April 3, 2014
In a unanimous decision, the New York State Supreme Court Appellate Division recently affirmed the dismissal of a challenge to the relocation of Fresh Direct into the Harlem River Yards in the South Bronx.
The petitioners, a coalition of local residents and community organizations, challenged the sufficiency of the environmental review of the project, as well as the legality of the sublease to Fresh Direct and the constitutionality of the lease from the New York State Department of Transportation to Harlem River Yards Ventures Inc. (HRYVI), the sublessor. Sive, Paget & Riesel represented HRYVI before both the Supreme Court and Appellate Division.
Last June, a Bronx County Supreme Court Justice dismissed petitioners’ challenge in its entirety.
On March 27, 2013, the Appellate Division, First Department upheld that ruling, finding that the negative declaration issued for the project was based on the requisite “hard look” and supported by an appropriately reasoned elaboration. The Court sustained the use of an “incremental” analysis in which the potential traffic impacts of the Fresh Direct operation (based on updated traffic data) were compared to traffic volumes and potential impacts previously analyzed in an Environmental Impact Statement (“EIS”) prepared in connection with the Harlem River Yards, including a wholesale flower market proposed for the same project site, but which had never been built. Finally, the Appellate Division sustained the lead agency’s conclusion that no Supplemental EIS was required because the projected traffic impacts from the Fresh Direct project were not anticipated to be any worse than those previously analyzed in the prior EIS for the wholesale flower market.
For more information on the Court’s decision and the Fresh Direct project, contact Steven Barshov, who was lead counsel for HRYVI.
March 13, 2014
SPR attorneys Dan Chorost and Maggie Macdonald recently secured a trial victory for American Sugar Refining, Inc. (“American Sugar”), owner of the 100-year old “Domino” sugar refinery in Yonkers, New York. The Honorable Judge Mary Smith of the New York State Supreme Court, Westchester County, issued her decision from the bench, awarding American Sugar approximately $1.3 million in damages.
American Sugar brought the lawsuit to recover its down payment for a large boiler intended for use at the Yonkers refinery. However, delivery of the boiler was delayed and the purchase ultimately was cancelled. Thereafter, the defendant manufacturer resold the boiler but refused to return any of American Sugar’s progress payments, which had amounted to 90% of the purchase price.
After SPR prevailed on summary judgment against the broker who arranged the boiler sale, American Sugar proceeded to trial against the boiler manufacturer itself, which had retained the majority of ASR’s payments. After trial, Judge Smith ruled that American Sugar was entitled to all of the damages it sought, either as a third party beneficiary of the contract between the manufacturer and the broker or alternatively under the equitable theory of unjust enrichment. The boiler manufacturer did not appeal the decision.
For more information on SPR’s litigation practice, contact Dan Chorost or Maggie Macdonald.
March 12, 2014
Sive, Paget & Riesel mourns the loss of our founding partner, David Sive, who passed away on March 12, 2014. David was a great friend to his colleagues, an exceptional litigator, and a loving husband, father, and grandfather. As an intellectual and spiritual leader of the modern environmental law movement, he devoted his energies and passion to protecting the environment. Our hearts go out to David’s family in this difficult time.
A veteran of World War II, David fought in the Battle of the Bulge. After graduating from Columbia Law School in 1948, he emerged as an authority on administrative law. However, his love of the wilderness soon led him into the then-nascent field of environmental law. He quickly became an authority in this new field, and was often referred to as the father of modern environmental law. His sustained success in the courtroom over decades established vitally important precedents for later generations of environmental lawyers.
David was one of the first lawyers to bring litigation effectuating the “forever wild” provisions of the New York State Constitution, and litigated a number of cases protecting the environment in his beloved Adirondack and Catskill Mountains. In the 1960s, he played a leading role in the administrative and judicial proceedings that prevented the construction of a power plant on Storm King Mountain along the Hudson River, and helped to establish aesthetics as a recognized environmental value.
In subsequent decades David litigated numerous important environmental cases. He prevented the construction of the proposed Hudson River Expressway (a precursor of the ill-fated Westway Project). He challenged up to the U.S. Supreme Court the Nuclear Regulatory Commission’s testing of atomic weapons off Alaska’s Amchitka Island, and litigated the principal case establishing that the military is subject to the National Environmental Policy Act. In a landmark case decided by the New York Court of Appeals, David established that the preservation of wilderness areas for the benefit of the public serves charitable, educational, and moral purposes and entitles nature preserves to the tax-exempt status that is essential to their survival.
David was proud of his role as a teacher, introducing generations of young lawyers to the emerging field of environmental law, both as a member of the adjunct faculty of Columbia and Pace Law Schools, and as the founder of several continuing legal education courses for the Environmental Law Institute and the American Law Institute- American Bar Association. David’s lectures and written scholarship, including an environmental column in the National Law Journal and articles in numerous law reviews, helped to shape the field of environmental law.
David also played a critical role in the creation of the Environmental Law Institute, the Natural Resources Defense Council, and other prominent national environmental organizations, as well as scores of regional and local entities. His legacy is permanently embedded in innumerable precedent-setting cases. But to those who knew David well and worked with him closely, his gentle way and kind soul will be missed most of all.
We will miss David greatly.
