January 8, 2010
In addition to the New York City Department of Environmental Protection and the Natural Resources Defense Council, the United States Environmental Protection Agency (“EPA”) has submitted comments on the New York State Department of Environmental Conservation’s (“DEC”) Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) addressing natural gas drilling in the Marcellus Shale formation.
In a letter dated December 30, 2009, EPA expresses several concerns with the DSGEIS. EPA notes that the original GEIS that the DSGEIS supplements was issued in 1992 and expresses concerns that existing conditions may have significantly changed since that time. In addition, EPA asserts that the analysis and discussion of cumulative and indirect impacts in the DSGEIS should be significantly expanded. EPA encourages both the New York State Public Service Commission, which has regulatory authority over the pipelines that would transport the natural gas, and the New York State Department of Health, which has primary enforcement responsibility under the Safe Drinking Water Act, to take a more active role in the SEQRA process.
EPA joins with the DEP in expressing serious concerns over potential adverse impacts to the New York City water supply, and notes that water sources serving upstate communities deserve similar protection. Accordingly, EPA suggests that EPA, DEC and DEP work together to “develop an enhanced oversight approach” that would allow for the coordination of applicable regulatory programs to better protect drinking water supplies that could be impacted by natural gas drilling. EPA also encourages DEC to release information regarding the chemical composition of hydrofracturing solutions, which to date has been closely guarded by industry under claims that such composition represents a trade secret not subject to public disclosure. Access a complete copy of EPA’s comment letter here (pdf).
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 29, 2009
Last week, New York City’s Department of Environmental Protection (“DEP”) called upon New York State’s Department of Environmental Conservation (“DEC”) to rescind its Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) addressing natural gas drilling in the Marcellus Shale formation. The Marcellus Shale formation, which contains large quantities of natural gas, extends from Ohio and West Virginia through parts of Pennsylvania and into New York’s Southern Tier. Notably, the formation includes lands in the watershed that provides drinking water to New York City and, in total, approximately half of the state’s population.
DEP has taken the position that any drilling in the watershed should be banned due to risks posed to the drinking water supply by the technique used to extract gas from the underground shale, known as high-volume hydraulic fracturing. In its comments on the DSGEIS, DEP makes a number of arguments to support its contention that the DSGEIS does not adequately analyze the potential significant adverse environmental impacts of drilling in the Marcellus Shale formation, including the following:
The DSGEIS does not adequately analyze the possibility that contaminants may spill into surface waters or migrate underground into natural drinking water supplies or water supply tunnels;
- The DSGEIS’s requirements for the disclosure of the chemicals used in the hydraulic fracturing process are insufficiently protective of human health and the environment;
- The DSGEIS engages in “segmentation” in violation of the New York State Environmental Quality Review Act (“SEQRA”) by failing to adequately analyze potential significant adverse environmental impacts associated with waste disposal, surface water withdrawals, induced growth, cumulative impacts, air quality impacts, pipeline construction, and ancillary infrastructure;
- The no-drill buffer zones proposed in the DSGEIS are inadequate to protect New York City’s drinking water supply; and
- The DSGEIS does not sufficiently analyze alternatives to hydraulic fracturing, and does not at all address alternatives to natural gas development.
DEP also issued a report in conjunction with its comments.
The comment period for DEC’s DSGEIS has been extended to December 31, 2009. While New York City’s interest in upstate drilling is based primarily on potential impacts to its watershed and water supply infrastructure, upstate municipalities are likely to focus on other issues, including tax revenues, road and truck traffic impacts, noise impacts, and preemption of local regulatory authority.
October 29, 2009
On October 27, 2009, the New York State Court of Appeals held that individuals who can prove that they use and enjoy a natural resource frequently for repeated recreational use, more so than the public at large, may have standing under the State Environmental Quality Review Act (“SEQRA”) to challenge government actions that threaten that resource. In Save the Pine Bush v. Common Council of the City of Albany (“Pine Bush“), Save the Pine Bush and nine of its members brought an action under SEQRA challenging the City of Albany’s (the “City”) acceptance of a Final Environmental Impact Statement (“FEIS”), which concluded that the proposed rezoning of a 3.6 acre parcel to allow construction of a hotel would not have a significant impact on the Karner Blue butterfly or its habitat. Petitioners argued that they had standing because they lived near the site of the hotel project and used the Pine Bush for recreation and to study and enjoy its unique habitat. The closest petitioner lived approximately one-half mile from the Pine Bush.
The Court held that petitioners met the test for standing outlined in Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) (“Society of Plastics”), where the court held that the standing of an organization is “established by proof that agency action will directly harm associate members in their use and enjoyment of the affected natural resources.” This harm must be “different from that of the public at large.” Id. at 774. Society of Plastics has often been cited for the proposition that adjacent property owners or occupants may suffer harm for standing purposes, because in that case petitioners argued standing based on their adjacent property. However, in Pine Bush, petitioners alleged harm based on repeated use of the natural resources at issue for recreation, at a level greater than that of the public at large. The Court held that petitioners demonstrated that their injury was real and different from the injury faced by the public at large. The Court refused to adopt a rule, proposed by the City, that only those who own or inhabit property adjacent to, or across the street from, a project site may allege environmental harm.
