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Exxon Mobil Corp. must pay up, so said a three judge panel of the Second Circuit late last month. Opening the door to a flood of litigation concerning the gasoline additive MTBE, the Second Circuit affirmed a jury verdict award of $105 million against Exxon Mobil, and in favor of New York City, following an 11-week “bellwether” trial in the Southern District of New York.
Continue Reading Second Circuit Affirms Exxon Judgment, Rejects Clean Air Act Preemption Argument

The New York State Department of Health (“DOH”) released a new guidance document to clarify questions and concerns about asbestos in vermiculate-containing materials (July 9, 2013 Guidance Letter”).  Previously, the DOH issued a list of FAQs concerning fiber analysis and asbestos-containing materials (“ACM”); FAQ #10, which discussed vermiculite-containing materials, was subsequently updated to address, among other things, testing protocols (“June 22, 2012 Guidance letter”).  This update, however, lacked sufficient clarity and simply led to greater confusion about standards and methods that may be used to properly test for asbestos in vermiculite-containing materials.  Consequently, the DOH released the July 9, 2013 Guidance Letter to alleviate previous concerns, and it now “supersedes and replaces FAQ #10, as well as the June 22, 2012 [G]uidance [L]etter.”
Continue Reading Asbestos/Vermiculite Guidance

Last month, the Supreme Court completed its trifecta of Fifth Amendment land-use permitting decisions by issuing its opinion in Koontz v. St. Johns River Water Mgmt. Dist., a decision resting firmly on the backs of the court’s earlier Nollan v California Coastal Comm’n, 438 U.S. 825 and Dolan v. City of Tigard, 512 U.S. 374, opinions. Where Nollan and Dolan restrain a government from conditioning its approval of a land-use permit on the owner’s relinquishment of a portion of his property, unless there is a nexus and rough proportionality between the government’s demand and the effects of the proposed land use, Koontz clarifies that this same restraint applies in circumstances where a government denies a land-use permit because the applicant does not acquiesce to its demands.
Continue Reading Supreme Court Affords Landowners Protection From “The Dangers of Governmental Coercion” In Land-Use Permitting Decision

In 2007, the United States Supreme Court directed EPA to regulate greenhouse gas emissions (“GHG”) as a pollutant under the Clean Air Act.   Since that time, EPA has published an Endangerment Finding and issued a series of GHG-related rules and regulations.  Under the Tailpipe Rule, for example, EPA and the National Highway Traffic Safety Administration established motor-vehicle emission standards for GHGs.  Next, with the Timing Rule, EPA addressed major stationary emitters through the Title V and PSD provisions of the Clean Air Act, and staggered the applicability of these programs to the largest emitters first under the Tailoring Rule.   Generally, EPA’s GHG regulatory programs thus far have focused on carbon dioxide emissions from human-induced combustion of fossil fuel sources, like coal-fired power plants, refineries, and cement production facilities.
Continue Reading Regulation of Biogenic GHG Emissions, From Manure Management And Ethanol Sources, Cannot Be Delayed, Says D.C. Circuit

The Brownfield Cleanup Program has encouraged many private-sector cleanups of contaminated real property throughout upstate New York.  By providing tax credits and other methods of funding, New York State has spurred the redevelopment and reuse of land that would otherwise be unused, abandoned and ultimately left to the State for cleanup, slowly, under its strained State Superfund initiative.  Along the way, the Brownfield Cleanup Program has transformed communities and provided economic vitality, jobs and community pride to residents of New York State.  Indeed, since the Brownfield Program began in 2003, over 400 sites have been remediated and redeveloped.
Continue Reading Brownfield Cleanup Program, a Boon to Upstate Development, Under Siege

Last week, Norse Energy filed its Notice of Appeal to the New York State Court of Appeals. .  In its notice of appeal, Norse seeks review of the Third Department’s decision in Norse Energy Corp. USA v. Town of Dryden, upholding the lower court’s determination that the Town of Dryden’s ban on hydraulic fracturing was not expressly or impliedly preempted by the Oil, Gas and Solutions Mining Law.
Continue Reading Court of Appeals to Hear Fracking Ban Case?

In an effort to retain its title as the country’s number one yogurt producer, New York State recently relieved dairy farmers of certain state permitting obligations. The New York State Department of Environmental Conservation increased the number of cows which constitute a Concentrated Animal Feed Operation under state regulation from 199 cows to 299 cows.  The regulations, which can be found online become effective May 8, 2013.
Continue Reading More Cows Allowed Under CAFO Regulations

Albany celebrated Earth Day this week by verbally acknowledging that New York State is no closer to permitting fracking today than it was last year.  Senate Environmental Chair Mark Grisanti recognized that a de facto moratorium exists in New York State concerning the natural gas resource, with the Cuomo Administration delaying its decision on how to proceed until more health and environmental studies are complete.
Continue Reading NYS Fracking Standstill