The 2007 plan presented 127 initiatives. While 97% of these initiatives have already been launched, some have been delayed by a reduction in the City’s capital budget, and others hindered by a lack of federal or state permission, action or funding.

Key Topics of Interest: Neighborhood Development and Brownfields

According to the Update, over 87% of new housing starts since 2007 have been within a half-mile of transit. In addition, the City has created or preserved 110,000 units of affordable housing since 2004, with plans for 165,000 units by 2014. Over 30,000 of these units financed by the City will meet Enterprise Green Communities guidelines for energy efficiency and sustainability. In addition, the City continues to explore underutilized areas as potential new sites for development, including areas of Staten Island and the Bronx.

Progress on brownfields is also reported. In 2008, the City created its Office of Environmental Remediation, which facilitates the nation’s first municipally-run cleanup program (The NYC Brownfield Cleanup Program, or “NYC BCP”).  It has also created the Searchable Property Environmental Electronic Database (“SPEED”), an online search engine containing environmental and historic land use information on thousands of sites throughout NYC. The City plans to establish the NYC Community Brownfield Planning District (“CBPD”) Program, under which it will create 25 new NYC Community Brownfield Planning Districts and link these grassroots efforts into larger networks. The City will continue to collaborate with the state and federal governments to improve incentives for brownfield cleanup and development; advocate at the state level for a full liability release for parties who remediate under the NYC BCP; collaborate with local entities to establish low-interest loan programs to fund cleanups; and establish an online document repository for NYC BCP project information. As noted previously on this  blog, the City is continuing to encourage participation in this program.

Other Initiatives

The Update discusses the City’s progress in other environmentally-related areas, including:

• reducing greenhouse gas (GHG) emissions (the goal remains to reduce them 30% by 2030 and 80% by 2050);
• using federal stimulus money to install more than 200 electric vehicle (EV) chargers throughout the metropolitan area (including in commercial parking garages);
• retrofitting over 100 City-owned buildings to be more energy efficient;
• implementing regulations to phase out dirty heating fuels;
• planting one million trees;
• preparing for what may be inevitable results of climate change (rising temperatures and sea levels); and
• approximately 400 very specific short-term goals in a variety of areas to be completed by the end of 2013. 

For more information on PlaNYC, and to view the many reports that have been published in conjunction with the program, visit New York City’s PlaNYC website.

Laura Friend is a paralegal at Sive, Paget & Riesel.

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.

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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.

The guidance is directed at regulated entities and state agencies, which have been delegated authority to implement the permitting provisions of the Clean Air Act.  Next year, New York and most other states will begin to phase in GHG regulations for certain new and modified stationary sources.  The EPA plans to take over GHG permitting in those states that refuse to adopt the GHG rules or are not prepared to do so.

A “tailoring” regulation finalized by EPA last June raised the emissions threshold for the new GHG limits.  From January 2 through June 30, 2011, the regulations only cover stationary sources whose construction or modification would increase annual GHG emissions by at least 75,000 tons of carbon-dioxide equivalent and would also trigger the Clean Air Act’s Prevention of Significant Deterioration provisions for other pollutants.  Starting in July, construction or modification that increases annual GHG emissions by at least 100,000 tons of carbon-dioxide equivalent could also trigger GHG control requirements.

EPA’s new guidance adopts a flexible interpretation of the “best available control technology” requirements for GHGs.  While supporting the consideration of add-on technologies like carbon capture and sequestration systems, the agency acknowledges that such technologies present “significant logistical hurdles” that may render them inappropriate at the present time (GHG Guidance, p. 38).  Control technologies are also most commonly selected based on the permit applicant’s primary purpose or objective, so the Clean Air Act would typically not require an applicant for a coal-fired power plant to switch to a less carbon-intensive fuel (e.g. natural gas or renewable energy) (id. at 29).

Instead, sources that trigger the GHG permitting requirements are more likely to be required to implement energy efficiency improvements, which are promoted throughout EPA’s guidance.  For instance, EPA notes that “an applicant proposing to build a new facility that will generate its own energy with a boiler could also consider ways to optimize the thermal efficiency of a new heat exchanger that uses the steam from the new boiler” (id. at 32).  Other options for GHG reductions include the use of certain types of biomass or implementation of a source-wide Environmental Management System.

The new guidance may impact sources not directly covered by the new GHG controls.  With respect to permitting decisions for other pollutants, EPA instructs applicants and authorities to “consider how the control strategies under consideration may affect GHG emissions,” and certain control technologies may be rejected in part based on their projected contribution to climate change (id. at 42).

As implementation of its GHG regulations draws closer, however, EPA’s efforts are facing serious legal and legislative challenges.  Suits pending in the D.C. Circuit seek to overturn several EPA rules regulating GHGs under the Clean Air Act, including the tailoring rule.  In the Senate, meanwhile, a legislative proposal would delay EPA’s stationary source regulations for another two years.

