August 2, 2016

Albany Environmental News - July 2016

Below are recent regulatory issues and laws just passed by both houses of the NYS Legislature including one signed by Governor Cuomo must still decide whether to sign or veto.

1. Statute of Limitations Set by Superfund Designation

SO 6824A/A 9568-A, (Hoosick Falls Bill) adds a new CPLR section 214-f, which adds a Statute of Limitations of three years from the state or federal Superfund listing of a site which causes personal injury damages due to exposure to substances found within the site.

2. Abandoned "Zombie" Foreclosed Property Obligations
The law establishes lender obligations to maintain small foreclosed residential properties even during the pendency of foreclosure proceedings. Under the legislation, banks will have a pre-foreclosure duty to maintain vacant and abandoned properties. Banks would also incur daily fines if they don't maintain these properties.

Governor Cuomo has signed this bill into law.

3. Testing for Lead in School Water

The Senate and Assembly passed legislation to require schools to test for lead in their water via amendments to the PHL and Education Law. The law provides for: parents and teacher notification; schools reimbursement for both testing and remediation; and, a new statewide database of test results.

In other Albany regulatory news:

1. NYSDEC and NYSDOH have announced an initiative to improve New Yorker's ability to dispose of unwanted medications.

2. Sewage Pollution Right to Know Act
New rule makings and grants have been announced to further the goals of this law.

Staying Connected on Water Issues

Clean Water NY: What actions are needed to ensure sustainable water resources in the 21st century?
May 6, 2015

The New York State Bar Association's Environmental Law Section presented last year's Legislative Forum on water infrastructure and management. The annual event was another success. We discussed legislation and laws enacted during the session. The panel also included a thoughtful and substantive discussion of the issues regarding our clean water future, a topic that will serve as a precursor to future discussions on this blog, which also provides a basis for providing this summary here.

Our Clean Water NY panel represented a diverse cross-section of organizations, both government and not-for-profits, that are engaged in water resources and infrastructure issues. Among the many important and salient topics discussed:

  • Concern that opposition to water rate increases is often unwarranted, and stagnant rates do not support long term infrastructure asset management goals; investment in infrastructure is a critical component in avoiding future losses in water quality and quantity;
  • Need for government leaders to enable dramatically increased funding for infrastructure upgrades because many systems are in crisis;
  • Need for government-wide support for and adoption of green infrastructure, as a key to promoting stewardship and sustainability;
  • Need for democratizing water resources with an open and transparent review of how our water is managed to determine what water is being lost through water delivery infrastructure and its possible impacts to drinkable water shortages; and there needs to be a focus on water conservation efforts and initiatives by providers and consumers;
  • Local municipalities face a double burden - managing water infrastructure systems, and navigating funding availability and resources to maintain and improve their systems; and,
  • Considerable opportunity for resource planning and inter-municipal work; and need to work on education and outreach and to consider price signals, such as those utilized in energy usage, as a way of productively affecting changes in consumer behavior.

A more detailed article will be included in an upcoming Environmental Lawyer - stay connected.

We would like to extend a special thank you to all of our panelists, which included:

Panel on Clean Water NY

Sandra L. Allen
Director of Policy and Planning
Environmental Facilities Corporation

Joseph Coffey, Jr., P.E.
Commissioner of Water and Water Supply
City of Albany

Harriet D. Cornell
Chair of the Rockland County Task Force on Water Resources Management
Legislator, Rockland County Board of Legislators

William C. Janeway
Executive Director
Adirondack Council

David Kay
Senior Extension Associate with the Community & Regional Development Institute
Department of Development Sociology

Luncheon Keynote Speaker

Alexander "Pete" Grannis
First Deputy Comptroller
State of New York

Pete Grannis formerly served as Commissioner of the New York State Department of Environmental Conservation. He noted that our water resources are critical to economic development throughout the State because several industries rely on high-quality, continuously supplied water, as do New York citizens for their overall health. Mr. Grannis brought a sustainability perspective to statewide water policy and noted two over-arching issues: (1) that New York State currently has no water plan and (2) that our infrastructure is deteriorating in a manner that may affect more than just our immediate water supply.

