Florida’s Land and Water Legacy Proposed Constitutional Amendment

Posted in Florida, State Regulation, Water

Florida’s Water and Land Legacy was founded in July 2012 by approximately thirteen environmental groups, including 1000 Friends of Florida, the Sierra Club and Audubon Florida, who with the support primarily of other environmental groups, citizens and civic organizations gathered sufficient signatures from Florida voters to place Amendment 1: the Water and Land Conservation Amendment on the November 2014 ballot.

This amendment would create a funding guarantee for environmental conservation.  The availability of these monies for land acquisition could have the effect of limiting growth and land development in the State where, for example, these funds are used to purchase ocean front property for a State park or to purchase lands to expand existing, sufficient wildlife management areas.  It states:

SECTION 28. Land Acquisition Trust Fund.—

a) Effective on July 1 of the year following passage of this amendment by the voters, and for a period of 20 years after that effective date, the Land Acquisition Trust Fund shall receive no less than 33 percent of net revenues derived from the existing excise tax on documents, as defined in the statutes in effect on January 1, 2012, as amended from time to time, or any successor or replacement tax, after the Department of Revenue first deducts a service charge to pay the costs of the collection and enforcement of the excise tax on documents.

b) Funds in the Land Acquisition Trust Fund shall be expended only for the following purposes:

  1. As provided by law, to finance or refinance: the acquisition and improvement of land, water areas, and related property interests, including conservation easements, and resources for conservation lands including wetlands, forests, and fish and wildlife habitat; wildlife management areas; lands that protect water resources and drinking water sources, including lands protecting the water quality and quantity of rivers, lakes, streams, springsheds, and lands providing recharge for groundwater and aquifer systems; lands in the Everglades Agricultural Area and the Everglades Protection Area, as defined in Article II, Section 7(b); beaches and shores; outdoor recreation lands, including recreational trails, parks, and urban open space; rural landscapes; working farms and ranches; historic or geologic sites; together with management, restoration of natural systems, and the enhancement of public access or recreational enjoyment of conservation lands.
  2. To pay the debt service on bonds issued pursuant to Article VII, Section 11(e).

c) The moneys deposited into the Land Acquisition Trust Fund, as defined by the statutes in effect on January 1, 2012, shall not be or become commingled with the General Revenue Fund of the state.

The complete document can be found here.

Amendment 1 proposes to direct 33% “doc stamps” or excise tax revenues collected from real estate transactions to finance (or refinance) the acquisition and improvement of land, water areas, and related property and resources for conservation.  Amendment 1 would set aside funds in the Land Acquisition Trust Fund to conserve and restore certain lands including wildlife management areas and rural areas; outdoor recreational lands; working farms and ranches; lands that protect water resources including drinking water, groundwater, and the aquifer system together with lands in the Everglades; as well as historic or geologic sites, and beaches and shores. These funds can also be used to enhance public access to conservation lands or recreational enjoyment of conservation lands.

If approved by 60% of those voting on November 4, 2014, Amendment 1 would become effective July 1, 2015 for a period of 20 years or until July 1, 2035.  A similar effort in 2012 failed.

Proposed Pretreatment Standards for Dentists

Posted in Federal Regulation

From Kaitlyn Maxwell of GT Philadelphia:

The United States Environmental Protection Agency (“EPA”) has proposed standards for pretreatment of water that goes down the drain at a dentist’s office.  The proposed rule, available here, would require dental practices to meet technology-based pretreatment standards pursuant to the Clean Water Act for discharge of dental amalgam into publicly owned treatment works (“POTWs”), that is, municipal sewage treatment systems. Continue Reading

Thinking About Natural Resource Damages

Posted in Articles, Environment, Pennsylvania

My column this month in the Pennsylvania Law Weekly considers natural resource damages and their measurement.  NRDs are available under a number of federal programs.  To my knowledge, however, Pennsylvania state trustees have only sought to recover NRDs twice.

