Understanding New York’s Shift from Dialogue to Enforcement of CLCPA Conformity in Air Permitting

Updates to the Enforcement of CLCPA Conformity

New York State’s Department of Environmental Conservation (NYSDEC) and its Division of Air Resources (DAR) are strengthening their enforcement of greenhouse gas (GHG) emissions targets in the Empire State with recent updates to the air permitting guidelines under the Climate Leadership and Community Protection Act (CLCPA). For background, ALL4 has previously discussed the CLCPA here.

In the past, NYSDEC allowed flexibility in CLCPA compliance demonstrations, often accepting a discussion of potential project design considerations or emissions mitigation strategies in lieu of enforceable mitigation measures. With the approaching 2030 and 2040 target dates for emissions reductions approaching, NYSDEC is transitioning from dialogue to active enforcement of CLCPA conformity for air permitting. The proposed measures which were treated as non-binding in the past are now expected to be implemented so that the State can reach its emissions reduction goals. Failure to demonstrate concrete, enforceable reductions in GHG or co-pollutant emissions, particularly in or near Disadvantaged Communities (DACs), can result in a notice of incomplete application (NOIA) or a rejection of a permit application. ALL4 anticipates that this active enforcement obligation will become a mechanism to ensure compliance with CLCPA objectives as well as a tool to incentivize renewable energy adoption and to dis-incentivize fossil fuel infrastructure development. In short, NYSDEC is no longer treating GHG mitigation strategies as an aspiration, but rather as a mandatory requirement for Air State Facility and Title V major stationary source permits.

An example of this recent shift in NYSDEC’s overall enforcement strategy can be observed in the 2024 updates to the CLCPA conformity criteria established in NYSDEC Guidance Documents DAR-21 and DEP 24-1. These changes reflect a broader regulatory shift away from aspirational, ad hoc evaluations toward enforceable standards that more closely align with the state’s aggressive decarbonization goals. DAR-21 addresses air permitting conformity with Section 7(2) of the CLCPA while DEP 24-1 addresses environmental justice (EJ) conformity with Section 7(3). Changes to the DAR-21 guidance are analogous to the methods used to determine applicability under Federal New Source Review (NSR) regulations and include mandating the quantification of both direct and upstream GHG emissions using projected actual and potential to emit (PTE) calculations, along with comparisons to existing baseline emissions. With the promulgation of DEP 24-1, NYSDEC has formalized the process for conducting a qualitative and quantitative disproportionate burden analysis for projects impacting DACs. Applicants with facilities adjacent to or within DAC census blocks must now assess how project emissions may contribute to existing environmental and health burdens using NYSDEC-defined indicators. After assessing these impacts, the NYSDEC may require design changes and mitigation approaches to lessen these burdens and reduce GHG emissions prior to authorizing the construction of a project or a renewal of an existing permit.

Project Scoping for Affected Facilities

To address the requirements of the CLCPA, it is essential to have a strategic approach to minimize the risk of regulatory non-compliance and to increase the chance for permit approval. ALL4’s approach to project scoping under the CLCPA begins with having a clear understanding of applicability across different facility types and permit actions. All applicants should first determine if they are subject to the regulations of Section 7(2) or 7(3) of the CLCPA. This defines the specific compliance obligations and emissions mitigation requirements of a project. Early in project scoping, applicants should ask critical questions to evaluate CLCPA conformity, such as is the project consistent with statewide emissions reduction targets, are there project emissions increases near a DAC, and what feasible alternatives to the project could be implemented? If the project cannot demonstrate consistency with the CLCPA, applicants must evaluate justifications for the approval of the project such as essential public need (e.g., providing grid support) or lack of technologically or economically feasible renewable technologies. ALL4 can identify these obligations early on in the project scoping process to ensure all parties involved can properly allocate the necessary resources and strategy for the project.

How can ALL4 help?

NYSDEC’s decision to approve or reject an air permit application is contingent on the project’s demonstration of conformity with the CLCPA. A recent shift in the agency’s guidance for air permitting and EJ policies means that NYSDEC is no longer treating GHG mitigation strategies as an aspiration, but rather as a mandatory requirement for Air State Facility and Title V major stationary source permits. ALL4 is equipped with the resources and expertise to ensure that our clients remain compliant with the updated CLCPA guidelines throughout all permitting processes.

ALL4 can support decision-making on project feasibility and can help deliver strong pre-project strategies to enable applicants to reach permit approval as smoothly as possible. From early planning and scoping to full implementation of design considerations and mitigation strategies, ALL4 can guide our clients through the permit approval process with an emphasis on quality work products that align with project and State objectives. Ultimately, successful scoping requires a proactive approach that integrates CLCPA compliance from the onset. Assessing regulatory applicability, evaluating community impacts, and defining plans for emissions mitigation will be necessary to advance projects in the State of New York as NYSDEC strengthens its enforcement of the CLCPA. For inquiries about how the proposed New York legislation may impact your facility or organization, contact Daniel Brese at dbrese@all4inc.com or your ALL4 project manager.