March 7, 2014
The U.S. Environmental Protection Agency (“EPA”) finalized a new regulation on Monday implementing a program designed to reduce air pollution from passenger cars and trucks. The regulation is part of EPA’s Tier 3 Motor Vehicle Emissions and Fuel Standards program, a mobile source emission control program authorized under the Clean Air Act (“CAA”). Starting in 2017, Tier 3 will require gasoline sulfur levels to be reduced by two thirds from 30 to 10 parts per million, and will also set more stringent vehicle tailpipe emissions standards. The two components of the program are interrelated: the presence of sulfur in gasoline reduces the efficiency of vehicle catalytic converters, which leads to increased tailpipe emissions of nitrogen oxides, particulates, and other pollutants linked to lung disease and asthma. Notably, when oil refiners comply with the new clean-gasoline regulation, the increased efficiency which results will also help automakers to meet the tightening vehicle fuel economy standards.
Proponents of the rule, including the American Lung Association and American Academy of Pediatrics, say that it will save lives and protect the health of millions of Americans. Some oil industry representatives have opposed the rule, stating that it is unnecessarily costly and imposes inequitable burdens on business. The auto industry, however, worked closely with the Obama administration to develop a regulation harmonizing existing federal and state standards and supports the rule.
EPA predicts that by 2030, the rule will reduce on-road emissions of nitrogen oxides by 25%, volatile organic compounds by 16%, carbon monoxide by 24%, and fine particulate matter by 10%, which may assist states in attainment of National Ambient Air Quality Standards under the CAA.
February 28, 2014
Earlier this month, the New York State Department of Environmental Conservation (“DEC”) issued a public notice of its draft State Pollutant Discharge Elimination System (“SPDES”) permit for stormwater discharges from Municipal Separate Storm Sewer Systems (“MS4s”) owned or operated by the City of New York.
The following areas are covered under the new MS4 permit:
- New York City-owned storm sewers that ultimately discharge to MS4 outfalls owned by New York City; High Level Storm Sewers (with the exception of facilities that are sited near High Level Storm Sewers but discharge to combined sewers) and Bluebelts that ultimately discharge to MS4 outfalls owned by New York City;
- Facilities or areas covered by the SPDES general permits for stormwater discharges from construction and industrial activities, if such discharges ultimately flow to MS4 outfalls owned by New York City; and
- New York City municipal operations and facilities that drain by overland flow (direct drainage) to surface waters of New York State.
The proposed permit requires that the City develop an enforcement policy to maintain the authority to carry out stormwater management programs and to ensure compliance with such programs. For example, the City must have control of pollutants flowing into the system, access to inspect sources of pollutant discharges, and the ability to compel compliance and issue citations.
Notwithstanding these enforcement responsibilities, the permit would not cover, and thus would exempt the City from administering and monitoring many activities that are significant sources of stormwater runoff in the City, including discharges through non-City owned pipes and outfalls or from non-City owned facilities that drain by overland flow to surface waters of New York State. Instead, DEC will continue to regulate such facilities and activities through the SPDES general permit system (such as the Construction General Permit and Multi-Sector Industrial Permit) or individual SPDES permits.
Stormwater Management Program Plan (SWMP)
The City is also required, as a condition of the proposed general permit, to develop an SWMP describing how it will meet the requirements of the permit. The SWMP must provide for Public Education & Outreach; Public Involvement/Participation; Illicit Discharge Detection & Elimination & Mapping; Construction Site Stormwater Runoff Control; Post Construction Stormwater Management; Industrial Sources; Control of Floatables and Settleable Solids; Monitoring & Assessment of Controls; Impaired Waters; and Recordkeeping/Reporting.
The SWMP is a significant undertaking for the City. Under the draft MS4 Permit, the SWMP would have to be submitted to DEC within three years of the effective date of the permit.
Comments on the proposed permit are being accepted through March 5, 2014. For more information, see the NYSDEC Fact Sheet or contact Michael Bogin or Maggie Macdonald.
