August 23, 2012
Four years after overturning a major Environmental Protection Agency (“EPA”) air pollution rule as inconsistent with the Clean Air Act, this week the D.C. Circuit Court of Appeals vacated the program that EPA had tailored to take its place, ruling that the replacement rule “exceeds the agency’s statutory authority” and imposes “impossible” burdens upon covered states. As a result, hundreds of power plants in 28 states are once again subject to the very rule the same court rejected in 2008.
The regulations in question implement the Clean Air Act’s “good neighbor” provisions, which prohibit states from significantly contributing to unsafe levels of air pollution, or interfering with Clean Air Act compliance, in downwind states. In 2005, EPA finalized the Clean Air Interstate Rule (“CAIR”), establishing an emissions trading program for Eastern and Midwestern power plants aimed at reducing interstate air pollution transport. However, in North Carolina v. EPA, the D.C. Circuit identified “more than several fatal flaws” in CAIR, including EPA’s failure to ensure emissions reductions from all covered upwind states. Instead of striking the rule immediately, the Court granted a rare remand without vacatur, leaving CAIR in place while the agency developed a replacement.
In 2011, EPA issued the Cross-State Air Pollution Rule (“CSAPR”) as a substitute for CAIR. In response to the Court’s concerns, EPA provided more details on what portion of upwind states’ emissions “significantly contribute” to cross-state air pollution problems and set state-specific emissions budgets. To implement the rule, EPA issued Federal Implementation Plans (“FIPs”) for all of the covered states, which were to be subject to revision by the states as early as 2013.
In its recent 2-1 decision, however, the D.C. Circuit held that CSAPR too overstepped EPA’s Clean Air Act authority. Specifically, the majority opinion faulted EPA for authorizing emissions limits in upwind states that were more stringent than the state’s contribution to specific downwind non-attainment. The Court also disapproved of EPA’s issuance of FIPs, holding that the agency was required to first alert states of their new regulatory requirements and give them the chance to issue or revise their own State Implementation Plans. Finding these deficiencies “too fundamental to permit us to ‘pick and choose portions’ of the rule to preserve,” EPA vacated the rule in its entirely, instructing EPA to “continue administering CAIR pending the promulgation of a valid replacement.”
In a 40-page dissent, Judge Judith Rogers wrote that the majority “disregards limits Congress placed on [the Court’s] jurisdiction, the plain text of the Clean Air Act, and this court’s settled precedent interpreting the same statutory provisions at issue today.” In additional to disputing the claim that EPA could not set emissions limits more stringent than a state’s contribution to downwind nonattainment, Rogers argued that since none of the Petitioners had raised the complaint in their public comments on CSAPR, the Court did not have jurisdiction to even decide the issue.
EPA has said that it is “reviewing the court decision” on CSAPR, and it may seek leave to appeal the panel’s decision either to the entire D.C. Circuit or to the Supreme Court. In the interim, the CAIR program remains in place. For more information on the Court’s decision or Clean Air Act compliance, contact Jeffrey Gracer or Jonathan Kalmuss-Katz.
August 22, 2012
On August 9th, New York State passed the “Sewage Pollution Right-to-Know Act”, which requires the operators of publicly owned sewer systems or sewage treatment plants to notify regulators and the public of discharges of untreated sewage or partially treated sewage. This bill adds to existing federal and state spill reporting requirements for sewage treatment plants.
Under the current system, sewage discharges need only be reported to the New York State Department of Environmental Conservation (DEC) and the local department of health if they will affect recreational areas, shellfish harvesting, or public water supply intakes. Even this type of discharge was not required to be reported if it resulted from a combined sewer overflow (“CSO”). Under the new law, which takes effect May 1, 2013, all sewage discharges, including CSO discharges, must be reported to DEC and the local department of health (or the state department of health if there is no local health department) within two hours of their discovery. To the extent possible, this report must include:
- the volume of the discharge and the extent, if any, of its treatment;
- the expected duration of the discharge;
- the steps being taken to contain the discharge (unless it results from a CSO);
- the location of the discharge;
- and the reason for the discharge.
The new law also provides for notice to the general public and the chief elected officials (or their designated representative) of the municipality where the discharge occurred and any other municipalities that may be affected. This notice must take place within four hours of discovery of the discharge. The law requires DEC to promulgate new regulations specifying the form of this notice “through appropriate electronic media”, possibly including email or voicemail. DEC’s new regulations, however, are only to require public notice of sewage discharges that may affect public health – presumably, these discharges will include those that affect recreational areas, shellfish harvesting, or public water supply intakes, but it remains to be seen if DEC will require public notice of sewage discharges beyond those categories.
DEC will also be required to post notice of sewage discharges on its website and to compile an annual report on sewage discharges, which must include details on their location, duration, volume, and any measures taken to mitigate impacts or avoid future releases of sewage.
