Nysba Winter 2000 | Vol

NYSBA WINTER 2000 | VOL. 20 | NO. 1 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association A Message from the Section Chair Reports of Our Demise Are Greatly come flood of federal and state environmental legisla- Exaggerated tion. However, the Bar Association probably had never heard of an environmental lawyer much less contem- Last year, the popular plated a large section of environmental lawyers. Twenty trade press reported that envi- years ago, Love Canal galvanized Congress into enact- ronmental law was one of the ing Superfund, and environmental law became an “coldest” practice areas. Warm overnight “hot” specialty, and the Section grew to or cold, environmental law almost 2,000 lawyers. The “maturing” of EPA’s Super- remains one of the most chal- fund program has coincided with a decrease in Section lenging practice areas. More- membership. Nevertheless, we remain a robust Section over, it isn’t going away. The of almost 1,400 lawyers. environmental law practice area remains challenging The most recent issue of the Columbia Environmental because it is a microcosm of Law Journal contains Mike Gerrard’s creative analysis of modern law requiring a mas- demand for environmental lawyers. He concludes there tery of varied professional is and will be a constant, if not slightly increasing, skills. Indeed, environmental lawyers are and will face demand for environmental lawyers. Certainly, the prac- increasing professional challenges in the new millenni- tice isn’t getting easier. Indeed, only the comparatively um. A few words about the short history of our practice easy problems appear to be solved. Environmental and Bar Section should place that statement in perspec- practitioners in New York still face the full panoply of tive. Thirty years ago, Congress enacted the National environmental matters that arose in the eighties, except Environmental Policy Act, a harbinger of the soon-to- the huge multi-party hazardous-waste case appears to Inside From the Editor .................................................................................3 Court of Appeals Rejects Heightened Scrutiny in (Kevin Anthony Reilly) Determining Whether Rezoning Effects a Taking...........24 Keynote Address to the Section by the Commissioner (Robert S. Davis and Judith M. Gallent) of New York State Office of Parks, Recreation NEW YORK STATE SUPERFUND REFORM and Historic Preservation...........................................................5 Letter to Governor George Pataki...........................................30 (Bernadette Castro) (Daniel Riesel) Remarks to the Section by the New York City Report of the Ad Hoc Task Force on Parks and Recreation Commissioner........................................9 Superfund Reform................................................................31 (Henry J. Stern) Minutes of the Executive Committee Meeting...........................33 State Conservation Easement Acts: A View from Sea to Shining Sea ..............................................11 Names in the News/ (Lauren A. Sears) People on the Move...................................................................36 CASE COMMENT: Bonnie Briar Syndicate v. Town of Mamaroneck Administrative Decisions Update ................................................38 (David R. Everett and Melissa E. Osborne) The New York State Court of Appeals Abandons the “Close Causal Nexus” Standard in Recent Decisions in Environmental Law ....................................42 Regulatory Takings Case.....................................................20 (Stuart R. Shamberg and Adam L. Wekstein) have suffered the same fate as other dinosaurs. Never- Although environmental law, like almost all other theless, economic and health issues arising from the practice areas, can be practiced by almost any talented release of hazardous materials still abound. The public’s lawyer, there are some unique aspects to environmental heightened concern over latent effects from exposure to law that may give rise to a fair degree of caution. hazardous substances has spawned a new generation of Almost all of us have been called into a matter laden toxic tort suits. Our own little National Environmental with environmental issues after it has been mucked up Policy Act, “SEQRA,” continues to dominate land use by the world’s greatest litigator or corporate maven. development. The Navigation Law spawns expensive Environmental issues quite often involve the appli- remediation and concomitant litigation. We have exten- cation of crude government regulatory efforts to poorly sive problems with our wetlands, waterways, and reser- understood science. Moreover, the ability to find an eco- voirs. We are only now grappling with basin-wide pol- nomically fair solution may be obstructed by “political” lution and runoff. There is marked tension between the and obscure agendas that are not readily discernible to need to maintain surface waters as reliable sources of the generalist. Finally, environmental expertise is potable water and the accommodation of urban growth. applied in dramatically varied circumstances ranging New areas loom on the horizon: (i) implementation of from corporate due diligence to criminal defense. How- the Clean Air Act’s Title V permit program; (ii) the ever, the action taken in one circumstance may trigger recovery of Natural Resource Damages under CERCLA; consequences in other areas. For example, decisions and, (iii) the intricacies of the various reporting statutes. made in the course of a due diligence investigation may Another factor complicating our practice is the be the grist of a subsequent contract litigation. Similarly, criminalization of environmental law. The law appears even inaction in the course of a compliance audit may to grant sundry federal, state and local prosecutors generate criminal proceedings. Sensitivity to these broad discretion to treat environmental derelictions as issues should arise from our practice of environmental misdemeanors and felonies. Although there can be little law. sympathy for persons or institutions that intentionally Accordingly, the Section also faces several chal- violate environmental laws, there is a strong need for lenges: increasingly complex issues with a possible con- guidance on when derelictions should be treated crimi- comitant of “over specialization” and the advent of new nally. This is far too important an area to be left to the environmental areas. We must meet these challenges to whims of government officials. help define the role of our Section. We can ensure that This Section is in the process of attempting to focus we, as Section members, are prepared to meet the chal- our state leaders on the need for Brownfield Legisla- lenges of the new millennium through the interchange tion. This effort is critical to remove the blight on inner- of ideas, providing forums for the development of new city development that is created by the application of approaches, continued legal education, and education rigid clean-up statutes to historical contamination. of the public. It is fair to conclude that there is a lot to do, and Daniel Riesel that work requires specialized skills that members of our Section often take for granted. REQUEST FOR ARTICLES If you have written an article and would like to have it published in The New York Environmental Lawyer please submit to: Kevin Anthony Reilly, Esq. Editor, The New York Environmental Lawyer Appellate Division, 1st Dept. 27 Madison Avenue New York, NY 10010 Articles should be submitted on a 3 1/2" floppy disk, preferably in WordPerfect 5.1 or 6.1 or Microsoft Word, along with a printed original and biographical information, and should be spell checked and grammar checked. 2 NYSBA The New York Environmental Lawyer | Winter 2000 | Vol. 20 | No. 1 From the Editor This issue of the Journal is dust bowl, and late century African desertification) is like- being prepared as we exit one ly temporary, even without human-initiated global warm- millennium and enter another. ing. This recent period of relative stasis happened to coin- I probably cannot add much of cide with exponentially expanding populations for which significance to the public dis- Malthusian consequences were tempered by breathtaking cussion—one might character- advances in health and agriculture that capped off a mil- ize it as hyperbole—about lennium already marked by quantum leaps in human con- what should be felt as the trol over the environment. The century’s technological clock turns to the proverbial advances in this sense may lead to a false sense of security zeros. However, it is and mask the underlying dynamism of a global climate inevitable, and probably system that remains beyond human beneficial modifica- healthy, that people take stock tion as well as the dramatic ways in which regional envi- of the passage of time, the turn ronments may respond to disruptions. This is important of events, and the comparisons that can and should be in several respects. For instance, the new historical evi- made between “then” (pick your date out of the last mil- dence, reaching not too far into the past millennium, is lennium) and “now.” It would be more useful, of course, contributing to fresh views on social disintegration in if the arbitrary date of 1/1/00 nevertheless encouraged over-stressed populations and change in populations bet- people to pause and reflect on some of the underlying ter favored with resources. Now, we must look forward to dynamics of how systems have

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