Reposted from Brooklyn Paper
By: Kirstyn Brendlen
The state Department of Environmental Conservation extended their deadline to make a decision on issuing air pollution permits to the proposed expansion Greenpoint Energy Center to Feb. 7, 2022, two months after their most recent deadline of Dec. 6 and seven months after they filed their first request for an extension last summer.
National Grid is planning to build two new Liquified Natural Gas vaporizers at the Greenpoint Energy Center on Maspeth Avenue. To do so, they need Air State Facility permits from the DEC to replace the existing, more restrictive Title V permit.
In a Dec.1 email to National Grid, DEC permit administrator Stephen Watts said the department is still working on a “responsiveness summary” addressing comments submitted during the project’s public comment period, which ended in December 2020, and at public hearings held in March.
“To enable the Department sufficient time to adequately evaluate and address the public comments, we respectfully request National Grid’s mutual consent to extend the time frames,” Watts wrote.
Activists hope the most recent delay means the permit application is likely to be denied come February.
“Thousands of residents submitted written and oral testimony opposing the vaporizers, asking the DEC to deny the permit because the project violates state law by increasing air pollution in an environmental justice community as well as greenhouse gas emissions,” the No North Brooklyn Pipeline Coalition said, in a statement. “If the DEC is taking extra time to review public comment, we are confident they can come to no other conclusion than to deny the permit.”
This is the third time DEC has asked for more time to consider the application — they first wrote to National Grid confirming an extension to Nov. 4 in June, though they did not specify when they had first intended to provide a decision.
Days before the Nov. 4 date, DEC asked for another month, setting a new date of Dec. 6. A department representative said there is no limit on the number of mutually agreed-upon extensions, and that it is possible that additional time will be granted come February, if DEC still feels it needs more time.
Community calls to reject expansion
Greenpointers have repeatedly called for DEC to reject the permits, concerned about the impact the energy center has already had on the health of the environment surrounding the more than 100-acre facility, and the health of the people who live there.
Earlier this year, activists and residents sued DEC and National Grid after the department said the project would not have negative environmental impacts. In August, a coalition of local groups filed a civil rights complaint against DEC, National Grid, and the state Department of Public Service, alleging that the three were violating part of the federal Civil Rights Act in constructing the Metropolitan Natural Gas Reliability Project, or the North Brooklyn Pipeline.
Specifically, they said DEC had “impermissibly segmented its review,” when issuing the negative declaration about the new vaporizers, and had failed to consider the joint effects of the pipeline and the vaporizers.
The federal Environmental Protection Agency and the federal Department of Transportation are now investigating the claims.
It’s possible that the repeated delays mean a denial is on its way, said Anthony Rogers-Wright, director of the Environmental Justice Program at New York Lawyers for the Public Interest, but when it comes to state agencies, he doesn’t like to speculate — especially because he feels the DEC has been inconsistent in enforcing part of the state’s Climate Leadership and Community Protection Act.
Section 7 of the law says that state agencies, while issuing permits, should not “disproportionately burden disadvantaged communities, and should be actively seeking to reduce greenhouse gas emissions in those communities. For all permits, the law mandates taking into consideration whether newly permitted projects would be inconsistent with, or interfere in, the state’s emissions goals.
If it will interfere with those goals, the agency must provide a detailed explanation of why the project cannot meet those goals and lay out potential alternatives or mitigation measures.
If an explanation cannot be provided, the permits may be denied — as was the case in October, when DEC denied permits for two separate projects in Newburgh and Queens.
Rogers-Wright cited the state’s continued renewal of a Title V permit for a public works campus in Westchester county — despite the project’s location in an environmental justice community.
“The reasoning was a bit questionable,” he said. “Unfortunately, I can’t make an inference on that because of how inconsistent they’ve been so far.”
He did agree with Sane Energy’s claim that the review should have analyzed the entirety of National Grid’s projects, including the pipeline.
