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 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 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
Monica Kreshik
NYSDEC
Office of General Counsel
625 Broadway
Albany, NY 12233-1500
ogc@gw.dec.state.ny.us
For more information about DEC’s draft Environmental Audit Incentive Policy, please contact Michael Lesser.
February 8, 2013
In an order dated January 16, 2013, Judge Eileen Rakower of the New York State Supreme Court dismissed an Article 78 petition challenging the Hudson River Park Trust’s lease of an easement for a portion of a natural gas pipeline entering Manhattan through Hudson River Park. The lease – along with the pipeline’s route into Manhattan – was challenged by several environmental groups and individuals, who argued that the Trust was required to conduct an environmental review under the State Environmental Quality Review Act (“SEQRA”) of the pipeline and its connection to Con Edison’s pipeline network. The petitioners also argued that leasing an easement beneath the Park violated the public trust doctrine and provisions of the Hudson River Park Act that restrict the uses to which certain areas of the Park may be put.
Judge Rakower first noted that the Federal Energy Regulatory Commission (“FERC”) had analyzed the environmental impacts of the proposed pipeline under the National Environmental Policy Act and issued an Environmental Impact Statement (“EIS”). That EIS concluded that the local pipeline connection to Con Edison’s network was outside of FERC’s jurisdiction, but nevertheless gave some consideration to the cumulative impacts of connection to Con Edison’s network. After issuing the EIS, FERC approved the route of the pipeline through Hudson River Park. The Trust then negotiated the challenged lease with the pipeline developer.
Judge Rakower concluded that, under the federal Natural Gas Act, FERC had exclusive jurisdiction over the siting of the pipeline, and that any challenges to the siting decision – or the Trust’s lease of the right-of-way through Hudson River Park in accord with that decision – must be brought in federal court. Judge Rakower also ruled that state-law environmental review of the pipeline under SEQRA was preempted by the Natural Gas Act. The court therefore dismissed the petition.
For more information on the Court’s decision, contact Elizabeth Knauer.
February 1, 2013
On January 9, Governor Andrew Cuomo delivered his 2013 State of the State Address and outlined several key policy initiatives to facilitate the increased deployment of solar power in New York. The address announced the governor’s intent to (1) extend the state’s NY-Sun solar program at $150 million annually for the next 10 years, (2) appoint a cabinet-level “energy czar” to coordinate the administration’s energy policy, and (3) create a $1 billion “NY Green Bank” to leverage public monies with private sector funds in order to increase investment in renewable energy projects in New York.
“The economy of tomorrow is the clean tech economy,” the governor observed in his address. “We all know it, it’s a foot race – whatever state, whatever region gets there first wins the prize, and we want it to be New York.”
The 2013 State of the State Report that accompanied the address provides further details. To start, the NY-Sun program, originally announced in Cuomo’s 2012 State of the State Address, is designed to increase the state’s solar generation capacity. To that end, NY-Sun has thus far taken the form of a variety of legislative and administrative policy measures, including tax credits, grants, and permitting reforms. NY-Sun presently is authorized through 2015; Cuomo proposes to extend the program’s present funding levels through 2023.
The governor has recruited Richard Kauffman to join his cabinet as the state’s new “energy czar.” Kauffman, whose formal title will be Chairman for Energy Policy and Finance for New York State, previously worked as senior advisor to U.S. Secretary of Energy Steven Chu, and is a leading expert on private sector investment in renewable energy.
Cuomo’s proposed NY Green Bank would “serve a coordinating role to enhance the collective strength of all State clean energy programs,” which together spend $1.4 billion annually. According to the report, the Green Bank would seek to move beyond these programs’ present reliance on “one-time subsidies” by using tools like “bonding, loans and various credit enhancements (e.g, loan loss reserves and guarantees)” to “leverag[e] private capital” and “catalyz[e] market activity.” As the report notes, Connecticut passed legislation creating a similar entity, the Clean Energy Finance and Investment Authority, in 2011.
Individuals and small businesses in New York can take advantage of the NY-Sun Initiative in several ways. For example, the New York State Energy Research and Development Authority (NYSERDA) administers the NY-Sun Competitive Photovoltaic Program, which provides grants supporting the development of qualifying photovoltaic projects. In 2013, NYSERDA will accept grant applications in two rounds, with deadlines of March 14th and August 29th. Additionally, the Long Island Power Authority (LIPA) recently initiated New York’s first feed-in tariff program, the Clean Solar Initiative Feed-In Tariff. Under this program, LIPA will pay a fixed rate to owners of qualifying photovoltaic generation systems for every solar kilowatt-hour generated over a fixed term.
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