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.
May 10, 2012
On May 1, 2012, the New York City City Council unanimously approved changes to the New York City Zoning Resolution that will encourage green construction for new buildings and green retrofits for existing buildings, along with other innovations. Subject to certain limitations, the amendments will allow building owners to incorporate elements of environmentally-friendly construction even when those elements would otherwise violate applicable bulk regulations, such as restrictions on building size or height. Other amendments will allow solar power generation or charging of electric vehicles in certain zones, clarifying regulations that were originally written to exclude gas stations and conventional power plants.
Existing buildings will now be able to add up to eight inches of insulation to their exterior even if the added material would violate existing regulatory limits on building size. The changes to the zoning regulations allow existing buildings to add insulation without counting such additional thickness against floor area restrictions, so long as the additional insulation meets certain energy-efficiency requirements. Similar revisions permit existing buildings to add up to eight inches of insulation without counting them against a building’s maximum height or the minimum setback and open space requirements, and allow new buildings to incorporate thicker insulation in their exterior walls if the insulation exceeds the requirements of the New York City Energy Conservation Code by a specified percentage.
Other changes are designed to encourage the use of solar energy for power generation. The revised regulations allow buildings to add solar energy systems to their roofs without counting them against a building’s maximum height. The solar panels themselves must meet additional height restrictions according to the building’s zoning designation and whether the roof is flat or angled. Buildings will also be allowed to add solar panels or exterior solar shades to their exterior walls as “permitted obstructions” that can project into open space required by the zoning code.
The new zoning rules also allow several other environmentally-friendly elements as “permitted obstructions” on building roofs. These include wind turbines on buildings over 100 feet tall and buildings near the waterfront, rooftop greenhouses, like the one planned for Sunset Park, “blue roofs” that use weirs and detention mechanisms to slow the release of stormwater, and “green roofs” that use rooftop vegetation to retain water, reduce heat gain, and provide recreational space. The rules also permit boilers to be placed on building roofs, rather than in the basement. This eliminates the need for interior chimneys, increases energy efficiency, and reduces fire risk.
For more information on the New York City Zoning Resolution, please contact Steven Barshov.
July 27, 2011
New York City’s Local Law 84 of 2009 (the “Benchmarking Law”) requires owners of certain privately-owned buildings to submit their first annual benchmark of total energy and water use by 11:59 pm on Monday, August 1, 2011. The law requires benchmark reporting to be completed by May 1 of each year, but the New York City Department of Buildings’ recently adopted Benchmarking Rule states that, for 2011, no penalties will be assessed due to failure to comply until August 1. Starting in 2012, reports will be due by May 1. Reported data will be made available to the public beginning in 2012 for non-residential buildings and in 2013 for residential buildings.
Covered buildings include:
- any building that exceeds 50,000 gross square feet (“gsf”);
- two or more buildings on the same tax lot that together exceed 100,000 gsf; or
- two or more condominium buildings that are governed by the same board of managers and that together exceed 100,000 gsf.
Square footage is determined based on the records of the New York City Department of Finance. Covered buildings should have received a notice from the Department of Finance in December 2010. In addition, the City has published a list of the buildings it believes to be subject to the Benchmarking Law.
To comply with the Benchmarking Law, owners of covered buildings must solicit information on energy usage from non-residential tenants, but are not required to do so for residential tenants. Benchmarking of water use is not required unless the building was equipped with automatic meter reading equipment by the New York City Department of Environmental Protection for the entirety of the previous calendar year.
Benchmarking reports must be submitted to the City electronically using the U.S. Environmental Protection Agency’s (“EPA”) Portfolio Manager Tool. Owners of multiple buildings should pay special attention to EPA’s instructions before entering information to ensure that reports are not overwritten by later entries.
The Benchmarking Law is part of New York City’s Greener, Greater Buildings Plan. A component of the Citywide environmental initiative PlanNYC2030, the Greener, Greater Buildings Plan strives to reduce greenhouse gas emissions by 30% by 2030.
For more information on the Benchmarking Law, please contact SPR partner Dan Chorost. To learn more about green building trends beyond New York City, please see Dan’s May 2011 article on this topic.