“The specter of legal action is upon us in the sense that this permit in question of the vaporizer extension is segmented,” Rogers-Wright said. “It needs to be analyzed as part of the entire pipeline, phases 1-4, that’s 100 percent illegal. There’s been no clear explanation as to why DEC is allowing that.”
A department representative previously told Brooklyn Paper that the its permit review is limited to the construction of new vaporizers because the full facility’s nitrogen oxide emissions are expected to remain below the federal level, and National Grid has repeatedly stressed that the pipeline and the vaporizers are separate projects and will not interact with each other.
Delays and more delays
Repeated delays and changes to the plan at Greenpoint Energy Center have been par for the course for the new vaporizers. Reports from an independent monitor appointed to oversee National Grid’s operations as part of a 2019 settlement between the energy company and the state often said the delays were concerning, and that the “in-service” date for the vaporizers had been pushed back several times.
“National Grid’s ability to deliver Vaporizers 13 and 14 before Winter 2022/2023 as planned remains in doubt as National Grid awaits an air permit,” the monitor wrote in the final report last September.
The company’s agreement to extend the deadline to Nov. 4, as well as a request for more information submitted by the DEC last summer, cast an uncertain light on the future of the project, the monitor said, whether permits would be granted late or not at all.
“As acknowledged by National Grid, ‘the primary risk to implementation’ of Vaporizers 13 and 14 ‘is not obtaining the necessary permitting for the project, or not obtaining them in a timely manner,’” says the final report.
The application was first marked as “complete” in November 2020, but since then, DEC has repeatedly asked for additional information as the project has developed, and in February, National Grid submitted a revised application after reducing the scope of the project, scrapping plans to install two compressed natural gas heaters on the site.
In July, DEC sent their third request for more information — one that was particularly interesting to local environmentalists. In it, DEC asked that National Grid complete a full CLCPA review of the expansion — the same analysis activists say is incomplete — and that they draft an enhanced “public participation plan,” as required under “Commissioner Policy 29.”
Enacted in 2003, CP29 requires the department to keep environmental justice in mind while reviewing and issuing permits, including analyzing if a project could harm a “potential environmental justice community,” defined as “a minority or low-income community that may bear a disproportionate share of the negative environmental consequences.”
DEC’s initial notice of complete application said CP29 did not apply to the new vaporizers. In their letter, DEC said they were writing in response to updates to the department’s “Potential Environmental Justice Areas maps, qualifying definitions, and thresholds.”
A spokesperson did not specify what those updates were.
Complying with the commissioner
Ruhan Nagra, director of the Environmental Justice Initiative at University Network for Human Rights, who represents Sane Energy in their lawsuit against National Grid, said enforcing the policy so late in the review process does not really comply with CP29.
“It is absolutely insufficient to decide at the end of a public permit process that suddenly this policy applies and therefore National Grid needs to submit this public participation plan and have a public information session, and then somehow presume that National Grid has fulfilled its obligations under CP29 by doing that,” she said.
CP29 also requires a “coordinated review,” between city and state agencies involved in the application process — something DEC is not participating in, as far as Nagra knows. A department representative did not say whether or not that particular review is or will be performed.
If one were to be performed, Nagra said it’s likely that Mayor Bill de Blasio’s office would be another participating agency. National Grid also required permits from the city’s fire department and department of buildings, which have already been granted. But according to a report issued by monitor last summer, the mayor’s office had advised that “direct approval from the Mayor’s office will be needed for National Grid’s projects.”
De Blasio’s office did not immediately respond to request for comment.
However, she said, there are two kinds of approvals — “ministerial” and “discretionary.” In a ministerial act, a governing agency essentially does not have to use their own judgement — a permit can be issued if the project checks certain boxes. A discretionary decision requires the agency to examine and weigh out the project before issuing a decision. The FDNY and DOB permits were likely ministerial, Nagra said, and the mayor’s office appears to be treating the Greenpoint Energy Center’s permit application as a ministerial action and thus won’t take part in a review — something Nagra said was “very, very disputable.”
“We think that the mayor’s office also should have done an environmental review, and it should have been coordinated with DEC, that didn’t happen,” she said.