New York State to Explore Offshore Wind Power

Posted By on August 21, 2014

Historically a proud leader in environmental protection, New York State is poised to claim a new reason for that title:  New York has emerged a leader in the field of renewable energy.  According to the Energy Information Administration, New York now ranks fourth in the United States for renewable energy generation, and fifth in renewable energy capacity.

Most of the state’s renewable portfolio is made up of hydroelectric power, with smaller contributions from wind, landfill gas, and biomass sources. New York is home to the 2,353-megawatt Robert Moses Niagara hydroelectric power plant, the fourth largest such plant in the nation, and holds the title of greatest producer of hydroelectric power east of the Rocky Mountains.

Now an increase in New York’s use of its wind resources is on the horizon.  (more…)

Yet Another Legal Challenge to the East 91st Street Marine Transfer Station Fails

Posted By on August 15, 2014

A marine transfer station operated on the East River at 91st Street for nearly six decades, temporarily storing municipal waste along the East River before loading it onto barges for disposal outside of Manhattan. But in 2004, the New York City announced plans to build a newer, larger MTS on the site as part of a new City-wide Solid Waste Management Plan. The City wanted to move even farther away from its reliance on expensive and environmentally unfriendly truck-based disposal methods, but the proposal for East 91st Street quickly became embroiled in years of litigation.

However, a July 2014 federal court decision just may be the green light the City needs to proceed with the 91st Street MTS.

Following five unsuccessful legal challenges in state court between 2006 and 2013, and stringent opposition at many public hearings on the project, a coalition of opponents of the MTS filed this latest challenge in the United States District Court for the Southern District of New York. The coalition sought review of a U.S. Army Corps of Engineers decision to grant New York City a permit under Section 404 of the federal Clean Water Act. The Section 404 permit, also known as a “dredge and fill” permit, was required because the construction of a new pier for the MTS would disturb part of the aquatic environment in the East River.

Raising many “of the same arguments and refrains that were already heard, considered, and disposed of,” at the state level, the plaintiffs raised a wide variety of arguments, including that the Army Corps acted “arbitrarily and capriciously” in granting the Section 404 Permit. The “arbitrary and capricious” argument is a standard challenge to administrative action, but it is a high bar for plaintiffs to reach. Courts grant agencies significant deference, and an agency only has to show that it “considered the pertinent evidence, examined the relevant factors, and articulated a satisfactory explanation for its action.”

In the case of the 91st Street MTS, the Army Corps had held detailed public hearings, studied various alternatives to granting the permit, and still decided to grant the Section 404 permit. After reviewing the administrative record, the court concluded that the Army Corps had “articulated a satisfactory explanation for its action” and rejected the plaintiffs’ challenge on the grounds of arbitrary and capricious agency action. The plaintiffs were similarly unsuccessful on the various other arguments they raised in the case.

While the plaintiffs are entitled to appeal the court’s decision, it is unlikely that an appeal would be successful given the narrow scope of judicial review of agency action. If the plaintiffs choose not to appeal, the City may be free to proceed with the project.

For more information on the 91st Street MTS, contact one of the environmental attorneys at Periconi, LLC, or see the court’s decision at:

Residents for Sane Trash Solutions, Inc. v. United States Army Corps of Eng’rs, Case No. 12 Civ. 8456 (PAC) (S.D.N.Y. July 10, 2014).


Local Fracking Bans Upheld in Dryden and Middlefield Cases

Posted By on August 11, 2014

Proponents and opponents of hydraulic fracturing alike have been waiting with bated breath for the outcome of the Wallach v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield cases.  The wait is over – in late June, the New York Court of Appeals upheld the power of local governments to adopt zoning ordinances which restrict or ban oil and gas operations within their borders. (more…)

EPA Authority to Regulate Greenhouse Gases Survives Supreme Court Scrutiny in UARG v. EPA

Posted By on August 6, 2014

In environmental law, things aren’t always what they seem at first blush. Hence, when the Supreme Court handed down its decision in Utility Air Regulatory Group v. EPA, 134 S. Ct. 1050 (2014) in June, both industry and EPA claimed victory. Given that the Court struck down EPA’s interpretation of its authority under two specific provisions of the Clean Air Act, how could EPA claim a win?

For more information on the UARG case than you see here, sign up for Periconi, LLC’s forthcoming CLE on August 12, 2014 at (more…)

Obama Takes Strong Position on Marine Protection

Posted By on July 22, 2014

The United States will soon be home to the largest protected area on the planet, at land or at sea: President Obama has announced his intent to preserve a 782,000-mile stretch of the central Pacific Ocean.

The Pacific Remote Islands Marine National Monument was created by George W. Bush towards the end of his presidency.  Now, President Obama plans to greatly enlarge this national monument beyond its current 87,000 square mile size.  The waters of this marine monument zone would be off limits from commercial fishing, oil and gas drilling and exploration, and other harmful activities. (more…)

Sellers Beware: Unauthorized Petroleum Tank Repair Ruled a Breach of Environmental Warranty

Posted By on July 15, 2014

Everyone’s heard of the phrase, “Be careful what you wish for,” but Sunoco, Inc. might be ready to coin a new phase, “Be careful what you warrant.”

In 2009, Sunoco, Inc. sold an Oneida County-based Marcy Terminal to Superior US Holdings, Inc. Given that it was an oil terminal with 400,000 gallons or more of storage capacity, the New York State Department of Environmental Conservation classified the Marcy Terminal as a “Major Oil Storage Facility,” and subjected it to strict regulation. Accordingly, Sunoco agreed to sign an Environmental Agreement as part of the sale, in which it warranted that the terminal was “in compliance with all applicable environmental laws,” including its environmental permits and licenses.

The only problem was that the terminal wasn’t in compliance. (more…)

Former Wolff-Alport Chemical Company is NYC’s Newest Federal Superfund Site

Posted By on July 1, 2014

New Yorkers like to think their city is the biggest and baddest, and now there’s another reason for those sobriquets: last month, the former Wolff-Alport Chemical Company site – less than 1,000 feet from a public middle school and a private day care center– earned the title of most radioactive site in New York City today, and became the second radioactive site in New York City in the Superfund program’s history.  On May 8, 2014, EPA listed the 3/4-acre property located at Irving Avenue and Cooper Avenue in Ridgewood, Queens, as a federal Superfund site.  This is the third active federal Superfund site in New York City.  (more…)

Largest Environmental Settlement in History Reached in Kerr-McGee Case

Posted By on June 27, 2014

In a triumph of environmental responsibility and justice over corporate attempts to disclaim environmental liabilities, the former Kerr-McGee Corporation has been ordered to clean up after itself. (more…)

Key Limits Imposed on State Authority to Order RCRA Corrective Action Under a Treatment, Storage or Disposal Facility Permit

Posted By on June 13, 2014

Can a party who is not the holder of a certain environmental permit be required to perform the obligations set out in that permit? The New York State Department of Environmental Conservation thought so, and argued as much in the case of a property owner who had purchased land where a hazardous waste storage facility had operated years earlier. The purchaser, Thompson Corners, LLC, had never held a permit to operate the facility, which had closed years before the purchase, and was never required to obtain one. (more…)

Supreme Court Broadly Construes EPA’s Clean Air Act Authority

Posted By on June 9, 2014

Confounding its critics for the seeming intrusion of politics into all of its decisions, on April 29, 2014, the Supreme Court issued its decision in the EPA v. EME Homer City Generation and American Lung Assn. v. EME Homer City Generation matters.  In a 6-to-2 decision, the Court ruled to uphold EPA’s Cross-State Air Pollution Rule, which requires increased emissions reductions from 27 continental upwind states.  This is a major victory for EPA, and reinforces its authority to act under the Clean Air Act (“CAA”) to combat climate change.  (more…)