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June 23, 2011

“Power NY Act” Reauthorizes and Modernizes Power Plant Siting Law

As part of a deal at the end of the current legislative session, the New York Legislature has passed the “Power NY Act of 2011,” a sweeping energy bill negotiated between Governor Andrew Cuomo and legislative leaders.  Section 12 of the new law reauthorizes and modernizes Article X of the Public Service Law, which expired on January 1, 2003, governing the siting and approval of power plants in New York.  

The absence of a power plant siting law has been cited by some as one important reason why there has been scant development of power plants in New York in recent years, including alternative energy sources.  (Others have cited the poor economy as the primary roadblock to new power plant development.) 

Like its predecessor, the new version of Article X aims to centralize and streamline the siting approval process, although the threshold for application of the law has been lowered from 80 to 25 megawatts.  The law creates and vests permitting authority with the New York State Board on Electric Generation Siting and the Environment (“the Board”).  Seeking to balance the need for local input in siting decisions with the obstacles posed by “NIMBY” opposition to new power plants, the statute provides that two local residents will be part of the Board for each proceeding.  The other five members of the Board will all be State officials.  The law also provides for “intervenor funding” which will enable municipalities and other local parties to participate in all phases of the administrative review, including the mandated adjudicatory hearing.

The Board is given authority to override local laws and ordinances if they are “unreasonably burdensome.”  Unless otherwise agreed to by an applicant or extended due to a “material and substantial amendment to the application” or “extraordinary circumstances,” Board decisions must be rendered within a year of the application being deemed complete. 

Article X displaces the State Environmental Quality Review Act (SEQRA) process for covered projects, but mandates several environmental analyses of the facility’s impacts.  These analyses include a “cumulative air quality analysis” of the combined effects from the proposed facility, other proposed sources and all existing sources; a description of the demographics of the surrounding community; and a description of “reasonable and available” alternative locations.  It also requires the Board to find that the project minimizes or avoids disproportionate impacts on the surrounding community.

There are significant differences between the new version of Article X and the expired version.  The lower 25 megawatt threshold will allow smaller projects to be covered by the law and may particularly benefit developers of wind projects, which in most cases would not have been covered by the expired version.  The increased emphasis on environmental justice impacts addresses concerns stated by environmental groups.  Current applicants for local and state permits for a power plant may elect to be covered by the new law. 

In what appears to be the first legislative enactment that specifically and directly addresses greenhouse gas emissions, Section 21 of the Power NY Act requires the Department of Environmental Conservation to promulgate regulations “targeting reductions in emissions of carbon dioxide” for new power plants with a capacity of 25 megawatts or more.

Mark LeBel is a Summer Associate at Sive, Paget & Riesel, P.C.

June 20, 2011

Supreme Court Rejects States’ Federal Common Law Climate Change Lawsuit

Dealing a blow to climate change tort litigants, the Supreme Court ruled 8-0 on June 20, 2011 that Congressional authorization of greenhouse gas (“GHG”) limits has displaced federal common law suits seeking GHG reductions.  The Court’s decision in American Electric Power v. Connecticut reversed the Second Circuit Court of Appeals’ ruling that allowed a group of states, cities and land trusts – including New York State and New York City – to pursue federal public nuisance claims against the nation’s largest electric utility GHG emitters.

Justice Sotomayor, who sat on the Second Circuit panel that initially heard the case, recused herself from the Supreme Court’s deliberations.   Although the ruling on displacement of federal common law claims was unanimous, the remaining justices were equally divided over whether federal jurisdiction even existed.  Four members of the Court (presumably Justices Alito, Roberts, Thomas and Scalia) would have barred the suit on standing or other jurisdictional grounds, while four others (presumably Justices Kagan, Breyer, Ginsburg and Kennedy) affirmed plaintiffs’ standing.  (Slip. Op. at 6.)  This split – which upholds the Second Circuit’s finding of the plaintiffs’ standing – dates back to the Supreme Court’s 2007 climate change decision, Massachusetts v. EPA, where by a 5-4 margin the Court affirmed the state petitioners’ standing and upheld EPA authority to regulate GHGs under the Clean Air Act.

Justice Ginsburg – part of the five-member majority in Massachusetts v. EPA – authored the latest climate decision.  Without deciding whether federal common law could redress GHG-related claims in the absence of Congressional action, she wrote that “any such claim [in this case] would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions.” (Slip. Op. at 9.)  Rejecting the states’ argument that displacement should not apply until EPA actually regulated the sources in question, which it has yet to do, Ginsburg answered: “The critical point is that Congress delegated to EPA the decision whether and how to regulate carbon-dioxide emissions from power plants; the delegation is what displaces federal common law.”  (Slip. Op. at 12.)

