Category Archives: State & Local

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Pleasing All the People Some of the Time: New York Simultaneously Proposes Regulations Implementing Its New Siting Law and Community Benefit Program for Renewable Projects

Earlier this year New York state, conceding that its previously enacted siting law had not been effective in siting large-scale renewable energy projects, enacted the Accelerated Renewable Energy Growth and Community Benefit Act (codified primarily in N.Y. Executive Law § 94-c; hereinafter, the Act). The Act, effectively a new siting law for renewable projects, created, … Continue Reading

Third Circuit Considers the Scope of “Matters Addressed” in CERCLA Settlements

This week, the Third Circuit issued an opinion in NJDEP v. American Thermoplastics Corp et al., No. 18-2865, which adds a new wrinkle on CERCLA section 113(f)(2), which bars non-settling parties from bringing claims for contribution against settling parties, while also placing new emphasis on CERCLA section 104 cooperative agreements in the context of settlements. … Continue Reading

New Jersey’s Environmental Justice Legislation: The Focus on Major Source Permit Applications Might Impact Property Values

Last month, I wrote about the “Environmental Justice for All Act,” a bill that proposes a finding that vulnerable populations are disproportionately burdened by environmental hazards. New Jersey is following the federal environmental justice debate, passing historical environmental justice legislation in both the House and Senate, where it is currently awaiting Governor Phil Murphy’s approval. … Continue Reading

Pa. Supreme Court Considers the Trial Court’s ‘Gatekeeper’ Role Under Frye

On July 21, 2020, the Pennsylvania Supreme Court issued an anticipated decision in Walsh v. BASF Corp, in which it considered the trial court’s role as the “gatekeeper” for expert testimony, tackling again the state’s application of the Frye test—as opposed to the Daubert test most frequently applied in federal courts and a majority of … Continue Reading

DOJ’s Attack on ‘Supplemental Environmental Projects’ Extends to Citizen Plaintiffs

The Department of Justice, in the last year, has altered its guidance related to supplemental environmental projects (SEPs), first prohibiting their use in settlements with state and local governments, then extending that prohibition to settlements with private parties. The Department of Justice is now targeting settlements that include similar projects agreed to by two private … Continue Reading

Navigability: It’s Not Just for the Federal Clean Water Act Anymore

A curious appellate court decision has Pennsylvania environmental law practitioners scratching their heads about the status of certain waterways. No, we do not reference the U.S. Supreme Court’s latest Clean Water Act decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, __ U.S. __ (2020) from May, where six of the nine justices held … Continue Reading

Who is a Customer-Generator? Uncertainty Abounds for the Pennsylvania PUC

Last month, a three-judge panel of the Commonwealth Court of Pennsylvania held that certain net metering regulations of the Pennsylvania Public Utility Commission (PUC) are unenforceable. The regulations at issue are related to the implementation of Pennsylvania’s Alternative Energy Portfolio Standards Act (AEPS Act), which incentivizes the use of electricity generated by renewable sources such … Continue Reading

Can a Settlement with the Regulator Protect You from Your Neighbors in Massachusetts?

The Massachusetts Supreme Judicial Court (the court of last resort in the Commonwealth) issued a decision in a land use case today of potential concern for environmental practitioners. It raises the question whether a settlement by a regulated entity and the regulator protects the settling party from further claims by neighbor against the settling party … Continue Reading

Commonwealth Court’s Invalidation of Pennsylvania PUC Defined Terms – Potential Net Metering Implications

On May 12, 2020, a three-judge panel of the Commonwealth Court of Pennsylvania held that certain net metering regulations of the Pennsylvania Public Utility Commission (PUC) are unenforceable. The regulations at issue are related to the implementation of Pennsylvania’s Alternative Energy Portfolio Standards Act (AEPS Act), which incentivizes the use of electricity generated by renewable … Continue Reading

New York State Court Greenlights New Islanders Arena Project

A New York State Supreme Court Justice in Nassau County dismissed two separate challenges to the state government approvals of a new arena for the NHL’s New York Islanders hockey team. The challenges to the Belmont Redevelopment Project were brought by a neighboring village and a group of citizens seeking to stop the ongoing construction … Continue Reading

Minnesota Becomes First State to Ban TCE: Considerations Once a Chemical Is Banned

At the end of last week, Minnesota became the first state to ban use of trichloroethylene (TCE). TCE is used as a solvent in degreasing and other manufacturing operations, an intermediate for refrigerant manufacturing processes, and spot cleaning in dry cleaning facilities. The use restriction provides that beginning June 1, 2022, an owner or operator … Continue Reading

Is There Still a Place for Supplemental Environmental Projects in Pennsylvania?

SEPs, which permit a defendant to undertake an environmentally beneficial project in lieu of paying penalties—or in exchange for reduced penalties—have been seen as benefiting defendants, enforcement agencies and communities at the same time. SEPs have given enforcement agencies and defendants additional flexibility in negotiating consent decrees and settlement agreements, while also providing communities potentially … Continue Reading

New York State Legislature Passes Renewable Energy Siting Law In Step Toward Meeting Ambitious Renewable Energy Mandates

With New York Governor Andrew Cuomo pronouncing the state’s process for siting renewable energy projects broken, the New York State legislature late yesterday passed sweeping reforms to the siting of large renewable energy projects proposed by the Governor, setting a firm one-year deadline for final siting decisions, as well as committing to study and plan … Continue Reading

New York Environmental Regulator Issues Guidance on Essential Construction in Support of Cleanup Activities

The New York State Department of Environmental Conservation (DEC) recently released guidance on what constitutes “essential” construction in support of remedial activities pursuant to Executive Order (EO) 202.6 signed by Gov. Cuomo on March 18. EO 202.6 was tightened to limit non-essential construction activities in EO 202.13, issued March 29. Empire State Development (ESD) has … Continue Reading

Pennsylvania and the Circular Economy: Turning Waste Into Something New

The “circular economy” is coming to Pennsylvania. And if recent polling data are correct, it cannot come a moment too soon—and Pennsylvania attorneys and advisers would be well-advised to become acquainted with the coalescing legal and market forces that are driving the transition. In the circular economy, resources are extracted, made into products and then … Continue Reading

New York’s Accelerated Renewable Energy Growth and Community Benefit Act Sends Positive Signals to Renewable Energy Developers, and Revamps Renewable Siting

In January 2020, in his annual budget address, New York Gov. Andrew M. Cuomo proposed a complete overhaul of renewable energy siting. In his 30-day amendments to the executive budget, he proposed the Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”). The proposal would apply to large and mid-sized renewable projects, energy storage, … Continue Reading

Pennsylvania Supreme Court Clarifies Application of Fair Share Act to Strict Liability Asbestos Claims

In 2011, The Fair Share Act, 42 Pa. C.S.A. § 7402, became law. The Fair Share Act changed the law of joint and several liability for actions sounding in negligence, eliminating joint and several liability except under certain exceptions. Under the Act, “a defendant’s liability shall be several and not joint, and the court shall enter a separate … Continue Reading

The Superfund Contribution Mind Pretzel…or One of Them

From the first days of Superfund litigation, lawyers and courts have complained that Congress did not distinguish itself when drafting the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. Sections 9601-75. As the law has developed, court decisions have created additional problems. The interplay among the private cost recovery provision of Section 107(a)(1-4)(B) … Continue Reading

New York’s ‘Toxic Toys’ Law: Governor Signs Legislation Regulating Chemicals in Children’s Products, But Changes to the Law Are Already Coming

On Feb. 7, New York Governor Andrew M. Cuomo signed legislation regulating the presence of toxic chemicals in children’s products and apparel. The governor agreed to the legislation – the last of the bills from the 2019 legislative session to be signed – on the condition that the bills be amended in the current 2020 … Continue Reading

Rule of Capture is Back for Pennsylvania Oil and Gas Wells . . . Sort Of

On Wednesday, the Pennsylvania Supreme Court overturned a lower court decision that appeared to make the “rule of capture” inapplicable to oil and gas wells subjected to hydraulic fracturing, or “fracking.” Briggs v. Sw. Energy Production Co., No. 63 MAP 2018 (Pa. Jan. 22, 2020) (see majority opinion; see concurring and dissenting opinion). However, the … Continue Reading

New York Governor Andrew Cuomo Proposes Radical Reshaping of Siting Process for Renewable Projects

In his annual budget address on Jan. 21, 2020, New York Governor Andrew M. Cuomo proposed a complete overhaul to New York’s siting of renewable energy projects. Noting that siting a project under the current Article 10 process takes 5-10 years to begin construction, the governor found that the current process simply does not work. … Continue Reading

Environmental Cases in the Pennsylvania Appellate Courts During 2019

By my count, the three Pennsylvania appellate courts decided 27 environmental cases in 2019. Categorization is somewhat subjective, so I apologize for any omissions. For brevity, citations are truncated, and omitted years are 2019. This survey briefly characterizes those cases under the following categories: Environmental Rights Amendment; pre-emption of local regulation; other local land use … Continue Reading

New York Governor Proposes $3 Billion Bond for Environmental Measures

In his 2020 State of the State speech, New York Governor Andrew M. Cuomo led with a proposal to issue a $3 Billion ‘Restore Mother Nature Environmental’ Bond Act. The administration is calling it the nation’s most aggressive habitat restoration and flood reduction program. Additionally, the program appears to contemplate funding beyond the $3 billion, noting … Continue Reading

Are You Ready? Revisions to Management of Fill Policy Take Effect Jan. 1

As the economy strengthens, development and infrastructure projects continue on an upward trend. Whether the project involves remediating a brownfield site or performing utility work in a public right-of-way, the management of fill material such as soil, rock or stone is often a primary consideration impacting the project’s budget. In the Commonwealth of Pennsylvania, the … Continue Reading
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