Envirosphere

On June 1, 2009, the Regional Greenhouse Gas Initiative (RGGI) announced that sponsors can begin registering proposed emissions offset projects on the RGGI website. The site may also be used to submit reports and applications for verification and monitoring of the projects. Each sponsor must open an account online to complete the application process. The authorized account representative must be the same as the project sponsor listed in the application.

Under RGGI’s current rules, offset allowances may be used by electricity generators for up to 3.3% of their total compliance obligation. All offset projects receiving credits must be verified by an accredited organization under the RGGI rules.

On June 11, 2009, DEC posted its Division of Environmental Remediation Annual Report for State Fiscal Year 2008-09. According to DEC, this report has been produced using an integrated web-based format that gives readers greater flexibility and interactivity with information available on DEC’s website. With the Internet as the production platform, information is easier to access

The report satisfies the reporting requirements of the New York State Environmental Conservation Law § 27-1420 for the Brownfield Cleanup Program, § 27-1305 regarding inactive hazardous waste sites and New York State Navigation Law § 12-196 regarding petroleum spills. The report also provides a brief summary of recent Environmental Restoration Program activities initiated under the 1996 Clean Water/Clean Air Bond Act; a summary of progress with New York’s Brownfield and Voluntary Cleanup Programs; and, progress made under the Spill Response Program.

According to DEC, these programs, in conjunction with the Inactive Hazardous Waste Disposal Site Remedial Program, are cleaning up contaminated properties across the state, protecting public health and the environment, and returning many of these sites to productive economic and recreational uses. The Annual Report also includes progress under the Bulk Storage Programs, and a report on progress in implementing the Brownfield Opportunity Areas Program, and Technical Assistance Grants. A paper-friendly version is also available.

On June 4, 2009, The governors of five Mid-Atlantic states, including New York, signed an agreement to establish the Mid-Atlantic Regional Council on the Ocean to work cooperatively on issues affecting the region’s coastal and ocean resources.

The agreement establishes four main priorities for the Council, including development of a regional approach to support the sustainable development of renewable energy in offshore areas. Other priorities include working collaboratively on the impact of climate change on ocean and coastal resources, promoting improvements in water quality, and coordinating the protection of habitats and sensitive areas. The other four states involved in the agreement are Delaware, Maryland, New Jersey, and Virginia.

Other key points in the agreement include: (1) federal agencies with responsibilities for ocean resources will be asked to participate as partners; (2) a summit will be held within six months with the region’s stakeholders; and (3) the Council will review the Agreement in the spring and identify any new issues for regional cooperation. The Agreement also establishes eight guiding principles that include developing a partnership with the federal government and stakeholders, promoting a regional agenda on the federal level, and commitment to an ecosystem-based approach.

On June 17, 2009, DEC Commissioner Pete Grannis and State Office of Parks, Recreation and Historic Preservation (OPRHP) Commissioner Carol Ash announced the release of the State’s 2009 Open Space Conservation Plan, which provides a comprehensive blueprint for focusing and achieving the State’s conservation goals.

The 2009 Open Space Plan builds on previous state plans and contains a list of 135 priority conservation projects across the state, identified by nine citizen-based Regional Advisory Committees. The Open Space Plan includes recommendations on how the state and local governments can protect and enhance riparian, coastal and floodplain areas and forests as part of the adaptation to a changing climate while improving wildlife habitat and creating new outdoor recreational opportunities. Protection of coastline areas and riparian zones also can buffer adjacent private property and community resources against rising sea levels and more frequent flooding.

The Plan also better focuses regional priorities, such as protecting Long Island beaches and estuaries and promoting access to its shorelines, improving habitat and watershed protection in the Catskills, increasing access to the Hudson River and improving environmental justice and access to open spaces in New York City.

The Governor’s Smart Growth Cabinet, the Ocean and Great Lakes Council, the Climate Smart Community network, the Hudson River Estuary Program, along with several state agencies have been involved with development of the open space recommendations and will provide technical assistance to local and regional governments and planning organizations. The Plan includes more than 300 Internet links to related content, resources and partners in open space conservation.

On June 18, 2009, the New York State Public Service Commission PSC authorized $6.6 million in funding for New York State Energy Research and Development Authority (NYSERDA)’s workforce development initiatives related to energy efficiency programs.

With respect to workforce training, NYSERDA currently provides training largely on a per-program basis, and training funds are contained within efficiency program budgets. The need for an increase in workforce development funds is a direct result of the ongoing and rapid expansion of energy efficiency programs across New York.

As part of the workforce training initiative, NYSERDA will collaborate with New York State Department of Labor’s (DOL) One-Stop Workforce Development System which targets workers to participate in training and certification programs. Those programs focus on training in skills necessary for entry-level employment in the energy efficiency sector and are directed toward individuals in economically and environmentally disadvantaged communities.

The PSC determined that because of the rapid expansion of efficiency programs as a result of previous PSC orders and the federal American Recovery and Reinvestment Act of 2009 (ARRA), additional assistance was required to overcome barriers to workforce training in a timely manner that will allow the PSC’s efficiency targets to be met in a cost-effective way. According to the PSC, studies have identified numerous barriers to the rapid enhancement of a skilled workforce. These barriers include: the cost of training; lost-opportunity costs of time committed to training; wages paid to workers while being trained; availability of training infrastructure; cost of tools; and lack of basic skills training to prepare workers for technical training.

An assessment performed by DOL found that with current resources there would be shortages of specially trained workers in the majority of occupations in the energy efficiency sector. In particular, DOL identified potential shortages of electricians, plumbers, pipe fitters and steam fitters, and HVAC and refrigeration mechanics and installers, trained to implement energy efficiency programs.

