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March 29, 2012

New York’s Highest Court Expands FOIL Disclosure of Federal Documents Held by State Agencies

By: Michael Lesser — Filed under: Administrative Law, New York Environmental Law — Posted at 7:49 pm

In Matter of the Town of Waterford v. New York State Department of Environmental Conservation, decided on March 22, 2012, the New York Court of Appeals held that New York State must disclose deliberative documents in its possession that had been created by the United States Environmental Protection Agency (“EPA”).   Specifically, the Court held that EPA was not an “agency” subject to the deliberative process exception under New York’s Freedom of Information Law (“FOIL”).  That exception had previously been used by the state to deny access to certain federal data in its files that had been received from EPA.

Since 1984, EPA, the New York State Department of Environmental Conservation, (“DEC”) and the New York State Department of Health (“DOH”) have been jointly engaged in a remediation program to address contamination in the Hudson River.  EPA has been recognized by law as the lead agency.

The Town of Waterford challenged DEC’s denial of portions of its request for information under FOIL.  The Town wished to review alternative water supply analyses for local residents and other deliberative but not final information exchanged between the EPA and state agencies. The information sought included the federal agency’s deliberative analysis of various cleanup options for the project.  The DEC denied access to certain records received and exchanged with the EPA by invoking the FOIL exception for inter-agency or intra-agency materials otherwise known as the deliberative process exception.

Ensuing litigation focused on whether documents originally generated by the EPA, a federal agency, were within the statutory exemption for pre-decisional inter-agency or intra-agency materials.  The Court held that the statutory definition of “agency” does not include federal agencies, consistent with prior determinations of the New York State Committee on Open Government, which has also interpreted the definition of “agency” under applicable New York law to exclude federal agencies. 

 This decision is significant because records previously withheld by federal agencies under federal law, but that have been provided to state agencies, may now be subject to release in FOIL requests directed to state agencies.   Many environmental enforcement and regulatory matters routinely involve agency interaction and the exchange of information between state and federal agencies.   One practical consequence of the ruling going forward may be that federal agencies will be less likely to provide deliberative documents to DEC and other state agencies.

For more information on the Waterford decision, please contact Michael Lesser.



March 27, 2012

White House CEQ Issues Guidelines to Streamline NEPA Review

By: Adam Stolorow — Filed under: Environmental Impact Review — Posted at 10:17 am

As part of its ongoing effort to “modernize and reinvigorate” the National Environmental Policy Act (NEPA), the White House Council on Environmental Quality (“CEQ”) this month issued guidelines for streamlining federal environmental reviews under NEPA.  While the 15-page guidance document primarily provides an overview of the time-saving strategies and tools contained in various existing CEQ regulations (rather than announcing new CEQ policy), it does clarify that many of the CEQ regulations that specifically refer to Environmental Impact Statements (“EIS”s) can also be applied to the preparation of Environmental Assessments (“EA”s).

The new guidance specifically endorses the use of scoping for EAs and encourages the coordination of federal NEPA reviews with state, local, and tribal environmental review processes and with reviews under other federal laws (such as the Endangered Species Act and the National Historic Preservation Act).  The guidance also recommends that agencies use their websites to facilitate public review and comment on draft EAs and EISs when those documents are being circulated for review.

Other suggested strategies and tools for improving efficiency and timeliness in NEPA reviews include the following:

  • Make NEPA documents more concise: Reviews should not be “encyclopedias of all applicable information,” but should include only enough discussion to show why more study is not warranted on insignificant issues.  Reviews should be written in plain language to avoid unnecessary confusion or risk of litigation from ambiguous or opaque analysis.
  • Integrate reviews early in the planning process: For actions initiated by non-federal entities, federal agencies should guide applicants to gather and develop environmental information and analyses in advance of submitting applications.  This may include soliciting an environmental report from the applicant to facilitate the lead agency’s review.
  • Adopt existing EAs or EISs and incorporate material by reference: Subject to public review requirements, CEQ regulations provide for the adoption of one federal agency’s EIS or portion of that EIS by another federal agency preparing an EIS or EA.  Agencies can also incorporate relevant analyses and information from existing documents.
  • Set clear time lines for NEPA reviews: CEQ recommends that agencies establish clear time limits and designate a lead person to shepherd the NEPA review process.

Prior steps taken by CEQ to help modernize NEPA include publishing guidance on the use of Categorical Exclusions, guidance on mitigation and monitoring, and draft guidance on the consideration of greenhouse gas emissions and climate change impacts in NEPA reviews.  As previously discussed on this blog, the White House has selected the Tappan Zee Hudson River Crossing Project as one of fourteen priority infrastructure projects chosen for expedited environmental review and permitting under a CEQ pilot program.



