January 4, 2012
In a December 1, 2011 decision, the Supreme Court, Albany County, dismissed on procedural grounds two lawsuits challenging newly promulgated regulations by the New York State Department of Environmental Conservation (DEC) governing permits for projects that may affect species listed as endangered or threatened under State law (6 NYCRR Part 182). Among other things, the new regulations set forth application requirements, review procedures and standards for “incidental take” permits that must be obtained for any activity that may result in a “take” of a listed species. The regulations define “take” to include both direct taking by killing, capturing, harassing or similar acts, and indirect taking through the adverse modification of occupied habitat. The two lawsuits, Association for a Better Long Island et al. v. New York State Department of Environmental Conservation and Town of Riverhead, et al. v. New York State Department of Environmental Conservation (Index No. 1268-11) were consolidated for decision.
Petitioners challenged the regulations on numerous grounds, including that in adopting the regulations, DEC had failed to seek approval from the State Environmental Board, failed to hold public hearings, and violated the State Administrative Procedures Act and the State Environmental Quality Review Act; that the regulations are ultra vires and constitute an improper delegation of a governmental function; and that petitioners’ due process rights had been violated. DEC moved to dismiss both proceedings on the grounds that the issues raised were not ripe for review and that petitioners lacked standing.
In considering the ripeness issue, the court reviewed appellate case law establishing that ripeness turns on whether the potential harm from a challenged administrative action is sufficiently concrete. The court noted that none of the petitioners had shown that they were undertaking or planned to undertake an activity subject to Part 182. Although one petitioner alleged that future development of its land may require review under the new regulations, the court found that “[t]he fact that petitioners may be required, in the future, to undergo the DEC Part 182 review process is insufficient to constitute an actual or concrete injury.” Because petitioners had failed to demonstrate any concrete injury resulting from the regulations, the court concluded that petitioners’ actions were not ripe for judicial review.
With respect to standing, petitioners argued that, as owners of land that may be utilized by endangered or threatened species, they had standing similar to that of landowners who challenge a zoning change in their zoning district. The court rejected this argument, noting that, in contrast to a municipal zoning ordinance, Part 182 has statewide application “and does not impose any immediate and tangible change in land use.” The court went on to conclude that petitioners had failed to establish standing because they had not shown any injury different from the public at large, and had not applied for an incidental take permit, sought a jurisdictional determination from DEC under Part 182 or been subject to an enforcement action under the regulations.
The court also rejected the claim by two petitioners that they had standing as citizen-taxpayers under State Finance Law 123-b, finding that their allegations with regard to the alleged unlawful expenditure of state funds were “nonspecific and conclusory and thus fail[ed] to support a claim of standing.”
For more information on DEC’s endangered species regulations, contact Christopher Amato.
September 7, 2011
On Friday, September 2, 2011, the White House directed the Environmental Protection Agency (“EPA”) to withdraw and reconsider a proposal to strengthen National Ambient Air Quality Standards (“NAAQS”) for ground-level ozone, the primary ingredient in smog. The announcement marked the first time that the Obama Administration formally returned one of its own agencies’ proposals, and it could indicate heightened executive scrutiny of forthcoming rules’ economic impacts.
The “heart of the Clean Air Act,” NAAQS set maximum levels for six “criteria” pollutants at levels necessary to protect public health and welfare, implemented through State Implementation Plans covering a broad range of sources. The ozone NAAQS were last revised in 2008, when the Bush Administration set a primary standard of .075 parts-per-million (“ppm”) – more lenient than the .06-.07 ppm range recommended by EPA’s Clean Air Scientific Advisory Committee.
In response to a lawsuit filed against the 2008 standards, the Obama administration agreed to reconsider the ozone NAAQS in September 2009 and proposed adopting a standard with the .06-.07 ppm range shortly thereafter. EPA held three public hearings on its proposal, and as recently as July 26, 2011, EPA stated that it “look[ed] forward to finalizing this standard shortly.”
As the last step before finalization, EPA submitted the rule to the White House Office of Information and Regulatory Affairs (“OIRA”) for review. Last week, in a surprising turn of events, OIRA returned the rule to EPA, explaining, “The President … has made it clear that he does not support finalizing the rule at this time.” The return letter, OIRA’s first since January 6, 2009, stated that, in the interest of regulatory consistency, EPA should hold any proposed ozone revisions until 2013 – when the standards are once again due to be revisited under the Clean Air Act.
While the letter did not mention economic considerations, and the Supreme Court has held that EPA cannot consider compliance costs in setting NAAQS, the ozone proposal had attracted substantial attention due to its projected compliance costs exceeding $19 billion. According to EPA’s Regulatory Impact Analysis, the benefits of the standards were projected to outweigh the costs. Nonetheless, the NAAQS proposal topped a list of the most expensive proposed regulations that the White House released on August 30, 2011.