Last year, Governor David A. Paterson signed legislation adding a new section to the Environmental Conservation Law (ECL 27-2405) to require property owners or owners' agents (such as landlords) to notify all of their tenants and occupants of any test results related to indoor air contamination associated with soil vapor intrusion (SVI) that they receive from certain persons and entities. The new law applies to both residential and non-residential properties.

A Fact Sheet explaining the legislative requirements regarding Tenant Notification of Indoor Air Contamination Associated With Soil Vapor Intrusion was posted on June 19, 2009 on the Department of Environmental Conservation website.

On June 19, 2009, RGGI announced that 30.8 million carbon dioxide allowances available for immediate use sold at its fourth auction for a clearing price of $3.23 per allowance.
Another 2.1 million allowances were sold at a clearing price of $2.06, but cannot be used until 2012.

The auction raised $104.2 million, which the 10 RGGI states will use for energy efficiency and renewable energy programs. A total of $366 million has been raised by RGGI in its four auctions. The $3.23 clearing price is lower than $3.51 clearing price from the third auction. The minimum reserve price for allowances has remained at $1.86 for all four auctions.

Forty-eight bidders, mostly electricity generators, purchased the 2009 allowances, while 12 bidders purchased the 2012 allowances, according to RGGI. Four bidders purchased at least 2 million allowances for 2009, while nine bidders purchased at least 1 million. The range in bids for the 2009 allowances was $1.86 to $12. The range in bids for the 2012 allowances was $1.86 to $3.84. Each allowance allows the holder to emit one ton of carbon dioxide.

Under RGGI, emissions in 10 states are capped at 188 million tons for each year from 2009 through 2014. Emissions will then be reduced by 2.5 percent per year over the next four years.

On June 22, 2009, a federal court held in Metropolitan Taxicab Board of Trade v. New York City that a package of financial incentives adopted by New York City to encourage taxicab owners to convert to an all-hybrid fleet constituted a mandate that is preempted by the Energy Policy and Conservation Act (EPCA).

The court granted a motion by taxicab fleet owners and a trade association for a preliminary injunction blocking the incentive plan which had been designed as an alternative to city fuel efficiency rules for taxis struck down earlier by the court. To encourage the purchase of hybrid vehicles, the alternative plan relied on incentives in City lease cap rules governing the cost of daily taxi leases paid by drivers to fleet owners, rather than the miles-per-gallon fuel efficiency standards. However, the court found that the City’s new lease cap rules serve as a mandate for owners to purchase only vehicles with hybrid or clean-diesel engines and are thus preempted.

The court acknowledging the City's authority to act in the public interest and the validity of increasing the number of hybrid taxicabs as a governmental priority, but held that Congress already exercised its powers to impose national standards for fuel efficiency under the EPCA and engine emissions standards under the Clean Air Act.

In issuing the preliminary injunction, the court found that the plaintiffs had demonstrated a likelihood of success in showing that the new rules are preempted as a de facto mandate and that the requirements are related to federal standards under the two laws. Of the more than 13,000 taxicabs regulated by the City, approximately 16% are hybrid or clean-diesel vehicles.

A trial court dismissed a lawsuit brought by the shipping industry, upholding state requirements designed to limit the spread of invasive species by controlling the release of ballast water by large vessels, holding that DEC acted within its statutory and regulatory authority when it established the ballast requirements and that it met the procedural requirements under SEQRA.

The plaintiffs challenged a Vessel General Permit issued by DEC in February 2009 under Section 401 of the Clean Water Act, alleging that DEC violated procedural requirements in establishing conditions in the 401 certificate and that it exceeded its authority. The trial court disagreed, holding that DEC acted properly under state law and regulations that had been in existence since the 1990s and that it met procedural requirements under SEQRA by giving adequate public notice and opportunities for public comment.

The court held that it was undisputed that ballast water on ocean-going vessels subject to 401 certification is a source of significant potential and actual biological pollution for the state’s water systems in the form of harmful aquatic invasive species and that the conditions in the permit were rationally derived from DEC’s authority to control ballast water pollution.

The conditions set forth in the 401 certificate generally require that existing ships are retrofitted to install ballast water treatment systems and that ships entering New York waters travel 50 miles from the coast into the Atlantic Ocean to exchange water in their ballast tanks. Port of Oswego Authority v. Grannis, Index No. 10298/08 (Sup. Ct. Albany Co. May 21, 2009).

On June 29, 2009, the U.S. Supreme Court refused to review EPA’s waiver of filtration requirements for the Catskill-Delaware water supply.

In Coalition of Watershed Towns v. EPA, 552 F.3d 216 (2d Cir. 2008), the Second Circuit dismissed the complaint filed by a coalition of towns in upstate New York that alleged that EPA exceeded its authority under the Safe Drinking Water Act by allowing New York City to protect the safety of its water supply by purchasing tracks of upstate land instead of constructing a filtration plant as required of most other cities.

The towns objected to a July 2007 filtration avoidance determination by EPA that allowed New York City to avoid filtration for its system by spending millions to acquire upstate land to act as a buffer between streams and rivers and dairy farms. New York City’s watershed is about 2,000 square miles, including parts of Sullivan, Green, Ulster, Schoharie and Delaware counties, and about 50 towns and villages. With New York City spending more than half a billion dollars to buy land in the watershed communities, the towns alleged that the large-scale land purchases inherently changed land uses and community character. The towns claimed an adverse impact on businesses, job creation, and industrial tax revenues.

The Second Circuit declined to address the merits of the dispute because it found the towns failed to establish that they had legal injuries which could be redressed by the courts.