May 13, 2013
On May 2, 2013, the Third Department of the New York State Supreme Court, Appellate Division, upheld a municipal zoning ordinance banning “all activities related to the exploration for, and the production or storage of, natural gas and petroleum,” in the case of Norse Energy Corporation USA v. Town of Dryden.
The Town of Dryden passed the ordinance in 2011 amid concerns about the environmental impact of high volume hydraulic fracturing, or “fracking,” in the Marcellus Shale. The ordinance was challenged by Anschutz Exploration Corporation, an oil and gas exploration company that owned leases covering approximately 22,200 acres of land in the Town of Dryden. Anschutz – which later assigned its interest in the leases to Norse, the appellant in the case – argued that Dryden’s ordinance was preempted by a provision of New York’s Oil, Gas, and Solution Mining Law (the “OGSML”), which states that the OGSML supersedes “all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries . . . .” New York Environmental Conservation Law 23-0303(2). Anschutz (and later Norse) argued that this preemption clause prevents municipalities from using their zoning powers to ban fracking within their borders, while Dryden argued that the zoning provision was not the type of regulation targeted for preemption by the OGSML.
Since the OGSML does not define what it means by “regulation of the oil, gas and solution mining industries”, the court in Norse Energy Corporation examined the legislative history of the law in order to determine whether the Town’s zoning ordinance fell within the ambit of the preemption clause. The court ultimately concluded that the OGSML was aimed at “insur[ing] uniform statewide standards and procedures with respect to the technical operational activities of the oil, gas and mining industries”, and not to regulate where those activities could take place. Hence the OGSML would preempt a local law that attempted to regulate the actual operation of a natural gas well, but, the court held, it did not “usurp the authority traditionally delegated to municipalities to establish permissible and prohibited uses of land within their jurisdictions.”
This decision has important implications for fracking in New York State. According to Earthjustice, an environmental group involved in the litigation, over 150 municipalities in New York have passed zoning ordinances banning or restricting fracking within their borders; in fact, a similar ordinance passed by the town of Middlefield was upheld by the same court on the same day. Another group, FracTracker, has compiled a table of municipal zoning actions on fracking in New York state, showing 55 bans and 105 moratoria on fracking, as well as several municipalities that have passed resolutions in favor of fracking. The Norse Energy Corporation decision could encourage other municipalities to pass their own zoning resolutions restricting or banning fracking within their borders.
For more information about hydraulic fracturing and zoning matters, please contact Steve Barshov.
April 12, 2013
On April 9, 2013, the New York City Council unanimously approved a proposal to redevelop the historic Pier 57 within Hudson River Park, at the foot of West 15th Street in Manhattan. This followed approval by the City Planning Commission in March, and the environmental review of the project by the Hudson River Park Trust (“HRPT”) and other agencies, through the preparation of an environmental impact statement (“EIS”). SPR is serving as HRPT’s environmental counsel for the Pier 57 redevelopment, continuing the Firm’s representation of Hudson River Park since its establishment in the 1990s.
Pier 57, which was constructed in the early 1950s and comprises three underwater caissons, a head house and a pier shed, is listed on the State and National Registers of Historic Places. It has been vacant since the 1990s. Developer Youngwoo & Associates proposes to lease the Pier from HRPT in order to redevelop it with an urban marketplace (using repurposed shipping containers for small food- and design-oriented retail businesses), restaurants, a large rooftop open space, and public circulation space around the perimeter of the pier. The project may also include cultural space, an educational facility, and a marina.
SPR principals David Paget and Elizabeth Knauer have been advising HRPT regarding all environmental aspects of the project, including preparation of the EIS, consultation with the State Historic Preservation Office, and obtaining environmental permits for work that will be needed within the Hudson River. This representation is the latest example of the firm’s longstanding work on major New York City waterfront developments, dating back to the South Street Seaport and Battery Park City projects and continuing with more recent projects such as Queens West, Brooklyn Bridge Park, the redevelopment of the Battery Maritime Building and Pier A in lower Manhattan, the Whole Foods store and Domino Sugar Refinery redevelopment in Brooklyn, and the proposed expansion of the New York Container Terminal in Staten Island.
