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

December 19, 2015

Section's Annual Meeting

It's nearly time for the Section's Annual Meeting! This year the Annual Meeting will be held on January 28-29, 2015, at the NYC Hilton. Registration and program details can be found on the Section's website.

Register today!

November 8, 2015

Third Anniversary of Superstorm Sandy

By Sam Capasso

It's been three years since Sandy rocked the region and caused enough damage to become the second costliest hurricane in U.S. history at $50 billion in estimated damages. It was a wake-up call on many fronts, resparking discussion of the impacts of climate change and the preparedness of United States against disaster. In these past years, what has happened? Did the disaster make us stronger or did we fail to heed the lessons of the storm?

In many ways, New York State has been using the disaster as leverage to do the things that need to be done and to be prepared for the future. Many of the departments and agencies responsible for New York's critical infrastructure damaged in Sandy took advantage of the Stafford Act Section 406 Hazard Mitigation, rebuilding to higher levels of protection. New York City pushed its agencies to account for 30" of sea level rise over 50 years to utilize a recent change in Federal Emergency Management Agency (FEMA) funding that allowed FEMA to pay for the additional costs of protecting facilities against sea level rise. New York City also was very quick to adopt the more restrictive of the FEMA flood maps as their flood maps went through the regulatory revision process, as well as passing multiple changes to the building code as a result of Sandy, all of which will make the City better able to withstand and bounce-back from future disasters. New York Rising and Build it Back, which both include a residential programs funded by a HUD Community Development Block Grant, have begun the process of acquiring and elevating thousands of homes in areas at high-risk of flooding.

But much of this started while the memory of Sandy was fresh; in the intervening years, the warning and the threat of the storm have begun to fade. A provision in the New York Rising program which requires residential elevations to code compliant has led some communities to ban open foundation types in favor of closed foundations for the purpose of aesthetics. These closed foundations are more expensive and the more private nature of them tends to encourage unlawful use and occupation of that enclosed space, putting people and property at risk of future flooding. Despite New York City's early push for the more stringent flood maps, New York City has filed a technical appeal of the FEMA flood maps that, on the whole, argue for lower flood elevations and less restrictive zones throughout the City.

This is not a new pattern, but what can be done to preserve the lessons taught by a disaster? This was the overall objective of a recent CLE taught by Section Member Sam Capasso, along with Chelsea Holland and Maggie Palmer Saalfield at Touro Law School as part of their Bagels with the Board program. The CLE discussed hazard mitigation planning and the National Flood Insurance Program and FEMA's incentive program, the Community Rating System, which provides community-wide flood insurance premium discounts for communities that go above and beyond the regulatory requirements. The incentive of lower premiums is one way a community can continue the discussion about the impacts of disasters and be better prepared for when they inevitably occur.

Perhaps it is in our nature to forget and just hope that what happened in the past won't happen again. With the move of many government agencies into the new Freedom Tower, it seems even FEMA is susceptible to the creeping sense of security granted by the passage of time.

The statements and opinions above are the author's own, and not necessarily the opinions of any associated parties.

November 7, 2015

Comment Period Open for State Sea Level Rise Projections

As part of a process that began with the Sea Level Rise Task Force and their 2011 report, public comment is open for new sea-level rise projections determined by the DEC. DEC is required by Community Risk and Resiliency Act (CRRA), signed by Governor Cuomo in September 2014, to adopt state sea-level rise projections. CRRA requires applicants for certain permit and funding programs to demonstrate consideration of future physical risks due to sea-level rise, flooding and storm surge.

The proposed regulation and support documents are available on DEC's website at

Public comments on the proposed regulation will be accepted following publication in the State Register through December 28. New York will establish official State sea-level rise projections by early 2016.

Additionally, there will be a public meeting, with details as follows:

Community Risk and Resiliency Act
Stakeholder Update Meeting
Monday, November 16, 2015, 9:00 a.m. - 12:00 p.m.
625 Broadway, Albany, PA-129

The New York State Department of Environmental Conservation will host a meeting for all interested stakeholders to provide information and receive input on DEC's development of guidance for implementation of the Community Risk and Resiliency Act (CRRA).

Governor Andrew Cuomo signed CRRA in September 2014 and, in his 2015 Opportunity Agenda, directed DEC to gather stakeholder input on implementation of CRRA. A summary of CRRA's provisions and affected programs is here; additional information on CRRA is available at

The meeting objectives and webinar information are described in the agenda.

This meeting will be held at DEC headquarters at 625 Broadway, Albany. Directions and parking information are available at

Individuals wishing to attend the meeting in person are strongly encouraged to pre-register to avoid delayed admittance to the building. Pre-register by e-mailing no later than noon, Friday, November 13. Please include the words "CRRA Pre-registration" in the subject line. All persons must present government-issued photographic identification to be admitted to the building.


  • Global Climate Change Committee
  • Global Climate Change CommitteeAdd category