August 26, 2010
The Coalition for Buzzards Bay and the Conservation Law Foundation have filed suit in the U.S. District Court in Massachusetts against the Environmental Protection Agency for failure to properly regulate sources of nitrogen pollution on Cape Cod, including septic systems, stormwater, and wastewater treatment plant discharges.
SPR represents the Coalition for Buzzards Bay in the suit, which has been widely reported in the news media. Read more on the suit from the Associated Press, Washington Post, and Boston Globe. A copy of the Complaint can be accessed here (pdf). For more information, contact Steven Russo.
June 28, 2010
On Thursday, June 24, 2010, New York’s highest court approved the Empire State Development Corporation‘s (“ESDC”) use of eminent domain to acquire land in West Harlem that will be used to support Columbia University’s campus expansion. Kaur v. New York State Urban Dev. Corp., No. 125, __ N.Y.3d ___ (2010), consolidated with Tuck-It-Away v. New York State Urban Dev. Corp., No. 125, __ N.Y.3d ___ (2010) (collectively, “Kaur“). In a unanimous decision authored by Judge Cipatrick, the Court of Appeals reversed a ruling of the Appellate Division, First Department that ESDC could not condemn property for Columbia’s expansion project. Relying on its recent decision in Goldstein v. New York State Urban Dev. Corp., 13 N.Y.3d 511 (2009) (“Goldstein“), in which the Court upheld ESDC’s use of eminent domain to acquire land for the Atlantic Yards project in Brooklyn, in the Kaur case the Court of Appeals deferred to ESDC and criticized the Appellate Division for undertaking an improper de novo review of the record.
In December 2008, ESDC determined to use its condemnation power to acquire 17 acres of privately-owned property, including petitioners’, in connection with Columbia’s expansion plan. ESDC found that the project qualified under the Urban Development Corporation Act as both a “land use improvement project” (because the project would eliminate blighted conditions) and as a “civic project” (because the project would provide educational facilities). The $6.28 billion project, which is being exclusively underwritten by Columbia, a private non-profit institution, will comprise 6.6 million gross square feet in 16 new buildings, 2 acres of open space, and other structures. Petitioners contested ESDC’s designation of the project area as “blighted,” and challenged the integrity of the two neighborhood studies commissioned by ESDC that supported its blight finding, arguing that the studies were biased and demonstrated bad faith on the agency’s part. Petitioners also argued that the “civic project” designation was impermissible because Columbia is a private, not a public, entity.
In Thursday’s Kaur decision, the Court of Appeals reaffirmed that the judiciary has a limited role in reviewing the actions of ESDC, a quasi-legislative entity. Citing Goldstein, the Court noted that ESDC was authorized by the state legislature, and that a court “may only substitute its own judgment for that of the legislative body authorizing the project when such judgment is irrational or baseless.” The Court rejected petitioners’ arguments that ESDC acted in bad faith and with pretext, finding no evidence to support such allegations. The Court instead held that ESDC’s determination was made rationally and in good faith, and that the separate neighborhood conditions studies on which ESDC relied were creditable and not biased. The Court then cited blight evidence dating back to the 1960s to reject petitioners’ argument that Columbia created blight by neglecting the project-area properties that it acquired starting in the early 2000s. The Court also held that the UDC Act’s definition of a “substandard or insanitary” (i.e., blighted) area was not unconstitutionally vague.
The Court of Appeals made new law in New York by holding that “civic projects” under the UDC Act are not limited to public institutions, and may in fact include projects proposed by private educational institutions. After noting that the Columbia project “unquestionably [] promote[s] education and academic research while providing public benefits to the local community,” the Court rejected the First Department’s determination that the statutory language is limited to public entities. In a concurring opinion, Judge Smith stated that because the Court upheld ESDC’s blight determination, the civic project doctrine need not have been reached, and that it was subject to constitutional constraints that the Court failed to address.
Finally, the Court rejected petitioners’ claims that ESDC violated their procedural due process rights by closing the administrative record and proceeding with the condemnation despite ongoing disputes as to whether ESDC was required to turn over additional documents to petitioners. The Court stated that a violation of the Freedom of Information Law (“FOIL”) only rises to a due process violation where petitioners can demonstrate that they were deprived of a meaningful opportunity to be heard, or demonstrating that materiality of the records sought through FOIL. The Court found that ESDC did not withhold documents that formed part of the administrative record, and that petitioners had unfettered access to thousands of pages of documents, including those at the core of ESDC’s action. Noting that the legislature intended for expedient condemnation proceedings that did not allow for any discovery, the Court held that petitioners failed to meet their burden.
According to the New York Times, petitioners plan to seek review of the decision by the United States Supreme Court.