A special thanks to our participants, to guests, and to the Bar Association for hosting the event at the One Elk Street headquarters, and to the Bar Association team that made the event possible.

John Parker and Jillian Kasow, Co-Chairs
Environmental Law Section, Committee on Legislation

June 27, 2016

Message from the Outgoing Chair, June 2016

By Michael J. Lesser, 2015-2016 Chair, Environmental Law Section, NYSBA

My past year as Section Chair has sped by in a blur. There have been so many excellent events, meetings with section members and revelations about our profession that I scarcely know where to begin. So, I will keep it simple as I prepare to hand over the reins to incoming Section Chair - and good friend - Larry Schnapf. First, some current events need to be reviewed.

A Tale of Three Pipelines, a Rail Hub and a Subpoena

The multi-tiered war - an accurate term in my opinion - against any industry related to carbon based fuels and emissions continues unabated and with measurable success in New York if one starts with the state's 2015 ban on natural gas fracking.

On the natural gas pipeline front, the proposed North East Direct (NED) pipeline which would have crossed the Albany area to connect with Massachusetts gas users appears dead at this time (June 2016). Fluctuating energy markets are cited as the immediate reason for the operator's withdrawal of the project application. But, the broad and extensive public outcry against the project certainly played a significant part in this project's termination. This opposition included local groups and municipalities as well as statewide and national anti-carbon global climate change activists.

In a separate but similar project, the proposed Constitution natural gas pipeline has been stalled by state administrative action. This pipeline would cross the western edge of the Albany area and then connect to existing pipelines. But, after a lengthy review, the New York State Department of Environmental Conservation (NYSDEC) denied a necessary water quality permit for the project. The operators have legally challenged this determination in federal court citing federal (FERC) pre-emption among other grounds. However, like the opposition to the NED pipeline, this project also faced vehement and widespread public opposition from local, state and national parties. Furthermore, the same opposition was also strongly expressed to NYSDEC and other government entities involved in the decision making process.

It is worth noting that both the NED and Constitution pipelines were proposed to ease the increasing flow of natural gas generated in the Marcellus Shale formation in Pennsylvania to customers in the greater Northeast. Furthermore, if there was any doubt about the state's general hostility to Marcellus natural gas as an alternative fuel, one need only review New York's 2015 revised liquid natural gas (LNG) storage regulations. These regulations place a conservative 70,000 gallon cap on LNG storage. Ironically, the extraction or storage of that natural gas only became of interest due to the recent national development and usage of horizontal hydraulic fracturing (fracking) which is banned in New York.

The same array of public resistance is now also being applied to the proposed Pilgrim oil pipeline which would use mostly public right of ways to connect the Port of Albany rail hub to crude oil refineries in New Jersey. The primary purpose of this pipeline would be the transfer of Midwest generated Bakken crude oil from rail tankers directly to the pipeline. In a twist, the pipeline, would also allow for the northward flow of refined heating fuel in lieu of tanker traffic on the Hudson River. But this proposed pipeline also runs afoul of the continued heavy opposition to the continued transport of Bakken crude via oil tank cars (a/k/a the Bomb Trains) via the Port. Forgotten in the heavy scrutiny and resistance to the Pilgrim pipeline is the 2011 grounding of an oil tanker on the Hudson River that was carrying Bakken crude downriver. Only the safeguards in tanker design implemented after the Exxon Valdez oil spill in Alaska prevented a major oil spill on the Hudson.

In addition, all carbon fuel industries and their agents are now under the potential legal shadow of state enforcement for the offense of manmade global climate change denial. Nationally, a collaboration of state's Attorney Generals - led by New York Attorney General Eric Schneiderman - have issued subpoenas or are otherwise investigating numerous parties such as ExxonMobil in support of the allegation that the parties fraudulently misled investors and the public about the nature of climate change.

