New York’s Highest Court to Weigh in on Who Bears the Cost of Regulatory Inaction on Fracking

Posted By on December 5, 2014

Fresh off its hotly anticipated August 2014 decision upholding the right of municipalities to zone oil and gas extraction operations out of their towns, the New York State Court of Appeals is set to weigh in on another oil and gas extraction issue. This latest matter arrived at the Court of Appeals through a somewhat unusual route, but promises to decide whether landowning lessors or industry lessees bear the cost of state level regulatory inaction on high volume hydraulic fracturing of shale with horizontal drilling (also known as fracking). (more…)

Perfluorinated Chemicals: Emerging Contaminant, Emerging Liability

Posted By on November 18, 2014

Despite – even because of – their useful properties, perfluorinated chemicals (“PFCs”) are increasingly thought to be dangerous for the environment, and potentially humans. PFCs are manmade substances with the ability to repel both water and oils, and are responsible for the stain repellant properties of your rug, the sauce-resistant properties of your takeout container, and the nonstick properties of your frying pan.

But PFCs are also suspected carcinogens that do not easily break down in the environment and accumulate in organisms over time. Despite an EPA program founded in 2006 to achieve a 95% reduction in emissions of certain PFCs, they are increasingly observed in ecosystems around the country and around the world. They are even being detected in human blood and breast milk. (more…)

EPA Blocks Clean Water Act Funding for Tappan Zee Bridge Reconstruction

Posted By on October 24, 2014

The U.S. EPA easily rejected Governor Andrew Cuomo’s loan request, refraining from calling it chutzpah of the highest order: the Governor tried to pass off bridge construction as an environmental project worthy of the federal Clean Water State Revolving Fund (CWSRF).   (more…)

EPA Clarifies What Phase I Environmental Site Assessment Procedure Satisfies its All Appropriate Inquiries Rule

Posted By on October 20, 2014

As most folks in the commercial real estate industry know, the Bona Fide Prospective Purchaser exemption from liability under the federal Superfund law is a very useful tool. Accordingly, a Phase I Environmental Site Assessment is standard practice for nearly every purchase of commercial real estate because it helps to satisfy EPA’s “All Appropriate Inquiries” requirement for obtaining BFPP status and avoiding the often harsh liability associated with Superfund.

However, a final rule published by the EPA on October 6, 2014 clarifies the acceptable protocol for a Phase I ESA. Effective October 6, 2015, EPA’s AAI regulations will only reference the 2013 standard procedure for a Phase I ESA (ASTM E1527-13). EPA is formally removing the reference to the 2005 standard (ASTM E1527-05) from the AAI regulations due to confusion over what the 2005 standard required. Even so, EPA has delayed the effective date of the rule by one year so that any ongoing Phase I ESAs using the 2005 standard can be concluded. (more…)

New York Attorney General’s Office Releases Report on Extreme Rainfall Trends in New York State

Posted By on October 17, 2014

Over the past decade, the changing climate has contributed to an increase in the number of extreme weather events throughout the world.  New York State is no exception.  Here, we rely on plentiful water resources to provide our necessities such as agriculture, energy, and drinking water.  However, this makes New York particularly vulnerable to these drastic weather conditions.  The effects of climate change upon our community cannot be ignored. (more…)

The DEC Typically Isn’t Bound by its Own Mistaken Advice

Posted By on October 15, 2014

The scales of justice are a ubiquitous symbol of equality and fairness under the law that date back to ancient times. One of the most common tools lawyers use to pursue the ideal of fairness and equality is the doctrine of equitable estoppel. Equitable estoppel works to preserve fairness by preventing bad actors from benefitting from their malfeasance. For example, if you knowingly misrepresent certain facts to the opposing attorney in a negotiation, and that attorney relies on that misrepresentation to enter into a harmful deal, she could later void the deal using the doctrine of equitable estoppel.

The doctrine of equitable estoppel is almost always invoked in commercial litigation between private parties, but it is generally not available against governmental entities like the New York State Department of Environmental Conservation. From time to time, parties try to prevail by invoking equitable estoppel in litigation against the DEC, and they usually fail. The latest case is no different, and arises in the context of a legal challenge to DEC’s decision to issue a Freshwater Wetlands Permit. (more…)

Can an Oral Contract Ever be an Enforceable Promise to Fund an Environmental Remediation?

Posted By on October 7, 2014

When someone says the word “contract,” what comes to mind? For most, it would probably be a signed piece of paper that sets out certain legally enforceable promises made between two parties. But oral contracts can exist, too, and an oral contract can be just as enforceable as a written contract. The problem is that proving the contents of an oral contract is difficult precisely because there is no written record of the agreement.

The difficulty of proving the contents of an oral contract increases exponentially in the context of a complicated, multiyear environmental investigation and remediation. The recent case of Volunteers of Am. of W. N.Y., Inc. v. Rochester Gas & Elec. Corp., 2014 U.S. Dist. LEXIS 94447 provides some important lessons on how to document rights and responsibilities in an environmental remediation. To borrow a phrase from the criminal law world: what you say can be used against you in a court of law… (more…)

Tolling Agreements between PRPs Cannot Negate Settling PRP’s Entitlement to Benefit of its Settlement

Posted By on September 30, 2014

After settling with EPA and having its settlement upheld in court, a potentially responsible party (PRP) is free from liability to all other PRPs given notice of that proposed settlement under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund).  This principle, long recognized as key to CERCLA’s successful performance, was recently affirmed by the United States Court of Appeals for the Eighth Circuit in its ASARCO, LLC v. Union Pacific Railroad Company decision. (more…)

Recent Endangered Species Act Verdict Reinforces Traditional Legal Principles

Posted By on September 19, 2014

Though the Endangered Species Act has very strong prohibitory language, in practice its bark is sometimes much worse than its bite.  The U.S. Court of Appeals for the Fifth Circuit’s recent decision in The Aranas Project v. Shaw, et al. has preserved the statute’s status as a mere “paper tiger” by reversing a district court ruling which had the potential to preserve the dwindling wild whooping crane population. (more…)

Jury Verdict Awarded in Hydraulic Fracturing Case

Posted By on September 10, 2014

In a groundbreaking verdict, a Texas jury has awarded damages to a family for injuries suffered due to air pollution from hydraulic fracturing (“hydrofracking”) drilling operations.  This verdict follows almost inexorably from the rise in popularity in the past decade of hydrofracking as a means of natural gas production, which was quickly met with legal challenges.  Between 2009 and 2013, the civil litigation landscape was flooded with lawsuits alleging toxic tort claims stemming from hydrofracking activities.  (more…)