March 22, 2012

Supreme Court expands judicial review over EPA compliance orders

In a unanimous decision that could herald major changes in federal and state environmental enforcement, yesterday the Supreme Court upheld a property owner’s right to challenge the basis for a Clean Water Act compliance order alleging unlawful filling of wetlands, before the Environmental Protection Agency (“EPA”) had filed suit to enforce it.  Previously, EPA and every Circuit Court to consider the issue had denied pre-enforcement review of such orders, requiring landowners to apply for a fill permit in order to challenge EPA’s assertion of jurisdiction or risk substantial penalties for violating EPA’s directives.

The significance of the Supreme Court’s ruling in Sackett v. EPA is likely to extend beyond the Clean Water Act, however, as administrative agencies frequently issue interim decisions – similar to the EPA’s compliance order in Sackett – while claiming that such actions are either non-final or statutorily precluded from pre-enforcement review.  Writing for the Court, Justice Scalia found that the order “has all the hallmarks of … finality” and “there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review — even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”  Similar reasoning could apply to other federal environmental statutes as well, aside from the federal Superfund law which is “uniquely designed” in its express preclusion of certain pre-enforcement review.

Sackett arose out of an Idaho couple’s filling of part of a residential lot, which the EPA later determined to be regulated wetlands.  EPA issued a compliance order directing the landowners to remove the fill and implement a Restoration Work Plan, and threatening penalties of up to $75,000 per day of non-compliance.

The landowners sued, arguing that EPA had incorrectly classified their property as a wetland and its compliance order was arbitrary and capricious as a result.  Both the District Court and the 9th Circuit Court of Appeals dismissed their challenge for lack of jurisdiction, holding that the Clean Water Act precluded pre-enforcement review of compliance orders, and that such limitation did not violate the Due Process Clause because the landowners could still apply for a wetlands fill permit from the U.S. Army Corps of Engineers (“Army Corps”) or ignore the order and challenge EPA’s wetlands determination in defense of an EPA civil enforcement action.  

The Supreme Court reversed.  As a threshold matter, the Court ruled that the compliance order was “final agency action” subject to challenge under the Administrative Procedure Act (“APA”), because it determined the landowners’ legal obligations and marked EPA’s final determination as to the scope of its jurisdiction.  The Court rejected the argument that the landowners were required to apply for and challenge the denial of a wetlands fill permit, instead holding: “The remedy for denial of action that might be sought from one agency does not ordinarily provide an ‘adequate remedy’ for action already taken by another agency.”

Finally, the Court found that the Clean Water Act does not limit the courts’ pre-enforcement jurisdiction, finding no evidence in the statutory text or legislative history to overcome the APA presumption of judicial review.  It thus did not determine whether denial of review would have violated the landowners’ Due Process rights, but a concurrence from Justice Alito suggests that he would have upheld the Sacketts’ constitutional argument that without the opportunity for judicial review they would have been deprived of property rights without due process.    

In addition to the compliance orders at issue in Sackett, the Supreme Court’s reasoning may expand judicial review over a broad range of interim administrative decisions.  For instance, federal and state agencies often issue “jurisdictional determinations” defining the boundaries of regulated wetlands, limiting the use of such property where no alleged violation has yet occurred.  Future litigation will likely determine whether such determinations can be challenged under the APA and its state counterparts, as well as whether Clean Air Act Administrative Compliance Orders – which EPA has historically interpreted as not subject to pre-enforcement review – are affected by the Supreme Court’s ruling.

For more information on the Sackett decision and judicial review of agency actions, contact Daniel Riesel.



March 19, 2012

EPA Issues New Construction General Permit

By: Maggie Macdonald — Filed under: Clean Water Act, Compliance, Land Use & Development — Posted at 11:51 am

On February 16, 2012, the Environmental Protection Agency (“EPA”) finalized a new general permit for construction sites’ stormwater discharges, imposing significant new requirements on sites with at least one acre of soil disturbance.  EPA’s release of the 2012 Construction General Permit (“CGP 2012”) triggers a four-month window during which the New York State Department of Environmental Conservation (“DEC”) must revise its own CGP, incorporating or exceeding EPA’s standards for New York construction projects.

