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Environmental Legislation Forum Focuses on NY Oil Transportation

By John Louis Parker and Jillian Kasow, Co-Chairs, Committee on Legislation

On May 14, 2014, the Environmental Section held a successful and well-attended annual Legislative Forum and Luncheon. The Great Hall at New York State Bar Center, located at One Elk Street in Albany, was filled with an audience and participants from as far afield as Washington, D.C. The program commenced with a presentation by members of the environmental leadership of the New York State Assembly and Senate on priority legislative topics for this year's session. Among the legislative topics were discussions of the upcoming sunset provisions of the brownfields program, a ban on microbeads from various products to prevent them from being discharged into state waterways, the reduction of harmful flame retardant chemicals in furniture, the capping of greenhouse gas emissions, a "cradle to grave" approach to green purchasing, and a pilot program for disposing of prescription drugs.

Industry representatives, business representatives, and environmental advocates then convened on a panel to discuss challenges facing the Empire State involving oil transportation from the mid-western United States through the Port of Albany by rail and then down the Hudson River by barge. The set of issues involves a complex overlay of federal and state rules, regulations, and laws.

The United States Geological Survey conservatively estimates that there are over 7.4 billion gallons of oil under the fields of North Dakota and Montana. These previously unreachable Bakken crude reserves are now accessible via hydraulic fracturing and horizontal drilling. The oil production in North Dakota has dramatically changed the social, environmental, and economic landscape of that state, leaving it one of the largest oil producers in the United States. Despite a minor pipeline north to Canada, the lack of adequate infrastructure has resulted in the majority of the oil being transported via rail and barge to refineries and markets. Bakken crude has a lower flashpoint and is thus susceptible to disastrous consequences should derailments or accidents occur, as demonstrated by the loss of 37 lives in Canada and a significant oil spill in Virginia. In addition, whether or not the XL Pipeline is constructed for the movement of tar sands from Canada, the oil transport through Albany may be part of the system used to move that oil to market. Currently, the Port of Albany handles approximately 40,000 carloads of oil per year and is authorized for up to 2.8 billion gallons in total. In response to several oil incidents, Governor Andrew Cuomo's Executive Order # 125 required a number of State agencies to produce a report on incident prevention and response capacity in the State by April 30, 2014.

The panelists discussed a variety of issues, including: the potentially significant negative environmental impacts of oil transport and the need for full SEQRA review of any proposal, the low incident of railway spills, the need for an updated and modernized train and rail system, the greenhouse gases that are flared off into the atmosphere as part of the extraction process, the need for Environmental Protection Agency and other federal agency involvement, the complication of federal pre-emption issues in relation to train regulation and the limited ability for state regulation, and the economic benefits of the United States becoming one of the largest oil producers in the world.

The program concluded with the Executive Deputy Commissioner of DEC, Marc Gerstman, discussing a number of initiatives underway at the Department, including the new Self Audit Policy, efforts to reduce transactional costs, brownfields reform, and efforts to streamline agency operations. Finally, the discussion focused on a number of actions the State has taken, including its Interim Negative Declaration under SEQRA on an oil transport facility permit in the Port of Albany, a number of initiatives being undertaken to better understand the challenges of oil transport through New York including expediting State agency response, and the primary role of the federal government in the regulatory process.

A special thanks to NYSBA association team, participants, and attendees of the event.

John Parker and Jillian Kasow, Co-Chairs, Committee on Legislation

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