Envirosphere

On April 1, 2009, the U.S. Supreme Court held in a 5-4 decision that it is permissible for utility companies and regulators to apply a cost-benefit analysis under the Clean Water Act (CWA) in deciding what technology is needed to protect fish from being killed by large industrial cooling water intake structures.

Writing for the majority, Justice Scalia stated that the fact that the CWA does not expressly authorize a cost-benefit analysis does not show “an intent to forbid its use.” The majority held that it was reasonable to conclude that the silence in the CWA on use of cost-benefit analysis in cooling tower regulatory cases “is meant to convey nothing more than a refusal to tie the agency’s hands as to whether cost-benefit analysis should be used, and if so to what degree.”

At issue was a rule EPA issued in 2004 under the CWA that required existing power plants and other industrial facilities to use the best available technology to prevent fish and other aquatic life from being pulled into cooling water intake structures. In 2007, the Second Circuit held that comparisons of economic costs and environmental benefits were severely restricted under cooling tower intake structure rules. The Supreme Court granted review of the Second Circuit decision on the issue of whether Section 316(b) of the CWA authorized EPA to compare costs with benefits in determining the best technology available for minimizing adverse environmental impacts at cooling water intake structures.

Justice Stevens, writing for the dissent, found that Congress directly foreclosed the use of cost-benefit analysis in enacting this provision of the CWA, stating that the majority’s opinion “unsettles the scheme Congress established” and that the Court “should not treat a provision’s silence as an implicit source of cost-benefit authority.” Entergy Corp. v. Riverkeeper Inc. (April 1, 2009).

A copy of this decision is available at http://www.supremecourtus.gov/opinions/08pdf/07-588.pdf.

On April 2, 2009, EPA announced it was awarding more than $430 million to New York State for wastewater infrastructure projects. The grant is a portion of the $4 billion dollars that will be awarded to fund wastewater infrastructure projects across the country under the American Recovery and Reinvestment Act.

New York will use the Recovery Act grant to provide money to municipal and county governments and wastewater utilities for projects to protect lakes, ponds and streams in communities across New York. New York State will also provide at least 20 percent, or at least $86 million, of its Recovery Act funds to “green” projects, those that involve green infrastructure, improve energy or water efficiency, or that have other environmentally innovative aspects. New York’s program also provides funding to communities facing financial hardships. The grant will be awarded to DEC and implemented by the New York State Environmental Facilities Corporation, a state-run organization that helps public and private entities comply with federal and state environmental requirements. The Recovery Act will also fund a similar program for improving drinking water systems.

Additional information regarding EPA’s implementation of the American Recovery and Reinvestment Act of 2009 is available at http://www.epa.gov/region02/eparecovery.

Yesterday, the Environmental Law Section released a memorandum in support of the recently passed New York State Returnable Container Act, otherwise known as the "Bottle Bill."

A copy of the memorandum is available here.

On April 9, 2009, New York City Mayor Michael R. Bloomberg announced the opening of the Perry Avenue Building, the nation’s first multi-story green industrial facility at the Brooklyn Navy Yard. The mayor also announced the creation of the Duggal Greenhouse, a 60,000-square-foot LEED Platinum certified facility that will be used to manufacture eco-friendly products and will become a laboratory for new sustainable products.

According to the Mayor, these initiatives at the Navy Yard will create 1,700 new permanent jobs, 40 percent of which will be green industry jobs. The projects will also create more than 800 construction jobs. The $25 million Perry Avenue Building, which is on track to receive LEED Gold certification, features the first permanent building-mounted wind turbines to be operating anywhere in New York City. Along with the building’s rooftop solar panels, the turbines will provide electricity for the building’s lobby and other common areas. The facility incorporates other green features such as reflective roofing and pavement to reduce surface temperatures, the use of recycled rain water in toilets, recycled building materials, high-efficiency lighting fixtures, natural ventilation systems and special accommodation for bicyclists and low-emission vehicles. The $7 million greenhouse, which will begin to be constructed in the late spring, will be funded with $5 million from Duggal and $2 million from the City for basic building improvements, including a new roof and sprinkler system.

In addition to the Perry Avenue Building and Duggal Greenhouse, City investments have helped catalyze three new LEED certified buildings at the Brooklyn Navy Yard, which are in construction or will start construction this year. Other sustainability initiatives underway at the Navy Yard include: creating more than $200 million in adaptive reuse projects to renovate historic Navy-built buildings for their original industrial intent; using green technologies for renovations and maintenance, such as Energy Star roofs and energy efficient windows and light bulbs; undertaking a major water/sewer project to upgrade the Yard’s aging infrastructure and improve water conservation; rebuilding the road system with improved stormwater management systems; purchasing hybrid and low-emission vehicles for the Yard’s fleet; installing solar-powered, compacting trash cans; purchasing eco-friendly paint and cleaning products; installing bicycle racks and lanes; and providing setbacks along the perimeter of Yard to enable the first phase of the Brooklyn Waterfront Greenway for bicyclists and pedestrians.

On April 17, the Environmental Protection Agency (EPA) issued a proposed finding that greenhouse gas (GHG) emissions pose a danger to the public's health and welfare. The EPA said it found that “greenhouse gases in the atmosphere endanger the public health and welfare of current and future generations” and human activities spur global warming. EPA stated in its finding that "[t]hese high atmospheric levels are the unambiguous result of human emissions, and are very likely the cause of the observed increase in average temperatures and other climatic changes.”

Earlier this week, the White House Office of Management and Budget (OMB) gave its approval to the EPA proposal, which followed the April 2007 Supreme Court decision requiring the EPA to rule on whether or not GHG emissions pose a danger to the public. It was noted in the press release by the EPA that both President Obama and EPA Administrator Lisa Jackson have indicated a preference for comprehensive legislation to address this issue versus regulations under the Clean Air Act.

The Environmental Law Section recently announced its Classroom Project. The Project was developed by Peter Casper of the New York State Thruway Authority, and the contributions of Aliza Cinamon of Proskauer Rose LLP, New York; Bridget Lee of Sive Paget & Riesel, New York; Joseph Mouallem of Carter Ledyard & Milburn, New York; and Brody Smith of Bond Schoeneck & King, Syracuse.

These attorneys have compiled teaching materials on environmental topics from various sources organized by topic and grade level (kindergarten to 3rd grade, 4th through 6th grade, 7th and 8th grade, and 9th through 12 grade). The materials cover topics such as "What does a lawyer do?" as well as energy, air, and climate change, to name but a few. They are organized into one hour lesson plans and also include teacher evaluation forms.

The site is designed such that additional materials can be added on an ongoing basis. If you have materials that you would like to add, feel free to forward them to Section Chair Joan Leary Matthews.

Happy Earth Day everyone!