May 9, 2011
New federal, state and local mandates and incentives are prompting the increasingly widespread use of green building practices in both new construction and existing buildings. SPR partner Dan Chorost has authored an article in the May 2011 issue of the Practical Law Journal highlighting this trend. Incentives are becoming available for building owners who adopt green building practices via voluntary programs under state and local laws. More recently, governmental mandates have been issued that require owners to integrate energy efficiency considerations into building construction and operations. Dan’s article summarizes different approaches to green building and describes the relative costs and benefits of using green practices for new and existing buildings.
The article, available here in pdf, describes the origin and purpose of the green building movement, summarizes the voluntary LEED and ENERGY STAR programs, and notes their connection to the ongoing greening of building codes nationwide. Chorost argues that the combination of voluntary programs and mandates means that performance demands for green buildings are gradually increasing, with LEED and ENERGY STAR setting a higher “ceiling” for performance while building codes create a higher “floor.” Building owners that comply with LEED or ENERGY STAR may reap various direct and indirect benefits in various jurisdictions, including expedited permitting, waived fees, and zoning bonuses or allowances.
For private building owners, perhaps the most notable development discussed in the article is the passage of new laws in leading jurisdictions requiring that existing buildings conduct audits and retrocommission their energy systems. These laws generally require owners of certain large buildings to quantify their energy use, report it, and identify and even implement energy-efficiency upgrades that would result in net savings over time. For example, in New York City, a new law requires owners of buildings over a certain size to audit and report on their energy use and to retrocommission existing building systems to improve efficiency. With similar laws being enacted in other leading jurisdictions, this newest green legal trend will continue to accelerate and will become the norm in jurisdictions nationwide.
- Read the full article here.
February 2, 2011
On January 14, 2011, the White House Council on Environmental Quality (“CEQ”) finalized new guidance on the use, documentation and enforcement of mitigation measures under the National Environmental Policy Act (“NEPA”).[1] While the Guidance – which was initially proposed in draft form last February – is non-binding, its interpretation of existing authority could effectively create additional, mitigation-related requirements for project applicants and lead agencies under NEPA.
Unlike New York’s State Environmental Quality Review Act (“SEQRA”), NEPA imposes no substantive requirement to mitigate a project’s adverse environmental impacts. When a federal action would have significant adverse impacts, however, the lead agency must prepare an Environmental Impact Statement (“EIS”) which analyzes, among other subjects, the “means to mitigate” those impacts.[2] More commonly, an applicant will incorporate mitigation measures into its project design in order to avoid triggering NEPA’s EIS requirements, resulting in a Finding of No Significant Impact (“FONSI”).
The new Guidance endorses the use of these “mitigated FONSI[s]” when accompanied by “enforceable mitigation measures.”[3] However, the Guidance warns that “failure to document and monitor mitigation may … undermine the integrity of the NEPA review.”[4] Accordingly, CEQ recommends a series of steps to ensure that mitigation commitments are expressly stated and adhered to, and calls upon individual agencies to supplement its Guidance with their own procedures that make “relevant funding, permitting, or other agency approvals … conditional on performance of mitigation commitments.”[5]
First, the Guidance advocates the identification of specific mitigation measures within an EIS or Environmental Assessment (“EA”), including measurable performance standards or expected results. To the extent that federal funding is required to implement these mitigation commitments, NEPA documentation must analyze the likelihood of whether or not such funds are expected to be available throughout the life of the project.[6]
For certain “important cases” where mitigation eliminates the need for an EIS, the Guidance calls for monitoring of a project’s mitigation commitments after its approval. Not all mitigated FONSIs require formal monitoring, and the Guidance does not provide a definition of “important cases,” relying on agencies to use their judgment in making such determinations.[7] The party who will be performing the mitigation is responsible for developing and implementing the monitoring program, drawing upon public input and informing the public of the results and progress of such monitoring where appropriate.[8]
Finally, the Guidance discusses remedies for ineffective or non-implemented mitigation measures. While NEPA does not require mitigation of adverse impacts, mitigation failures may give rise to adverse impacts which were not considered during the initial review process, triggering the need for an EIS (in the case of a mitigated FONSI) or supplemental EIS (if an EIS was already prepared) in the event that additional federal approvals or actions are anticipated.[9] Even when supplemental documentation is not appropriate, agencies are encouraged to incorporate monitoring results into future NEPA analyses, so as to avoid relying upon mitigation measures that have proven ineffective in the past.[10]
With this document, CEQ has now finalized two of the three NEPA Guidance documents released in draft form last year. The last in the series – Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gasses[11] – is expected to be finalized later this year.
