New York state is currently making major changes to its environmental laws and regulations on three different fronts: climate change, renewable energy, and emerging contaminants. Each such change is newsworthy in its own right, but when considered together, these three initiatives amount to a seismic shift in the state’s regulatory landscape. The effects of these changes will be felt in nearly every major industry, including electricity production, transportation (public and private), and real estate development.
The regulations for all three initiatives are still being developed, so there is still time for interested parties to participate in their creation, and adjust business plans and expectations accordingly. Understanding the scope of these changes, and the individual and cumulative impacts they will have, will be critical for companies doing business in New York.
The first article in a two-part series, this installment discusses the most significant of the three initiatives—the Climate Leadership and Community Protection Act (CLCPA).
The Climate Leadership and Community Protection Act
The CLCPA, enacted in 2019, is a comprehensive response to the climate change crisis that mandates carbon emissions reductions from all sectors of New York’s economy by 40% by 2030, and 85% by 2050 (both measured against 1990 levels). The CLCPA also requires that 100% of the electricity used in New York must come from clean energy sources by 2040. These are not simply aspirational goals—the CLCPA requires the New York State Department of Environmental Conservation (NYSDEC) and the New York Public Service Commission to establish binding rules and regulations ensuring compliance with those requirements. Such compliance will require profound changes to the way New Yorkers heat homes and buildings, power their business operations, use and develop land, and move about the state.
The CLCPA also seeks to ensure that these fundamental changes benefit disadvantaged communities that have disproportionately borne impacts from climate change. The CLCPA requires such communities to receive at least 35% of the overall benefits of the state spending on clean energy and energy efficiency programs, projects, or investments.
The state is already hard at work figuring out how to achieve the difficult task of “de-carbonizing” the state’s economy. The CLCPA requires the formation of a Climate Action Council, which is tasked with analyzing the various options for emissions reductions and creating a “scoping plan” that will be the basis for NYSDEC’s regulations. The Climate Action Council is to be guided by several advisory panels, focused on transportation, energy intensive/trade exposed industries, land use and local government, energy efficiency and housing, power generation, and agriculture and forestry. To ensure benefits are directed to disadvantaged communities, the CLCPA also requires the Climate Action Council to establish a Just Transition Working Group and a separate Climate Justice Working Group.
NYSDEC is required to establish the applicable statewide emissions limits by the end of 2020. Once those limits have been set, the Climate Action Council must create a draft “scoping plan” by the end of 2021. The Climate Action Council must then create a final scoping plan by the end of 2022, which NYSDEC will use to create the required regulations by Jan. 1, 2024. NYSDEC issued the proposed statewide emissions standards on Aug.14, and public comments are now being accepted on those standards.
The advisory panels have been established and begun their work. The state recently announced that the work of the panels will be done in public, so we expect to see regular reports of their meetings and recommendations throughout the rest of 2020 and the first part of 2021.
It is hard to overstate how transformative the CLCPA is expected to be. At its June meeting, the Climate Action Council heard a presentation from a consultant to the New York State Energy Research and Development Authority (NYSERDA), which is studying various pathways to reach the required 85% carbon emissions reductions required by 2050. The results of the study were eye-opening: to achieve the decarbonization required by the act, the state will need to (among other things):
- eliminate all carbon emissions from the electricity sector;
- change over almost entirely to electric vehicles in all vehicle classes (including light, medium, and heavy-duty vehicles), with hydrogen and renewable fuels filling some of the gaps;
- significantly reduce vehicle miles traveled through smart growth, transit, and other transportation demand management measures;
- change the heating and cooling systems in most buildings to electricity-based systems, including the use of heat pumps; and
- significantly reduce the use of fossil fuels in the manufacturing sector through energy efficiency improvements and electrification.
These are monumental changes to the way American society functions today. The regulations created by NYSDEC implementing these changes thus have the potential to be among the most impactful that the state has ever issued. Businesses across all industries must pay strict attention to developments out of Albany over the next few years, to anticipate and analyze how these regulations will shape their future.
Meeting the increased electricity demand without the use of fossil fuels will require the development and siting of significant new renewable energy resources across the state. We address the state’s recent efforts to accelerate the permitting of renewable energy projects, and the upcoming regulations surrounding PFAS contamination, in Part 2 of this series.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Peter C. Trimarchi is a partner in Nixon Peabody’s Environmental and Land Use team. He advises on all aspects of environmental law, with a particular focus on regulatory, enforcement, and transactional matter.
Dana P. Stanton is an associate in Nixon Peabody’s Environmental and Land Use team.
Sarah Lobe is an associate in Nixon Peabody’s Environmental and Land Use team.