We have to think about whether that might change.  The Supreme Court’s plurality opinion in Robinson Twp. v. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013), suggests that Commonwealth agencies must take seriously their responsibility as trustee for public natural resources under the Environmental Rights Amendment to the Pennsylvania Constitution, Pa. Const. art. I,  § 27.  Will that require them to seek compensation for releases of hazardous substances that damage those public natural resources under the federal Comprehensive Environmental Response, Compensation and Liability Act or the Pennsylvania Hazardous Sites Cleanup Act?  If so, can that be done in a reasonable way?

Read Can Natural Resource Damages Make Sense?, 37 Pa. L. Weekly 976 (Oct. 14, 2014), by clicking here.

New York State Adopts Law Mandating Consideration Of Impacts From Climate Change In Governmental Decision Making

Posted in Climate Change, New York, State Regulation

Climate change, or the alteration of global climate patterns due to increased levels of greenhouse gases in the atmosphere, continues to generate passion among members of the electorate.  Environmental activists and politicians push for new policies specifically aimed at limiting the causes of increasing global temperature or mitigating its adverse consequences.  In the wake of Hurricane Sandy, for example, Mayor Michael Bloomberg proposed a sweeping set of flood control and storm-proofing policies directed at increasing New York City’s ability to survive another powerful hurricane.  At the state level, State Senator Diane Savino and Assemblyman Robert Sweeney advocated an approach that requires consideration of future physical climate risks into the permitting and policy making processes.  The bill, entitled The Community Risk and Resiliency Act (SB 6617-B), passed both the Assembly and the Senate earlier this summer and was signed into law by Governor Andrew Cuomo on September 22nd. Continue Reading

Second Circuit Examines Collateral Source Rule in CERCLA Cost Recovery and Contribution Case

Posted in Court Cases

On September 11, 2014, the Second Circuit issued its decision in New York State Electric & Gas Corp. v. FirstEnergy Corp., No. 11-4143, a CERCLA cost recovery and contribution case arising from the cleanup of coal tar contamination at sixteen manufactured gas plants in New York.  New York State Electric & Gas Corp (“NYSEG”) filed a section 107(a) cost recovery action against FirstEnergy Corporation, alleging FirstEnergy bore liability as a successor to NYSEG’s former parent company.  FirstEnergy brought section 113(f) contribution counterclaims against NYSEG and I.D. Booth, Inc., a current owner of one of the sixteen sites.  The district court found NYSEG could recover under its section 107(a) claims, while FirstEnergy could recover contribution from I.D. Booth.

On appeal, the Second Circuit decided a number of issues.  Among them was whether NYSEG’s award against FirstEnergy could be reduced by a portion of the $20 million NYSEG had received in a prior insurance recovery.  The district court and Second Circuit both found that the “collateral source rule” does not apply in the CERCLA context.  The collateral source rule prevents payments from a collateral source from reducing an otherwise recoverable award.  The district court had held that the collateral source rule was barred by Section 114(b) of CERCLA, 42 U.S.C. § 9614(b).  The $20 million award had been allocated among 38 sites, so the district court reduced NYSEG’s contribution recovery here by 42.1 percent (16/38) of the $20 million award, or $8,421,052.  The Second Circuit affirmed.

If you’ll recall, David Mandelbaum previously discussed the collateral source rule on this blog.  That examination of cases found that courts have generally held that the collateral source rule does not apply in the CERCLA context, but that courts will often apply an equitable analysis to avoid an unfair double recovery.  Here, the Second Circuit found that, although there was no risk of NYSEG obtaining a double recovery, it was within the district court’s “broad discretion” to equitably reduce NYSEG’s recovery based on the insurance recovery.  Accordingly, the Second Circuit seems to endorse an equitable analysis, rather than some mechanical rule, when addressing prior insurance recoveries in CERCLA contribution cases.

