March 14, 2014
On March 6, the House of Representatives approved the Responsibly and Professionally Invigorating Development (“RAPID”) Act, a bill that would, for the first time, impose deadlines on environmental impact review under the National Environmental Policy Act (“NEPA”). The bill includes a 4 ½ year deadline for the environmental review process, including an 18-month deadline for an environmental assessment and a 3-year deadline for creation of an environmental impact statement (“EIS”). It would also impose a 6-month statute of limitations on suits challenging an agency’s environmental review, as opposed to the 6-year statute of limitations currently applied under the Administrative Procedure Act. These deadlines would apply to projects that are currently pending, and the bill includes a provision deeming any project approved if the deadlines for NEPA review are missed.
While the legislation is unlikely to be approved by the Senate in the near future – and has received a veto threat from the White House – it joins a list of several recent pieces of legislation seeking to streamline the environmental review process, at both the state and federal level. For example, the House and Senate versions of the 2013 Water Resources and Development Act (“WRDA”) reauthorization bill included provisions requiring the lead agency to established a schedule for the completion of the environmental review process, limiting the length of public comment periods under NEPA for WRDA projects, and, in the House bill, limiting the statute of limitations for challenges to WRDA projects to 150 days. That bill is currently before a conference committee to resolve differences between the House and Senate versions.
In New York, the Department of Environmental Conservation (“NYSDEC”) intends to propose revisions to the State Environmental Quality Review Act (“SEQRA”) regulations, as set forth in a 2012 scoping document. One such change would deem a draft EIS to be final if the lead agency has not acted on it within 180 days of finalizing its response to public comments. While existing SEQRA regulations contain deadlines for the completion of a final environmental impact statement, they are regularly ignored and do not provide for the default issuance of a final environmental impact statement if the deadlines are missed.
For more information about NEPA and SEQRA review, contact David Paget.
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.
March 7, 2014
The U.S. Environmental Protection Agency (“EPA”) finalized a new regulation on Monday implementing a program designed to reduce air pollution from passenger cars and trucks. The regulation is part of EPA’s Tier 3 Motor Vehicle Emissions and Fuel Standards program, a mobile source emission control program authorized under the Clean Air Act (“CAA”). Starting in 2017, Tier 3 will require gasoline sulfur levels to be reduced by two thirds from 30 to 10 parts per million, and will also set more stringent vehicle tailpipe emissions standards. The two components of the program are interrelated: the presence of sulfur in gasoline reduces the efficiency of vehicle catalytic converters, which leads to increased tailpipe emissions of nitrogen oxides, particulates, and other pollutants linked to lung disease and asthma. Notably, when oil refiners comply with the new clean-gasoline regulation, the increased efficiency which results will also help automakers to meet the tightening vehicle fuel economy standards.
Proponents of the rule, including the American Lung Association and American Academy of Pediatrics, say that it will save lives and protect the health of millions of Americans. Some oil industry representatives have opposed the rule, stating that it is unnecessarily costly and imposes inequitable burdens on business. The auto industry, however, worked closely with the Obama administration to develop a regulation harmonizing existing federal and state standards and supports the rule.
EPA predicts that by 2030, the rule will reduce on-road emissions of nitrogen oxides by 25%, volatile organic compounds by 16%, carbon monoxide by 24%, and fine particulate matter by 10%, which may assist states in attainment of National Ambient Air Quality Standards under the CAA.
February 28, 2014
Earlier this month, the New York State Department of Environmental Conservation (“DEC”) issued a public notice of its draft State Pollutant Discharge Elimination System (“SPDES”) permit for stormwater discharges from Municipal Separate Storm Sewer Systems (“MS4s”) owned or operated by the City of New York.
The following areas are covered under the new MS4 permit:
- New York City-owned storm sewers that ultimately discharge to MS4 outfalls owned by New York City; High Level Storm Sewers (with the exception of facilities that are sited near High Level Storm Sewers but discharge to combined sewers) and Bluebelts that ultimately discharge to MS4 outfalls owned by New York City;
- Facilities or areas covered by the SPDES general permits for stormwater discharges from construction and industrial activities, if such discharges ultimately flow to MS4 outfalls owned by New York City; and
- New York City municipal operations and facilities that drain by overland flow (direct drainage) to surface waters of New York State.
The proposed permit requires that the City develop an enforcement policy to maintain the authority to carry out stormwater management programs and to ensure compliance with such programs. For example, the City must have control of pollutants flowing into the system, access to inspect sources of pollutant discharges, and the ability to compel compliance and issue citations.
Notwithstanding these enforcement responsibilities, the permit would not cover, and thus would exempt the City from administering and monitoring many activities that are significant sources of stormwater runoff in the City, including discharges through non-City owned pipes and outfalls or from non-City owned facilities that drain by overland flow to surface waters of New York State. Instead, DEC will continue to regulate such facilities and activities through the SPDES general permit system (such as the Construction General Permit and Multi-Sector Industrial Permit) or individual SPDES permits.