The second, third, and fourth rules of that list are also pending EPA proposals, including forthcoming rules governing hazardous air pollution from commercial and industrial boilers and coal ash disposal. While the White House plans to move forward with those rules, they too must ultimately pass through OIRA – opening the door to potential revisions or delay.
July 11, 2011
On June 28, the Supreme Court granted a petition to review a Ninth Circuit decision holding, as other circuits have also held, that administrative compliance orders issued by the Environmental Protection Agency (“EPA”) under the Clean Water Act are not judicially reviewable until EPA brings an enforcement action in federal court.
The petitioners in this case, Sackett v. EPA, sought judicial review after EPA issued an order applying to property that the agency had determined was within its wetlands jurisdiction. The EPA order prevented the petitioners from building a house and also directed the petitioners to restore the land to its original condition or face heavy penalties.
The Supreme Court granted review on two critical questions: (1) whether pre-enforcement judicial review of administrative compliance orders is available under the Administrative Procedure Act, and (2) if not, whether the unavailability of such review violates the due process clause of the Fifth Amendment.
EPA argued that Supreme Court review was unnecessary because the four other circuit courts which have considered this same issue have all agreed that the absence of pre-enforcement review of orders under the Clean Water Act is authorized and permissible. The Supreme Court appears to have accepted the petitioner’s view that the inability to immediately challenge EPA orders is an issue of significant nationwide importance.
It remains to be seen whether the Supreme Court’s decision in this case will be confined to matters arising under the Clean Water Act. The Supreme Court recently declined to review a decision by the D.C. Circuit upholding the absence of pre-enforcement judicial review under the Superfund law.
Mark Lebel is a Summer Associate at Sive, Paget & Riesel, P.C.
January 18, 2011
On January 4, 2011, Governor Andrew Cuomo nominated Joseph Martens for the position of Commissioner of the New York State Department of Environmental Protection.
Martens has experience as both a public servant and an advocate for conservation issues. Since 1998, he has served as the President of the Open Space Institute (“OSI”), a New York-based nonprofit organization that aims to “protec[t] scenic, natural, and historic landscapes to ensure public enjoyment, conserve habitats, and sustain community character.” At the Open Space Institute, Martens oversaw the acquisition of large tracts of land in New York State for conservation and recreation. Martens was Deputy Vice President of the OSI from 1995-98. Prior to this position, Martens served as Governor Mario Cuomo’s Deputy Secretary for Energy and the Environment from 1992 -1994 and Assistant Secretary for Energy and the Environment from 1990 -1992.
In addition to his record as a conservationist, Martens has considerable ties to upstate New York. According to Governor Andrew Cuomo’s press release, Martens is the “Chair of the Olympic Regional Development Authority, which operates the 1932 and 1980 winter Olympic venues in Lake Placid and Wilmington, NY and Gore Mountain Ski Area in Johnsburg, NY. He also chairs the Adirondack Lake Survey Corporation, which continuously monitors Adirondack lakes and streams to determine the extent and magnitude of acidification in the Adirondack region.”
Martens’ nomination, which is subject to confirmation by the State Senate, has been praised by the New York League of Conservation Voters, the Natural Resources Defense Council, and the Independent Power Producers of New York.[1]
If confirmed, Martens would succeed Acting Commissioner Alison Crocker. Crocker succeeds Peter Iwanowicz, who was appointed after former Commissioner Pete Grannis was dismissed from office in late October 2010 following the leaking of a memo protesting layoffs at that agency. Grannis has since been appointed First Deputy Comptroller in the office of State Comptroller Thomas DiNapoli.
Tasks and challenges facing Martens include the completion of the Supplemental Generic Environmental Impact Statement for horizontal drilling and high-volume hydraulic fracturing to develop the Marcellus Shale for natural gas, and the operation of an agency in the aftermath of major budget and staffing reductions.
[1] Governor Cuomo’s press release announcing the Martens nomination contains the comments of the Independent Power Producers of New York and is available here.
October 18, 2010
On September 28, 2010, the Southern District of Florida awarded summary judgment to New Hope Power Company in its suit seeking to enjoin the U.S. Army Corps of Engineers (ACOE) from applying rules pertaining to its regulatory jurisdiction over certain former wetlands, which had been issued through agency memoranda. The court held that the agency had failed to properly promulgate the rules through the notice-and-comment rulemaking procedures required under the Administrative Procedure Act (APA). The decision has wide import, as it directly affects approximately 700,000 acres within the Everglades Agricultural Area (EAA), and other hydrologically managed lands nationwide for which non-agricultural uses may be proposed. SPR represented New Hope Power Company in the suit.