[1] See CEQ, Final Guidance for Federal Departments and Agencies on the Appropriate Use of Mitigation and Monitoring and Clarifying the Appropriate Use of Mitigated Findings of No Significant Impact (“Mitigation Guidance”), Jan. 14, 2011.
[2] See, e.g., 40 C.F.R. § 1502.16(h).
[3] Mitigation Guidance at 7, n. 18. While mitigated FONSIs have long been accepted as a matter of practice, prior CEQ Guidance from 1981 had cast doubt upon their legitimacy under NEPA. Id.
[4] Id. at 2.
[5] Id. at 8.
[6] Id. at 9. In some cases, failure to provide such disclosure could result in delays and preparation of a supplemental EIS should the necessary funding later become unavailable. Id.
[7] Id. at 10.
[8] Id. at 12.
[9] Id. at 15.
[10] Id.
[11] See CEQ, Draft NEPA Guidance on Consideration of the Effects of Climate Change and Greenhouse Gas Emissions, Feb. 18, 2010.
November 24, 2010
Earlier this month, the New York State Sea Level Rise Task Force (“Task Force”) released a draft report assessing the climate-related threat to coastal communities and recommending a series of policy changes (“Draft Report”). The state legislature commissioned the Task Force in 2007, bringing together state agency representatives, county and local government officials, and other public and private stakeholders to “protect[] New York’s remaining coastal ecosystems and natural habitats, and increas[e] coastal community resilience in the face of sea level rise.” The Draft Report is open for public comment until Dec. 12, 2010, and is scheduled to be finalized by Jan. 1, 2011.
The Draft Report contains nine findings concerning the projected impacts of sea level rise and 14 policy recommendations for state legislators and executive agencies to prepare for and protect against those risks. This post focuses on the recommendations related to the State Environmental Quality Review Act (“SEQRA”), the New York law requiring state and local governments to consider the potential significant adverse environmental impacts of their actions.
The SEQRA recommendations primarily relate to actions undertaken within newly-proposed “coastal risk management zones,” which would require an amendment to SEQRA or its implementing regulations. The Task Force suggests that such zones should be established and include those areas that FEMA has already identified as “coastal high hazard areas” or “areas of moderate wave action” on Flood Insurance Rate Maps (Draft Report, at 54).
SEQRA regulations currently categorize actions as Type I (those that presumptively have significant adverse impacts and are more likely to require preparation of a full Environmental Impact Statement), Type II (those determined not to have significant adverse impact or otherwise precluded from SEQRA review) and Unlisted. Under one proposal, the Task Force recommends that all Unlisted Actions undertaken within a coastal risk management zone be added to the Type I list (Draft Report at 61). Alternatively, the Draft Report suggests amending the criteria for environmental significance in the SEQRA regulations to expressly incorporate sea-level rise related impacts (Draft Report at 61; 6 NYCRR 617.7(c)).
Neither of these recommendations, however, addresses the technical issues of how the environmental significance of sea level rise on a proposed project should be measured. Moreover, the classification of all actions occurring within a coastal risk management zone as Type 1 may be inconsistent with existing SEQRA guidance which anticipates that the significance of sea level rise and other global warming impacts on a project would be assessed “on a case-by-case basis” — with no bright line test imposed based on project location.[1] This recommendation could also sweep in minor discretionary actions, such as wetland permits for single lots, that are not the type or scale of government action typically considered Type I.
Finally, the Task Force makes a commonsense recommendation that DEC’s short and long Environmental Assessment Forms (“EAF”) – used to determine the potential significance of an action’s environmental impacts – be revised to “require[e] an evaluation of risks to and from the project based on the risk of sea level rise and coastal hazards … and other related effects of sea level rise” (Draft Report at 61). The long EAF currently asks, “Is [the proposed] project or any portion of project located in a 100 year flood plain,” though sea level rise is projected to expand the areas of New York traditionally considered at risk of serious flooding.
For additional information on the consideration of climate-related impacts under SEQRA or the National Environmental Policy Act (“NEPA”), contact Steven Russo.
[1] DEC, Assessing Energy Use and Greenhouse Gas Emissions in Environmental Impact Statements, July 15, 2009, at 4, 5.
