September 29, 2011
On September 16, a natural gas company filed a lawsuit challenging new zoning laws in Dryden, New York that prohibit oil or gas exploration anywhere in the town. Dryden, a town in Tompkins County which sits atop the Marcellus Shale, is one of several central New York municipalities that have taken measures aimed at limiting the use of hydraulic fracturing, or “fracking.” In its petition, the Anschutz Exploration Corporation (“Anschutz”) argues that the New York Environmental Conservation Law (“ECL”), Section 23-0303(2), precludes local governments from regulating oil and gas drilling, except in the context of laws regulating local roads and property taxes.
The Dryden lawsuit comes in the wake of efforts by over twenty municipalities in central New York to assert control over hydraulic fracturing through the use of zoning or other mechanisms. In addition to sharing generalized concerns about the effects of fracking on drinking water and air quality, local communities also face, as a result of fracking, increased truck traffic on local roads, visual impacts, noise pollution, and other effects. If the present lawsuit results in a holding that local governments may not use zoning laws to regulate such effects, Dryden and other municipalities may need to examine how these effects may be managed through the regulation of local roads and taxes, consistent with ECL § 23-0303(2).
Alternatively, if Anschutz prevails in its suit, local governments may be constrained to rely on state law for generalized protections that could reduce fracking’s local effects. The New York State Department of Environmental Conservation recently released the complete version of its Revised Draft Supplemental Generic Environmental Impact Statement (“SGEIS”) on the use of hydraulic fracturing, as well as proposed regulations governing hydraulic fracturing. Both the Revised Draft SGEIS and the proposed regulations are open for public comment through December 12, 2011
For more information about local governments and the regulation of hydraulic fracturing’s effects, contact Steven Barshov.
August 4, 2011
On July 29, 2011, Governor Cuomo signed a law authorizing local governments to create not-for-profit corporations to act as land banks with respect to vacant, abandoned, or tax-foreclosed property. These non-profit land banks will have the ability to sell property free and clear of prior tax liens. However, the new law does not insulate these newly created non-profits from liability for site contamination.
Newly created land banks will need to exercise caution in acquiring abandoned and foreclosed property, which are often contaminated from historic industrial activity. Such contamination may have been a factor contributing to the abandonment of the property, particularly in economically depressed areas. Federal and state laws can impose strict liability on owners of contaminated property to address the actual or potential release of hazardous substances. Although these laws provide a defense to government entities acquiring property involuntarily or through eminent domain, such defenses do not appear to be available to a land bank. Land banks would be well advised to consider this risk and to protect themselves by conducting due diligence investigations before taking title (in order to qualify for certain statutory defenses to liability) or by delaying taking title until a developer or other entity has been identified with the financial capacity and willingness to assume environment liability for past contamination.
June 23, 2011
As part of a deal at the end of the current legislative session, the New York Legislature has passed the “Power NY Act of 2011,” a sweeping energy bill negotiated between Governor Andrew Cuomo and legislative leaders. Section 12 of the new law reauthorizes and modernizes Article X of the Public Service Law, which expired on January 1, 2003, governing the siting and approval of power plants in New York.
The absence of a power plant siting law has been cited by some as one important reason why there has been scant development of power plants in New York in recent years, including alternative energy sources. (Others have cited the poor economy as the primary roadblock to new power plant development.)
Like its predecessor, the new version of Article X aims to centralize and streamline the siting approval process, although the threshold for application of the law has been lowered from 80 to 25 megawatts. The law creates and vests permitting authority with the New York State Board on Electric Generation Siting and the Environment (“the Board”). Seeking to balance the need for local input in siting decisions with the obstacles posed by “NIMBY” opposition to new power plants, the statute provides that two local residents will be part of the Board for each proceeding. The other five members of the Board will all be State officials. The law also provides for “intervenor funding” which will enable municipalities and other local parties to participate in all phases of the administrative review, including the mandated adjudicatory hearing.
The Board is given authority to override local laws and ordinances if they are “unreasonably burdensome.” Unless otherwise agreed to by an applicant or extended due to a “material and substantial amendment to the application” or “extraordinary circumstances,” Board decisions must be rendered within a year of the application being deemed complete.
Article X displaces the State Environmental Quality Review Act (SEQRA) process for covered projects, but mandates several environmental analyses of the facility’s impacts. These analyses include a “cumulative air quality analysis” of the combined effects from the proposed facility, other proposed sources and all existing sources; a description of the demographics of the surrounding community; and a description of “reasonable and available” alternative locations. It also requires the Board to find that the project minimizes or avoids disproportionate impacts on the surrounding community.
There are significant differences between the new version of Article X and the expired version. The lower 25 megawatt threshold will allow smaller projects to be covered by the law and may particularly benefit developers of wind projects, which in most cases would not have been covered by the expired version. The increased emphasis on environmental justice impacts addresses concerns stated by environmental groups. Current applicants for local and state permits for a power plant may elect to be covered by the new law.