New Hope owns and operates a renewable energy facility in the EAA, an area of the Florida Everglades that was formerly wetlands but has been hydrologically managed through pumps and drainage systems since the mid-20th century to allow for agriculture. New Hope’s facility, constructed on former sugarcane fields, generates electric power through the burning of non-usable portions of sugarcane as well as wood waste. New Hope recently obtained state and local permits to construct a monofill on neighboring land, currently farmed for sugarcane, where it could place ash from the waste-burning operations, and thereby avoid trucking the ash to a distant landfill.
Existing ACOE regulations under the Clean Water Act provide that a permit is needed to conduct certain activities within wetlands. However, exempt from the definition of wetlands are lands that do not support wetlands vegetation under normal circumstances. The ACOE had in past rulemaking documents explained that “normal circumstances” was not to be read to include properties that had been transformed into dry land. Also exempt from regulations are “prior converted croplands,” lands formerly wetlands but converted to agricultural use. Rulemaking documents previously issued by the ACOE provided that a prior converted cropland could only lose such designation if wetland vegetation returned. In 1993, the ACOE had determined that the land on which New Hope’s power facility is built was prior converted cropland. In addition, the ACOE’s Wetlands Delineation Manual provides that in order to be a regulated wetland, land must exhibit both wetlands hydrology and vegetation, unless one of three types of “atypical situations” apply: (1) an unauthorized activity resulting in the loss of one of these characteristics; (2) man-made creation of a wetland; or (3) natural events.
However, in 2009, the ACOE issued internal memoranda interpreting “normal circumstances” in hydrologically managed lands to mean “pumps off,” and stating that prior converted croplands lost such designation upon a change to non-agricultural use. Based on these memoranda, the ACOE informed New Hope that it would likely need a permit to construct the proposed monofill. New Hope filed a lawsuit challenging the memoranda as legislative rules that the ACOE had failed to promulgate in accordance with the APA. The court agreed, holding that the memoranda extended the ACOE’s regulatory jurisdiction beyond that provided for in existing regulations, and diverged from the Wetlands Manual in deeming lands hydrologically managed with ACOE authorization an “atypical situation” to which the general delineation rules did not apply. The court therefore enjoined the ACOE from applying these new rules.
New Hope Power Company was represented in the litigation by Daniel Riesel, Dan Chorost and Elizabeth Knauer of Sive, Paget & Riesel and Neal McAliley of White & Case.
October 4, 2010
Four years ago, New York’s Department of Environmental Conservation (“DEC”) and Department of Health (“DOH”) issued new guidance on soil vapor intrusion, triggering the ongoing reevaluation of over 400 contaminated sites and the reopenings of dozens for new testing or mitigation. Now, the U.S. Environmental Protection Agency (“EPA”) is taking the first steps towards revising its own vapor intrusion guidance.
On August 30, 2010, EPA’s Office of Solid Waste and Emergency Response released its Review of the Draft 2002 Subsurface Vapor Intrusion Guidance. The Review highlights areas of existing guidance that EPA plans to update or change over the next two years.
In 2002, EPA released draft guidance for detecting and responding to vapor intrusion, caused by the migration of subsurface contamination into overlying buildings. Vapor intrusion is most commonly found at sites with elevated levels of volatile organic compounds – including chlorinated solvents and gasoline – in the soil or groundwater.
In response to recent scientific developments, last year the EPA Inspector General recommended that the agency update and finalize its guidance, which remains in draft form. EPA hopes to complete that process by November 2012, with the recent Review highlighting various assumptions and methodologies that are subject to change. For instance, the agency plans to incorporate multiple lines of evidence into vapor intrusion screening determinations, expand its guidance related to non-residential and yet-to-be-constructed buildings, and provide for the collection of indoor air samples earlier in the investigation process.
As it moves forward, EPA intends to solicit public comment and hold hearings on the guidance revisions in 2011. The agency asserts it is not required to take comment on guidance documents, but often does so for higher profile issues.
Meanwhile, New York continues its process of re-evaluating contaminated sites for vapor intrusion pathways, including many properties that had previously been remediated and de-listed. Purchasers and lenders are also increasingly investigating vapor intrusion as part of their Phase 1 environmental site assessments.
Thus far, EPA has not announced plans to re-open Superfund sites to investigate vapor intrusion. Where low levels of contamination are left at a remediated site, however, the Superfund statute requires a site review every five years, at which point additional work may be needed to address vapor intrusion threats based on new guidance.