February 21, 2014
On Monday, the U.S. Supreme Court will hear argument in six consolidated challenges to the Environmental Protection Agency’s (“EPA’s”) decision to regulate emissions of greenhouse gases (“GHGs”) from stationary sources under certain provisions of the Clean Air Act (the “CAA”). The cases come from the D.C. Circuit Court of Appeals, which dismissed the challenges in 2012 on the ground that the petitioners lacked standing.
Monday’s argument presents a narrow question: whether EPA’s existing regulation of GHG emissions from motor vehicles triggered statutory permitting requirements that would apply to stationary sources. The CAA’s Prevention of Significant Deterioration (“PSD”) provisions require any facility that annually emits more than either 100 or 250 tons (depending on the type of facility) of “any air pollutant” to obtain an emissions permit. In its “Timing Rule,” EPA determined that its existing GHGs emissions standards for motor vehicles render such emissions “air pollutants” within the meaning of the statute, thereby triggering the PSD permit requirement. However, in its “Tailoring Rule,” EPA announced that it would initially require PSD permits only for very large sources of GHGs, rather than apply the statute’s low 100/250 ton threshold.
EPA’s interpretation raises two questions. The first is whether, as Judge Kavanaugh of the D.C. Circuit has argued in a dissenting opinion, the CAA requires PSD permits only for facilities that emit those “air pollutants” for which EPA has issued ambient air quality standards—a category that does not include GHGs. The second is whether EPA’s decision to raise the threshold of GHG emissions above which PSD permits are required was a permissible application of the statute.
This is the third time in seven years that the Court has considered the scope of EPA’s authority to regulate GHGs under the Clean Air Act. In its 2007 decision in Massachusetts v. EPA, the Court held that GHGs are unambiguously “air pollutants” potentially subject to regulation under Title II of the Act, which governs emissions standards for mobile sources. Following Massachusetts, EPA issued formal findings that motor vehicle emissions “cause or contribute” to GHG pollution that “endangers” public health and welfare—leading to its promulgation, under Title II, of fleet-wide average fuel efficiency standards for cars and trucks. EPA’s endangerment finding was upheld by the D.C. Circuit, and the Supreme Court declined to grant petitions seeking review of that part of the appellate court’s decision.
In its 2011 decision in American Electric Power Company v. Connecticut, the Court acknowledged EPA’s authority to regulate GHGs from stationary sources as well. There, the Court held that the claim that GHG emissions from fossil-fuel fired power plants constituted a public nuisance under federal common law was “displaced”—that is, rendered legally obsolete—by “the Clean Air Act and the EPA actions it authorizes,” specifically noting, as an example, that EPA was then engaged in “rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants” under the CAA’s New Source Performance Standards provisions.
Given the narrow issue on which the Court granted review, it is unlikely that the outcome of the cases to be argued Monday will disturb EPA’s now well-established authority to regulate GHG emissions in general. It may, however, alter the specific ways in which EPA may exercise that authority with respect to stationary sources.
For more information on the Supreme Court proceedings or greenhouse gas regulation, contact Jeffrey Gracer.
February 13, 2014
The New York Green Bank, a renewable energy financing program proposed by Governor Andrew Cuomo in his 2013 State of the State address, launched this week with a request for proposals aimed at overcoming market barriers to clean energy development.
Last December, Governor Cuomo announced the allocation of approximately $210 million to fund the Green Bank, including approximately $44 million from the sale of emissions allowances through the Regional Greenhouse Gas Initiative (“RGGI”). Cuomo intends to increase the capitalization of the Green Bank to $1 billion in the years ahead.
Instead of providing loans or subsidies directly to energy providers or consumers, the Green Bank seeks to partner with financial institutions in order to spur private investment in clean energy development. For instance, the Green Bank could assume a portion of the default risk associated with clean energy loans or leases in return for a fee, or purchase smaller clean energy loans and bundle them into volumes that could be resold on secondary capital markets. The Green Bank’s initial request for proposals therefore requires the involvement of at least one private sector financial party, either alone or as a part of a team with other energy industry participants.