April 11, 2013
Last week, at a conference co-sponsored by SPR, government officials, academics, attorneys, and scientists convened at Hofstra University to discuss the legal and practical consequences of Superstorm Sandy. Expert panels addressed the following questions:
- How can local governments physically modify their transportation, power, and sanitary infrastructure to adapt to the impacts of climate change, and by what legal mechanisms?
- Are massive floodgates feasible and desirable for the protection of the New York metropolitan area? Or do “soft” barriers such as man-made wetlands represent a better alternative?
- What planning and land use concepts can be used to encourage smart real estate development that responds to climate change risks?
- Will claims of “scientific uncertainty” hinder climate change adaptation efforts to the same extent that similar claims have hindered climate change mitigation efforts?
- Where and how should coastal communities be rebuilt? What is the legal framework for government-led “strategic retreat” from the coast?
- How may relief be obtained from FEMA? How may relief be obtained from insurance companies?
- What federal, state, and local government programs are available to homeowners and businesses to aid recovery?
- What resources are available to help individual homeowners who have lost everything in the storm? What has been the experience in New York’s underprivileged communities, and can that be improved?
The conference was chaired by SPR principal Michael Bogin and Hofstra Law Professor Carol Casazza Herman, with critical support from SPR principal Pamela Esterman. SPR principal Steven Barshov participated as a lecturer, focusing on the integration of infrastructure resilience into planning and development.
Sponsors of the conference were the American Bar Association Section of Environment, Energy, and Resources, the New York State Bar Association, and SPR.
For more information on Sandy recovery or climate change adaptation in the context of development, please contact Michael Bogin, Steven Barshov, or David Yudelson.
Conference speakers: (L-R) Professor Katrina Kuh, Maurice A. Deane School of Law at Hofstra University; Associate Dean Jennifer Gundlach, Maurice A. Deane School of Law at Hofstra University; Dean Eric Lane, Maurice A. Deane School of Law at Hofstra University; Nassau County Supervisor Ed Mangano; SPR Principal Michael Bogin; Professor Carol Casazza Herman, Maurice A. Deane School of Law at Hofstra University.
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.
October 17, 2012
On October 10, 2012, the Lightstone Group (“Lightstone”) received conditional approval from Community Board 6 for its proposal to construct 700 apartments, community facilities, commercial space and a waterfront front esplanade along the Gowanus Canal. Sive, Paget & Riesel is serving as environmental counsel for Lightstone’s redevelopment project, which will occupy two city blocks to the west of the Canal.
The key environmental issues were the environmental remediation of the Site, the Site’s relationship to the Gowanus Canal Superfund Site, reconstruction of the historic bulkhead, planning for projected sea level rise, and the avoidance of significant adverse impacts on combined sewer overflows into the Canal.
David Yudelson, a partner at Sive Paget & Riesel, has been working cooperatively with federal, state and local agencies to address these issues. In addition, Mr. Yudelson has been working with the United States Environmental Protection Agency (“EPA”) on an agreement to dovetail the proposed redevelopment with the forthcoming Gowanus Canal Superfund remedy, which EPA is anticipated to propose over the coming months.
Mr. Yudelson and Sive, Paget & Riesel have been representing a number of prospective purchasers, owners, developers respecting these issues on other properties on the Gowanus Canal since 1996, including Gowanus Green, Toll Brothers, Woodenbridge LLC, Whole Foods, and MCIZ. The Firm is also representing potentially responsible parties with respect to the Superfund cleanup of the Canal. For further information, please contact David Yudelson at dyudelson@sprlaw.com or 917-295-6449.
October 12, 2012
On October 3, 2012, Governor Cuomo signed into law a nine-month extension of the availability of tax credits under New York State’s Brownfield Cleanup Program (“BCP”). The previous version of the Program required sites in the program to receive their certificate of completion (“COC”) from the Department of Environmental Conservation (“DEC”) by March 31, 2015 in order to qualify for tax credits under the BCP; now, sites may qualify if they receive their COC by December 31, 2015. According to the most recent annual report of DEC’s Division of Environmental Remediation, it takes approximately three years for a brownfield site to move through the BCP. It remains to be seen, however, whether a longer-term extension of the BCP tax credits will be taken up by the Legislature in the upcoming term.
SPR is currently working with numerous clients who are developing brownfield sites through the BCP. For additional information on the BCP, please contact Mark Chertok, Michael Bogin, Christine Leas, or Michael Lesser.
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