May 26, 2010
The U.S. Green Building Council (“USGBC”) recently released a certification system for green neighborhood development, known as LEED-ND.[1] LEED-ND expands the well-known LEED system for green buildings to larger-scale projects ranging in size from two buildings to multiple buildings on sites up to 320 acres. The system incorporates the principles of new urbanism, emphasizing mixed-use planning and walkable neighborhoods, and was developed in concert with the Natural Resources Defense Council and the Congress of the New Urbanism. While LEED-ND is primarily designed for neighborhood-scale projects, it may also apply to campus-style developments, such as university campuses, military bases, resort developments, religious retreat centers or summer camps.
Some notable features of the LEED-ND system include:
- Each project must have at least one certified green building;
- A project’s site must be contiguous property, but may include “conclaves of non-conforming properties” that may be exempt from LEED-ND requirements;
- Project sponsors should have control over or title to 50% or more of the project land area.
Projects are evaluated based on a number of prerequisites and credits, earned by incorporating design elements which are grouped by category, including:
- Smart location and linkage – relates to transportation, location, and land preservation;
- Neighborhood pattern & design – relates to community character, mix of uses, and walkability;
- Green infrastructure and buildings – examines building design and construction with regard to energy and water use, and sustainable best practices;
- Innovation and design process – grants credits for “exemplary and innovative” performance, beyond existing credit structures;
- Regional priority – allows credits unique to a project’s local environmental priorities.
The LEED-ND certification process takes place in three stages:
- Stage 1 – conditional approval of plans, to enable projects to build local support;
- Stage 2 – pre-certified plans, intended for projects that have received necessary permits or are under construction, and may assist in securing funding or tenants;
- Stage 3 – to be formally certified projects must have completed construction, and have achieved all prerequisites and credits sought in the first two stages of review, subject to any intervening changes in the LEED-ND system.
Generally LEED-ND applies to newly-constructed projects, but substantial renovations of 50% or more of existing square footage may allow existing neighborhoods to apply for certification.
Implementing LEED-ND may raise a series of legal issues, because the rating system operates at a scale that has traditionally been governed by zoning laws and municipal comprehensive plans. The USGBC warns that LEED-ND should not be used a substitute for comprehensive planning, but project applicants and municipalities should be aware that implementing LEED-ND may itself trigger the need for revisions to a municipal plan or zoning code. Some of the potential issues that LEED-ND implementation may face include:
- Project applicants and municipalities need to assess the consistency of existing zoning with LEED-ND requirements. Qualifying for credits based on mixed-use neighborhood character may be rendered impossible by pre-existing single-use zoning.
- Municipalities wishing to mandate compliance with LEED-ND may create the unintended consequence of rendering significant portions of land undevelopable. This could expose a government to potential litigation, including takings claims.
- Any revisions to zoning codes to enable use of LEED-ND would require environmental review as appropriate, and should be assessed for consistency with the applicable comprehensive plan for consistency. See, e.g., NY Town Law § 272-a(c)(11) (requiring that “[a]ll town land use regulations must be in accordance with a comprehensive plan adopted pursuant to this section”).
- Site-specific rezonings to enable LEED-ND—even on large parcels—may face litigation risk in the form of spot-zoning claims.
- Large-scale projects face a risk of the LEED-ND system itself changing over time. Applicants to the USGBC should carefully note that projects are not grandfathered to LEED-ND as it existed at the time of its original application. Rather, at each new stage of review a project may be required to comply with intervening changes in LEED-ND credits and prerequisites.
One recent example of municipal incorporation of LEED-ND in the planning process is the Willets Point Development Plan (the “Willets Point Plan”) proposed in northern Queens, New York, where SPR is representing the City of New York and its Economic Development Corporation (“EDC”). According to Final Generic Environmental Impact Statement published for the project, the Willets Point Plan envisions redevelopment of a current industrial area into a mixed-use neighborhood through an Urban Renewal Plan and a rezoning tailored to the Plan’s goals. The EDC, which is sponsoring the project through acquisition of the land within the proposed development district and issuance of a Request for Proposals to potential developers, has developed an illustrative site plan designed to comply with current LEED-ND requirements, and intends to require the chosen development to achieve LEED-ND certification.
[1] LEED stands for Leadership for Energy and Environmental Design.
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