For additional information, contact Michael Lesser or Michael Bogin.
August 9, 2012
Governor Cuomo has signed into law new legislation designed to protect New York State’s seagrass beds. The law requires the Department of Environmental Conservation (“DEC”) to designate seagrass management areas and to regulate marine and coastal activities that threaten those areas, although it is uncertain whether the Seagrass Protection Act will result in requirements for a new “seagrass permit.”
Seagrass beds provide habitat and food for fish, shellfish and waterfowl, and help to stabilize bottom sediments, among other ecological benefits. A 2009 report from the New York State Seagrass Task Force found that seagrass acreage in the state had declined from an estimated 200,000 acres in 1930 to less than 22,000 acres in 2009, located primarily within the South Shore Estuary Reserve along the southern coast of Long Island. Seagrass beds are threatened by nutrient loading (excess nitrogen from fertilizer runoff that impairs water quality), persistent algal blooms, and fishing and shellfishing gear.
The new law, which will take effect in December 2012, instructs DEC to designate seagrass management areas and to develop management plans for those areas in consultation with local governments, recreational boating interests, fishermen, property owners and other affected stakeholders.
Seagrass habitat overlaps to some extent with tidal wetlands in New York (over which DEC has jurisdiction and regulates through its Tidal Wetlands Permit Program); however, existing laws and regulations do not give DEC the authority to specifically restrict activities that may negatively affect seagrass. The Seagrass Protection Act gives new jurisdiction to DEC to regulate activities both on land and in water, including the authority to adopt rules and regulations to regulate coastal and marine activities that threaten seagrass beds or seagrass restoration efforts.
Similar legislation was passed in 2010 and vetoed by Governor Paterson. The 2010 version of the act contained specific restrictions on the application of phosphorous-containing fertilizer in Nassau and Suffolk Counties that are not contained in the 2012 law.
For more information on the potential impact of the new law, please contact Michael Bogin or Chris Amato.
August 3, 2012
The New York State Department of Environmental Conservation (“DEC”) has proposed significant revisions to the regulations that implement the State Environmental Quality Review Act (“SEQRA” or “SEQR” ), including changes to types of government actions that trigger or are exempt from the preparation of an environmental impact statement (“EIS”). DEC is accepting comments on its draft scope for the Generic Environmental Impact Statement (“GEIS”) on the proposed amendments until August 10, 2012.
The proposed amendments are noteworthy in several respects. First, DEC has proposed a new requirement that all EIS’s include a public scoping process (scoping is not mandatory under existing DEC regulations, but is required within New York City under the City Environmental Quality Review (“CEQR”) process). The proposed amendments also allow for the electronic filing of EIS’s, extend the time-frame for filing a Final EIS once a Draft EIS has been filed (up to 180 days), and identify circumstances in which an EIS will be deemed complete on the basis of the Draft EIS.
According to DEC, the proposed amendments seek to “streamline the SEQR process without sacrificing meaningful environmental review.” Thus, certain categories of unlisted actions which today may require an EIS would be added to the “Type II” list and categorically exempt from further SEQRA review. On the other hand, DEC proposed expanding certain classes of “Type I” actions, which are presumed to require the preparation of an EIS. The Type I and Type II lists are critical to project applicants and government decision-makers, since preparation of an EIS requires a considerable commitment of time and resources but provides for and informs greater opportunity for public input on proposed actions.
In particular, for Type I actions:
- For proposed residential subdivisions, the amendments will considerably reduce the number of residential units that will trigger the Type I threshold.
- The amendments lower the threshold for the number of new parking spaces that will trigger the preparation of an EIS for an action.
- For unlisted actions occurring in or next to historic resources, Type I thresholds will no longer be triggered automatically, but must exceed 25 percent of any threshold in the Type I list, such as acreage disturbed by or housing units created by residential development (6 NYCRR § 617.4).
For Type II actions, the proposed amendments would:
- Add new Type II actions to encourage development in urban areas versus development in greenfields and to encourage green infrastructure projects;
- Add new Type II actions to encourage the installation of solar energy arrays;
- Add a new Type II action that allows for the sale, lease or transfer of property for any Type II action;
- Add a new Type II action for minor subdivisions;
- Add a new Type II action to make the disposition of land by auction a Type II action; and
- Add a new Type II action to encourage the renovation and reuse of existing structures.
The proposed amendments are still in draft form and are not yet scheduled to take effect. Following the conclusion of its environmental review, DEC will issue proposed regulations for public comment. The full text of the draft scope for the GEIS is available here. For more information on the regulatory amendments and the SEQRA process, contact Mark Chertok or David Yudelson.
DEC will accept comments on the draft scope by e-mail at email@example.com (include the subject line “Comments on Part 617 Draft Scope”) or by letter addressed to:
Division of Environmental Permits & Pollution Prevention
New York State Department of Environmental Conservation
Albany, New York 12233-1750