Article 10 requires the New York State Department of Environmental Conservation (“NYSDEC”) to promulgate regulations for analysis of “environmental justice” issues associated with the siting of large power plants.  This is the first time that “environmental justice” issues are expressly required to be considered in the context of a land use determination by the state.

In its proposed regulations, the NYSDEC defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  The proposed regulations are aimed at reducing environmental impacts in environmental justice areas, defined as low-income or minority communities “that may bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local and tribal programs and policies.”

The proposed regulations require review of existing environmental or physical conditions of the community in which the proposed power plant is to be located, and the expected environmental and public health impacts on that community during construction and operation of the power plant.  The area to be studied must encompass at least a one-half mile radius around the location of the proposed power plant to determine of an environmental justice area is present. If an environmental justice area is found to be present, the applicant must undertake a thorough and complex assessment to determine if the proposed power plant will have significant adverse environmental impacts on the area, and must consider mitigation measures that can be used to minimize these impacts.

It can be expected that the NYSDEC is likely to formally incorporate environmental justice principles into other approval procedures.