SPR serves as environmental counsel for the Empire State Development Corporation, and Mark Chertok and Dan Chorost served as co-counsel to ESDC’s eminent domain counsel in the Kaur case. David Paget and Dan Chorost served as co-counsel for ESDC in the Goldstein case. A copy of ESDC’s appellate brief is available here (pdf), and reply brief here (pdf).
June 4, 2010
The New York State Electronic Equipment Recycling and Reuse Act was signed into law by Governor Paterson on May 28, 2010. Beginning April, 2, 2011, the Act requires manufacturers to accept electronic waste for collection, handling, and recycling or reuse. Covered electronic equipment includes computers (as well as accessories such as monitors, keyboard and printers), televisions, and “small electronic equipment,” which includes portable digital music players, video recorders and video game consoles. The Act sets state-wide collection standards that slowly increase over the first three years. In addition, the Act sets manufacturer-specific acceptance standards based on their market share. The Act requires “convenient collection” from consumers, but does not include the “direct collection” requirement that was the focus of industry’s litigation concerning similar electronic waste legislation passed by the City of New York in 2008.
The Firm represented the Natural Resources Defense Council in connection with an amicus brief filed by NRDC in the litigation challenging the City law. NRDC has been a staunch supporter of producer responsibility principles. The State Act preempts the challenged City law, effectively mooting that litigation. A copy of the Act is available here.
April 12, 2010
A recent decision in a matter litigated by SPR fills an important gap in Superfund law by establishing that suits by parties settling with a state brought under CERCLA’s contribution provision[1] must be brought within three years of the date of the settlement of liability. The District Court’s decision in Chitayat v. Vanderbilt Associates, et al., 03-5314-cv, Memo & Order (E.D.N.Y. March 22, 2010) also reinforces many of the emerging rules governing suits amongst private Superfund litigants.
The plaintiff in the case sought recovery of costs incurred under a 1998 consent order which required him to reimburse the New York State Department of Environmental Conservation (“DEC”) for its costs of cleaning up tetrachloroethene (“PCE”) which had been discovered at 100 Oser Avenue site in Hauppauge, NY (the “Site”). Costs incurred, and expected to be incurred, amounted to several million dollars.
Plaintiff alleged a claim for cost recovery pursuant to CERCLA § 107, and contribution under CERCLA § 113(f)(3)(B). The Court ruled that the plaintiff’s 107(a) cost recovery claim failed because pursuant to his consent order plaintiff was, “not required to expend his own funds to remediate the Site” but instead had to “‘reimburse’ the DEC for the DEC’s response costs.” (Slip. Op. at 14.) Accordingly, plaintiff had not incurred costs of response within the meaning of CERCLA § 107 and could not assert a claim under that section.
With respect to plaintiff’s contribution claim under CERCLA § 113(f)(3)(B), the court held that while plaintiff was entitled to assert the claim, it was timebarred by a 3-year statute of limitations which began to run upon issuance of the consent order. Plaintiff filed his suit approximately 5 years after the date of his consent order.
The Court’s holding on contribution is notable for two reasons. First, the Court determined that the consent order had resolved plaintiff’s liability for purposes of § 113(f)(3)(B) despite the fact that plaintiff was required to pay back DEC costs in yearly installments over many years. Plaintiff would not receive a release from liability unless he continued to pay and comply until all DEC’s costs were reimbursed. Such a result could be decades away, and may never occur. The Court nonetheless held that under Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., – F.3d –, 2010 WL 626064 (2d Cir. Feb. 24, 2010), plaintiff’s consent order created a contribution claim under § 113(f)(3)(B).
The most significant aspect of the ruling relates to the statute of limitations which applies to § 113(f)(3)(B) contribution claims. The Court noted a gap in the statute, the, “lack of a triggering event in § 113(g)(3) encompassing a state administrative order or a unilateral EPA order under § 106,” but held that in light of recent Supreme Court precedents, a three-year statute of limitations applies to contribution claims arising from settlements of liability with a state. (Slip. Op. at 23.) In this context, the “triggering event should be the date of the ‘settlement’ of that liability,”—here, the date of plaintiff’s consent order. In so holding the Court rejected alternative theories that a six year limitations period, or no limitations period applies. (Id. at 21-23.) This holding clarifies a complex issue of statutory construction that has vexed courts for many years, and provides useful guidance to future litigants.
The following Sive Paget & Riesel litigators represented three defendants in the case: Daniel Riesel, Dan Chorost and Ashley S. Miller.
- A copy of the decision is available here (pdf)
[1] Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9613(f)(3)(B).
February 16, 2010
On Wednesday, February 11, the First Department of the New York State Supreme Court, Appellate Division, held for the second time that the Department of Environmental Conservation (“DEC”) improperly excluded a Manhattan property from the Brownfield Cleanup Program (“BCP”) HLP Properties, LLC v. New York State Department of Environmental Conservation, — N.Y.S.2d —-, 2010 WL 455321 (1st Dept. Feb. 11, 2010) (“HLP”).