The Green Bank provides a list of renewable energy technologies and energy efficiency improvements potentially eligible for financial support, but has also invited applicants to propose projects involving other technologies that “demonstrate a potential for increased deployment of energy efficiency or renewable energy and/or a potential for greenhouse gas reductions in New York State.” Nuclear energy, municipal solid waste combustion, and adulterated biomass or biofuels are not eligible for participation.
For more information on renewable energy financing and development, contact Scott Furman.
February 10, 2014
In an eventful month for parkland alienation cases in New York City, two recent state court decisions interpreted different issues pertinent to the public trust doctrine, which requires approval from the New York State legislature before parkland may be alienated for non-park uses.
The rulings from New York State Supreme Court justices in Manhattan and Brooklyn addressed, respectively, what proof is required to demonstrate that a parcel has been dedicated as parkland by implication and what activities constitute an appropriate “park use.” In both cases, the Courts ruled that the City had violated the public trust doctrine and was required to seek the approval of the State Legislature before proceeding.
Raritan Baykeeper v. New York City, Index No. 31145/06 (Sup. Ct. Kings Cnty., Decided Dec. 20, 2013)
Filed in 2006, this long-running litigation involves a 20-acre composting facility operated by the City Department of Sanitation in Spring Creek Park in Old Mill Creek, Brooklyn. The facility was intended to process leaves and other organic waste collected from around the City for use as fertilizer in Spring Creek Park and other parks.
Petitioners alleged that the placement and operation of the composting facility within Spring Creek Park violated the public trust doctrine, on the basis that a solid waste management facility could not be considered an appropriate park use, that the public was deprived of recreational access to the area of the facility, and that the facility created an unbearable nuisance. The City argued that the composting facility fell within the meaning of a legitimate “park use” under the public trust doctrine because the compost would be used in park maintenance.
Interpreting the term “park use,” the Court focused on whether the use was consistent with the public’s recreational enjoyment of the park, and held that the composting facility was not, noting the incompatibility between the “industrial scale processing of waste” at the Spring Creek Park facility and traditional and legitimate park uses. The Court cited a spectrum of cases on which some private uses such as restaurants and holiday markets were held to be non-violative of the public trust doctrine while solid waste disposal sites were not legitimate park uses.
Under the terms of the Court’s order, the City is enjoined from operating the composting facility until it obtains legislative approval.
A full copy of the Raritan Baykeeper decision is available here.
Glick v. Harvey, Index No. 103844/12 (Sup. Ct. N.Y. Cnty., Decided Jan. 7, 2014)
The second recent parkland alienation decision concerns the City-approved expansion plans proposed by New York University (“NYU”) for an area in Greenwich Village south of West 3rd Street and north of Houston Street, on which NYU plans to build a number of new campus facilities. The litigation focused on the fate of four parcels of land within that area – known as Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens, and the Mercer-Houston Dog Run – all of which the petitioners alleged to be dedicated parkland that could not be alienated under the NYU plan without the approval of the State Legislature.
Courts have repeatedly held that land can become parkland (and thus covered by the public trust doctrine) either through express or implied dedication. Long-continued use of a parcel for park purposes can constitute dedication by implication. Because the parcels at issue in this case are mapped as streets and not as parkland, the issue of implied dedication was central to the Court’s decision.
This high-profile case included testimony from a number of former City officials on behalf of the petitioners, including former commissioners of the Department of Transportation and the Department of Parks and Recreation. The Court looked to the affidavit of longtime Parks Commissioner Henry Stern in evaluating a list of factors that could help determine whether implied dedication had occurred, including long-time, continuous use of the land for park purposes, Parks Department signage, maintenance of the property by the Parks Department, and public statements by City officials identifying the property as parkland.
