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The New York Environmental Lawyer a Publication of the Environmental & Energy Law Section of the New York State Bar Association NYSBA SPRING/SUMMER 2018 | VOL. 38 | NO. 1 The New York Environmental Lawyer A publication of the Environmental & Energy Law Section of the New York State Bar Association Image credits: NASA Earth Observatory Inside October 27, 2013, left, and October 19, 2016, n right: The amount of water in Lake Cachuma has New TSCA Regulations, Risks fallen to about 7 percent of capacity, the result of a persistent drought in Southern California. n Climate Change Blog: Massive Storms The decline has exposed much of the bottom of the reservoir, which provides drinking water and Renewable Energy Possibilities to Santa Barbara. Some 20 percent of the state has suffered exceptional drought, the most n Lessons from Big Tobacco for Big Oil extreme drought classification, since early 2014. Images taken by the Operational Land Imager n Outside the EPA Update onboard Landsat 8. Section Officers THE NEW YORK Chair Marla E. Wieder ENVIRONMENTAL LAWYER Assistant Regional Counsel Editor-in-Chief U.S. Environmental Protection Agency Region II Miriam E. Villani 290 Broadway, 17th Floor Sahn Ward Coschignano, PLLC New York, NY 1007-1823 333 Earle Ovington Blvd., Suite 601 [email protected] Uniondale, NY 11553 [email protected] Vice-Chair Howard M. Tollin Issue Editors Sterling Environmental Services Justin M. Birzon 135 Crossways Park Drive, Third Floor Associate Counsel Woodbury, NY 11797 New York State Assembly [email protected] Room 513—Capitol Albany, NY 12248 Treasurer [email protected] Nicholas M. Ward-Willis Keane & Beane, PC Prof. Keith Hirokawa 445 Hamilton Avenue, Suite 1500 Albany Law School White Plains, NY 10601 80 New Scotland Ave. [email protected] Albany, NY 12208 [email protected] Secretary Aaron Gershonowitz Linda R. Shaw Forchelli Curto Knauf Shaw LLC 333 Earle Ovington Boulevard 2 State Street, Suite 1400 Uniondale, NY 11553 Rochester, NY 14614-1365 [email protected] [email protected] Publication—Editorial Policy—Subscriptions Law Student Editorial Board Albany Law School and St. John’s University School of Law Persons interested in writing for this Journal are wel comed and encouraged to submit their articles for con sid er ation. Your ideas The Student Editors for Contributing Members: and comments about the Journal are ap pre ci at ed. this issue of The New York Maxwell Radley Environmental Lawyer are Rebecca Wager Publication Policy: All articles should be submitted to me Suzanne Foote and Linnea Kristopher Wilson and must include a cover letter giving permission for publica- Riegel. Jennifer Wlodarczyk tion in this Journal. We will assume your submission is for the Christina Wlodarczyk exclusive use of this Journal unless you advise to the con trary in your letter. If an article has been printed elsewhere, please ensure that the Journal has the appropriate permission to reprint the article. Authors will be notified only if articles are rejected. Authors are encouraged to include a brief biography. Accommodations for Persons with Disabilities: For ease of publication, articles should be e-mailed or submitted NYSBA welcomes participation by individuals with disabilities. on a CD, preferably in Microsoft Word or WordPerfect. Please NYSBA is committed to complying with all applicable laws spell-check and grammar-check submissions. that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, Editorial Policy: The articles in this Journal rep re sent the programs, activities, facilities, privileges, advantages, or accom- authors’ viewpoints and research and not that of the Journal Editorial Staff or Section Officers. The accuracy of the sources modations. To request auxiliary aids or services or if you have used and the cases cited in submissions is the re spon si bil i ty of any questions regarding accessibility, please contact the Bar the author. Center at (518) 463-3200. Non-Mem ber Subscriptions: The New York Environmental Law- This publication is published for members of the En vi ron men tal yer is available by sub scrip tion to law libraries. The sub scrip- & Energy Law Section of the New York State Bar As so ci a tion. tion rate for 2018 is $155.00. For further information contact the Members of the Section receive a sub scrip tion to the publication Newsletter Dept. at the Bar Center, (518) 463-3200. without charge. The views expressed in articles in this publica- tion rep re sent only the authors’ view points and not necessarily Publication Submission Deadlines: On or before the 1st of the views of the Editor or the Environmental & Energy Law March, June, September and December each year. Section. Copyright 2018 by the New York State Bar As so ci a tion Miriam E. Villani, Editor-in-Chief ISSN 1088-9752 (print) ISSN 1933-8538 (online) Table of Contents Page Message from the Former Chair ......................................................................................................................................................4 Kevin Bernstein Message from the Issue Editor .........................................................................................................................................................5 Keith Hirokawa Message from the Student Editorial Board ....................................................................................................................................6 Suzanne Foote Outside the EPA Update ..................................................................................................................................................................7 Jay Simpson Section News Environmental & Energy Law Section Annual Meeting Awards—2017-2018 ....................................................................18 In Memoriam Hon. Maurice D. Hinchey .......................................................................................................................................................19 John G. Nevius, Esq. .................................................................................................................................................................20 Eugene Leff, Esq. .......................................................................................................................................................................20 New Member—Meaghan Colligan ............................................................................................................................................21 Long-Time Member—John Greenthal .......................................................................................................................................22 Eileen Millett Appointed to the Committee of Character and Fitness .................................................................................23 Students Win Environmental Law Writing Competition .......................................................................................................23 Annual Meeting Photos ...............................................................................................................................................................50 Feature Articles Global Climate Change Blog Carl R. Howard It’s Possible to Move to Renewable Energy ......................................................................................................................25 As Planet Warms, Expect More Powerful Storms ............................................................................................................28 It’s Essential We Learn to Recover From Massive Storms ..............................................................................................33 World Leaders Met in Bonn to Discuss Climate Change ................................................................................................38 Some Good News for Renewable Energy Advocacy .......................................................................................................42 Heavy, Dangerous Storms Will Continue to Be a Threat ................................................................................................44 News from Washington .......................................................................................................................................................48 The Budget, Facts on the Ground, Good News, Not Such Good News, and Washington ........................................56 The Arctic—Loss of Sea Ice and Its Global Implications; Changes in the Weather; Impacts on the Great Barrier Reef; Impacts in and Response by (the Red State of) Alaska; Some Good News—Rise of the Renewables ............................................................................................................................61 Fraud, Free Speech and Fossil Fuel: Lessons From Big Tobacco for Big Oil ........................................................................66 Anna Baxendale New York Federal Court Holds Consent Order Fails to Resolve CERCLA Liability, Allows Cost Recovery Action Under Section 107 ............................................................................................................80 James Periconi and Jose Almanzar New TSCA Regulations, New TSCA Risks ...............................................................................................................................82 Laura Smith Recent Decisions and Legislation in Environmental Law ......................................................................................................88 Student Editorial Board Section Committees
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