On the 27th of December 2017, two Dutch NGOs and 57 individual plaintiffs lost a court case against the Dutch State in which they, in a nutshell, demanded measures to be taken to improve air quality in the Netherlands. The verdict seems to be a boost for the new Dutch government’s environmental agenda and shows that such claims face scrutiny.
A unanimous panel of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) threw the Washington, D.C. area’s beleaguered “Purple Line” light rail project a lifeline earlier this week when it overturned a district court ruling that would have required the Federal Transportation Administration (FTA) to prepare a Supplemental Environmental Impact Statement (SEIS) under the National Environmental Policy Act (NEPA). The Purple Line project has been in the works for over two decades.
The ruling stands for the proposition that a court must give significant deference to federal agencies when they duly consider highly technical data in assessing environmental impacts under NEPA, 42 U.S.C. § 4321 et seq., a procedural statute requiring agencies to analyze the environmental impacts of a variety of alternatives.
In Friends of the Capital Crescent Trail v. FTA, 200 F. Supp. 3d 248 (D.D.C. Aug. 3, 2016), the district court had ordered the SEIS after plaintiffs complained that the cost-benefit analysis in FTA’s EIS had failed adequately to consider the impact of recent safety problems and ridership decline in the area’s major regional transit system, the Washington Metropolitan Area Transit Authority’s Metrorail system – to which the Purple Line will connect upon completion. Subsequently, upon a motion for reconsideration, the district court allowed FTA to submit an analysis of the safety and ridership concerns and to propose the appropriate level of environmental review.
FTA submitted its analysis to the district court in December 2016, considering multiple alternatives, including complete cessation of ridership on Metrorail. Even in that scenario, FTA found, the Purple Line would still meet the project’s objective of connecting communities in Maryland’s Prince George’s and Montgomery counties and cause no greater environmental impacts.
The district court disagreed, Friends of the Capital Crescent Trail v. FTA, 253 F. Supp. 3d 296 (D.D.C. May 22, 2017), and FTA appealed.
On appeal, the D.C. Circuit held that Metrorail’s safety and ridership problems did not present “a seriously different picture of the environmental landscape” requiring preparation of an SEIS. Friends of the Capital Crescent Trail v. FTA, No. 17-5132 (D.C. Cir. Dec. 19, 2017), slip op. at 14 (internal citations omitted). In such highly technical matters where an agency decides not to prepare an SEIS, courts are to apply a narrow, not a “searching and careful” review. Id. at 10.
Appellants have not yet announced whether they will seek Supreme Court review, but this decision will likely be viewed as favorable by the current administration, which has pledged to reduce federal “red tape,” including protracted NEPA reviews, for infrastructure projects.
Earlier this month, the Pennsylvania Commonwealth Court decided Becker v. Department of Environmental Protection, No. 560 C.D. 2017 (Pa. Commw. Ct. Dec. 1, 2017), a case focused primarily on what constitutes a “watercourse” or “stream” under the Pennsylvania Dam Safety and Encroachments Act. However, the court also considered whether the Department of Environmental Protection (DEP) and the Environmental Hearing Board (EHB) properly ordered a former owner to restore damage to the stream even though he did not have access to the property any more. In so doing, the court had some interesting things to say about ordering access and allocating costs that warrant some thought. I address them in my column this month for the Pennsylvania Law Weekly.
Read Successive Owners and an Obligation to Restore a Stream by clicking here.
Paul M. Seby, a shareholder in Greenberg Traurig’s Environmental Practice, authored the article, “WOTUS Is Caught in a Whirlpool of Litigation—Is It Coming Back Around?” published in The National Law Journal. This article examines the future of the 2015 “Waters of the United States” (WOTUS) Rule as the EPA and the Army Corps of Engineers begin the implementation of a two-step process to repeal and replace it under President Trump’s Executive Order 13788. Seby also examines SCOTUS’ pending decision for early 2018 regarding which jurisdiction WOTUS Rule challenges belong in, the district courts or the Sixth Circuit.
To read the full article, click here.
On Tuesday, the New York State Court of Appeals clarified many of the standards associated with the New York State Environmental Quality Review Act (SEQRA) in its unanimous decision in the consolidated cases of Friends of P.S. 163 Inc., et al. v. Jewish Home Lifecare, Manhattan, et al. and Wright, et al. v. New York State Department of Health, et al., 2017 NY Slip Op 08621 (2017). These cases, in which Petitioners appealed the January 2017 decision of the Appellate Division, First Department, relate to the construction of a new nursing home facility on an undeveloped lot on the Upper West Side of Manhattan.
SEQRA, which is modeled on the federal National Environmental Policy Act (NEPA), requires state agencies to assess potential environmental impacts of any of their discretionary decisions. The statute and its attendant regulations provide a process for the agency with discretionary authority—known as the “lead agency”—to determine first whether a given action “may have a significant impact on the environment,” requiring the preparation of an environmental impact statement (EIS). The EIS then prepared must identify all relevant areas of environmental impacts and provide sufficient information for the lead agency to “act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects.” The procedures also provide substantial opportunities for public input, ensuring that all potential environmental concerns are addressed. In addition, for actions undertaken in New York City, the New York City Law Department’s City Environmental Quality Review (CEQR) Technical Manual provides additional guidance as to how specific environmental impacts should be assessed.
Petitioners here argued that the New York State Department of Health (DOH), the lead agency charged with complying with the SEQRA process, failed to do so in their preparation of an EIS, which was prepared in accordance with the CEQR Technical Manual. In December 2015, the presiding Justice of the Supreme Court New York, New York County found that “[a]lthough the record indicates that DOH followed proper SEQRA procedures . . . DOH, in certain substantive areas identified above, did not take the requisite hard look at specific environmental issues.” Specifically, the Justice asserted that DOH improperly relied on the CEQR Technical Manual’s standards relating to temporary construction noise impacts and did not properly account for potential lead impacts when it utilized the National Ambient Air Quality Standards (NAAQs) for airborne lead. Friends of P.S. 163, Inc. v. Jewish Home Lifecare, 51 Misc. 3d 1225(A) at 20 (Sup. Ct. N.Y. Co. 2015). Additionally, the Justice found that the EIS did not adequately assess additional mitigation measures, namely the installation of central air condition to mitigate noise and tenting of the site to prevent migration of lead-containing dust. Id.
The Appellate Division reversed, finding that “DOH took the requisite ‘hard look’ at the project’s anticipated adverse environmental impacts, including noise and hazardous material impacts, and provided a ‘reasoned elaboration’ of its basis for approving the project, including the remedial measures to be employed to mitigate adverse impacts” and that the lower court had “erroneously ‘substituted its analysis for the expertise of the lead agency’ simply because the agency rejected what the court considered to be better measures in mitigation.” Friends of P.S.163, Inc. v. Jewish Home Lifecare, 146 A.D.3d 576, 580-581 (App. Div. 1st Dept. 2017)
In its unanimous opinion, the Court of Appeals affirmed the decision of the Appellate Division and found that it was not unreasonable for DOH to rely on either the NAAQs or the CEQR Technical Manual standards and that it had acted “within its ‘considerable latitude in evaluating environmental effects and choosing among alternatives.’” Friends of P.S. 163, Inc., 2017 NY Slip Op 08621 at 5. Moreover, the Court rejected challenges relating to the selected mitigation measures, restating the long-established standard that “it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.” Id. at 4. Ultimately, the Court found that “DOH took the requisite ‘‘hard look’ at [relevant areas of environmental concern] and made a ‘reasoned elaboration’ of the basis for its determination.’” 2017 NY Slip Op 08621 at 6.
While largely squaring with existing SEQRA case law dating back to the early 1980s, the decision here reaffirms the degree of deference afforded to lead agencies both in determining the standards with which to assess environmental impacts and in selecting mitigation measures for those impacts. Additionally, this marks the first time the Court of Appeals has approved of an agency’s reliance on the standards outlined in the CEQR Technical Manual, which had previously been approved by both the First and Second Departments of the Appellate Division. As a result, lead agencies and developers in the city will have significantly more clarity as to the appropriate way to conduct environmental reviews moving forward.
Earlier this year, U.S. Sen. Richard Burr, R-N.C., introduced Senate Bill 203, titled the Recognizing the Protection of Motorsports Act of 2017. The RPM Act would amend the Clean Air Act to clarify that it is legal to modify a road-going automobile into a racecar used exclusively on racetracks regardless of whether the car thereafter complies with the CAA’s emission standard. The RPM Act would also confirm that it is legal to manufacture, distribute, sell and install racing parts used to convert these vehicles for exclusive track use.