The Court ruled that despite some evidence presented by the City that the use of the parcels as parks was intended to be temporary, the Department of Parks and Recreation also treated three of the four parcels as parks through signage and maintenance efforts, limiting its ability to later claim that the parcels had not become parkland. The City must now seek approval from the State Legislature before the NYU plans for these parcels can move forward. The City Law Department has not announced whether it plans to appeal.
The Glick decision has important implications for the City’s use of non-parkland sites for long-term recreational uses in programs such as Greenstreets and GreenThumb gardens. Although the petitioners demonstrated longstanding use of three of the four parcels as parkland, the City had also maintained official Department of Transportation jurisdiction over the properties to allow for future non-park uses. Despite existing case law in the First Department holding that there could be no implied dedication where the owner has expressed contrary intent, the Court ruled that long-continued use of the land for park purposes may be sufficient to establish dedication by implication.
A full copy of the Glick decision is available here.
January 29, 2014
The New York State Department of Environmental Conservation (“DEC”) has proposed a draft general permit for bulkhead repairs on parts of the south shore of Long Island.
Where: General Permit No. GP-1-13-001 (the “General Permit”) would be available for use on the south shore of Long Island west of the Robert Moses Causeway to the Queens County border, excluding areas of vegetated tidal wetlands, any ocean shore, the ocean front of Long Beach Island, and all of the Jones Beach State Park and Robert Moses State Park barrier islands.
What: The General Permit would authorize
- The removal and replacement of a functional and lawfully existing bulkhead in the same location as an existing bulkhead, up to 18 inches higher in elevation than the existing bulkhead.
- A limited amount of maintenance dredging associated with replacement of the bulkhead.
The General Permit would obviate the need for individual permits under the following programs:
- Tidal Wetlands (Environmental Conservation Law (“ECL”) Article 25)
- Excavation and Fill in Navigable Waters (ECL Article 15, Title 5)
- Water Quality Certification (Clean Water Act § 401)
Official information about the General Permit is available on DEC’s website, here, here and here.
How: An applicant must submit to DEC a Request for Authorization Form containing a project location map, project plans, a survey depicting the bulkhead, recent color photographs of the site, and permission for DEC to inspect the property. The applicant must receive written confirmation of authorization before undertaking any work pursuant to the General Permit.
Why: According to DEC, the General Permit is a continuation of the emergency general permit for storm repair work issued in the wake of Superstorm Sandy in order to expedite recovery. That permit was originally issued in October 2012 and replaced in July 2013. The current permit is effective until October 31, 2014.
When: DEC is accepting written comments on its proposal until January 31, 2014. Comments may be sent to
NYS Department of Environmental Conservation
Division of Environmental Permits
625 Broadway, 4th Floor
Albany, NY 12233
SPR will keep abreast of future developments concerning this permit.
For more information about bulkhead permitting and/or Sandy recovery efforts, please contact Michael Bogin or David Yudelson.
January 28, 2014
On February 5-7, 2014, SPR principals Daniel Riesel and Pamela Esterman will co-chair the 44th annual ALI CLE Environmental Law Course in Washington, DC. The course, which is co-sponsored by ALI CLE and the Environmental Law Institute, will feature advanced-level presentations by senior public officials, distinguished law professors, seasoned private practitioners, and experienced public interest advocates. In addition to chairing the course, Daniel Riesel will co-lead a panel on citizen suits and government enforcement initiatives, and Pamela Esterman will co-lead a panel on ethical issues associated with the use of technology. SPR principal Jeffrey B. Gracer will co-lead a panel on environmental issues in business and real estate transactions. EPA General Counsel Avi Garbow will deliver the course’s keynote address.
Additional panels will provide updates and explore recent trends in
- CERCLA and hazardous waste;
- air pollution and climate change;
- NEPA and environmental justice;
- water resources, water quality, and wetlands;
- environmental issues in the development and production of energy;
- global environmental agreements; and
- the Endangered Species Act and public lands.
For those unable to attend the live conference in Washington, D.C., this program is also available via video webcast. For more detailed information and online registration, please visit the course website.
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