June 2, 2012
Cahill, Sweeney and Lavine comments to the PSC
May 29, 2012
Jaclyn A. Brilling, Secretary Public Service Commission
3 Empire State Plaza Albany, NY 12223-1350
Dear Secretary Brilling:
We are writing about the “Regulations Implementing PSL Article 10 Governing Applications to Construct Major Electric Generating Facilities” recently proposed by the Public Service Commission (PSC) (Stale Register 1.0. #PSC-15-12-00006-P). These rules add a new Subchapter A to 16 NYCRR Chapter X to implement the new streamlined permit process provided for in the “Power NY Act” (Chapter 388 of the Laws of 2011).
We previously commented (copy enclosed) (see letter#2) on a related rule proposal by the Department of Environmental Conservation (DEC) entitled “Analysis of Environmental Justice Issues Associated with the Siting of Major Electric Generating Facilities” (State Register 1.0. #ENV-03-12-00010-P). We advised DEC that additional regulatory provisions were needed to ensure the process for siting major electric generating facilities fully effectuates the commitment we made in the Power NY Act for enhanced review of environmental justice (EJ) issues under the new Article X.
Severa! of the recommendations we made to DEC are equally appropriate for consideration for inclusion in the regulations of the Board on E!ectric Generation Siting & the Environment. The Board has incorporated numerous provisions in its proposed regulations to facilitate meaningful involvement by the public as a whole (e,g., intervenor funding, the public information coordinator), However, nothing in these regulations or proposed Part 487 provides for specific outreach or assistance to the affected members of EJ communities. It is well-recognized that members of these communities face additional barriers to active and informed participation that require affirmative efforts to overcome.
We recommend that the Board review DEC’s EJ policy (Commissioner’s Policy CP-29) and ensure that the Article X rules include appropriate provisions needed to ensure meaningful participation by members of impacted EJ communities. Among these are requirements for a targeted Dublic participation plan that actively seeks to identify and involve stakeholders in a potential EJ area, the conduct of periodic public information meetings at locations and times convenient to EJ community stakeholders. the establishment of document repositories in or near the EJ community, and periodic progress reports to ensure that the enhanced public participation plan is successfully implemented on an on-going basis. The Board should also ensure that when an application involves an EJ community, local parties within such community are included in any allocation of intervenor funds.
We hope these comments are helpful in developing the final version of these regulations. Please feel free to contact us if you require any further information on these comments.
Very truly yours,
Kevin A. Cahill, Chair, Assembly Standing Committee on Energy
Robert K. Sweeney, Chair, Assembly Standing Committee on Environmental Conservation.
Charles D. Lavine, Assembly Chair, Administrative Regulations
Letter #2
Melvin Norris
NYSDEC Office of Environmental Justice 625 Broadway
Albany, NY 12233-1500
Dear Mr. Norris:
We are writing about a recent rule proposal by the Department of Environmental Conservation (DEC) entitled “Analysis of Environmental Justice Issues Associated with the Siting of Major Electric Generating Facilities” (State Register I.D. #ENV-03-12-0001O-P). These rules add a new Part 487 to Title 6 NYCRR to implement the commitment made in the “Power NY Act” (Chapter 388 of the Laws of 2011) that a streamlined permit process for electric generating facilities would not diminish the review of environmental justice (El) issues, but would in fact provide for enhanced EJ reviews. While there may be other improvements that could be made to proposed Part 487, these comments focus on one significant omission in the proposal that we believe would render the analysis of EJ issues under Article X much less meaningful than those undertaken under the provisions of the State Environmental Quality Review Act and DEC’s own EJ policy.
The proposed rules establish standards for determining whether the impact study area includes one or more EJ communities. If so, the preliminary seoping statement must include a preliminary evaluation of any potentially significant and adverse disproportionate impacts, the proposed measures to avoid, offset or minimize these impacts, and describe any additional studies or program of studies the applicant proposes in support of its final EJ analysis. The proposed rules also set forth lhe process for completing all required studies and require the application to include a statement of environmental justice issues discussing why the remedial measures it proposes were chosen and how lhey can be verified.
An of the above requirements omit a key element of environmental justice: nowhere is there any affirmative requirement to ensure meaningful involvement of the EJ community in the process. While it is true that the statute contains several provisions to facilitate meaningful involvement by the public as a whole (intervenor funding, the public information coordinalOr), nothing in the statute or proposed Part 487 provides for specific outreach to the affected members of EJ communHies. As the Office of Environmental Justice well knows. one basic tenet of environmental justice is that government must work actively to overcome barriers that have all LOO often resulted in decision-making without the active and informed participation of minority and low-income communities.
Environmental justice 1S not something that is “done to” or even “done for” an EJ community, To be effective, it must be done with the community members. DEC’s own EJ policy. Commissioner’s Policy CP- 29, recognizes this by requiring an enhanced public participation plan that actively seeks to identify stakeholders in a potential EJ area; provides for information to be distributed to the EJ community that is written in an understandable manner, including in other languages where appropriate: calls for holding periodic public information meetings at locations and times convenient to EJ communi[y stakeholders; establishes document repositories in or near the EJ community; and requires progress reports to ensure that the enhanced public participation plan is successfully implemented on an on-going basis. With the exception of the provision for appropriate translation of documents (and a plain language requirement that only applies to the final EJ analysis), none of these very important components of the EJ process would be required to occur in an analysis under Part 483.
Requirements for meaningful public involvement and broad public participation are necessary and important, but such requirements extend to not only EJ community members, but also to other residents of the impact study area and of any alternate location, and to other residents of the affected municipalities. Outreach and engagement of EJ community stakeholders is necessary so that their voices are not subordinated to those of other affected communities with more resources, and also to ensure that the analyses and recommended mitigation measures are not developed in dry studies that are detached from their knowledge and insights on the needs of their community.
We urge DEC to include provisions in the rules for meaningful outreach to stakeholders in EJ communities potentially impacted by an Article X application, to maXimize their ability to participate meaningfully throughout the process. We also encourage you to consider incorporating some of the newer tools currently under review by the US Environmental Protection Agency, such as community-based participatory research, to maximize the benefits of EJ community involvement.
We hope these comments are helpful in developing the final version of these rules. Please feel free to contact us if you require any further information on these comments.
Very truly yours,
Kevin A. Cahill, Chair, Assembly Standing Committee on Energy
Robert K. Sweeney, Chair, Assembly Standing Committee on Environmental Conservation.
Charles D. Lavine, Assembly Chair, Administrative Regulations
