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