The Supreme Court decision does not necessarily foreclose all future climate change tort suits.  The Court did not determine whether federal law has preempted state common law remedies, as this issue was not decided below or briefed before the Supreme Court.  (Slip. Op. at 15-16.)  That issue was left open for consideration on remand.  Moreover, the Court’s displacement-based decision could be revisited should Congress withdraw or otherwise interfere with EPA’s existing climate change authority, as several opponents of EPA regulation have proposed in recent years. 

On Thursday, June 30th, the New York City Bar Association’s Environmental Law Committee and International Environmental Law Committee, the Environmental Law Institute, and the Center for Climate Change Law at Columbia Law School are sponsoring a debate on the Supreme Court’s decision at 6:00 p.m. in the Great Hall of the New York City Bar Association.  Event information and registration are currently available online.

June 17, 2011

Appeals Court Rules Upper East Side Marine Waste Transfer Station Can Proceed

By: Devin McDougall — Filed under: Citizen Suits, Land Use & Development, New York City Environmental Law, New York Environmental Law, Solid Waste — Posted at 11:56 am

After five years of litigation, an appeals court ruled last week that New York City can proceed with the construction of a marine waste transfer station on the Upper East Side. Local residents had challenged the project, alleging that it appropriated public parkland for non-park purposes and that the city was required to seek legislative approval of the project.

The appeals court upheld the trial court’s findings that the parcels at issue are not public parkland, and that even if they were, the proposed project would not substantially intrude upon them. The court explained that public parks are created either expressly, via deed or legislative enactment, or by implication, through continuous use indicating an “unequivocal” intent to dedicate the parcel as public parkland.

The court found that neither of the two parcels at issue, a recreational complex known as Asphalt Green and a pedestrian path known as Bobby Wagner Walk, qualified as public parkland under this test. The court held that Asphalt Green was not expressly dedicated as parkland because it was acquired by the City for non-park purposes and that a 1989 assignment of part of the parcel to the Department of Parks was conditioned on not mapping that part as public parkland. Asphalt Green did not become public parkland by implication, the court reasoned, because it is operated by a non-City entity and because access is restricted 70% of the time to those who pay membership fees.  With respect to Bobby Wagner Walk, the court commented only that it can be “distinguish[ed]…from a park” because the “Department of Transportation owns the property, and it functions primarily as a thoroughfare.”

The new marine transfer station is part of a 2006 strategic plan by Mayor Bloomberg to manage the over 11,000 tons of solid waste the city produces daily. The Comprehensive Solid Waste Management Plan, which according to the New York Times is “affectionately known” as “the Swamp,” was the product of intense negotiations over the equitable siting of new waste facilities in the wake of the closing of the Fresh Kills landfill on Staten Island.

Devin McDougall is a summer associate at Sive, Paget & Riesel

June 13, 2011

Chambers Recognizes SPR Environmental Law Practice with Top Ranking

By: Vicki Shiah — Filed under: Announcements — Posted at 11:47 am

Sive, Paget & Riesel (SPR) has once again been recognized for its leading environmental law practice in New York in the 2011 edition of Chambers USA:  America’s Leading Lawyers for Business.  The firm received a Band 1 ranking. 

According to Chambers, “This environmental boutique has long been recognized as a leader, particularly due to its success in major litigation.  The team has provided legal support on a vast range of environmental concerns including oil spills, hazardous substances and industrial property contamination, as well as issues related to facility siting, air pollution and wetlands.”

Client feedback to Chambers on specific lawyers includes:

  • Daniel Riesel:   “Dynamic and forthright” in litigation and administrative matters.
  • David Paget:   A “prominent figure in the market” and “an almost unparalleled source of knowledge in the preparation of environmental impact statements.”
  • Mark Chertok:  An “extremely bright and thorough lawyer who really understands technical issues.” 
  • Jeffrey Gracer:   A “highly intelligent lawyer with a solid business background.” 
  • Michael Bogin:  Wins acclaim for his “highly effective litigation skills.”

Read the full report here.   

Read more about SPR’s practice areas, and see examples of our work.

June 9, 2011

New York Sues Federal Government For Failure to Study Hydraulic Fracturing

By: Mark Lebel — Filed under: Environmental Impact Review, Hydraulic Fracturing & Marcellus Shale — Posted at 11:39 am

On May 31, 2011, New York Attorney General Eric Schneiderman followed through on his threat to file a lawsuit seeking environmental review under the National Environmental Policy Act (“NEPA”) prior to the issuance of final natural gas development regulations by the Delaware River Basin Commission (“DRBC”).  The DRBC is a federal-interstate entity formed by compact and concurrent legislation by the federal government, Delaware, New Jersey, Pennsylvania, and New York to manage the water resources of the Delaware River Basin.  The DRBC released  draft natural gas development regulations on December 9, 2010 which, if finalized, would potentially open up large portions of the New York City watershed for natural gas drilling.  While further action by New York State would likely be necessary for such natural gas drilling within New York, the complaint also alleges several harms to New York from natural gas development within Pennsylvania.  In particular, the complaint alleges that development within Pennsylvania would contribute to air pollution in New York City and hinder efforts to meet air quality goals required under the Clean Air Act.