Meanwhile, in the waning days of the current state legislative session, a proposed law has been introduced that seeks zero percent greenhouse gas emissions from major state power producers by 2050. The proposed "New York State Climate and Community Protection Act" may be viewed as an outlier but it would, if passed, encompass many of the administrative limits and policies already adopted by the state.

It is also worth noting that the Environmental Law Section is also involved in tracking, reporting and influencing state global climate change law and policy. To this end, the section's Global Climate Change Committee remains active and at the forefront of policy making. At the request of New York State Bar Association (NYSBA) and President Claire P. Gutekunst, the GCC Committee has partnered with Pace Law School to update and rewrite the section's now dated 2009, GCC Report. This is a complex and tedious assignment. However, upon completion, the updated report will be presented to the NYSBA House of Delegates for formal recognition and adoption by NYSBA. My thanks to the section members currently representing our section and NYSBA in these critical legal and policy matters.

Hoosick Falls Water Quality and Official Silence

The Village of Hoosick Falls drinking water contamination reaction and response continues to unfold both legally and otherwise. Undoubtedly, this complicated saga will continue to develop as various legal actions move forward involving the discovery of the industrial chemical PFOA and related compounds in the Village's water supplies.

But, the questions about the delayed response by state agencies and the applicable water quality standards remain largely unanswered. Perhaps the most disturbing trend in this matter is the reluctance of some state officials to organize or attend public hearings on these issues. In particular, both houses of the legislature have yet to schedule public hearings on the Hoosick Falls issues despite pending proposed legislation based on this calamity. Hopefully, this will change in the near future.

In this regard, it should be noted that this past spring the Environmental Law Section held two public events focused on Hoosick Falls and related water quality matters (one in NYC and one in Albany). Therefore, I am proud that our organization was able - in some small way - to serve the legal community and the public at large by providing alternative forums to discuss these important environmental and legal issues.

Section Administrative Status

I will leave the details of the section's administrative details to the incoming Chair and his cabinet. But suffice it to say that due to the extraordinary professionalism of our various committees and co-chairs, the section's administration has demonstrably improved in recent years. This includes fiscal reform, a balanced budget and the accumulation of a sizable surplus.

The section's membership decline has also been reversed (for now). Much of this turnaround can be credited to the pro-active and coordinated efforts of both our Diversity and Membership Committees. The NYSBA Pathway to the Profession program for law students and new attorneys also contributed to our success. So, despite some reverses this past spring - that impacted the entire bar association - we have still managed to increase our overall section membership since the spring of 2015. Membership currently hovers at about the 1,000 level.

I am also particularly pleased to report that roughly one third of our membership consists of young attorneys (admitted ten years or less) or law students. This will help to ensure the survival and vibrancy of our section. I fully believe that our section's efforts to improve our member services and benefits have also been a strong factor in this resurgence.

I also wish to acknowledge Editor Miriam Villani, the issue editors, student volunteers, and article contributors of the Environmental Lawyer for the revised faster publishing schedule. By adjusting the content quantity of each issue, a more frequent publishing schedule has been instituted. As a result, the Environmental Lawyer is now approaching the goal of publishing four issues annually. The EL is now also available to members online for those that wish to opt out of the hard copy version. Well done and many thanks to all involved.

Lastly, the Section's online and social media platforms continue to evolve and inform. These include the section blog (Envirosphere), the section website, LinkedIn and the recently introduced NYSBA Online Communities and Law Hub platforms. In addition, thanks to the efforts of our cabinet members, we have started to use live streaming online web services for our program events. By using these varied resources we can only improve our member services and benefits in the future.