In addition, the Court of Appeals held (1) a covenant not to sue did not preclude NYSEG’s cost recovery claims; (2) that there could be no direct liability for a parent that did not sufficiently participate in the activities of the plant during its ownership of the plant; (3) FirstEnergy was liable on a veil piercing theory; (4) NYSEG’s claims were barred as to certain sites by CERCLA’s statute of limitations provision; (5) the district court’s allocation of liability based on total gas production was not in error; (6) the district court did not err by not reducing recovery based on economic benefit of the cleanup or based on delay in cleaning up; and (7) I.D. Booth was not entitled to a third-party defense under section 107(b)(3) because it did not exercise due care with respect to the cleanup, as I.D. Booth caused delays in negotiations and, in turn, the cleanup.


Climate Adaptation: The Concrete Example of Floating Homes

Posted in Climate Change

Last month, Kerri Barsh posted about a floating villas project planned for a man-made lake north of Miami.  Her post is here. A few weeks later, we noticed press coverage about another floating home project conceived as a response to climate change and sea level rise, although otherwise quite different.  WetLand is an exhibit at the Philadelphia Fringe Arts Festival.  For a description click here. That got us thinking, and, with the deadline for my monthly column in the Pennsylvania Law Weekly upon me, we explored what these kinds of projects mean as real — not hypothetical — examples of climate adaptation.  Read Mandelbaum & Barsh, Climate Adaptation:  the concrete example of floating homes, 37 Pa. L. Weekly 846 (Sept. 9, 2014), here.

FutureGen Receives EPA Permits for Underground Injection

Posted in EPA, Illinois, Permitting

On August 29, 2014, EPA issued the first Class VI underground injection control permits to FutureGen Industrial Alliance Inc., of Jacksonville, Illinois.   Four permits were issued for injection wells for the purpose of the geological sequestration of carbon dioxide.  FutureGen proposes to capture CO2 from a coal fired power plant near Jacksonville, Illinois, purify the CO2 and put it under high pressure to turn it into a liquid, then transport it through an underground pipeline for approximately 30 miles to an underground injection well site.   Approximately 22 million metric tons of CO2 are proposed to be injected over the project’s twenty year lifespan.

According to information on the FutureGen Alliance company website, FutureGen Alliance CEO Ken Humphreys stated,  “The issuance of the permit is a major milestone that will allow FutureGen 2.0 to stay on track to develop the first ever commercial-scale, near-zero emissions coal-fueled power plant with integrated carbon capture and storage.”

For more information from EPA on these permits, please follow this link: http://www.epa.gov/r5water/uic/futuregen/

The intersection of the Clean Air Act and energy policy: EPA’s proposed greenhouse gas standards for existing power plants

Posted in Energy, Federal Regulation, Greenhouse Gas

In the Sept/Oct 2014 issue of the American Bar Association’s Trends, attorneys Michael Cooke and Christopher Bell co-author “The intersection of the Clean Air Act and energy policy: EPA’s proposed greenhouse gas standards for existing power plants”.
Read more here.

Cross-Border Renewable Energy Projects: Sustainable Development and Investor Protection

Posted in Energy, Environment, International

Cross-border renewable energy development is a rapidly growing share of the more than $200 billion per year renewable energy industry. Balancing the interests of investors seeking regulatory certainty with the interests of states in environmental protection is a significant source of potential conflict. In a joint publication by two committees in the ABA Section of Environment, Energy, and Resources, I review global developments, including several notable legal battles, and discuss the possibility of public cooperative mechanisms as a partial solution.

Read Cross Border Renewable Energy Projects: Sustainable Development and Investor Protection here.

Dutch Solution to Miami’s Rising Seas? Floating Islands

Posted in Climate Change, Florida, Green Building

Those following climate change adaptation may be interested in an article that appeared on Sunday, August 24, 2014, in the Miami Herald describing a project for floating villas near Miami.  The specific project is, of course, specific to the location and market.  However, the general observation is that technology to address sea level rise has been a feature of the Dutch economy for centuries.  As rising sea levels threaten coastal infrastructure in the United States and elsewhere, some of those technologies may be useful to consider.  Not everyone is going to live on in a floating luxury home.  However, the idea that substantial buildings can be built to float permanently may ultimately be a useful tool in the adaptation tool box.  Read Dutch Solution to Miami’s Rising Seas?  Floating Islands by clicking here.