Several of EPA’s most significant changes in CGP 2012 are highlighted below: 

Effluent Limitation Guidelines
The 2012 CGP includes narrative requirements implementing Effluent Limitations Guidelines (“ELG”) for construction sites, without numeric limits.  While EPA published numeric limits for turbidity in 2009, that rule was withdrawn in response to petitions challenging its methodology, and EPA is currently collecting additional data before proposing a revised turbidity limit.  In the interim, EPA’s narrative requirements include:

  • Erosion and Sediment Controls – Permittees must provide and maintain natural buffers around all surface waters directing stormwater to vegetated areas, unless infeasible.
  • Soil Stabilization – Soil stabilization must be initiated immediately where earth-disturbing has ceased and will not resume for a period exceeding 14 days.
  • Dewatering Requirements – Discharges from dewatering are prohibited under the 2012 CGP, unless managed by appropriate controls.

Water Quality-Based Effluent Limits
For construction sites discharging into waters impaired by common pollutants associated with construction activities (e.g., sediment and nutrients), and for sites discharging to high quality waters, EPA imposed more stringent requirements in the 2012 CGP.  These changes include a more rapid stabilization timeline and more frequent site inspection.  Construction operators must therefore determine the quality of receiving water and adapt their Stormwater Pollution Prevention Plans accordingly.

Endangered Species and Historic Preservation Analysis
Under the 2012 CGP, operators are required to assess impacts on endangered species and historic resources, something not previously required under the EPA or New York CGPs.  In light of these changes, EPA extended the waiting time between submission of a Notice of Intent to discharge under the CGP and the time coverage begins under the permit from 7 to 14 days.  Presumably, New York will need to do the same by extending its established 5-day authorization.

To be eligible for coverage under the 2012 CGP, construction operators must also  make a determination that the project falls under one of six eligibility criteria related to the protection of endangered or threatened species and their critical habitat, described in greater detail in Appendix D of the new general permit.  Prior to submitting an NOI, operators must also determine whether stormwater controls have the potential to affect historic properties and whether additional consultation is required, as set forth in  Appendix E of the 2012 CGP.

In addition to the above requirements, the 2012 CGP requires more frequent site inspections based on the size, duration, and frequency of storm events; imposes new triggering conditions, deadlines and documentation requirements for corrective action measures; and establishes new procedures governing the termination of coverage under the 2012 CGP.

For more information on the 2012 CGP, or stormwater permitting generally, contact Michael Bogin.



March 12, 2012

Appellate Division Reopens Door to Mold Cases

By: Vicki Shiah — Filed under: New York City Environmental Law, New York Environmental Law — Posted at 2:32 pm

Last week, a New York appellate court held that a plaintiff’s scientific evidence of injury due to mold exposure was sufficient to create a triable issue, and reversed the lower court’s dismissal of the claim.   In Cornell v. 360 West 51st St. Realty, the Appellate Division, First Department, relying on two published papers, held that the plaintiff’s evidence that mold causes illness met the legal requirement of being “generally accepted as reliable within the scientific community.”  The Cornell decision held that the court below, in granting the defendant’s summary judgment motion, misinterpreted a prior  First Department decision addressing the same issue.  It was widely believed that the prior decision,  Fraser v. 301-52 Townhouse Corp.,   closed the door to mold  claims.

In Fraser, the court found that general studies cited by the expert did not establish a causal relationship between indoor mold and the plaintiffs’ alleged illnesses.  The court cautioned, however, that its “holding [did] not set forth any general rule that dampness and mold can never be considered the cause of a disease, only that such causation has not been demonstrated by the evidence presented by plaintiffs here.”

In Cornell, the plaintiff alleged that she had suffered respiratory and other ailments due to exposure to mold in her apartment. The trial court noted that Cornell’s expert witness, and at least one of the studies upon which he relied, were the same as those used by the plaintiff in Fraser.  It held, therefore, that it was constrained by Fraser to exclude the evidence and dismiss the case.  The First Department disagreed, citing two post-Fraser studies relied on by plaintiff’s expert. In so holding, the First Department discerned a consensus in the scientific community regarding indoor mold as a cause of illness that it had not found at the time of its decision in Fraser.   The First Department, however, did not reference other peer reviewed studies that conflicted with those the Plaintiff was relying on.

The Cornell decision highlights the need for owners of New York apartment buildings and property managers of New York condominiums and co-ops to pay close attention to mold and moisture related complaints and to properly prepare for any type of construction, renovation or alteration project that could result in a leak or disturbance of potentially moldy building materials.

SPR has significant experience advising and defending property owners and managers respecting indoor air contaminants and mold based claims.  For more information, please contact David Yudelson.



