March 28, 2013
Two significant milestones were reached yesterday on the New NY Bridge/Tappan Zee Hudson River Crossing project, which will replace the aging Tappan Zee Bridge connecting Westchester and Rockland Counties. First, the New York State Department of Environmental Conservation (“DEC”) issued combined permits under state Environmental Conservation Law Article 25 (concerning activities on tidal wetlands), Article 11 (concerning incidental taking of endangered or threatened species) and Article 15 (water quality certification under Section 401 of the Clean Water Act). Second, the New York State Thruway Authority and DEC announced that they had signed an agreement with the environmental groups Riverkeeper and Scenic Hudson that would avoid those organizations’ potential legal challenges to the federal and state environmental review and permits for the project. Sive, Paget & Riesel has served as principal environmental counsel to the Thruway Authority and the State of New York throughout the planning and review of the project at all levels of government.
The issuance of the Section 401 water quality certification by DEC allows the remaining federal permits for the project to move forward. Project permits from the Army Corps of Engineers and the Coast Guard are anticipated in the upcoming weeks. The first construction barges for the project arrived at the project site this week to begin geotechnical investigations for bridge piles; construction of temporary work platforms for the bridge is expected to begin in early May. These initial steps represent the beginning of a five-year construction process for the new bridge.
The New NY Bridge project is being built using an innovative design-build process, and is believed to be the largest such transportation project in the United States. It is also the first such project in New York State under the recently enacted legislation authorizing design-build projects. The project has involved a labyrinth of environmental reviews, approvals and permitting processes, including the intersection of the National Environmental Policy Act (NEPA) and the State Environmental Quality Review Act (SEQRA), parkland review under Section 4(f) of the Department of Transportation Act, historic review under Section 106 of the National Historic Preservation Act, consultation under the Endangered Species Act, Essential Fish Habitat review, various Executive Orders respecting wetlands and environmental justice, and Clean Air Act conformity determinations by the Army Corps of Engineers and Coast Guard, among others.
Sive, Paget & Riesel’s involvement with the New NY Bridge project reflects the firm’s recognized expertise and experience with major transportation and infrastructure projects and the navigation of the dizzying complex of required reviews. The firm also currently represents the Port Authority of New York and New Jersey on the Bayonne Bridge and Goethals Bridge projects. For more information on the New NY Bridge project or the environmental review and permitting of other major infrastructure and development projects, contact David Paget or Mark Chertok.
March 26, 2013
Earlier this month, the Council on Environmental Quality (“CEQ”) and the Advisory Council on Historic Preservation (“ACHP”) published a new handbook governing the coordination of project review under the National Environmental Policy Act (“NEPA”) and Section 106 of the National Historic Preservation Act (“Section 106”). Drawing from existing rules and guidance from both agencies, the Handbook for Integrating NEPA and Section 106 Reviews (the “Handbook”) summarizes regulatory requirements; provides checklists and flow-charts to assist project sponsors and reviewing agencies; and emphasizes opportunities to synchronize and streamline review under both statutes.
NEPA requires federal agencies to assess proposed actions’ environmental impacts, and to prepare an environmental impact statement (“EIS”) when potentially significant, adverse impacts are identified. Section 106 requires federal agencies to determine whether proposed actions (or “undertakings”) could affect historic properties, including but not limited to those listed on the National Register of Historic Places. If the undertaking may have an adverse effect, the agency must work with federal, state and tribal stakeholders in order to develop a plan to avoid, minimize, or mitigate such effects on the resource. Because effects on historic and cultural resources are considered environmental impacts under NEPA (though not necessarily significant effects under NEPA), the analyses required under the two statutes often overlap, creating the potential for duplicative study and overlapping procedural requirements if review is not coordinated.
Under Section 106 regulations, agencies may substitute NEPA review for Section 106 analysis in certain circumstances, although substitution requires early notification of ACHP and incorporation of Section 106 requirements into an Environmental Assessment or EIS. The Handbook provides a checklist to determine when substitution is appropriate and whether the substitute procedures have been adequately followed under NEPA.
In the absence of substitution, the Handbook emphasizes how agencies can nonetheless coordinate NEPA and Section 106 review by developing a combined schedule and communications plan; using NEPA analyses and comment periods to fulfill Section 106 documentation and participation requirements; and planning ahead to avoid, minimize or mitigate historic impacts early in the review process. The Handbook concludes: “The current paradigm for environmental reviews advanced by CEQ and the ACHP envision these reviews occurring simultaneously, continually exchanging information, and allowing determinations and recommendations in one to inform the other.”
For more information on the CEQ-ACHP Handbook or project review under NEPA and Section 106, contact David Paget, Mark Chertok or Elizabeth Knauer.
March 15, 2013
On April 4, 2013, experts in environmental law, environmental policy, local government, planning, engineering, and environmental science will convene at Hofstra University in Hempstead, NY to discuss lessons learned in the wake of Superstorm Sandy. This conference will examine the significant flaws that Sandy revealed in New York’s housing, transit and electric power systems and infrastructure, and the legal implications of addressing those vulnerabilities and climate-change-related impacts. The panelists will discuss how making communities more resilient will require a rethinking of physical changes to the environment and also a reconsideration of local, federal and state land use and environmental laws and regulations. Insurance and risk management have played, and will continue to play, a central role in response and recovery; those topics, as well as sources of funding for rebuilding and mitigation, will also be addressed.
The conference is co-sponsored by Sive, Paget & Riesel, P.C., the American Bar Association Section on Environment, Energy, and Resources, and the New York State Bar Association. SPR principals Steven Barshov, Michael Bogin, and Pamela Esterman will participate in the conference as co-chairs, moderators, and speakers.
For more information about the conference and to register, please visit the conference website.
March 14, 2013
Crains New York Business reports that two bills related to recovery from Superstorm Sandy were passed unanimously by the New York City Council on March 13, 2013.
One bill creates additional City oversight over the physical elevation of homes, in an effort to prevent home collapse or construction accidents associated with subpar construction work. According to the press release announcing this bill, the legislation requires that:
- Construction plans clearly state whether a project will involve home elevation work;
- Contractors give 48 hours’ notice to the Department of Buildings before elevating a home, which will give the Department the opportunity to monitor the work;
- Home elevation work be done under the supervision of an approved special inspector; and
- The Department of Consumer Affairs provide education to the public regarding the types of work home improvement contractors can do, and the licenses and permits needed by such contractors to do different kinds of work, including home elevation work.
The other bill waives fees for various City applications, permits, and inspections associated with the repair or reconstruction of Sandy-damaged property used by small businesses.
For more information about this legislation and other Sandy recovery measures, please contact Michael Bogin or Steven Barshov.
March 12, 2013
A recent decision by the United States Supreme Court has raised questions about the scope of plaintiffs’ standing to bring suit in federal court, a critical issue for environmental litigants.
Federal courts have long recognized that certain types of environmental harms can form the basis of standing under Article III of the United States Constitution, which requires plaintiffs to establish an “actual or imminent” injury that is “fairly traceable” to the challenged conduct and “likely to be redressed” by a favorable decision. In one of the earliest federal rulings on environmental standing, Scenic Hudson Preservation Conference v. Federal Power Commission, the Second Circuit held that “those who by their activities and conduct have exhibited a special interest” in the “aesthetic, conservational, and recreational aspects” of a site have Article III standing, even in the absence of a “personal economic interest” at stake. 354 F.2d 608, 615-616 (1965). Although it has been well established that environmental harms, and not just economic harms, can serve as the basis for a federal lawsuit, courts have struggled to define which types of environmental harms may give rise to standing. In particular, courts have questioned what level of risk, and over what time scale, rises to the level of a cognizable environmental injury.
In a recent 5-4 decision, the Supreme Court held that a coalition of lawyers, human rights activists and journalists lacked standing to challenge government surveillance activities because the threatened harm posed by potential surveillance was, in the view of the majority, too remote. Clapper v. Amnesty International, 2013 WL 673253 (U.S. February 26, 2013). In Clapper, the plaintiffs sought to challenge the constitutionality of § 1881a of the Foreign Intelligence Surveillance Act (FISA), which authorizes federal interception of certain communications between parties located in the United States and parties outside the United States. The Second Circuit found that the plaintiffs had established standing by demonstrating an “objectively reasonable likelihood” that they would eventually be subjected to the surveillance that they claimed was unconstitutional. Amnesty Int’l USA v. Clapper, 638 F.3d 118, 134 (2d Cir. 2011). The Supreme Court overturned this decision, holding that the plaintiffs needed to demonstrate that their future injuries were “certainly impending.”