The lawsuit names the Army Corps of Engineers, which has a seat on the DRBC, as well as the Fish and Wildlife Service, the National Park Service, the U.S. Department of the Interior, and the Environmental Protection Agency as defendants.  It asks these federal agencies to prepare an Environmental Impact Statement before the DRBC finalizes the regulations.  It specifically asks the agencies to consider the alternative of prohibiting development within the portion of the Delaware River Basin that is within the New York City watershed.

The main legal issue in the lawsuit will likely be whether the regulations are a “federal action” within the meaning of NEPA.  According to the complaint, the DRBC responded to Schneiderman’s initial request for an environment impact statement with a letter stating that the DRBC is not a federal agency subject to NEPA.  However, the complaint alleges that the Army Corps of Engineers and the other federal agencies involved in the development of the DRBC regulations are subject to NEPA.  The complaint also alleges that the Council on Environmental Quality (“CEQ”), which oversees implementation of NEPA, has determined that the DRBC is subject to NEPA.

Mark Lebel is a Summer Associate at Sive, Paget & Riesel

June 6, 2011

Tidal Power Plant in East River Nears Federal Approval

The nation’s first tidal energy power plant may take shape in New York’s East River, under a pilot project recommended for approval last month by the Federal Energy Regulatory Commission (“FERC”).  In December 2010, Verdant Power applied for a license to install 30 underwater turbines between Roosevelt Island and Queens, which would enable tidal power to be sold over the national electric grid for the first time ever.

Tidal power represents an often-overlooked but growing renewable energy source, more predicable than wind or solar power, but often encumbered by high start-up costs.  The strong, fluctuating currents in the East River – which is actually a tidal strait between the New York Harbor and the Long Island Sound – make this water body an ideal location for the generation of tidal energy.  Verdant previously tested six tidal turbines in the proposed project location; they were used to power a Gristedes supermarket and a parking garage on Roosevelt Island.

The need for FERC licensing and other federal approvals triggered the National Environmental Policy Act (“NEPA”), requiring an analysis of the project’s significant, adverse environmental impacts.  On May 3, FERC released an Environmental Assessment reporting no such impacts, thereby allowing the project to move forward without a more intensive Environmental Impact Statement.  In particular, with respect to local fisheries, FERC based its Finding of No Significant Impact on its finding of only “minimal impacts on aquatic resources” from Verdant’s prior turbines, and on the company’s plans to conduct additional monitoring throughout the phase-in of its new plant.  The results of this monitoring, however, could affect analysis under NEPA for future tidal projects.

June 1, 2011

New Jersey to Withdraw from Climate Change Initiative

New Jersey Governor Chris Christie announced Thursday, May 26 that New Jersey would withdraw from the Regional Greenhouse Gas Initiative (“RGGI”), a cap-and-trade initiative of 10 northeastern and Mid-Atlantic states to reduce greenhouse gas emissions from the power sector.  New Jersey is the first state to withdraw from RGGI. 

At a news conference announcing his decision, Governor Christie stated that a review of RGGI showed that “this program is not effective in reducing greenhouse gases and is unlikely to be in the future. . . . [T]he whole system is not working as it was intended to work.”  He stated further that the reduction of greenhouse gases in New Jersey was due to the state’s increased use of natural gas and decreased use of coal, which were driven by “the market and not RGGI.”  Governor Christie also stated that RGGI “does nothing more than tax electricity and tax our citizens and tax our businesses with no discernible or measurable impact upon our environment.”    

In response to Governor Christie’s announcement, the remaining 9 states issued a statement affirming their commitment to RGGI and confirming that the next carbon allowance auction, scheduled for June 8, will take place.  However, the states will have to evaluate how the withdrawal will affect those of New Jersey’s allowances that are currently in circulation. 

Several of the member-states issued individual statements reiterating their support for RGGI.  For example, New York Department of Environmental Conservation Commissioner Joseph Martens stated that “[t]he RGGI program has been extremely successful in supporting clean energy, reducing electricity bills and lowering greenhouse gas emissions throughout the region,” and that it has led “to savings for thousands of New York residents and businesses and to the creation of thousands of high quality jobs.”

The following are the current member-states of RGGI: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont.