Miami-Dade County Moves Forward with Comprehensive Climate Change Planning Initiatives

Posted in Climate Change, Florida

I have written previously here about Miami-Dade County’s recent climate change initiatives,  which included adoption of requirements in 2014 that all county infrastructure projects consider the potential impact of sea level rise during all project phases and that existing infrastructure be evaluated in the face of sea level rise.

Yesterday, the Miami-Dade County Commission moved closer towards greater resiliency by voting to adopt all 6 of the recommendations of the Miami-Dade County Sea Level Rise Task Force as set forth in the Task Force’s July 1, 2014, Report.  Among the recommendations adopted yesterday , the County Commission  directed the Mayor and the Mayor’s staff to i) prepare an action plan to accelerate the adaptation planning process  by evaluating the relevant expertise needed to develop an enhanced capital plan for flood protection, salinity structures, pump stations, and road and bridge design stations,   ii ) study the feasibility of designating certain geographic areas within the County as climate change adaptation  areas; and iii) initiate discussions with private insurance and reinsurance  organizations, the state Insurance regulatory authority, and other key stakeholders to develop long-term risk management solutions.   The resolutions also included direction for the Mayor to work jointly with state and regional governmental agencies to conduct a comprehensive evaluation and develop adaptation strategies for the County, which will include potential funding mechanisms and a time frame for implementation.

Notwithstanding the far-reaching nature of these directives, the Task Force’s recommendations enjoyed a broad spectrum of support at the County Commission meeting.  Supporters ranged from Tropical Audubon and The Cleo Institute to the Builders Association of South Florida and the Greater Miami Chamber of Commerce.  The Chairman of the Task Force referred to the need to protect an estimated $ 6 trillion of assets at potential risk in south Florida due to the impacts of sea level rise.

The details of the Task Force’s recommended action plan and the costs of its implementation have yet to be determined (although reported projections for implementation of the plan are in the $ 20 billion range).   What is clear, however, is that, as the global debate continues about the quality –of- life  and economic consequences of climate change and sea level rise, Miami-Dade County is taking additional steps to “set the stage for a fully comprehensive assessment and plan to provide an evolving infrastructure, resilient to a worst case scenario.”   Res. R-451-14 (May 6, 2014).    We will continue to follow these developments.


2014 Environmental Cases in the Pennsylvania Appellate Courts

Posted in Court Cases, Environment, Pennsylvania

My column this month in the Pennsylvania Law Weekly summarizes most (maybe all) of the decisions of the Pennsylvania appellate courts with an environmental dimension in 2014.  Read A Review of 2014 Environmental Cases in Pa.’s Appellate Courts, 38 Pa. L. Weekly 28 (Jan. 13, 2015), by clicking here.  If I have left something out, leave a comment.

New York Environmental Regulator Announces New Hazardous Waste Enforcement Initiative

Posted in New York

In a move that will have a substantial impact on how supermarkets, drug stores and big box retailers in New York State manage returned, expired and damaged products, the New York Department of Environmental Conservation (DEC) recently announced that it would begin to require strict compliance with the hazardous waste management requirements of the Resource Conservation and Recovery Act (RCRA). In this GT Alert, the authors discuss this new development and what affected businesses may do to respond.


Denton, Texas Bans Fracking – What’s Next?

Posted in Hydrofracking, Texas

Bans on hydraulic fracturing (fracking) have arisen in a variety of places over recent months.  Voters in Mendocino County and San Benito County, California, and Athens, Ohio, separately approved bans on fracking in the November elections.  The New York State Governor and his Commissioners of Health and Environmental Conservation decided to ban fracking in New York on Dec. 19, 2014, as Steve Russo has discussed on this blog.  However, a small Texas city northwest of Dallas, with a long history of oil and gas production, has drawn national attention after its citizens overwhelmingly voted to ban fracking.