Sive, Paget & Riesel represents a number of property owners on vapor-intrusion evaluations and re-openings. For more information on this topic, please contact Christine Leas, Jeffrey Gracer or Michael Bogin.
June 2, 2010
In Coalition of Battery Recyclers Association v. EPA, 2010 WL 1929879 (May 14, 2010), the D.C. Circuit recently upheld an EPA rule revising the primary and secondary National Ambient Air Quality Standards (NAAQS) for air-borne lead (Pb) pollution against challenges by industry representatives. The case arose from consolidated petitions for review under the Administrative Procedure Act filed by two industry representatives alleging that the revised standards were overprotective. The circuit panel, Judge Rogers writing, rejected the petitions, holding that the new standards were supported by substantial record evidence and were not arbitrary and capricious.
Sections 108 and 109 of the Clean Air Act (CAA) require the EPA administrator to establish NAAQSs for air pollutants that are found to “endanger public health or welfare.”[1] Health impacts associated with airborne lead exposure include anemia, slowed physiological development, and IQ loss.[2] EPA began regulating lead under the CAA since 1978, but did not revise its NAAQSs for the pollutant for three decades.[3]
On November 12, 2008, EPA issued a final rule that tightened primary and secondary NAAQS for lead to .15 µg/m3.[4] The revisions were responsive to scientific evidence that the previous standards were inadequate to protect against certain health risks, particularly neurological effects in children.[5] While the previous NAAQS for lead were calculated by focusing on a “target population mean blood lead level,” the 2008 aims at reducing mean health effects on children from lead below an “allowable air-related IQ loss” target of 2 IQ points.[6] EPA calculated that this goal demands a .15 µg/m3 standard. The rule also revised the averaging time to a 3-month period with a maximum and established revised data handling procedures.[7]
Petitioners’ first set of arguments focused on the adequacy of the studies EPA cited in the record to support its selection of a .15 µg/m3 standard. They contended that “(A) EPA did not provide sufficient record support for basing the standard on preventing a decrease of more than two IQ points, (B) reliance on particular studies relating blood lead levels and IQ was arbitrary and capricious, and (C) selection of a lead standard of 0.15 μg/m3 was arbitrary and capricious when measured as an average over a rolling three-month period.”[8] The court found that the record did support EPA’s conclusions, notwithstanding admitted imprecision in its methodology, given that “by its nature the finding of risk is uncertain and the Administrator must use his [or her] discretion to meet the statutory mandate.”[9]
Petitioners also alleged that EPA failed to respond to comments or to disclose information relevant to its reliance on one study (the Lanphear study) for evidence of the effects of lead on IQ at blood lead levels below 10 μg/dL and for the nonlinearity of these effects.[10] The court found that EPA had adequately responded to comments and complied with necessary disclosure requirements.
Finally, petitioner Doe Run Resources, Inc. separately challenged EPA’s legal conclusion that it lacked statutory authority under the CAA to consider the natural presence of lead sulfides in determining compliance with the lead NAAQS.[11] Applying the two-step Chevron analysis, the court concluded at step one that EPA’s statutory mandate to designate “any area that does not meet [NAAQS]” for a given pollutant to be in “nonattainment” clearly prohibited EPA from considering local bioavailability of lead sulfides in its analysis.[12] The court added that even if the CAA is ambiguous, EPA’s interpretation that it lacks authority effectively “to waive NAAQS attainment requirements in the manner requested by Doe Run” was reasonable, and therefore permissible under Chevron step two.[13]
The Battery Recyclers decision has several implications. Aside from ensuring the continued existence of EPA’s new lead standards, it confirms EPA’s ability, under the CAA, to select NAAQSs designed specially to protect “sensitive populations” (here, young children) as well as its ability, in rulemaking, to rely on reasonable methods of approximation (such as IQ measures and extrapolations of data plots) to fulfill its statutory mandate even when absolute scientific precision is impracticable.
Dan Mach is a summer associate at Sive, Paget & Riesel, PC.
[1] 42 U.S.C. 7408(a)(1) and 7409(b).
[2] 73 Fed. Reg. 66964, 66983.
[3] Id. at 66983.
[4] Id. at 66965.
[5] Id. at 66983-84.
[6] Coalition of Battery Recyclers Association v. EPA, No. 09-1011, slip op. at 4-5 (D.C. Cir. May 14, 2010) (“Battery Recyclers”).
[7] 73 Fed. Reg. at 67012-20.
[8] Battery Recyclers, slip op. at 6.
[9] Id. at 13 (citing Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1165 (1987)).
[10] Battery Recyclers, slip op. at 16-17.
[11] Id. at 18-19.
[12] Id. at 19-20.
[13] Id. at 20.
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