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On Wednesday, EPA published its proposed New Source Performance Standards (“NSPS”) for greenhouse gas emissions in the Federal Register. In its proposed regulations, EPA expresses its determination, despite industry and internal Scientific Advisory Board evidence to the contrary, that Carbon Capture and Recycling (“CCR”) is a viable technology. This is a huge boon for CCR technology, as until now the efficacy of the R – recycling – had been the subject of intense debate. While Carbon Capture and Sequestration is a generally accepted practice, the viability of recycling residual gas and using it as feedstock for other products had, until now, been in dispute.
Continue Reading Carbon Capture and Recycling Is Viable, Says EPA, to An Industry In Decline

This week, the New York Supreme Court, Appellate Division, Third Department (“Third Department” or “Court”), issued a memorandum decision in the case of Thrun v. Cuomo, dismissing a legal challenge to New York’s involvement in the Regional Greenhouse Gas Initiative (“RGGI”).  The RGGI program is a cooperative effort of nine northeast states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont) to reduce greenhouse gas emissions through a cap and trade program applicable to fossil-fuel powered electricity generating units having a rated capacity of at least 25 megawatts.  The RGGI program was the product of a 2005 Memorandum of Understanding (“MOU”) between the governors of the seven initial RGGI states, including former New York Governor George Pataki.
Continue Reading Appeals Court Dismisses Legal Challenge to New York RGGI Program

In an intriguing post on Law & The Environment, Seth Jaffe notes that, in part because of the ongoing sequester and budgetary concerns, EPA’s future enforcement efforts may rely more heavily on citizen groups. Quoting Cynthia Giles,  the Assistant Administrator of EPA’s Office of Enforcement and Compliance Assurance, as saying that “we have far too much noncompliance, widespread noncompliance in some of the largest sectors,” and that “EPA is looking for new ways to catch violations as they occur,” Jaffe notes that the Agency’s first overture to more citizen group involvement may be seen in its recent update to ECHO, its online enforcement database.
Continue Reading EPA’s Future Enforcement Strategy: More Citizen Suits?

In the CERCLA context, knowing whether a cleanup action is a “removal” or “remedial” action is crucial to the length of time allowed for the cleanup, the amount of money that may be spent on the cleanup, and the statute of limitations for recovery of costs incurred as part of the cleanup. Generally, the statute of limitations for the recovery of costs related to a removal action is three years from the date of completion of the removal action, whereas the statute of limitations related to a remedial action is six years after the initiation of physical on-site construction of the remediation – meaning contribution lawsuits must often be brought while a remedial action is on-going. The determination of whether an action is removal or remedial can, therefore, be dispositive on whether an action is time-barred.
Continue Reading Second Circuit Clarifies “Removal” vs. “Remedial” Action Under CERCLA

Today, the Supreme Court granted certiorari to six petitions brought by state and industry groups challenging the EPA’s greenhouse gas emissions regulations for stationary sources. The petitions are seen by many as a sequel to Massachusetts  v. EPA, a 2007 Supreme Court decision directing EPA to determine whether greenhouse gas emissions endangered public health or welfare and, if so, to regulate them accordingly. Two years later, EPA made what is known as an “endangerment finding” concerning the risks posed by greenhouse gases, thereby paving the way for it to set limits on greenhouse gas emissions from both vehicles and stationary sources.
Continue Reading Supreme Court Agrees to Hear GHG Emissions Sequel to Mass v. EPA

We must invest in New York State’s environmental infrastructure, says Republican State Senator Mark Grisanti and Democratic Assembly Member Robert Sweeny, both Chairs of Environmental Conservation Committees in the State Legislature.   Last week, Grisanti and Sweeny introduced legislation to create a $5 billion environmental bond to finance efforts to address New York State’s “crumbling infrastructure above and below ground.”  A high priority on the lawmakers’ list is the State’s aging combined sewage and storm water systems, some of which have not been updated in over a century.  Aging and limited-capacity storm water systems are responsible for significant sewage overflows throughout New York State.  Other bond funds would be earmarked to protect water resources,
Continue Reading $5 Billion Environmental Bond Act Introduced in New York State Assembly

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

As part of its RE-Powering America’s Land Initiative (“RE-Powering Initiative”), the United States Environmental Protection Agency (“EPA”) has released an updated RE-Powering Mapper (“Mapper”) tool to assist with redevelopment of contaminated sites with renewable energy. EPA’s RE-Powering Initiative promotes the reuse of potentially contaminated lands, landfills, and mine sites for renewable energy through a combination of tailored redevelopment tools for communities and developers, as well as site-specific technical support.
Continue Reading The EPA’s Updated RE-Powering Mapper

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