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Numerous federal and state judicial decisions have established that environmental impact statements under the National Environmental Policy Act and its state equivalents should examine the impact of proposed projects on emissions of greenhouse gases. Administrative agencies and court settlements are now establishing the guidelines for the conduct of these examinations. This column surveys the emergence of these new guidelines, which is occurring against a backdrop of accelerated activity in both Congress and the U.S. Environmental Protection Agency, leading towards federal regulation of GHGs. The column looks at these guidelines on the federal level as well as within New York, California, Massachusetts, Washington, and Hawaii.
The New York State Energy Plan, announced by Gov. Andrew Cuomo in 2015, calls for a doubling to 50 percent of the portion of the electricity used in the state that comes from renewable sources by 2030. This would lower greenhouse gas emissions, create jobs, and reduce the use of fossil fuels, especially natural gas. Much of this new renewable energy would be generated by wind and solar projects. Some of it would be from wind facilities to be built offshore in the Atlantic Ocean; the rest would be on the land. Various federal and state incentives and mandates, as well as declining costs, have induced private developers to propose large onshore wind and solar farms. However, a number of upstate and Long Island municipalities have adopted or are considering local laws that would inhibit this construction and thus make it more difficult for the state to meet its renewable energy goals. As state statute, Article X of the Public Service Law, allows the state to override these local laws. This column discusses the history and contents of Article X, the case law under it and its predecessors, and how it can be used to help the construction of renewable energy facilities.
During the election on November 7, the voters in New York state will be presented with the ballot question, "Shall there be a convention to revise the constitution and amend the same?" If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention's proposed changes will appear on the ballot, most likely in November 2019. Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. The focus of this column is on environmental rights. The current Constitution has a "Forever Wild clause", adopted in 1894- which has helped preserve the wild areas of Adirondack and Catskill parks. It also has a Conservation Bill of Rights, declaring a state policy of protecting natural resources and scenic beauty, but it has been held to be unenforceable, and has been of little consequence. This column discusses these environmental rights and their implications within New York as well as across the country.
The State Environmental Quality Review Act (SEQRA), the statute that requires the preparation of environmental impact statements for discretionary actions by state and local governments, has long been the most generative source of environmental litigation in New York. The following column discusses the downward trend of litigations under SEQRA in addition to the continuous rise of exemptions from SEQRA. Specifically, the author delves into recent exemptions from SEQRA, standings of SEQRA plaintiffs, SEQRA suits by applicants, safety issues under SEQRA, irregularities under SEQRA, and lastly, SEQRA state and city handbooks.
The courts decided 46 cases under the State Environmental Quality Review Act (SEQRA) in 2018. However, the most important action under SEQRA was in the Legislature, followed by the state Department of Environmental Conservation. This column analyzes these developments, specifically looking at legislative action, administrative action, and judicial action under SEQRA, as well as SEQRA's statutes of limitations.
New laws were signed by Governor Andrew Cuomo in 2013 regarding notice requirements in the Brownfield Cleanup Program, Bottle Bill enforcement, mercury thermostats, oversized lobsters, shark fins, and Eurasian boars, among other things. On the regulatory front, the state promulgated final regulations concerning New York's participation in the Regional Greenhouse Gas Initiative and regulatory relief for certain dairy farms, and proposed regulations for liquefied natural gas facilities and invasive species. This annual survey describes new environmental laws that were enacted in New York in 2013, as well as several significant regulatory developments. Specifically, this survey looks at developments in the areas of air emissions, brownfields, energy, infrastructure, land preservation, solid and hazardous waste, water pollution, and wildlife.
The courts decided 37 cases under the State Environmental Quality Review Act (SEQRA) in 2010. As is usually the case, defendants were much more likely to win in cases where an environmental impact statement (EIS) had been prepared than when these was no EIS. Of the 16 cases with an EIS, defendants won 13; of the 19 cases without and EIS, defendants won 13. Thus preparing an EIS continues to be generally the safest course from a litigation perspective. In this article, the author looks at the administrative activity under SEQRA with an eye to the affect of environmental impact statements. Specifically, the author looks at suits by applicants, EIS alternatives, standing of plaintiffs, ripeness of cases, supplemental EIS, environmental assessments, smart growth, and lastly, the Sea Level Rise Task Force.
Environmental impact statements (EISs) examine the effect of proposed action- typically a construction project, but sometimes a government policy or other activity- on the environment. However, increasing attention is now devoted to looking in the other direction- at how changes in the environment might affect a project. This article explores the protocols that various government agencies have issued for reverse environmental impact analysis. It then discusses one pending case on the issue involving the California Environmental Quality Act. Then, it reports on a survey that investigated whether and how reverse environmental impact analysis is being performed in recent EISs. And lastly, it summarizes this analysis in a number of EISs.
In the biggest change in local transportation policy in a generation, maybe two, "congestion pricing" will be instituted in Manhattan's Central Business District in early 2021. It is the first action in decades that could actually lower traffic congestion, and that could provide a stable funding for the Metropolitan Transportation Authority. It also transfers considerable power from the Mayor to the Governor. Vehicles entering Manhattan on or below 60th Street will need to pay a charge, probably through the E-ZPass system or, if the do not have such passes but their license plates are photographed, higher rates via "pay-by-mail." The program has three major goals- reducing traffic volumes on Manhattan's streets by making it more expensive to drive; reducing air pollution; and providing an assured source of capital funding for the transit system. The new program was enacted as part of the FY2020 State budget, Chapter 59 of the Laws of 2019. Most of it is codified in a new Article 44-C of the Vehicle and Traffic Law. This column discusses what the law provides, what is yet to be decided, and who will decide.
The New York State Legislature on June 22, 2011, overwhelmingly passed the Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts, it has even more generous provisions for funding intervenors, and it requires important new rules on environmental justice and carbon dioxide emissions. In this article, the author provides some background and history into Article X. In addition to this, the author explains the workings of the new version of Article X, including its siting board, pre-application and application processes, hearing and decision processes, and lastly, its impact on environmental justice.