|
RCBJ-Audible (Listen For Free)
 |
Land Use Boards Must Consider Whether The Action May Cause Or Increase A Disproportionate Pollution Burden On A Disadvantaged Community, Directly Or Indirectly
By David Carlucci
Anyone who has sat through a site plan review knows the rhythm. Traffic counts. Drainage. Parking ratios. Setbacks and buffers. An environmental assessment form gets completed, the board issues a determination of significance, and the application moves to the next stage.
That rhythm changed on June 12.
On that date, amendments to New York’s State Environmental Quality Review Act regulations took effect. The amendments require every lead agency conducting a SEQRA review to consider whether a proposed action may cause or increase a disproportionate pollution burden on a disadvantaged community. A lead agency is whichever body holds the greatest jurisdiction over a project. In most local land use matters, that body is the planning board sitting in your village or town.
If boards across the region appear uncertain about how to handle this, there is a straightforward reason. The obligation and the instructions did not arrive at the same time.
Where the Requirement Came From
The Environmental Justice Siting Law, sometimes called the Cumulative Impacts Law, passed in 2022 and was amended in 2023. Its central premise is that decades of land use decisions concentrated polluting facilities in the same neighborhoods, and that each new application should therefore be evaluated against the burdens a community already carries rather than in isolation.
The SEQRA portions of that law took effect on December 30, 2024. The regulations and forms that tell a lead agency how to comply did not. The Department of Environmental Conservation proposed implementing amendments in January 2025, took public comment through that May, and did not adopt them until April 2026. They became effective on June 12 of this year.
That left roughly eighteen months during which local boards carried a statutory duty that no environmental assessment form asked them about. Boards that had been reviewing applications the same way for twenty years had no prompt telling them a new consideration existed. The confusion Rockland is seeing now is the predictable result.
What Boards Are Actually Required to Do
The requirement enters the process at the determination of significance, which is the point where a board decides whether an environmental impact statement is necessary. The board must consider whether the action may cause or increase a disproportionate pollution burden on a disadvantaged community, directly or indirectly. Where an environmental impact statement is prepared, that analysis must be carried through the document.
The most consequential change is easy to overlook. A positive declaration, meaning a finding that an environmental impact statement is required, may now be warranted on the basis of disproportionate impacts to a disadvantaged community even where the board finds no other significant impact. A project that would have drawn a negative declaration two years ago may not draw one today.
To support this work, DEC revised the environmental assessment forms to add questions focused on disadvantaged communities, and released a new screening resource called the Disadvantaged Community Assessment Tool. The tool is a starting point rather than an answer. It flags census tracts that warrant closer analysis based on existing scores for environmental burden and population vulnerability.
Rockland Is Not on the Sidelines
Statewide, the Climate Justice Working Group identified 1,736 census tracts as disadvantaged communities, roughly thirty-five percent of all tracts in New York.
Eighteen of them are in Rockland County.
Those tracts sit in Stony Point, Mount Ivy, West Haverstraw, Haverstraw village, Congers, Valley Cottage, Nanuet, Hillburn, Suffern, Spring Valley, Nyack, and South Nyack. That list deserves a second read, because it does not match the assumption many people carry. This is not a designation confined to the county’s densest or lowest income villages. It reaches into communities across the county, and it reaches places where applicants and boards have not been thinking about it at all.
The designation follows census tract lines, not municipal boundaries. A parcel on one side of a road may sit inside a designated tract while a parcel across the street does not. That is exactly the kind of detail that surfaces late in a review, when it is most expensive to address.
What This Is and What It Is Not
This is not a prohibition. Nothing in the law bars development in a disadvantaged community, and nothing in it gives a board a new ground for denial. It is an analytical requirement. A board must take the question seriously, build a record showing it did so, and explain its conclusion.
That distinction matters most in court. SEQRA determinations are rarely overturned because a board reached the wrong substantive result. They are overturned because a board failed to take the required hard look and failed to document it. A board that never asked the disadvantaged community question has handed a future petitioner a clean argument.
For applicants, the practical guidance is to check the mapping tool before the first sketch plan conference rather than after the third public hearing. Bring the analysis to the board instead of waiting for the board to discover the issue. For municipalities, this is worth a conversation with counsel and the planning consultant before the next application arrives, not during it.
Six weeks into a new framework, some unevenness is understandable. A year from now it will not be. The requirement is settled law, the forms exist, and the tools are public. The communities that get ahead of it will move projects faster than the ones that do not.
David Carlucci consults organizations on navigating government and securing funding. He served for ten years in the New York Senate.