Finally, a Brief Thanks

This space is inadequate to even begin to express my gratitude to numerous section members, our many sponsors and NYSBA staff for their contributions to the section this past year. By my estimate, our section has sponsored, co-sponsored, organized or been represented at approximately three dozen events of various kinds at different locations throughout the state. Approximately 100 sections members (10% of our section membership), NYSBA staff and more than twenty sponsors have volunteered their time, support and expertise to organize and operate these functions. The events run the gamut from the section's major meeting-CLE events to section representation at various NYSBA functions such as the annual law school diversity reception. Regardless of size or focus, each event served to advance the section's profile and improve the services of our section for its members and the public.

In addition to these events, I also wish to recognize and thank our members involved in our active and growing publication activities including Miriam Villani, the Editor in Chief of the Environmental Lawyer as well as all of the individual issue editors, student editors and the numerous contributors. Much credit must also be given to Blog (Envirosphere) Editor Sam Capasso and our unofficial social media czar, Larry Schnapf for their valuable contributions to the improvement of section communications and outreach.

I want to wholeheartedly thank my extended Section Cabinet for their support and efforts including: Vice Chair Larry Schnapf; Treasurer Kevin Bernstein; Secretary Marla Wieder; Section Council representative Gail Port; Diversity Committee Chairs Joan Leary Mathews and John Greenthal; and Membership Chairs Rob Stout and Frank Piccinni. Their contributions and support were invaluable. Phil Dixon and many others must also be thanked for the participation and contributions of our numerous sponsors (who we thank as well).

Finally, NYSBA staffers Lisa Bataille, Kathy Plog and Lori Nicoll stand out for special commendation for efforts above and beyond in service to the Environmental Law Section. Together with many other NYSBA staff members, they ensured our success this past year.

Past Section Chairs do not disappear and I certainly do not plan to do so. But while I do plan to maintain a lower profile, I still reserve the right to pop up from time to time and provide advice - both solicited and unsolicited. You all have been warned! In closing, let us recall the words of the late radio host Bob Grant, "Your influence counts! Use it!" I hope to see you all soon at a section event.

Best wishes,
Michael J. Lesser
Chair, Environmental Law Section, 2015-2016

March 27, 2016

Message from the Chair - Winter 2016

Michael J. Lesser, 2015-16 Chair, Environmental Law Section

Since my last message to the section, three more serious environmental problems have grabbed both national and local attention. The events impacting the water supply of Flint, Michigan may have unnecessarily exposed the entire population of a major U.S. city to a contaminated water supply. Closer to home, a series of developing disclosures in Hoosick Falls, New York, indicates that both private and public drinking water wells are contaminated with the industrial chemical perfluorooctanoic acid (otherwise known as PFOA). Government stands accused of being slow to react as PFOA exposure is a suspected cancer risk. Finally, German car company Volkswagen has admitted that since 2006, it sold approximately eleven million diesel vehicles which were rigged to give false air emission test results. Half a million of these vehicles were sold in the U.S. alone.

If there is a common thread between these three disparate environmental transgressions, it is that on some level government agencies knew or should have known about these transgressions before these became environmental or public health threats - and huge public embarrassments!

New Issues: REV and the N.Y.S. Constitutional Convention

The waning months of 2015, also saw two new significant statewide issues surface on the environmental horizon that will certainly impact the section members and their clients.

Reforming the Energy Vision or "REV" is Governor Cuomo's comprehensive strategy to build a statewide clean, resilient and affordable energy system. Among the staggering challenges set forth by the Governor is to have 50% of the state's energy generated by renewable fuels by 2030 and to have a 40% reduction in greenhouse gas emissions from 1990 levels. At the request of incoming NYSBA President Claire Gutekunst, the section's Global Climate Change Committee has undertaken the difficult task of updating the section's prior GCC reports of 2009 and 2011. In this endeavor, we are being ably assisted by the Pace Law School Environmental Center.

In related news, the section's Agriculture and Rural Issues Committee took advantage of the Association's new webinar technology to present a program on the impact of GCC on that important segment of the environment and commerce. The section is also a Co-sponsor of the upcoming June GCC program at Columbia University. In addition, we will have GCC segments at most of upcoming programs. So, the section's coverage of this important issue continues to be relevant and timely.