Boilers burn fuels including natural gas, coal, wood, and oil to produce steam for electricity or heat.  Process heaters are used in industrial processes to heat raw or intermediate materials.  Both are used at facilities such as refineries, chemical and manufacturing plants, and paper mills, and may also be used to provide heat for large complexes such as shopping malls or universities.  Incinerators are used to burn waste for disposal, and some recover energy in the process.

EPA has proposed this regulatory action for boilers and commercial/industrial solid waste incinerators (“CISWI”) together since similar units may be considered boilers or CISWI depending on what material they burn.  As part of this regulatory proposal, EPA included a new rule under the Resource Conservation and Recovery Act (“RCRA”) defining which non-hazardous secondary materials are considered fuel and which are considered solid waste.  The regulatory action is the result of a 2007 court order following NRDC’s petition for review of EPA’s old standards for boiler and incinerator emissions, as well as the CISWI definitions rule.[2]

MACT standards for major source boilers and process heaters affect sources emitting greater than 10 tons per year of any one hazardous air pollutant[3] (“HAP”) or more than 25 tons per year of combined HAPs.[4] The standard for existing sources is based on the average emission limitation achieved by the best performing 12 percent of existing sources, and new sources must match the best-controlled similar source.[5]

Area sources are any stationary source of HAPs that are not major sources, and are subject to a different set of MACTs.[6] For all coal-fired boilers and process heaters, new or existing, EPA is proposing emissions limits for mercury, particulate matter (“PM”) and carbon monoxide.  Biomass and oil-fired area sources would also have to meet emissions standards for PM and carbon monoxide.  Both area sources and major sources would be required to conduct a one-time energy-saving assessment to analyze cost-effective energy saving practices.  Additionally, the standards for both major and area sources would apply at all times, including times of malfunction, start-up and shut-down.

Small boilers and process heaters (those with a capacity of less than 10mm BTU/hr) and boilers and process heaters using natural gas or refinery gas will be subject to a less stringent work practice standards including periodic tune-ups rather than emissions limitations.  EPA has proposed that these sources would have to come into compliance within three years of the final rule’s publication in the Federal Register.

CISWI are subject to more stringent emissions limits under the Proposed Rule for mercury, lead, cadmium, hydrogen chloride, PM, carbon monoxide, dioxins/furans, nitrogen oxides and sulfur dioxide.  In addition, the proposed rules require that CISWI units have stacks tested and monitored along with annual inspections of emissions control devices.

States would have to submit revised State Implementation Plans (“SIPs”) within one year of the promulgation of the revised standards.  Following the submission of the new SIPs, CISWI units would have a three year period to demonstrate compliance with the SIP.  Alternatively, CISWI will have five years to demonstrate compliance after the final regulations are promulgated if a SIP is not submitted.

Overall, these proposed rules if adopted would constitute much more stringent regulation of boilers and incinerators because the emissions limitations apply at all times.  The energy-saving assessment required for all boilers and incinerators is a facility-wide assessment, which could serve as a predecessor to energy-saving requirements for greenhouse gases as well.

As noted above, comments are being received on the proposed regulations until August 3.

Maggie Macdonald is a summer associate at Sive, Paget & Riesel, P.C.

[2] NRDC v. EPA, 489 F.3d 1250 (D.C. Cir. 2007).

[3] Hazardous air pollutants are listed in the CAA § 112(b).

[4] CAA § 112(a)(1).

[5] Id. § 112(d)(3).

[6] Id. §§ 112(a)(2), (d)(5).

According to EDF, the first eight KKR-owned companies to enroll in the Green Portfolio Program, which include such well-known names as Sealy and HCA, collectively avoided “over $160 million in operating costs, 345,000 metric tons of CO₂ emissions,  8,500 tons of paper, and 1.2 million tons of waste.”

EDF reports that the Green Portfolio Program has expanded from its initial eight companies “to include approximately 20 percent of the companies in KKR’s global private equity portfolio.”  In addition to its work with KKR, EDF has also collaborated with the Carlyle Group, another major private equity firm, to create an environmental due diligence screening tool which helps to identify opportunities for environmental improvements in prospective portfolio companies.

The recent success of the Green Portfolio Program has implications beyond the involved portfolio companies and their investors at KKR.  It suggests that for any business, enlightened environmental management can improve profitability.  Private equity firms, in particular, are focusing on sound environmental stewardship as an essential ingredient to the success of their portfolio companies.

For more information about environmental management strategies, contact Jeffrey Gracer.

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.

Some notable features of the LEED-ND system include:

• Each project must have at least one certified green building;
• A project’s site must be contiguous property, but may include “conclaves of non-conforming properties” that may be exempt from LEED-ND requirements;
• Project sponsors should have control over or title to 50% or more of the project land area.

Projects are evaluated based on a number of prerequisites and credits, earned by incorporating design elements which are grouped by category, including:

• Smart location and linkage – relates to transportation, location, and land preservation;
• Neighborhood pattern & design – relates to community character, mix of uses, and walkability;
• Green infrastructure and buildings – examines building design and construction with regard to energy and water use, and sustainable best practices;
• Innovation and design process – grants credits for “exemplary and innovative” performance, beyond existing credit structures;
• Regional priority – allows credits unique to a project’s local environmental priorities.