On Nov. 4, 2014, voters of the City of Denton, Texas, approved an ordinance that banned fracking within the corporate city limits.  While other cities in Texas have passed ordinances restricting fracking, Denton is the first city to outright ban the practice. Denton’s ordinance would make it a misdemeanor, subject to a fine of up to $2000/day, to engage in fracking within city limits. Continue Reading

Pennsylvania Environmental Rights Amendment: Back to Payne v. Kassab?

Posted in Court Cases, Hydrofracking, Pennsylvania

We have a new opinion today under the Environmental Rights Amendment to the Pennsylvania Constitution.  Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015).  Maybe the state constitution mandates some sort of environmental impact study before the commonwealth acts.  Maybe it means nothing more than that one must comply with environmental statutes.  The courts do not seem to be on the way to clarifying that confusion soon.

The Pennsylvania Commonwealth Court today issued its opinion in an environmental group’s challenge to appropriations legislation that (a) induced the Pennsylvania Department of Conservation and Natural Resources to lease state forest land for natural gas development and (b) transfered large sums from the Lease Fund — used to maintain the parks and DCNR generally — to the General Fund.  That practice began under Governor Rendell in 2008 and continued through last year under Governor Corbett.  The intermediate appellate court found no constitutional infirmity in any of this.

The constitutional challenge arose under the Environmental Rights Amendment, Article I, section 27, of the Pennsylvania Constitution.  The courts and commentators, including this blog, have been struggling with what the Environmental Rights Amendment requires in the wake of the decision a year ago in Robinson Twp. v. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013).  The Supreme Court plurality in Robinson Township seemed to announce that any part of the commonwealth’s government has to engage in some sort of (vaguely described) balancing — perhaps like an environmental impact study, perhaps not — before acting.  The Supreme Court plurality specifically criticized the pre-existing test for constitutionality under the Environmental Rights Amendment expressed by the Commonwealth Court in Payne v. Kassab, 312 A.2d 86, 94 (Pa. Commw. Ct. 1973) (en banc), aff’d, 361 A.2d 263 (Pa. 1976), as too narrow, too dependent on statutory compliance, and too detached from  the constitutional text.  The Payne test was:

(1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

The Commonwealth Court today considered Robinson Township, but decided that as a plurality opinion, it is not binding.    Therefore, said the Commonwealth Court, Payne v. Kassab is still the operative test.

Read Pennsylvania Environmental Defense Foundation v. Commonwealth, No. 228 M.D. 2012 (Pa. Commw. Ct. Jan. 7, 2015), by clicking here.

New York Governor Vetoes Extension of Brownfields Credits – What Next?

Posted in Brownfields, New York

Last week, New York Governor Andrew Cuomo vetoed a bill that would have extended the current Brownfield tax credit program for fifteen months beyond its expiration at the end of this year.  The Governor apparently wishes to use the possibility that the tax credits will expire as an impetus for broader and longer-term reform that his Administration seeks.  That proposed reform has its own problems, however, and where this will all come out is unclear, which is not optimal for Brownfield redevelopment.

New York State has one of the most successful Brownfield redevelopment programs in the nation and there is little doubt that the very generous tax credits provided to redevelopers of these former contaminated sites is a big reason for this success. Those credits expire at the end of 2015. Critics of the program, however, have argued that the credits are overly generous and include too many projects that would have been developed and remediated even absent the tax credits.  It is challenging to say the least to figure out which Brownfield sites would not have been developed “but for” the credits.

Last year, in the face of this criticism – and with the cost of the program undoubtedly in mind – New York Governor Andrew Cuomo proposed a reform of the Brownfield credits in conjunction with a ten year extension of the program.  That effort failed due to an inability to agree on the elements of the proposed reform and because of a demand by the New York State Assembly that any extension of the tax credit program be adopted in conjunction with a similar extension of debt authorization for New York’s enforcement-oriented Superfund cleanup program.  Given the logjam and the imminent expiration of the tax credits, the legislature adopted a fifteen- month extension of the current tax credit program as a temporary fix that would avoid uncertainty for current participants in the program – where cleanups often take two or more years – while a longer term solution was worked out in 2015.  Last week, Governor Cuomo vetoed the short-term extension.

Last year, the Administration sought reforms that included a proposal to create a “two-gate” approach to Brownfield redevelopment, where entry to the program would be relatively easy, but entitlement to the lucrative Brownfield Redevelopment Credit would not be automatic and subject to additional criteria.  The Brownfield Redevelopment Credit allows developers to recoup ten percent of overall development costs to a maximum of $35 million for residential or commercial projects ($45 million for industrial projects) or three times the site preparation and cleanup costs, whichever is less.  The cap was added to the program in a reform adopted in 2008 in order to ensure that the redevelopment credit was not open-ended.

Under the two-gate approach proposed by the Cuomo Administration last year, an applicant would not be entitled to the redevelopment tax credit unless it could show that the Brownfield site had been vacant for 15 years, tax delinquent and vacant for ten years, or had a negative value due to the contamination. A site could also be eligible for tax credits if it could be shown to be a priority economic development project that would create a specified number of jobs depending on the end use. The specifics of that proposal were previously described in our blog post last year.

There are numerous problems with the Administration’s suggested reform that would likely lead to a substantial reduction in the number of sites that enter the program.  The very high vacancy threshold, or the requirement that a property’s valuation is “upside-down,” would essentially eliminate most sites from eligibility for the tangible property credit.  The current Brownfield program administered by the New York State Department of Environmental Conservation (DEC) results in substantial additional costs and, more importantly, delay in a project redevelopment timeline, compared to performing a cleanup without DEC oversight outside of the voluntary Brownfield program. Without the prospect of the redevelopment credits it is extremely unlikely that many applicants would self-impose the extra cost and time delay. Furthermore, the reform adds uncertainty to the program and the prospect of litigation over undefined terms such as the meaning of “vacant” or the value of an “upside-down” property. Finally, the Brownfield redevelopment environment in 2015 is far different than 2003, when the program was first adopted.  Back then there was a perceived need for a program that would result in a governmental sign off to enable a developer to obtain financing to develop a former contaminated site.  Today, a robust environmental insurance market often obviates the need for a developer to obtain a governmental release as a requirement of financing. Thus, the prospect of a Certificate of Completion under the Brownfields Program is unlikely, standing alone, to be a necessary impetus to enter the program.

It remains to be seen how this year’s legislative session will play out with regard to Brownfields reform.  The imminent expiration of the redevelopment tax credit plainly creates an impetus to do something, but the problems with the two-gate approach and the potential continued insistence on linking Brownfields reform with additional borrowing for Superfund cleanups create substantial challenges to achieving extension of the tax credit.  The Republican-controlled State Senate has been more supportive of the current program, while the Democrat-controlled State Assembly remains a question mark. It also remains to be seen whether the Cuomo Administration modifies last year’s proposal to provide less uncertainty and greater access to the redevelopment credit.  A competing reform proposal proposed by a number of stakeholders seeks to simply reduce the $35 million cap, while permitting higher tax credits for sites in high poverty areas or for priority economic development sites.  The only thing that is certain is that there will be a great deal of attention paid to the New York Brownfield Program in 2015.

A New Pennsylvania Environmental Rights Amendment Opinion . . . In Dissent

Posted in Court Cases, Environment, Pennsylvania

In Hess v. Pa. Pub. Util. Comm’n, No. 1370 C.D. 2013 (Pa. Commw. Ct. Dec. 22, 2014), the Pennsylvania Commonwealth Court en banc considered a petition for review of an order of the Public Utility Commission granting approvals for a transmission line crossing the Susquehanna River.  The majority opinion mostly addresses reliability and what constitutes public convenience and “necessity.”