In unrelated but equally important news, the state, as mandated every twenty years, is rapidly approaching the 2017 vote on whether to hold a Constitutional Convention in 2019. Governor Cuomo has also set aside funds in the latest draft state budget to address the matter. If approved by the voters, such a process would potentially raise many issues that impact almost every aspect of government and policy. But, at least two significant environmental issues could be at issue for the Environmental Law Section: potentially changes to the Article 14, forever wild provision of the state constitution as it applies to the Adirondacks; and, the insertion of an "Environmental Bill of Rights" into the state constitution as in other states.

Both of these developments are not without controversy. But, as is our mandate, the section is already working to educate our members and guide NYSBA through these complicated issues. Look for future news and section programs on these developing matters.

The 2016 NYSBA Annual Meeting

By any measure, the January 2016 edition of the Annual Meeting was a rousing success. Approximately 170 members and others registered for the two day CLE program. More than 120 also joined us for lunch and at least thirty attended our Executive Committee meeting Friday afternoon.

However, the high point of the meeting was the presentation and spirited Q & A session by our distinguished lunch speaker, the Honorable Thomas P. DiNapoli, the New York State Comptroller. Comptroller DiNapoli gave us a lesson in how the fiduciary of the state's pension funds can use that authority to influence state and national environmental policies. He also discussed when and if divestiture is an appropriate tool to effect environmental change.

On behalf of the section, I also want to thank the four event co-chairs, the program panelists, our devoted NYSBA staff, Hilton employees and our important sponsors and supporting law firms. In total, it took more than three dozen people and sponsors to put this program together. They all have my profound gratitude for lending the section their time and talents. Well done!

Section Media, Membership and Finances

Due to the strong efforts of our various committees and co-chairs, the section's back office activities continue to prosper. Perhaps the best indicator of our progress is that the section's finances have stabilized and improved. At this writing, the deficit spending of a few years ago has been reversed and we enter 2016 with an accumulated surplus of more than $70,000.00. To put that number in context, be aware that the surplus has not dwelled in such lofty financial heights since the early 2000's.

The section's membership decline has also been reversed (for now). More than 100 new members have joined our section over the past year with more than 20 in December 2015, and January 2016, alone. Total section membership is now approximately 1,080. Much of this turnaround can be credited to the pro-active and coordinated efforts of both our Diversity and Membership Committees. But, I also believe that our efforts to improve our member services and benefits have also been a strong factor in this resurgence.

Finally, due to the hard work of Editor Miriam Villani, the issue editors, student volunteers, and article contributors, the Environmental Lawyer is back on track for a faster publishing schedule. While the content quality has never suffered, the EL had fallen into an infrequent publishing schedule due to the size of recent issues. By adjusting the content quantity of each issue, we can again no look forward to a more frequent publishing schedule.

In related news, the section's online media (LinkedIn, blog, website) also continue to prosper and inform. We also await the advent of the new NYSBA Online Communities and Webinar programs. By using these varied resources we can only improve our member services and benefits in the future.

2016 - Tentative Event Schedule

Below please find the tentative schedule of section programs including co-sponsored programs. As always, this listing is merely for convenience and to save the date AND IS SUBJECT TO CHANGE! So, please check the section's announcements and other media for more current information and additional events.

  • 03/30 - Green Building CLE Program (NYC)

  • 04/07 - 2016 Public Utility Law Institute, PUL Update (Albany)

  • 04/21 - Law School Section Forum (U/Buffalo)

  • 04/26 - Annual Oil Spill Symposium (Albany)

  • 05/18 - Legislative Forum and Lunch & Executive Committee Meeting (Albany)

  • 06/02 - USEPA R2 Roundup program (NYC)

  • 06/17 - Columbia GCC program (NYC)

  • 10/14-16 - Environmental Section Fall Meeting (Cooperstown)

  • 11/15 - Hazardous Waste Remediation-BCP Update CLE (Albany)

In closing, I cannot begin the express the appreciation I have for NYSBA staff including Lisa Bataille, Kathy Plog and Lori Nicoll. They make all of this possible. Finally, to again borrow a turn from the late and great radio personality Bob Grant, "Your influence counts! Use it!" Feel free to contact me or any of the section officers if you have any suggestions, questions or require assistance.