In what appears to be the first legislative enactment that specifically and directly addresses greenhouse gas emissions, Section 21 of the Power NY Act requires the Department of Environmental Conservation to promulgate regulations “targeting reductions in emissions of carbon dioxide” for new power plants with a capacity of 25 megawatts or more.
Mark LeBel is a Summer Associate at Sive, Paget & Riesel, P.C.
June 17, 2011
After five years of litigation, an appeals court ruled last week that New York City can proceed with the construction of a marine waste transfer station on the Upper East Side. Local residents had challenged the project, alleging that it appropriated public parkland for non-park purposes and that the city was required to seek legislative approval of the project.
The appeals court upheld the trial court’s findings that the parcels at issue are not public parkland, and that even if they were, the proposed project would not substantially intrude upon them. The court explained that public parks are created either expressly, via deed or legislative enactment, or by implication, through continuous use indicating an “unequivocal” intent to dedicate the parcel as public parkland.
The court found that neither of the two parcels at issue, a recreational complex known as Asphalt Green and a pedestrian path known as Bobby Wagner Walk, qualified as public parkland under this test. The court held that Asphalt Green was not expressly dedicated as parkland because it was acquired by the City for non-park purposes and that a 1989 assignment of part of the parcel to the Department of Parks was conditioned on not mapping that part as public parkland. Asphalt Green did not become public parkland by implication, the court reasoned, because it is operated by a non-City entity and because access is restricted 70% of the time to those who pay membership fees. With respect to Bobby Wagner Walk, the court commented only that it can be “distinguish[ed]…from a park” because the “Department of Transportation owns the property, and it functions primarily as a thoroughfare.”
The new marine transfer station is part of a 2006 strategic plan by Mayor Bloomberg to manage the over 11,000 tons of solid waste the city produces daily. The Comprehensive Solid Waste Management Plan, which according to the New York Times is “affectionately known” as “the Swamp,” was the product of intense negotiations over the equitable siting of new waste facilities in the wake of the closing of the Fresh Kills landfill on Staten Island.
Devin McDougall is a summer associate at Sive, Paget & Riesel
March 22, 2011
Mayor Michael R. Bloomberg and City Council Speaker Christine C. Quinn recently released a sweeping plan to revitalize and capitalize on New York City’s 520 miles of shoreline. In addition to a three-year action agenda to complete 130 already-funded projects, it also provides specific plans and goals for various waterfront areas throughout the City.
The plan focuses not only on waterfront access and redevelopment of waterfront sites, but also improving water quality, restoring and enhancing waterfront habitats, and improving coordination between governmental agencies with overlapping jurisdiction over waterways and waterfront sites – one of the major stumbling blocks that has stood in the way of effective action. The plan also recognizes the need to consider and address the potential impacts of climate change and sea level rise in waterfront projects.
To advance these goals, the plan identifies site-specific projects in 22 reaches of the City’s waterways, and identifies several additional waterfront redevelopment sites. The plan also includes specific steps that should be taken to implement NYHarborWay, the Bloomberg Administration’s initiative to make New York Harbor a major recreational destination, and to connect Brooklyn Bridge Park, Governors Island, Hudson River Park, The Battery, Ellis Island, Statue Liberty Island, the East River Esplanade and Liberty State Park by ferry and/or bike greenways.
SPR has successfully guided many major waterfront projects to completion, and the plan includes several current projects on which SPR has served or currently serves as counsel, including: completion of Brooklyn Bridge Park, the redevelopment of the Admiral’s Row site at the Brooklyn Navy Yard, redevelopment of the former Domino Sugar factory in Williamsburg, the proposed expansion of the New York Container Terminal on Staten Island, the next phase of development of Arverne by the Sea in the Rockaways, redevelopment of the Battery Maritime Building in Lower Manhattan, and redevelopment of Pier A in Battery Park.
The City will track the progress of its various waterfront initiatives on its website on an ongoing basis. The plan and the updates can be accessed here.
February 16, 2011
SPR attorneys recently served as environmental counsel to Acumen Capital Partners in its acquisition of the former Pfizer manufacturing facility in Brooklyn. The plant, comprising 660,000 square feet, had been vacant since Pfizer operations ceased there in 2008. Pfizer traces its corporate origins to the neighborhood, having commenced its operations there in 1849.
Plans for the property include conversion to light industrial and commercial uses. Acumen seeks to incorporate environmental sustainability into its redevelopment projects, and is known for constructing a rooftop farm comprising 43,000 square feet on another former industrial property in Long Island City. Five acres of undeveloped property remain north of the former Pfizer plant, which Pfizer has envisioned for potential development as affordable housing.
SPR represented Acumen in evaluating the environmental aspects of the purchase of the plant. For more information contact Michael Bogin or Jeff Gracer.
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.
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