However, the Court dismissed the petition on its merits, holding that an agency complying with SEQRA does not have to investigate every conceivable environmental problem. The City had discretion, within reasonable limits, to determine which environmental issues were relevant. The City took the requisite hard look at the potential adverse impacts on the Karner Blue butterfly, and its decision not to consider the potential impacts on other species (i.e., the frosted elfin butterfly, hognosed snake, worm snake, and spadefoot toad), “matters of doubtful relevance,” was within the City’s judgment.
This ruling provides further guidance on standing requirements for citizens under SEQRA and potentially other environmental claims. New York’s highest court has made clear that a petitioner may establish standing based on repeated, frequent recreational uses of a resource, which expose them to injury that is different from the public at large. As noted by the Court of Appeals in its decision, this route to establishing standing is similar to existing standing law in the federal courts, where injuries to recreational interests are recognized as a cognizable basis for standing. However, Court of Appeals was also cognizant of setting the barriers to standing too low, noting that SEQRA challenges “can generate interminable delay and interference with crucial government projects.” Id., slip. op. at 10. Petitioners, the Court noted, will have to do more than make “perfunctory allegations of harm” – each element must be supported by proof as with all matters where the burden falls to the petitioner. It remains to be seen whether in practice this ruling will result in a significant widening of the courthouse door for petitioners alleging environmental harms.
October 5, 2009
The New York State Department of Environmental Conservation (“DEC”) has released its draft Supplemental Generic Environmental Impact Statement (“SGEIS”) for natural gas drilling activities in the Marcellus Shale formation. The draft SGEIS supplements the existing 1992 Generic Environmental Impact Statement (“GEIS”) and analyzes the range of potential significant adverse environmental impacts of shale gas development using horizontal drilling and high-volume hydraulic fracturing known as “hydrofracking”. The draft SGEIS outlines safety measures, protection standards, and mitigation strategies that operators would have to follow to obtain permits.
The City of New York has a particular interest in the SGEIS because the Marcellus Shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply. Erosion, runoff, and possible contamination of groundwater with toxic chemicals are just three of the potential dangers highlighted in a report prepared for the City by environmental consultants Hazen and Sawyer/Leggette, Brashears and Graham. This report, available here in PDF, found that in addition to construction-related surface water impacts, the presence of a wellbore can “allow previously isolated contaminants to flow into shallow groundwater or surface water.” The SGEIS would allow drilling within a few hundred feet of reservoirs, with some mitigation safety measures in place. This would include the need for a site-specific State Environmental Quality Review Act (“SEQRA”) review in certain instances. Use of hydrofracking in locations outside of New York is thought to have contributed to groundwater contamination, with further investigations underway.
DEC is accepting public comments on the SGEIS from now until November 30, 2009. Mayor Bloomberg hasn’t yet given the City’s comments, nor the City’s overall position on the State’s plan, but has said he’ll do everything in his power to keep reservoirs safe.
August 14, 2009
The construction of Brooklyn Bridge Park continues, with the building of the “grand staircase” which will overlook the Brooklyn Bridge, downtown Manhattan, and New York Harbor. The website NewYorkology has posted some photos of the staircase, and explains that it is constructed from recovered materials:
The stones are actually recycled and worn with age and graffiti from another East River location … the Roosevelt Island Bridge, which is undergoing its own massive reconstruction project.
SPR represented the Brooklyn Bridge Park Development Corporation (BBPDC) in connection with the environmental review of the park under the New York State Environmental Quality Review Act (SEQRA), and subsequent litigation surrounding the development and approvals of the park. See more examples of SPR’s development and land use work.
View more photos of the construction at NewYorkology.
August 12, 2009
Pursuant to Executive Order No. 2 of 2008, the 2009 New York State Energy Plan is now available in draft form. The purpose of the plan is to:
set forth a vision for a robust and innovative Clean Energy Economy that will stimulate investment, create jobs, and meet the energy needs of residents and businesses over its 10-year planning horizon. To that end, the Plan provides the framework within which the State will reliably meet its future energy needs in a cost-effective and sustainable manner, establishes policy objectives to guide State agencies and authorities as they address energy-related issues, and sets forth strategies and recommendations to achieve these objectives.
The draft plan includes assessments on energy demand, price, and efficiency; renewable energy; electricity resources, markets and modeling; natural gas; petroleum; and coal. Issue briefs are also available on topics including energy infrastructure, siting of new energy infrastructure, environmental justice, climate change, and environmental impacts of energy systems.
Public hearings will be held between August 18 and September 26 on the plan. Comments may be submitted until October 9, 2009, and may be submitted electronically.
The plan is available here, and more information on the State’s Climate Action Plan, ordered by Governor Paterson, is available here. Read more below for additional detail on the Plan’s draft strategies and recommendations.
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