Consensus Developing for Changes to New York State’s Brownfield Cleanup Program

A remarkable consensus is emerging regarding proposed changes to New York State’s Brownfield Cleanup Program. That consensus is reflected in recommendations made over the past several weeks by groups with membership and interests as diverse as the Environmental Justice Alliance, the Real Estate Board of New York, and the Environmental Law Section of the New York State Bar Association.

The Brownfield Cleanup Program has been very successful in spurring the cleanup and redevelopment of hundreds of formerly contaminated brownfield sites across New York State. However, it has also attracted controversy, particularly with respect to generous tax credits available not only for cleanup, but also for site development. These provisions resulted in outsized benefits to some projects which entered the Program before amendments in 2008 which limited the availability of development credits. See, e.g., the New York State Comptroller’s April 2013 Report on “Brownfield Restoration in New York State: Program Review and Options.”

Legislative attention is focused on the Program this year because the tax credits expire for any projects that have not completed cleanup by December 31, 2015.

The necessity for legislative action has mobilized a broad spectrum of groups to propose modifications to the Program. Surprisingly, there appears to be a consensus among many of these groups as to what changes are needed, including:

• Extending or eliminating the “sunset date” for tax credits;
• Maintaining the current site preparation (cleanup) tax credit structure for all eligible program participants;
• Amending the tangible property (development) tax credits to target such credits to sites that meet certain objective criteria related to underutilization, blight and market conditions;
• Creating a “fast-track” program for lightly contaminated sites whose owners would like to clean them up under state supervision, but are not seeking tax credits; and
• Allowing certain sites on the State Superfund list to be eligible for the Program, as long as the cleanup is being performed by a party not responsible for the original contamination.

Brownfield Cleanup Act amendments along these lines were proposed in 2011 by the Environmental Law Section of the New York State Bar Association. In late December 2013, a very similar set of recommendations was endorsed by a coalition of seven organizations spanning the political spectrum: the New York League of Conservation Voters, the Environmental Justice Alliance, Environmental Advocates of New York, the Environmental Defense Fund, the Real Estate Board of New York, the New York State Business Council, and New Partners for Community Revitalization. Those recommendations were backed by the Bar Association’s Environmental Law Section in a letter to Governor Cuomo released earlier this week.

Recommendations for changes to the Program are expected shortly from Governor Cuomo. They will likely be taken up by the Legislature this spring.