As it has argued in several cases, DEC contended that the property in question did not meet the eligibility criteria for a “brownfield” because the Site was already subject to a voluntary cleanup agreement. In a unanimous decision, the Court held that DEC had “improperly departed from statutory criteria,” noting that this result was “compelled” by its recent decision in East River Realty Co., LLC v. New York State Department of Environmental Conservation, 68 A.D.3d 564, 891 N.Y.S.2d 359 (1st Dept. 2009) (“ERRC”), which rejected such arguments by DEC. As it had held in ERRC, the First Department also held that remand to DEC for a new determination was unnecessary in light of the extensive record before it.
HLP represents the third consecutive Appellate Division decision striking down DEC’s efforts to exclude properties from the BCP based on extra-statutory factors. See also Destiny USA Dev., LLC v. New York State Department of Environmental Conservation, 63 A.D.3d 1568 (4th Dept. 2009) (“Destiny”).
The Court of Appeals will soon address related issues in a different context, having recently heard oral argument in an appeal where DEC’s exclusion of property was upheld based on DEC’s conclusion that the contaminants at issue did not exceed levels that would require remediation. Lighthouse Point Property Assocs. v. New York State Department of Environmental Conservation, 61 A.D.3d 1438 (4th Dept. 2009). HLP, ERRC, and Destiny all involved sites where the contaminant levels were significantly above DEC’s remediation standards, and where DEC conceded that remediation was necessary.
SPR represented HLP and ERRC in connection with their challenges to DEC’s exclusion of their property from the BCP. For more information, please contact Daniel Riesel, Mark Chertok, Jeff Gracer, or Michael Bogin.
January 4, 2010
On December 30, Sive, Paget & Riesel (“SPR”) submitted a comment letter on behalf of the Natural Resources Defense Council (“NRDC”) addressing deficiencies in the Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) prepared by the New York State Department of Environmental Conservation (“NYSDEC”) regarding proposed natural gas extraction from the Marcellus Shale formation in the Southern Tier of New York State. SPR’s comment letter, prepared by Steven Barshov and Jessica Steinberg, focused principally on matters of concern to towns and other units of local government within whose territory such proposed natural gas drilling would occur.
SPR’s comment letter identified multiple deficiencies in the DSGEIS related to potential impacts of concern to units of local government, including traffic, noise, visual, community character and land use impacts. SPR’s comment letter also encouraged DEC to adopt regulations that would provide units of local government with meaningful advisory input to NYSDEC during well permitting. Access a complete copy of SPR’s comment letter—which is attached to NRDC’s comment letter—here (pdf).
December 18, 2009
In a significant decision on eligibility of property for the New York Brownfield Cleanup Program (“BCP”), on Thursday, December 17, the First Department of the New York State Supreme Court, Appellate Division, held that the Department of Environmental Conservation (“DEC”) improperly excluded three Manhattan properties from the BCP that qualified under the Program’s definition of a “brownfield site.” In so holding, the appellate court affirmed the judgment of the lower court, which had set aside the DEC’s decision to exclude the properties. East River Realty Co., LLC v. New York State Department of Environmental Conservation, — N.Y.S.2d —-, 2009 WL 48411151 (1st Dept. Dec. 17, 2009) (“ERRC“).
DEC had argued that the property in question did not meet the eligibility criteria for a “brownfield.” Generally a brownfield is defined as property whose redevelopment or reuse of may be complicated by the presence or potential presence of a contaminant. The DEC contended that the property would have been redeveloped even without participation in the BCP, rendering it ineligible for the program. In a unanimous decision, the Court rejected DEC’s argument that a property may be deemed ineligible for participation in the BCP on the ground that the property would have been remediated regardless of such participation.
In rejecting DEC’s denial of eligibility under its application of a “but for” test, the Court cited two recent brownfield cases that similarly found DEC’s reliance on extra-statutory factors arbitrary and capricious. See Destiny USA Dev., LLC v. New York State Department of Environmental Conservation, 63 A.D.3d 1568 (4th Dept. 2009); HLP Props., LLC v. New York State Department of Environmental Conservation, 21 Misc. 3d 658 (Sup. Ct. N.Y. County 2008).
ERRC reaffirms the approach taken by the courts in Destiny and HLP, where the courts have required DEC to adhere to the eligibility criteria set forth in the BCP enabling statute, and struck down DEC eligibility decisions which seek to rely on factors outside the statute.
In addition to its reversal of DEC’s eligibility determination, the ERRC decision upheld the court below’s order that DEC accept the subject properties into the BCP. The Court agreed that given the sufficiency of evidence before the lower court, remand to the agency was not required.
SPR represented ERRC in connection with its challenge to DEC’s exclusion of the subject property from the BCP. For more information, please contact Daniel Riesel, Mark Chertok, Jeff Gracer, or Michael Bogin.
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