Nysba Spring 2008 | Vol

NYSBA SPRING 2008 | VOL. 28 | NO. 2 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Message from the Chair As stated in the Environ- underscored the major goals and directions the Depart- mental Conservation Law, it is ment would be pursuing. At both Section meetings, the the policy of New York State Department expressed its interest in obtaining input from “to conserve, improve and pro- the environmental bar in the dialogue on environmental tect [New York’s] natural re- programs and policies. sources and environment and to prevent, abate and control water, land and air pollution, Inside in order to enhance the health, safety and welfare of the peo- From the Editor ...........................................................................3 ple of the state and their over- (Kevin Anthony Reilly) all economic and social well Highlights of the Annual Meeting ............................................4 Louis A. Alexander being.” This policy represents Scenes from the Annual Meeting ..............................................6 the central mission of the Department of Environmental Conservation in protecting our state’s natural resources Regional Offices at the Department of and ensuring a healthful environment. Environmental Conservation ...............................................8 As we know, the Department’s responsibilities are Executive Committee: Welcome to New Members ................9 extensive. Through eighteen divisions and nine regional Highlights: Fall 2007 Section Meeting ....................................10 offi ces, with a staff numbering over 3,700, the Department Agency Inaction and the Regulatory Commons Theory: manages more than 1,900 facilities and 4.4 million acres of Lessons Learned from New York State’s Experience land. This is in addition to the Department’s responsibil- with Dry Cleaner Co-Location ...........................................12 ity for ensuring compliance with the state’s environmen- (John A. Vassallo III) tal laws and regulations, as well as many federal environmental obligations. Drowning Polar Bears Push EPA’s Greenhouse Gas Policies onto Thin Ice: What Do the Endangered Species Act and In April 2007, Assemblyman Pete Grannis became the Marine Mammal Protection Act Require EPA to Do Commissioner of the Department of Environmental About GHGs in Order to Protect Polar Bears and Other Conservation. A long-standing advocate for the environ- Species from Global Warming? ..........................................25 ment, Commissioner Grannis has championed new and (Patrick Donnelly) innovative strategies to address environmental issues and concerns. At our Section’s fall meeting, members of Site Plan Review and Municipal Control ..............................40 the Department’s executive staff described the policy and (Megan C. DiMiceli) program approaches that the Department was pursu- Recipients of Environmental Law Minority ing, both in reforming existing programs and advanc- Fellowships Named .............................................................45 ing new initiatives. At our Section’s Annual Meeting, Commissioner Grannis in his keynote address further Recent Decisions in Environmental Law ...............................46 EnvLawyerSpr08.indd 1 7/1/2008 11:53:22 AM A blueprint of these new directions was detailed in Signifi cantly, the prior pattern of staff cutbacks at the the Commissioner’s February 2008 testimony before a Department has been reversed. In the past year alone, 109 joint hearing of the New York State Legislature’s Senate positions have been added to facilitate implementation of Finance Committee and Assembly Committee on Ways Department programs and responsibilities. and Means. The Commissioner identifi ed fi ve priorities “to concentrate and organize the Department’s work, In his February testimony, the Commissioner high- guide the development of future initiatives, and revitalize lighted proactive and innovative policy approaches that [agency staff].” Specifi cally, the priorities are: have been implemented. For example, in the area of climate change, the agency has created the fi rst-in-the- • Combating Climate Change—The Commissioner nation power plant carbon cap and trade program, has noted, as examples, the Department’s work on joined the Climate Registry and is a founding member of initiatives to reduce greenhouse gas emissions, en- the International Carbon Action Partnership. For the fi rst courage low carbon design, research carbon seques- time in almost ten years, the Department will be updating tration and sustainable forestry, and elevate climate the state’s Solid Waste Management Plan, which will as- change awareness; sist in advancing recycling and waste reduction policies. • Fostering Green and Healthy Communities—The The Department has also fi nalized rulemakings that Commissioner referenced in particular Department support the agency’s environmental mission. New regula- projects to promote smart growth, clean up con- tions have been adopted to reduce mercury contamina- taminated properties, reduce waste generation and tion from coal-fi red power plants and reduce smog and maximize recycling, promote community greening acid rain-causing emissions from power plants. Other and urban forestry, and preserve open space; rulemakings in the proposal stage would revise new source review regulation governing construction and • Connecting New Yorkers to Nature—In this re- modifi cation of power plants and other large industrial gard, the Department is promoting environmental facilities, revise open burning rules and establish limits on education and outdoor experiences, and providing outdoor wood-burning boilers. Rulemakings have been access to green space close to where people live and initiated in a number of areas to revise current regulations work; and programs, including the green building tax credit • Building a Toxic-Free Future—The Commissioner program, the state’s solid waste regulations, and freshwa- discussed innovative approaches that the ter mapping and classifi cation rules. Department was pursuing to reduce waste and use As discussed at our Section’s fall and annual meet- of toxins, promote green alternatives and technolo- ings, the Department’s Offi ce of General Counsel has gies, support alternatives to the use of hazardous been reorganized, merging the program and enforce- pesticides, and further public access to information ment divisions. Renewed attention is being directed to on toxic substances; and investigating and prosecuting criminal violations of the • Safeguarding New York’s Unique Natural state’s environmental statutes, particularly refl ected in the Assets—The Commissioner noted the revamping of the Department’s Bureau of Environmental Department’s efforts to conserve and restore water- Crimes Investigation. In addition, the Department is di- sheds, ensure suffi cient water management infra- recting new attention to environmental justice concerns. structure, promote sound land use and planning, An example of the integration of environmental justice and protect biodiversity and unique ecosystems. and enforcement efforts, the Department recently under- took an initiative to address diesel trucks violating state During the past year, the Department’s organizational air emission standards and engine idling laws in East structure has been revamped. For example, a new Com- Harlem, New York, an area with high asthma rates. missioner’s Policy Offi ce has been established to foster innovative and inter-program/divisional policymaking The past year has demonstrated renewed focus in at the Department. An Offi ce of Climate Change has also addressing environmental issues and advancing the De- been created to coordinate and advance programs to partment’s agenda. It is an exciting time as environmental address climate change issues. An Offi ce of Natural Re- policies and programs are being reevaluated, and new ini- source Damages has been established to assess and recov- tiatives implemented. The Department of Environmental er natural resource damages from responsible parties. An Conservation has sought an open dialogue, which offers Offi ce of Invasive Species will be coordinating programs to members of the environmental bar a signifi cant oppor- to combat the adverse impacts of invasive species on our tunity to participate in developing future environmental state’s environment. The Department has also organized a policies and programs. wetlands team to develop plans to arrest the rapid loss of marshes in Jamaica Bay. Louis Alexander 2 NYSBA The New York Environmental Lawyer | Spring 2008 | Vol. 28 | No. 2 EnvLawyerSpr08.indd 2 7/1/2008 11:53:28 AM From the Editor In this issue, Lou Alexander ises. John further posits that the regulatory inaction results starts the process of taking leave not from regulatory lethargy but, rather, from structural of his responsibilities by submit- entropy which, itself, is a consequence of several agencies ting what, for many other people, being vested with regulatory power in this regard. In the would be a year’s worth of arti- absence of clear direction as to which agency is account- cles and other items. Lou’s “Mes- able for exercising that power, the agencies cancel one an- sage From the Chair” discusses other out, so to speak. DEC’s current policy orientation. John’s proposition regarding agency inaction in the The general policy goals that Lou, regulation of perc-residential co-location is a springboard who is Assistant Commissioner,

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