January 28, 2014
On February 5-7, 2014, SPR principals Daniel Riesel and Pamela Esterman will co-chair the 44th annual ALI CLE Environmental Law Course in Washington, DC. The course, which is co-sponsored by ALI CLE and the Environmental Law Institute, will feature advanced-level presentations by senior public officials, distinguished law professors, seasoned private practitioners, and experienced public interest advocates. In addition to chairing the course, Daniel Riesel will co-lead a panel on citizen suits and government enforcement initiatives, and Pamela Esterman will co-lead a panel on ethical issues associated with the use of technology. SPR principal Jeffrey B. Gracer will co-lead a panel on environmental issues in business and real estate transactions. EPA General Counsel Avi Garbow will deliver the course’s keynote address.
Additional panels will provide updates and explore recent trends in
- CERCLA and hazardous waste;
- air pollution and climate change;
- NEPA and environmental justice;
- water resources, water quality, and wetlands;
- environmental issues in the development and production of energy;
- global environmental agreements; and
- the Endangered Species Act and public lands.
For those unable to attend the live conference in Washington, D.C., this program is also available via video webcast. For more detailed information and online registration, please visit the course website.
January 3, 2014
As anticipated, EPA finalized a rule on Monday adopting the revised ASTM E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” as a standard by which parties may comply with the “All Appropriate Inquiries” Rule, 40 CFR Part 312. ASTM released the revised E1527-13 standard on November 6, 2013. Curiously, the newly revised EPA rule does not delete reference to the previous ASTM standard, E1527-05. In the Federal Register notice finalizing the rule, EPA indicated that it intends to propose, in the near future, an amendment to 40 CFR Part 312 removing reference to the E1527-05 standard. In its response to comments received on the new rule, EPA noted that it “…agrees with commenters that the revised ASTM E1527-13 standard includes improvements to the previous standard and its use will result in greater clarity for prospective purchases with regard to potential contamination at a property. Therefore, EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 standard.”
For more information on the ASTM standard, AAI, Phase I reports, or environmental due diligence, please contact Christine Leas
November 27, 2013
Last week, the Global Alliance on Health and Pollution (“GAHP”) released a report examining laws governing the remediation of contaminated properties in seven Latin America countries, as well as the United States, and identifying best practices. The report, entitled “Regulatory Best Practices for Remediation of Legacy Toxic Contamination,” was produced by the Cyrus R. Vance Center for International Justice. The Blacksmith Institute, a nonprofit focused on global toxic pollution issues which serves as the secretariat for the GAHP, also assisted in the production of the report.
SPR attorneys Jeff Gracer and Devin McDougall served as United States Coordinating Counsel for the report.
The six recommendations identified in the report are:
1. Create clear numeric guidelines for establishing whether a site is contaminated. Although contaminated sites are often defined as sites where pollution is present at levels that may present a threat to human health and the environment, it is useful to enact regulations that specifically define what those levels are, so that sites can be readily identified as candidates for further investigation and remediation.
2. Use commercial events to identify contaminated sites. Evaluation of historic contamination can be required when project proponents are applying for permits, and when industrial facilities are being bought and sold or decommissioned. These triggers will result in the identification of contaminated sites at a time when funding for investigation and remediation is most likely to be available.
3. Create incentives for voluntary remediation. Laws and regulations should make it easy for private parties to come forward on a voluntary basis to address legacy contamination. These incentives can include resolution of existing liability for site owners, liability exemptions for prospective purchasers, tax exemptions and tax credits, remediation funding grants, and other governmental incentives.
4. Create a clear and efficient remediation process. One of the most significant barriers to environmental cleanup is the uncertainty surrounding applicable cleanup standards, the complexity of the process, and the involvement of multiple governmental agencies with overlapping jurisdiction. Experience has shown that published cleanup standards, a simple process for engagement with the government, and clear delineations of which agency has jurisdiction over a particular cleanup will encourage increased private sector participation.
5. Provide meaningful opportunities for public review and comment. Environmental remediation regulations and practices often benefit from input from members of the business community who will be called upon to effectuate cleanups and also by members of communities who live in close proximity to contaminated sites. Site remediation plans may also be more pragmatic and tailored to actual risk if they are subject to prior public review and comment.
6. Develop effective mechanisms to address abandoned sites. Sites that are not subject to commercial activity or voluntary remediation can be the most troublesome from a governmental perspective. Governments should consider creating a registry of such sites so that they can be identified for investigation and evaluated as candidates for future remediation. Sites should be prioritized for clean-up based on a clear methodology established by the government to address those that pose the greatest risk first. Government funding can be made available to remediate such sites through a combination of lawsuits against former owners and operators or, if no responsible party can be reached, through other mechanism for funding in appropriate cases. Future “orphan” sites can be avoided by requiring environmentally sensitive operations to purchase environmental insurance policies.
For more information about the development of remediation policies in Latin America, please contact Jeff Gracer.
October 10, 2013
Eight SPR partners have been honored as top environmental attorneys in the New York Metro Area by Super Lawyers Magazine for 2013. Super Lawyers is a listing of “outstanding lawyers … who have attained a high degree of peer recognition and professional achievement.”
Michael S. Bogin, Mark A. Chertok, Dan Chorost, Scott E. Furman, Jeffrey B. Gracer, and David S. Yudelson were named as among the best lawyers in the environmental field. David Paget and Daniel Riesel were honored in the environmental litigation field. More attorneys from SPR were selected in these two fields than from any other law office in the New York Metro Area.
Super Lawyers creates an annual list of outstanding attorneys after conducting a “rigorous and multiphase process” that includes polling, peer nominations, and independent evaluations of professional activity, transactions, and honors.
For more information about Super Lawyers Magazine and its selection process, visit its website.
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