Stormwater Management Program Plan (SWMP)
The City is also required, as a condition of the proposed general permit, to develop an SWMP describing how it will meet the requirements of the permit. The SWMP must provide for Public Education & Outreach; Public Involvement/Participation; Illicit Discharge Detection & Elimination & Mapping; Construction Site Stormwater Runoff Control; Post Construction Stormwater Management; Industrial Sources; Control of Floatables and Settleable Solids; Monitoring & Assessment of Controls; Impaired Waters; and Recordkeeping/Reporting.
The SWMP is a significant undertaking for the City. Under the draft MS4 Permit, the SWMP would have to be submitted to DEC within three years of the effective date of the permit.
Comments on the proposed permit are being accepted through March 5, 2014. For more information, see the NYSDEC Fact Sheet or contact Michael Bogin or Maggie Macdonald.
February 21, 2014
On Monday, the U.S. Supreme Court will hear argument in six consolidated challenges to the Environmental Protection Agency’s (“EPA’s”) decision to regulate emissions of greenhouse gases (“GHGs”) from stationary sources under certain provisions of the Clean Air Act (the “CAA”). The cases come from the D.C. Circuit Court of Appeals, which dismissed the challenges in 2012 on the ground that the petitioners lacked standing.
Monday’s argument presents a narrow question: whether EPA’s existing regulation of GHG emissions from motor vehicles triggered statutory permitting requirements that would apply to stationary sources. The CAA’s Prevention of Significant Deterioration (“PSD”) provisions require any facility that annually emits more than either 100 or 250 tons (depending on the type of facility) of “any air pollutant” to obtain an emissions permit. In its “Timing Rule,” EPA determined that its existing GHGs emissions standards for motor vehicles render such emissions “air pollutants” within the meaning of the statute, thereby triggering the PSD permit requirement. However, in its “Tailoring Rule,” EPA announced that it would initially require PSD permits only for very large sources of GHGs, rather than apply the statute’s low 100/250 ton threshold.
EPA’s interpretation raises two questions. The first is whether, as Judge Kavanaugh of the D.C. Circuit has argued in a dissenting opinion, the CAA requires PSD permits only for facilities that emit those “air pollutants” for which EPA has issued ambient air quality standards—a category that does not include GHGs. The second is whether EPA’s decision to raise the threshold of GHG emissions above which PSD permits are required was a permissible application of the statute.
This is the third time in seven years that the Court has considered the scope of EPA’s authority to regulate GHGs under the Clean Air Act. In its 2007 decision in Massachusetts v. EPA, the Court held that GHGs are unambiguously “air pollutants” potentially subject to regulation under Title II of the Act, which governs emissions standards for mobile sources. Following Massachusetts, EPA issued formal findings that motor vehicle emissions “cause or contribute” to GHG pollution that “endangers” public health and welfare—leading to its promulgation, under Title II, of fleet-wide average fuel efficiency standards for cars and trucks. EPA’s endangerment finding was upheld by the D.C. Circuit, and the Supreme Court declined to grant petitions seeking review of that part of the appellate court’s decision.
In its 2011 decision in American Electric Power Company v. Connecticut, the Court acknowledged EPA’s authority to regulate GHGs from stationary sources as well. There, the Court held that the claim that GHG emissions from fossil-fuel fired power plants constituted a public nuisance under federal common law was “displaced”—that is, rendered legally obsolete—by “the Clean Air Act and the EPA actions it authorizes,” specifically noting, as an example, that EPA was then engaged in “rulemaking to set standards for greenhouse gas emissions from fossil-fuel fired power plants” under the CAA’s New Source Performance Standards provisions.
Given the narrow issue on which the Court granted review, it is unlikely that the outcome of the cases to be argued Monday will disturb EPA’s now well-established authority to regulate GHG emissions in general. It may, however, alter the specific ways in which EPA may exercise that authority with respect to stationary sources.
For more information on the Supreme Court proceedings or greenhouse gas regulation, contact Jeffrey Gracer.
February 13, 2014
The New York Green Bank, a renewable energy financing program proposed by Governor Andrew Cuomo in his 2013 State of the State address, launched this week with a request for proposals aimed at overcoming market barriers to clean energy development.
Last December, Governor Cuomo announced the allocation of approximately $210 million to fund the Green Bank, including approximately $44 million from the sale of emissions allowances through the Regional Greenhouse Gas Initiative (“RGGI”). Cuomo intends to increase the capitalization of the Green Bank to $1 billion in the years ahead.
Instead of providing loans or subsidies directly to energy providers or consumers, the Green Bank seeks to partner with financial institutions in order to spur private investment in clean energy development. For instance, the Green Bank could assume a portion of the default risk associated with clean energy loans or leases in return for a fee, or purchase smaller clean energy loans and bundle them into volumes that could be resold on secondary capital markets. The Green Bank’s initial request for proposals therefore requires the involvement of at least one private sector financial party, either alone or as a part of a team with other energy industry participants.
The Green Bank provides a list of renewable energy technologies and energy efficiency improvements potentially eligible for financial support, but has also invited applicants to propose projects involving other technologies that “demonstrate a potential for increased deployment of energy efficiency or renewable energy and/or a potential for greenhouse gas reductions in New York State.” Nuclear energy, municipal solid waste combustion, and adulterated biomass or biofuels are not eligible for participation.
For more information on renewable energy financing and development, contact Scott Furman.
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