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September 30, 2009

New York City Local Brownfield Program Call for Comments on Draft Regulations, Informational Meetings and Public Hearing

By: Christine Leas — Filed under: Brownfield Cleanup, New York City Environmental Law — Posted at 2:48 pm

On Wednesday, September 29, 2009, New York City’s Office of Environmental Remediation (OER) held an informational conference call on the first set of draft regulations under the NYC Local Brownfield Cleanup Program (LBCP) and NYC Clean Property Certification Program, that were both authorized by the NYC Brownfield and Community Revitalization Act, signed into law by Mayor Bloomberg in May 2009.  The LBCP and the Clean Property Certification Program are integral components of the Brownfield agenda component of the Bloomberg administration’s PlaNYC.  The LBCP and Clean Property Certification draft regulations were published by OER on September 17, 2009 and will be followed in mid-November by the issuance of draft Brownfield Financial Incentive Grant regulations that will outline the city’s program for distributing $10 million in funds earmarked for support of the LBCP over three years.

The LBCP is aimed at properties that are not eligible for the New York State Brownfields Cleanup Program and that have only light to moderate contamination.  Properties that the DEC have deemed “significant threat” sites, Hazardous Waste sites that DEC has classified as Class 1 and Class 2 under the NYS Environmental Conservation Law, and sites that are on the federal Superfund National Priority List (NPL) are not eligible for the city program.  Cleanup criteria and citizen participation plan obligations for the City program track those of the New York State program.  There are no tax credits associated with the LBCP – financial incentives under the City LBCP will be limited to grants capped at $50,000 per project.  Consultants who meet the Qualified Environmental Professional criteria set forth in the draft regulations, presumptive remedies and templates for required program reports and other documentation will play an important role in the LBCP.

At present, properties that are cleaned up under the LBCP will be entitled to a release from the City for environmental conditions.  During the September 29 informational call, Daniel Walsh, Director of the OER announced that discussions are underway with New York State that are expected to yield a state release for sites under the City LBCP.  Walsh also announced that he hopes to obtain federal liability protection for City certified properties, but at this time no such liability protections are in place.

Two additional informational sessions will be held by the OER to discuss program procedures with consultants, property owners and other interested parties.  The first of these sessions, aimed at private developers and their advisors will be held on Monday, October 5, 2009 and the second, aimed at community-based organizations, will be held on Monday, October 12.

Director Walsh strongly encouraged interested parties to comment on the program and the draft regulations.  A hearing to receive comments on the draft regulations will be held on Monday, October 19, 2009 and all written comments are due by Friday, October 30.

September 24, 2009

Newtown Creek Proposed for Superfund List

The U.S. Environmental Protection Agency (“EPA”) is proposing to add New York City’s Newtown Creek to its National Priorities List (“NPL”) of sites with known or threatened releases of hazardous substances throughout the United States and its territories. The NPL is EPA’s list of sites that warrant further investigation and long-term cleanup.  This proposed action follows closely on the heels of the well-publicized and hotly-contested proposed listing of the Gowanus Canal as an NPL site.

As it did with the Gowanus Canal, the State of New York referred Newtown Creek to EPA “due to the complex nature of the contamination along the creek.”  This complexity apparently stems from the myriad types and potential sources of contamination.  As EPA noted in its press release for the proposed listing, contamination found in Creek sediment and surface water samples includes pesticides, metals, PCBs, and volatile organic compounds (“VOCs”), the last category of which are potentially harmful contaminants that can easily evaporate into the air.

From the mid-19th century until World War II, Newtown Creek was a hub of a growing industrial America: more than 50 industrial facilities were located along its banks, including some of the nation’s largest oil refineries, petrochemical plants, copper production and smelting plants, fertilizer and glue factories, sawmills, and lumber and coal yards. Industrial pollution resulted from  these activities  and from  the City’s sewers that for many decades dumped untreated into the Creek.  Some factories and facilities still operate along the Creek and its tributaries, and various adjacent contaminated sites have also potentially contributed to its contamination. As a result, Newtown Creek is, according to the EPA, “badly polluted” and its listing on the NPL “will allow EPA to build on the extensive sampling of the creek that has already been done.”

