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

In what will be a precedent-setting decision of national importance, today the New York State Court of Appeals agreed to hear Norse Energy’s appeal of the Third Department’s decision upholding the Town of Dryden’s municipal ban on hydraulic fracturing for natural gas extraction. The Third Department and lower State Supreme Court both upheld the Town’s ban on hydraulic fracturing on the grounds that a full blown ban on an activity does not constitute “regulation” for preemption purposes under New York State’s Oil, Gas and Solutions Mining Law. The validity of the Third Department’s reasoning, and the Town’s underlying authority, will be reviewed by the Court of Appeals sometime this fall. Continue Reading Update! – New York State Court of Appeals Takes On Fracking Ban Case

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

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