Many environmental issues involve long-term risk of harm that may not materialize immediately, most notably, but not exclusively, in connection with climate change. In Massachusetts v. EPA, the Supreme Court confronted the question of whether claims by the State of Massachusetts that it would lose parts of its coast due to gradual sea-level rise resulting from climate change were too speculative or too far in the future to establish standing. 549 U.S. 497, 521 (2007). The Court found, in a 5-4 decision, that this injury could serve as a basis for standing, concluding that Massachusetts had already been harmed by the loss of coastal land and “[t]he risk of catastrophic harm, though remote, is nevertheless real.” Id. at 526.
The court also indicated that its finding of Article III standing was informed by a “special solicitude” derived from Massachusetts’ status as a sovereign and by the fact that Massachusetts sought, in the case, to exercise a “procedural right” granted by the Clean Air Act. Id. at 520. Yet the Court did not clarify the precise role that these considerations played in its analysis. In an opinion four years later, an evenly divided Supreme Court upheld the standing of the State of Connecticut to seek injunctive relief for harms caused by climate change, citing Massachusetts v. EPA. American Electric Power v. Connecticut, 131 S.Ct. 2527, 2535 (2011).
The Supreme Court’s recent decision in Clapper may signal a turn towards a higher threshold for standing predicated on claims of risk. While the “certainly impending” definition of “actual or imminent” harm has been cited in prior Supreme Court cases, applied strictly it could greatly limit standing based upon claims of future injury. As the Clapper dissent argued, “[t]he future is inherently uncertain … yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place.”
Some commentators have suggested that the Supreme Court’s decision in Clapper may have been motivated by deference towards the executive branch in matters of national security, and that its precedent may have little effect on litigation in other areas. As the majority opinion observed, “[W]e have often found a lack of standing in cases in which the Judiciary has been requested to review actions of the political branches in the fields of intelligence gathering and foreign affairs.” It remains to be seen if and how plaintiffs, defendants, and the courts will address Clapper in future environmental cases.
March 3, 2013
On February 4, 2013, the New York State Department of Environmental Conservation (“DEC”) issued a draft Commissioner’s Policy setting forth incentives for businesses to police themselves for potential environmental violations. The draft Environmental Audit Incentive Policy, the first formal proposed change in DEC penalty and compliance policies in at least ten years, signals a willingness on the agency’s part to work with regulated entities to reduce the costs of enforcement for both government and business. The policy would expand upon, and supersede, an earlier policy which was limited to small businesses, CP-19: Small Business Self-Disclosure Policy.
Highlights of the proposed policy are set forth below:
- Regulated entities that voluntarily disclose a violation or suspected violation within 30 days from discovery and correct the violation within the 60 days from disclosure will receive a waiver of the gravity component of their penalties if they are otherwise eligible for penalty mitigation, subject to variations in the above time frames as required by law or specified in an agreement with DEC.
- New owners of regulated entities are given a longer disclosure period of 60 days from discovery.
- An entity that enters into a comprehensive environmental audit agreement with DEC becomes eligible to apply for a number of state-sponsored financial incentives, including assistance for the cost of compliance.
- An entity that enters into a comprehensive environmental audit agreement with DEC and implements an environmental management system also receives a reduction in the economic benefit component of any penalty arising out of a disclosure, commensurate with the amount the entity commits to investing in pollution prevention at the facility.
The policy explicitly announces that it does not apply to criminal violations, does not create rights enforceable by any party, and does not restrict the authority or enforcement discretion of the Commissioner. The proposed policy sets forth ways in which the agency may exercise its discretion not to bestow the policy’s benefits on a given entity:
- The policy excludes regulated entities deemed to have a “history of non-compliance.”
- The policy excludes violations evidencing past noncompliance, violations reported by members of the public, violations discovered through DEC inspections, and violations legally required to be self-reported.
- The policy excludes violations “resulting in a natural resources damage claim, serious actual harm, or one that may have presented an imminent and substantial endangerment to human health or the environment.”
The draft Environmental Audit Incentive Policy is available for public review and comment until April 22, 2013. Written comments may be addressed to
Office of General Counsel
Albany, NY 12233-1500
For more information about DEC’s draft Environmental Audit Incentive Policy, please contact Michael Lesser.