EPA’s press release does not explain the need for an NPL listing, given that in 2007 New York Attorney General Andrew Cuomo commenced litigation against Exxon Mobil Corp., BP, Chevron Corp., Keyspan Corp. and Phelps Dodge Corp. for their respective roles in polluting the Creek.  Also it is not clear how an NPL listing would affect any of the other three suits brought by private parties and the environmental group Riverkeeper that seek cleanup of the Creek and at least $58 billion in damages.  Whether this proposed listing provokes opposition from the City of New York and others, similar to the proposed Gowanus Canal listing, will probably be known soon.  It is worth noting that only several months ago, in June 2009, the City spent $100 million to purchase 30 acres of property at the mouth of Newtown Creek to construct the largest middle-income housing development in New York since the 1970s.  Known as “Hunter’s Point South,” that project will include 3,000 affordable housing units, a 1,100-seat high school, 11 acres of parkland, and a network of pedestrian walkways and bike paths along what may soon  be a new federal Superfund site.

No one knows yet how wide EPA intends to cast the Superfund liability net.  In the event the Creek is listed, property owners along the waterway and in the immediate area may face claims relating to the current and historic uses of their property, and the extent to which these uses may have contributed to Creek contamination.  These parties may be well served by making their interests known in EPA’s public comment period which accompanies any NPL listing. The public comment period for Newtown Creek began September 23, 2009, and will remain open for sixty days.  Comments may be submitted via EPA’s website here.

September 23, 2009

2nd Circuit Rules That Courts Are Open For Climate Change Lawsuits Against Power Companies

In a strongly worded and well-reasoned opinion by two Republican appointees, the Second Circuit Court of Appeals has held that federal courts have both the power and the obligation to hear lawsuits alleging that climate change creates a public nuisance. State of Connecticut et al. v. American Electric Power Company Inc. et al., 05-5104-cv, 05-5119-cv (2d Cir. Sept. 21, 2009) (“AEP“).    The district court had dismissed the case on the grounds that it presented a non-justiciable political question.  The Second Circuit rejected that conclusion, holding that when the other two coordinate branches of government have failed to act to address global warming, the federal courts must remain open to adjudicate claims, even if those claims raise difficult political issues.  The court then addressed a number of other issues raised by the litigants, holding that: (i) both the state plaintiffs and private land trusts have standing to assert that they are being harmed by global warming; (ii) currently there is no coherent federal law on global warming that can displace a federal common law nuisance claim;  and (iii) in the absence of federal regulations or statutes addressing the greenhouse gas emissions, the federal courts—which have been adjudicating environmental claims under federal common law for over 150 years–can and should continue to do so.

It remains to be seen whether this case is accepted for review by the Supreme Court, but review seems highly likely.  Interestingly, Justice Sonia Sotomayor, who was recently elevated from the Second Circuit to the Supreme Court, sat on the panel that heard the AEP appeal.  The Second Circuit’s opinion notes that she “did not participate” in the decision, leaving open the possibility that Justice Sotomayor could participate in a Supreme Court decision should it accept the case for review.   Given that the last decision from the Supreme Court on climate change (Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007)) was decided by a 5-4 vote, Sotomayor’s vote could be significant.

The AEP decision raises the stakes in the ongoing debate about the need for climate change legislation and/or regulation of greenhouse gases by EPA.  Pursuant to a final rule issued by EPA yesterday, thousands of companies will be required to report their greenhouse gas emissions starting in 2010.  This information could be used by plaintiffs (along with other publicly-available information) to identify additional companies as targets for future litigation.  Industrial and other companies with large greehouse gas profiles could now face the risk of costly and protracted litigation, causing companies that have the ability to reduce their greenhouse gas footprints to take meaningful steps in that direction.

