By Michael J. Lesser, Environmental Section, NYSBA © 2013
IN THE NEWS
The turn of the New Year found news stories focusing on the extensive efforts of the NYSDEC Divisions of Law Enforcements (DLE) and Fish & Wildlife to crack down on the illegal ivory trade in New York. Recent law enforcement efforts have resulted in the confiscation of more than two tons of ivory. The ivory trade has been banned in New York with few exceptions since the early 1970's, as set forth in various provisions of Article 11, of the NY Environmental Conservation Law.
Criminal Environmental Damage Law Introduced
This proposed legislation introduced as S1016-2013 by Senator Robach (reproduced in its entirety below) is an attempt to correct the inequities left by lingering environmental impacts that are often more costly and damaging than the underlying crime. In effect, as the bill's justification states, the environment is a victim worth protecting in its own right. While the draft bill requires an underlying felony as a prerequisite it is classified as a Class C Penal Law Felony with severe penalties in its own right. Without such a law, prosecutors and law enforcement are often left with the unsatisfactory choices of trying to fit environmental damages within the constraints of lesser Penal Law offenses such as criminal mischief or vandalism or even establishing damages under the ECL via inquest and expensive forensic investigation (See ECL Section 71-2723).
At this writing, the bill has no Assembly counterpart and may be little more than an academic exercise in this legislative session. But, it is still an interesting start in addressing a vexing side effect of many non-environmental crimes.
ADMINISTRATIVE ENFORCEMENT BY NYSDEC
January 2013, saw two more examples of the department's ongoing efforts to enforce administrative Orders on Consent in default previously entered in settlement with Respondents (citations and links below). The underlying Orders in both matters involved water quality or petroleum bulk storage issues. If the Respondent's do not comply with these new Orders, the matters will most likely be referred by NYSDEC to the Attorney General's office for further enforcement. The message is simple: DEC will enforce its consent orders and seek additional penalties for violations.
Commissioner's Enforcement Orders Issued in January 2013
In the Matter of HEZEKIAH VARCIANNA, Respondent.
Case No. R2-20121025-653, http://www.dec.ny.gov/hearings/88446.html
In the Matter of the ADE RANTI, Respondent.
Case No. R2-20121025-650, http://www.dec.ny.gov/hearings/88561.html
USEPA REGION 2 NEWS
There can be no better news in the depth of winter than to know that the USEPA has scheduled a public listening session by its Caribbean Coral Reef Protection Group, in St. Thomas, USVI, on February 25, 2013 (with live videoconference locations in San Juan, Puerto Rico and St. Croix, USVI). As painful as this seems to those of us who cannot be at any of these locations, the vital work of this multi-agency Group, led by USEPA Region 2, will proceed in seeking its goal of coordinating government strategies to protecting the fragile coral reefs near Puerto Rico and the USVI from further damage. Threats to these ecosystems include manmade pollution, poor recreational boating habits and global climate change. It is unfortunate that the Group's jurisdiction would not appear to extend to the coral reefs off the coast of Florida which face many of the same dangers. For more information, contact USEPA via John Martin, (212) 637-3662, email@example.com.
The NY Environmental Section Enforcement Update is a service presented by the Environmental Section of NYSBA which is based on a general survey of approximately twenty public government and media websites which report on news relevant to New York's environmental issues. It is by no means comprehensive and is presented for educational purposes only and NYSBA makes no guarantees as to the accuracy of the sources cited. Please contact the Blog Editor at firstname.lastname@example.org with any additional information or corrections.
Michael J. Lesser is currently Of Counsel to Sive, Paget & Riesel, P.C. in New York and was a former NYSDEC enforcement attorney in the Office of General Counsel.
(Editor's Note: This is the first edition of what we hope to make a regular update. Please feel to leave comments with any additional updates you may have on recent enforcement.)