March 9, 2012

Lawsuit Challenging Tuxedo Reserve Dismissed

By: Steven Barshov — Filed under: Environmental Impact Review, Land Use & Development, New York Environmental Law, SEQRA — Posted at 2:43 pm

On March 5, a court dismissed a lawsuit challenging one of the largest proposed developments in the New York metropolitan area outside of New York City.  Tuxedo Reserve is a proposed planned community of almost 1,200 residential units and over 100,000 square feet of non-residential development in Tuxedo, New York.  The project would preserve approximately three-quarters of the approximately 2,400 acres owned by the developer, a subsidiary of the New York City-based Related Companies.  Tuxedo Reserve was issued amended approvals for its planned integrated development in 2010.  Those amended approvals were challenged by a few local residents and two local environmental organizations.  They claimed, among other allegations, that the amended approvals were issued in violation of the State Environmental Quality Review Act (SEQRA).  The March 5 decision dismissed the 12-count lawsuit in its entirety for lack of standing and failure to state a claim upon which relief could be granted.

The court found that none of the petitioners had standing to sue.  The decision held that the rebuttable presumption of harm arising from alleged proximity to a project site’s boundaries was offset by the presence of a significant conservation buffer that the developer plans to create along the perimeter of the project site.  The court held that because that conservation buffer is designed to insulate the petitioners from the potential adverse impacts of the project, it rebuts the presumption that the plaintiffs’ proximity to the project forces them to suffer an injury different from that which would be endured by any other member of the general public.

The court also dismissed all of the non-SEQRA claims, holding that the Town Board had not violated the Open Meetings Law, had not acted unethically, and had not engaged in contract or spot zoning.  The decision paves the way for this new planned community to move forward.  The developer, Tuxedo Reserve Owner LLC, was represented by SPR both in the litigation and in the proceedings before the Town.

For additional information about this case or other land use matters, contact Steven Barshov.



March 5, 2012

D.C. Circuit Hears Challenges to EPA Climate Regulations

On February 28 and 29, the D.C. Circuit Court of Appeals heard oral arguments in a series of challenges to the Environmental Protection Agency’s (“EPA’s”) regulation of greenhouse gasses (“GHGs”) under the Clean Air Act, far-reaching litigation spanning dozens of parties and at least four separate rules.  Decisions from the panel of Judges David Sentelle, David Tatel and Janice Rogers Brown are expected later this year.

The rare, two-day argument began with a challenge to EPA’s December 7, 2009 finding that emissions of six GHGs, including carbon dioxide, “may reasonably be anticipated both to endanger public health and to endanger public welfare.”  This “endangerment finding” is the cornerstone of all subsequent action by EPA to regulate GHGs. The Court appeared reluctant to second-guess the science behind EPA’s determination or to consider non-scientific factors as a basis for overturning it, noting that the Supreme Court had already rejected such lines of argument in its 2007 Massachusetts v. EPA decision.  As Judge Sentelle remarked: “Reading some of the briefs, I’d gotten the impression that Massachusetts was not decided.”

Arguments then turned to EPA’s April 1, 2010 “tailpipe rule,” which limits GHG emissions from cars and light trucks.  Notably, the auto industry was not among the challengers , as it had participated with EPA in a negotiated rulemaking; instead, it intervened in support of EPA’s regulation.  The challenge from some states and trade associations was motivated less by the substance of the tailpipe rule than its role in triggering GHG permitting requirements for power plants and other stationary sources, which took effect once GHGs became “subject to regulation” under the Clean Air Act.

Some of the petitioners contested whether the tailpipe regulations governing mobile sources of GHGs necessarily triggers GHG regulation of stationary sources, arguing that EPA’s historic interpretation of the Clean Air Act to that effect, dating back to 1978, was flawed.  Because the 60-day period for challenging EPA’s 1978 regulation had long passed, the petitioners characterized the new GHG rules as “grounds arising after” that prior rule, which  raised issues that could not have been previously litigated.  At oral argument, the judges focused heavily on this claim and other jurisdictional issues relating to this challenge.

Finally, the arguments closed with a discussion of EPA’s “tailoring rule,” which increased the regulatory threshold for new and modified stationary sources from 250 tons  to 75,000 tons of GHGs per year.  This is generally considered to be the most vulnerable of EPA’s rules, because the lower thresholds are expressly set forth in the Clean Air Act itself, while EPA’s tailoring rests upon its authority to interpret the statute in a way that avoids the “absurd” result of regulating thousands of smaller emitters.  Judge Sentelle, however, questioned the petitioners’ standing to challenge the tailoring rule, stating to industry counsel: “The harm you allege is a regulatory burden. The remedy you seek is a heavier regulatory burden.”

Since the D.C. Circuit previously declined to stay the rules, they will remain in effect while the Court deliberates, with a widely anticipated decision expected later this year.  For more information on EPA’s GHG rules and the pending litigation, contact Jeffrey Gracer