Those following the evolution of law under the Environmental Rights Amendment to the Pennsylvania Constitution, Pa. Const. art. I, § 27, after Robinson Township v. Pa. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013), may wish to look at the dissent by Judge Leavitt.  The PUC had concluded that it need not engage in a weighing of environmental impacts under the Environmental Rights Amendment because the line did not qualify as “high voltage” and therefore more rigorous regulations did not apply.  Judge Leavitt would have held that Robinson Township calls for a broadened duty of environmental review beyond the limits of the pre-Robinson test described in Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973).  Only Judge McGinley joined her.

It appears that the broadest views of what Robinson Township means may not have majority support on the Commonwealth Court.  With Chief Justice Castille retiring from the Supreme Court, what Robinson Township does mean remains a little unsettled.  As always, stay tuned.


New York Bans Fracking In New York: What Now?

Posted in Hydrofracking, New York

The wait is over in New York on fracking.  At a cabinet meeting today Governor Cuomo and his Commissioners of Health and Environmental Conservation announced that the long-awaited Final Supplemental Generic Environmental Impact Statement will be released and establish that HVHF cannot move forward in New York.  The decision document will be contained in what is known as a SEQRA Findings Statement, which can be released no less than ten days after the issuance of the SGEIS.

The decision was based on an assessment by the New York State Health Commissioner that there were too many unanswered questions about the health effects of fracking. The Health Commissioner likened fracking to second hand smoke in airplanes, an apparent suggestion that allowing it in parts of the state that support the activity has the potential to pollute the areas that seek to ban it.  No doubt there will be many who question the Health Department’s conclusion that this single industrial activity, unlike mining, underground gasoline tank storage, pesticide application and the like, cannot possibly be performed safely under any possible regulatory scheme. The New York State Department of Environmental Conservation Commissioner took a different tack from the Health Commissioner, noting that under Department of Environmental Conservation’s currently contemplated restrictions and local zoning bans only 37% of the State where the Marcellus Shale Play is located would have the potential to be drilled, and thus would not be the economic boon anticipated by some in the state.  In a state the size of New York, 37% of the shale play still represents millions of acres of potential land.

Given the substantial questions that this decision raises, Governor Cuomo was likely correct when he predicted that the State’s decision would result in numerous lawsuits.  The first would undoubtedly challenge the ultimate state decision, embodied in the SEQRA Findings, to ban HVHF.  However, given the scientific complexity of the issue and the deferential standard of review that courts apply in reviewing challenges to government decision making, the climb is likely going to be very steep for opponents of the ban to prevail in such a challenge.

Perhaps more interesting, and likely to play out over a longer period of time, would be challenges to the ban from landowners asserting that the decision amounts to an illegal confiscation by the state of their property interests, more commonly known as a regulatory taking under United States Supreme Court precedent.  New York has long been an inhospitable venue to regulatory takings claims, but the clear ban announced by the Governor today is likely to give landowners nothing to lose in commencing such challenges.  Critical issues in such challenges will be less about the wisdom of the ban and more about whether the action denies substantially all economically viable use to the property in question.  That question may hinge on whether the property rights in question consist of entire title to the property, or simply the mineral rights.

The disparate treatment of HVHF and other industrial activities raises other potential litigation issues. Proponents of HVHF may assert challenge on that basis. Opponents of other kinds of developmental assert that approvals should be withheld because the other activity is more risky than the prohibited HVHF. The more environmental risk assessment becomes disconnected from scientific rigor, the more risk to all activity in New York.

Stay tuned.

New York Bans High-Volume Hydraulic Fracturing

Posted in Hydrofracking, New York

After years of speculation, the New York State Governor announced at a cabinet meeting, with his health and environmental commissioner by his side, that New York would not authorize permitting for high-volume fracturing in New York because of unanswered scientific questions on the safety and health effects of the procedure.  Cuomo’s environmental commissioner, Joe Martens, also noted that given the proposed restrictions already under consideration that the activity would not likely be a major economic boost to the economy.  Pennsylvania has experienced a significant economic boom from allowing HVHF in areas directly adjacent to New York’s southern border.