May 29, 2009
Mayor Michael Bloomberg has signed legislation creating a framework for the creation of a City-level “comprehensive wetlands protection strategy.” The efforts will focus on “gaps in existing State and federal wetlands protection laws,” and will commence with a satellite survey of existing wetlands in the City. According to the Mayor’s office, the measure, known as Introductory Number 506-A, will result in a wetlands strategy document by 2012, as part of the City’s PlaNYC efforts.
The measure defines wetlands generally as follows: “those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.” 5 N.Y.C. Admin. C. § 24-528(2).
Notably, the City will be required to consider wetlands “smaller than 12.4 acres in size,” which may result in regulation extending beyond federal and state requirements. 5 N.Y.C. Admin. C. § 24-528(3)(c)(2). The final strategy is to include “appropriate legal requirements, management mechanisms, funding mechanisms, enforcement mechanisms and incentives to conserve, protect, enhance, restore, stabilize and expand wetlands and associated buffer areas in the city, whether publicly or privately owned.” 5 N.Y.C. Admin. C. § 24-528(3)(d)(3)(1).
In addition to Introductory Number 506-A, the Mayor also signed into law Local Law 83 of 2005, a measure seeking to protect city-owned wetlands (pdf).
May 28, 2009
Governors Island is opening its doors to the public for the summer season of 2009 beginning May 29, and will be open Fridays through Sundays until October 11th. This year, according to the Governors Island Blog, island visitors will have access for the first time to 2.2 miles of promenade around the island.
SPR is environmental counsel to the Governors Island Preservation and Education Corporation (GIPEC) in connection with the planning of a new proposed park on the island. Read about island activities, history, visiting hours, and more at the links below.
May 26, 2009
This morning, President Barack Obama announced his decision to nominate Second Circuit Court of Appeals Judge Sonia Sotomayor to fill the seat on the Supreme Court being vacated by Justice David Souter, who has announced his retirement. If confirmed, Sotomayor will represent an important vote on a variety of legal issues, including the scope and application of our nation’s environmental laws.
In 2007, Sotomayor authored the Second Circuit opinion in Riverkeeper v. EPA, holding that the Environmental Protection Agency could not rely on cost-benefit analysis in determining the “best available technology” required to minimize nuclear power plants’ cooling towers’ impacts on aquatic life. 475 F.3d 83 (2007). Riverkeeper arose under the Clean Water Act, but it follows a diverse line of cases on whether agencies can base environmental decisions on cost-benefit analysis when the underlying statute is silent. Last year, the Supreme Court reversed this opinion, with Justice Souter in the three-member dissent.
In US v. Giordano, a non-environmental case, Sotomayor rejected an attempt to limit Congress’s regulatory power under the Commerce Clause, holding that a national telephone network was an instrumentality of interstate commerce even if the calls in question occurred within a single state. 442 F.3d 30 (2006). In recent years, a number of federal environmental laws, including the application of the Clean Water Act to “isolated” wetlands and the use of the Endangered Species Act to protect purely intrastate species, have been challenged as exceeding Congress’ commerce powers, leading to a 2007 Supreme Court opinion that set forth a new test for federal wetlands protections. The Obama administration recently expressed support for legislative clarification of the scope of CWA jurisdiction.
If her opinions in Riverkeeper and Giordano are any guide, it is likely that Sotomayor, if confirmed, will bring to the Supreme Court a deference to Congressional determinations requiring environmental protection, even in the face of potentially high economic costs. She also may hold a relatively broad view of Congress’ interstate commerce authority, which may stymie further attempts to challenge environmental statutes on those grounds.
May 22, 2009
The Bureau of National Affairs is reporting that President Obama is supporting Congressional efforts to clarify Federal Clean Water Act (CWA) jurisdiction. The Democratic Congress is seeking to clarify, and likely broaden, the scope of the CWA in the face to two relatively recent U.S. Supreme Court decisions, including the 2006 Rapanos decision, Rapanos v. United States, 547 U.S. 715 (2006), that narrowed the universe of waterways and wetlands that had previously been thought subject to federal jurisdiction.
One proposal is to replace the plainly confusing reference to “navigable waters” in the CWA with the term “waters of the United States,” though any statutory revision would still have to pass muster under the U.S. Constitution by having some relationship to interstate commerce. The change, however, would likely eliminate the need to link waterways and, especially wetlands, with other “navigable” water bodies.
The Obama Administration’s letter to the key Congressional committees urged Congress to consider a number of general principles, including a goal of broadly protecting the nation’s waters and making the definition of covered waters predictable. There can be no arguing with either goal, especially the second one, because the recent Supreme Court decisions have been inconsistently interpreted by federal courts of appeals and have essentially paralyzed the U.S. Army Corps of Engineers, the agency charged with regulation of activities in regulated wetlands, as it seeks to develop coherent regulations identifying regulations subject to CWA jurisdiction.
May 19, 2009
The installation of trees has begun at Brooklyn Bridge Park. SPR represented the Brooklyn Bridge Park Development Corporation (BBPDC) in connection with the environmental review and subsequent litigation surrounding the development and approval of the park. The park consists of roughly 80 acres of waterfront in Brooklyn, many of which overlook downtown Manhattan and the Brooklyn Bridge. For more information on the park, and development plans, visit the site of the BBPDC below.
May 18, 2009
A California court has held that an environmental review of a proposed Wal-Mart was inadequate under the California Environmental Quality Act, where the environmental review failed to properly analyze the project’s regional air pollution impacts, including the potential adverse impacts of greenhouse gas emissions. The case, Center for Biological Diversity v. Town of Yucca Valley (Cal. Sup. Ct. CIVSS800607, May 14, 2009), addresses an emerging issue facing many large-scale developments which are required to comply with state or federal environmental review laws. On the state level, the issue of evaluating climate change impacts has–until recently–been largely shaped by administrative guidance, state legislative action, and executive orders. The Yucca Valley decision will likely be among the first of many court decisions on this issue, as GHG impact analysis issues are litigated more frequently in coming months and years.
The United States Supreme Court recently issued its decision in Burlington Northern & Santa Fe Railway Co. et al. v. United States et al. (“Burlington“) a case which has received attention over the years for its potential to shed light on the apportionment of costs among potentially responsible parties (PRPs). Also before the Court were issues relating to arranger liability. On the arranger liability issue, the Court held 8-1 that Shell Oil Company was not liable as a CERCLA PRP because Shell had not “arranged for the disposal…of hazardous substances” within the meaning of Section 107(a)(3) of CERCLA. The Court held that Shell’s mere knowledge of continuing spills and leaks from a useful product that it sold and transported to a customer’s facility was insufficient grounds for concluding that the company had “arranged for” disposal of the product.
More significant, however, was the Court’s decision on apportionment, whereby PRPs may seek to avoid the potentially harsh consequences of joint and several liability for a CERCLA cleanup. The Court upheld the District Court’s central finding that the principal contamination that led to the response costs did not occur on the parcel owned by the railroad, which “contributed to no more than 10% of the total site contamination.” Accordingly, the Court held that joint and several liability was inappropriate in that circumstance. This holding may empower trial courts to render similar rulings in the future on appropriate facts. The Court in effect applied a pragmatic test for apportionment of CERCLA liability based on a reasonable, common sense application of the facts.
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