It is a certainty that greenhouse gas litigation would not result in uniform rules that companies could rely upon when they make long-term investments.  We believe that the AEP ruling will create greater pressure for Congress to act on the issue of climate change.  In that sense, the Second Circuit has sent a strong message to Congress:  Do your job or we will be forced to do ours.

September 22, 2009

Historic Climate Summit Seeks To Re-energize Emission Reduction Talks

By: Vicki Shiah — Filed under: Climate Change Law, Emerging Issues — Posted at 9:00 am

Some 100 heads of state will meet today at the United Nations Headquarters in New York to discuss climate change issues.  The Summit on Climate Change, which is being called the “highest level summit meeting on climate change” ever assembled, was convened by U.N. Secretary-General Ban-Ki-Moon in response to a lack of progress in current international negotiations preparatory to the United Nation’s Climate Change Conference (known as COP15).  The Conference is scheduled to take place this December in Copenhagen; its goal is the creation of a new international treaty, supplanting the Kyoto Protocol, to combat climate change.

The goal of today’s Summit is to re-energize the pre-Copenhagen negotiations by fostering international consensus among highest-level government actors on the need for immediate action to combat climate change.  A major obstacle to agreement has been each nation’s reluctance to be the first to commit to costly emissions-reduction measures.  Another issue is the demand from developing countries for financial and technical aid to reduce emissions.  The United Nations hopes that, in today’s meeting, the heads of states can collectively “summon the will to overcome narrow national interest and give the negotiators the marching orders to cut at least the outline of a deal.”

September 21, 2009

Newslink: Corporate Sustainability Pledges, Under the Microscope

By: Ashley S. Miller — Filed under: Newslink, Sustainable Development — Posted at 4:04 pm

Dot Earth highlights a new study out in MIT’s Sloan Management Review, from its First Annual Business of Sustainability Survey.

The MIT report finds that 92% of respondents say their company is taking action to address sustainability, but most companies are not doing more than required to meet regulatory requirements.  Read more at the links below.

September 18, 2009

Investors Urge Climate Regulation

By: Ashley S. Miller — Filed under: Climate Change Law, Emerging Issues, Sustainable Development — Posted at 3:36 pm

A group of investors, organized by the New York State Comptroller’s Office and the Ceres Investor Network on Climate Risk, has announced strong support for cuts in global greenhouse gas emissions.  The groups — representing over $13 trillion in assets across 181 institutions — called for reduction of emissions worldwide by 50-85% by 2050.  Developing nations are called upon to reduce emissions 25–40% below 1990 levels by 2020.

Revisions to the Clean Development Mechanism to ensure real, permanent and verifiable emission

The statement seeks increased governmental investment in energy efficiency initiatives, and low-carbon technologies.  The group also focuses on issues common to international sequestration projects, calling for, “revisions to the Clean Development Mechanism to ensure real, permanent and verifiable emission reductions.”  Adaptation to unavailable adverse impacts is also encouraged.  A global carbon market, with caps on emissions and linkages between different trading schemes, would help effectuate the cuts called for in the issue paper.

The report marks the latest in a string of efforts on behalf of investors to encourage climate change action–a recent report found that shareholder resolutions urging climate action were more both common and more successful than in years past.

September 11, 2009

Offshore Wind Power Collaborative Takes Shape

Officials and industry leaders are in the process of forming an group to promote the development of offshore wind energy facilities along the east coast.  The nascent group, known as the US Offshore Wind Collaborative, appears to be currently in the planning and formation stages, but states that its mission is to “address the technical, environmental, economic and regulatory issues necessary to catalyze the sustainable development of offshore wind energy in the waters of the United States.”

Leadership of the organization includes representatives from the American Wind Energy Association, the Massachusetts government, and the Union of Concerned Scientists. The group’s relatively new website will serve as a “centralized portal to access the most up-to-date and accurate information about the US offshore wind industry.”  The group’s formation may signal increased cooperation among states and industry players in the competitive offshore wind marketplace.

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