Read more about the possibility of EPA action in our Daily Journal article by clicking here.
Green building legislation and, in particular, green roof legislation has been implemented outside of the United States for decades as one means of mitigating urban heat. In the past decade, local and state governments in the United States have joined in with a marked and steady uptick in the enactment of their own green building legislation. In the wake of the June 2017 announcement that the United States intends to withdraw from the Paris climate accord, representatives of many U.S. cities (including Los Angeles, Atlanta, and Salt Lake City), states, and companies have pledged to meet the U.S.’ greenhouse gas emissions targets under the Paris climate agreement. As a result, green building and other measures to mitigate air emissions, temperature increases, and environmental impacts within cities have become an even hotter topic of municipal discussions. As of Jan. 1, 2017, San Francisco gained the distinction of being the first U.S. city to mandate solar and living roofs on most new construction.
Denver now seems poised to follow in San Francisco’s green infrastructure footsteps. This year, the Denver Green Roof Initiative succeeded in getting a new initiative (Initiative 300), which would require many new buildings to install green roofs or solar panels to mitigate heat, onto the Nov. 2017 ballot. Critics argued that the city should incentivize rather than mandate the green roofs and the legislation was opposed by a sizeable contingent, including the Downtown Denver Partnership, Denver Mayor Michael Hancock, and the organization “Citizens for a Responsible Denver.” Nevertheless, the initiative passed.
The initiative, as drafted, is modeled after San Francisco’s recent mandate and would modify the local building code to require green roofing or solar photovoltaics on a portion of the rooftops of new buildings over 25,000 square feet. The rooftop requirements increase 10 percent for every 50,000 square feet and are capped at 60 percent dedicated coverage for buildings of 200,000 square feet or more. Despite the passage of the initiative, it is yet to be seen how Initiative 300 will be implemented. Initiative 300 requires the creation of a technical advisory board to guide the creation of more detailed policies and procedures. Denver City Council also has the ability to change the ordinance with a two-thirds majority after a six-month period has elapsed. To that end, the next several months will likely include robust discussions regarding construction and implementation of green infrastructure mandates, generally, and Initiative 300, specifically, that may inform other municipalities considering similar initiatives.
Further discussion on the topic can be found in my upcoming article “Mitigation of Urban Heat Islands: Greening Cities with Mandates vs. Incentives,” which will be published in the Winter 2018 issue of the ABA Section of Environment, Energy, and Resources (SEER) publication, “Cities.”
Greenberg Traurig’s Environmental Practice was selected to write the 2018 Chambers Environmental Law Global Practice Guide. The Practice Guide explores key topics facing the environmental sector including the regulatory landscape, enforcement, licensing and permitting, corporate, personal, and lender liability, climate change, and many other issues currently challenging the industry. To access the Practice Guide, please visit the Chambers website.
An appeal pending before the U.S. Court of Appeals for the Third Circuit asks whether CERCLA preempts state law claims for medical monitoring in Giovanni v. U.S. Department of the Navy, No. 17-2473 (3d Cir.). This is an important issue in the context of perfluorinated chemicals (PFCs) because the exact health effects remain in dispute. Residents state PFCs from the U.S. Department of the Navy’s Willow Grove and Warminster facilities contaminated their drinking water. The two naval facilities are currently being cleaned up under the Superfund program. The district court dismissed the request for an injunction to require the Navy to fund a health effects study and medical monitoring because the court held that the residents’ claim constituted a challenge to an ongoing cleanup, which was barred by Section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
Read more from my article in The Legal Intelligencer supplement, PA Law Weekly, by clicking here.
Kerri L. Barsh, co-chair of Greenberg Traurig’s Environmental Practice, authored an article that was featured in Best Lawyers titled “Floating Infrastructure.” This article examines new opportunities in floating infrastructure within the context of their evolution as a result of a landmark admiralty jurisdictional case from the U.S. Supreme Court: Lozman v. The City of Riviera Beach. This case, and the court’s decision to treat Barsh’s client’s floating home as an extension of real estate, had major implications floating homes, casinos, restaurants and hotels throughout the United States and impacted the regulatory authority of state and local governments.
To read the full article, please click here.