The LEED-ND certification process takes place in three stages:

• Stage 1 – conditional approval of plans, to enable projects to build local support;
• Stage 2 – pre-certified plans, intended for projects that have received necessary permits or are under construction, and may assist in securing funding or tenants;
• Stage 3 – to be formally certified projects must have completed construction, and have achieved all prerequisites and credits sought in the first two stages of review, subject to any intervening changes in the LEED-ND system.

Generally LEED-ND applies to newly-constructed projects, but substantial renovations of 50% or more of existing square footage may allow existing neighborhoods to apply for certification.

Implementing LEED-ND may raise a series of legal issues, because the rating system operates at a scale that has traditionally been governed by zoning laws and municipal comprehensive plans.  The USGBC warns that LEED-ND should not be used a substitute for comprehensive planning, but project applicants and municipalities should be aware that implementing LEED-ND may itself trigger the need for revisions to a municipal plan or zoning code.  Some of the potential issues that LEED-ND implementation may face include:

• Project applicants and municipalities need to assess the consistency of existing zoning with LEED-ND requirements.  Qualifying for credits based on mixed-use neighborhood character may be rendered impossible by pre-existing single-use zoning.
• Municipalities wishing to mandate compliance with LEED-ND may create the unintended consequence of rendering significant portions of land undevelopable.  This could expose a government to potential litigation, including takings claims.
• Any revisions to zoning codes to enable use of LEED-ND would require environmental review as appropriate, and should be assessed for consistency with the applicable comprehensive plan for consistency.  See, e.g., NY Town Law § 272-a(c)(11) (requiring that “[a]ll town land use regulations must be in accordance  with  a  comprehensive  plan adopted pursuant to this section”).
• Site-specific rezonings to enable LEED-ND—even on large parcels—may face litigation risk in the form of spot-zoning claims.
• Large-scale projects face a risk of the LEED-ND system itself changing over time.  Applicants to the USGBC should carefully note that projects are not grandfathered to LEED-ND as it existed at the time of its original application.  Rather, at each new stage of review a project may be required to comply with intervening changes in LEED-ND credits and prerequisites.

One recent example of municipal incorporation of LEED-ND in the planning process is the Willets Point Development Plan (the “Willets Point Plan”) proposed in northern Queens, New York,  where SPR is representing the City of New York and its Economic Development Corporation (“EDC”).  According to Final Generic Environmental Impact Statement published for the project, the Willets Point Plan envisions redevelopment of a current industrial area into a mixed-use neighborhood through an Urban Renewal Plan and a rezoning tailored to the Plan’s goals.  The EDC, which is sponsoring the project through acquisition of the land within the proposed development district and issuance of a Request for Proposals to potential developers, has developed an illustrative site plan designed to comply with current LEED-ND requirements, and intends to require the chosen development to achieve LEED-ND certification.

In addition, EPA proposes to add three reporting requirements applicable to all facilities, requiring provision of the following information: (1) the name, address, and ownership status of the reporter’s U.S. parent company, (2) the reporter’s primary and all other applicable North American Industry Classification System (“NAICS”) code(s), and (3) an indication of whether or not any of the reported emissions are from a cogeneration unit.

EPA plans to finalize all four of these proposed rules this year.  Comments are due by June 11, 2010.  More information can be found here.

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Supporters, including the Sierra Club and Greenpeace, argue that the project would provide a clean, renewable source of energy and hundreds of construction jobs, and would decrease the region’s reliance on fossil fuels and benefit the environment by lowering emissions of greenhouse gases.

Opponents have focused on negative impacts to natural beauty and the surrounding area’s historic landmarks.  In addition, they claim that infrastructure improvements will result in sharply increased costs over those for conventional power.  The Wampanoag tribe, which requires unobstructed views of the sunrise for sacred ceremonies, has announced that it will challenge the project for violations of tribal rights.

In response to concerns expressed during the consultations with tribes and the Advisory Council on Historic Preservation, the Department of the Interior (“DOI”) required the developer to change the design and configuration of the wind farm to mitigate potential visual and historic impacts.

This is not the final hurdle that this project must clear, however.  The Federal Aviation Administration has yet to make a final determination on the project and the developer has not yet entered into a contract with the local utility, National Grid, to carry the power.  Nine state and local permits are being appealed in the courts, and nearly a dozen parties have filed notices of intention to sue for violations of various environmental laws and regulations.

Despite the remaining steps before construction may begin, DOI’s approval of the Cape Wind project is seen as a positive sign for several other proposed offshore wind projects along the eastern seaboard.  Each project will face its own complex federal, state and local permitting issues, but DOI’s action on Cape Wind will likely provide valuable political momentum to other proposed offshore wind projects.

Read the full DOI press release here.