Michael J. Lesser
2015-16 Chair
Environmental Law Section

Greener and Building Faster: Recent Developments in Green Building and Microgrids


Building, Environmental Review, and Climate Change

TIME: March 30, 2016

8:30 a.m. - 12:15 p.m.

PLACE: Greenberg Traurig LLP

200 Park Avenue

New York, NY 10166




At a stakeholder's meeting in Albany on 3/3/16, NYSDEC announced that within three weeks, the agency will unveil proposed changes to Part 617, with:

- A state register/ENB Notice;
- A draft generic EIS;
- A 90 day comment period.

Proposed changes will include changes in Type I and II actions and in the scoping process as outlined by NYSDEC in more detail via the link below.

The outline can also be found on the NYSBA ELS homepage under legislative/regulatory Policy Submissions (left menu).

February 7, 2016

Agriculture and Climate Change - the Challenges and Opportunities for the Region's Farmers and Agri-Businesses

Webinar: February 11th 12:00 p.m.-1:00 p.m.

The Agriculture and Rural Issues Committee of the Environmental Law Section will host a webinar on Thursday, February 11, 2016 from noon to 1:00 p.m. regarding agriculture and climate change - the challenges and opportunities for the region's farmers and agri-businesses.

Michael Hoffman, Executive Director of the Cornell Institute for Climate Change and Agriculture, will make a presentation and answer participant questions.

The webinar is open to all Environmental Law Section members. It will be moderated by Committee co-chairs Liz Dribusch and Ruth Moore.

You must have WebEx downloaded to your computer to participate (it will download automatically the first time logging in) or dial in for audio only.

If you are interested in participating, please RSVP to and see link to instructions.

January 31, 2016

New Criminal Air Pollution Article Written by Section Member

Environmental Law Section member Michael Lesser has had an article about New York's criminal air pollution laws published in the New York Law Journal Supplement issued for the NYSBA Annual Meeting.

Annual NY Environmental Enforcement Update Vol II

The ELS E-Book, the NYS Environmental Enforcement Update 2014 Annual Report, has been posted and is available as a free download at the link below. The book focuses on NY legal enforcement issues. The E-Book was edited by ELS section member Samuel Capasso and written and compiled by section member Michael Lesser.

January 24, 2016

Riverkeeper Job Posting

Dear Colleague:

Riverkeeper has an opening for a Staff Attorney who will immediately work with senior attorneys on Indian Point Nuclear Power Plant litigation and on other pressing environmental cases. This is a unique opportunity for an attorney who is interested in joining one of the most effective and distinguished environmental advocacy organizations in the country. Riverkeeper is looking for a qualified, experienced environmental litigator and advocate with an exceptional commitment to the environment and a strong academic and experiential learning record.

The Staff Attorney will expand Riverkeeper's presence and effectiveness in the mid to upper Hudson River watershed and the New York City drinking water watershed through litigation, advocacy, public education, and public outreach in order to advance Riverkeeper's policy goals of fishable, swimmable waterways. The position requires significant travel throughout the Hudson River Valley, and a commitment to attend meetings and appointments that may be outside of normal business hours.

It is a pivotal moment in Riverkeeper history. In 2016, we will celebrate our 50th year of working on clean water and environmental issues. In 1966, Riverkeeper was established as an independent, member supported environmental organization whose mission is to protect the ecological integrity of the Hudson River and its watershed, and to safeguard the drinking water supply of nine million New Yorkers. For more information, visit

We look forward to receiving submissions from qualified candidates.


John Parker


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