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Nysba Winter/Spring 2012 | Vol NYSBA WINTER/SPRING 2012 | VOL. 32 | NO. 1 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Message from the Chair This has been a busy sev- cluding a bike ride, on Saturday afternoon. The Saturday eral months for the Section. CLE program offered an update on SEQRA, an overview Last October saw a successful of the new State ethics rules and a review of “hot topics” Fall Meeting, held in Saratoga such as the development of natural gas deposits in the Springs as a joint meeting with Marcellus Shale, trends in green buildings law, and recent the Municipal Law Section. The land use cases. program, held at the Gideon The Section’s dinner speaker on Saturday night was Putnam Hotel in the beautiful Michael Relyea, President of the Luther Forest Technol- Saratoga Spa State Park, drew ogy Campus Economic Development Corporation, who more than 135 attorney regis- shared his views on the challenges and successes of re- trants. The Section’s Program gional high-tech economic development. The Luther For- Co-Chairs, Ginny Robbins and est Technology Campus near Saratoga Springs is where Kevin Ryan, did a wonderful job Global Foundries is constructing a chip-fab plant that is with their Municipal Law Sec- Philip H. Dixon described as the largest commercial capital expansion tion counterparts in coming up with exciting topics and project currently under way in the United States. On Sun- speakers. The program included a welcoming barbeque day morning, there was a CLE program introducing the on Friday, a half-day CLE program on Saturday morning, new endangered species regulations. Continuing the Sec- and optional sightseeing and recreational activities, in- tion’s efforts over the past several years to attract younger Inside From the Editor-in-Chief ............................................................................................3 Environmental Law Section 2011 Fall Meeting ....................................................33 (Miriam E. Villani) Remarks Made at the 2011 Fall Meeting ................................................................34 From the Issue Editor ..................................................................................................4 (Olympian Caryn Davies) (Aaron Gershonowitz) Environmental Law Section 2012 Annual Meeting: From the Student Editorial Board .............................................................................5 Presentation of Environmental Law Section Award .....................................35 (Nikki Nielson) (Walter Mugdan) EPA Update................................................................................................................... 6 Member News ............................................................................................................36 (Chris Saporita, Marla E. Wieder and Joseph A. Siegel) Report on the May 16, 2012 Legislative Forum ....................................................37 DEC Update ............................................................................................................... 19 The Billion Dollar Question—Are Municipalities Preempted Under (John Louis Parker) New York State Law from Using Their Zoning Powers to Member Profiles Control Hydraulic Fracturing for Natural Gas? ............................................39 Long-Time Member: Michael B. Gerrard ........................................................24 (David Everett and Robert Rosborough) New Member: Robert A. Stout Jr. .....................................................................25 Vapor Intrusion in New York: Five Years After Release of New York’s In Memoriam: Constantine Sidamon-Eristoff Strategy and Vapor Intrusion Guidance .........................................................47 Farewell to the Prince of Region 2 ................................................................... 26 (Katherine Rahill) (Walter Mugdan) Greening the Legal Profession—Law Office Climate Challenge Profiles ....... 53 Section Members Remember Constantine “Connie” Sidamon-Eristoff ....27 The Roles of Positivism and Ethics in Professional Responsibility .................. 55 NYSBA Sponsorship for the Constantine Sidamon-Eristoff Award for (Randall C. Young) Conservation in Georgia ............................................................................. 29 Legal Update ..............................................................................................................57 Statute for the Award ......................................................................................... 30 (Robert A. Stout Jr. and David Everett) BOOK REVIEW Administrative Decisions Update .......................................................................... 59 EcoMind: Changing the Way We Think, to Create a World We Want ............... 31 (Prepared by Robert A. Stout Jr.) (Reviewed by Andrew B. Wilson) Recent Decisions and Legislation in Environmental Law ..................................61 attorneys to Section activities, the SEQRA, endangered Task Force has been working with representatives of the species and ethics presentations provided CLE credit to Department of Environmental Conservation and others both newly admitted and experienced attorneys. on these recommendations. The Task Force was awarded the annual Section Council Award for its contributions. Thanks to the efforts of program Co-Chairs Carl Howard and Michael Lesser, the Section’s program for the Over the past few months, the Section has also been Annual Meeting in January was also packed with timely taking part in a “Diversity Challenge” initiated by Vin- topics, including Marcellus Shale drilling, potential im- cent Doyle, the State Bar Association President. We des- provements to the State’s Brownfi elds Cleanup Program, ignated the Co-Chairs of the Section’s Membership Com- climate change, and ethics. Our luncheon speaker, Joe mittee, Rob Stout and Jason Kaplan, as co-coordinators Martens, Commissioner of the Department of Environ- of our Section’s response to the Initiative. The Section’s mental Conservation, provided an overview of his fi rst commitment to diversity, however, is nothing new. For year in offi ce and the Department’s plans for the coming two decades the Section has co-sponsored a fellowship years. The CLE program drew 199 attendees, and the lun- program for minority law students to spend summers cheon drew 182. working for government agencies or public interest orga- nizations. At the Annual Meeting, we awarded two such The Annual Meeting also provided an opportunity fellowships for the coming summer, to Rosemary “Rosie” to take note of the unfortunate loss of a major fi gure in Ortiona of Hofstra Law School and Sanjeevani “Sunny” environmental protection, Constantine Sidamon-Eristoff. Joshi of Albany Law School. Rosie will be working at Connie, who was a friend and mentor to many in the Sec- EPA, Region II, and Sunny will be working at DEC in Al- tion over the years, passed away in December. Through bany. a 50-year career, Connie served, among other things, as Commissioner of the New York City Department of With respect to our Section in particular it is also Transportation under Mayor John Lindsay, as Regional important to foster diversity of interests and to ensure Administrator of Region II of the Environmental Protec- active participants in Section activities by attorneys for tion Agency, and as a member of the Board of the Metro- government agencies and public interest organizations. politan Transportation Authority. At the Annual Meeting In this regard, over the past several years various ethical luncheon, the Section posthumously presented Connie guidelines and restrictions have been imposed on State with the Section Award. The plaque stated: “In memory employees that make their participation in Section events of Constantine Sidamon-Eristoff. Ardent conservationist, more diffi cult. We are continuing to work with central dedicated public servant, inspired and effective environ- Bar Association representatives to see if there is a way to mental leader, wise counselor, and dear friend.” Former bring more rationality to this area. Chair Walter Mugdan, who worked with Connie at the The Section’s annual Legislative Forum took place EPA, delivered some beautiful comments in announcing on May 16th at the Bar Center in Albany. Topics included the award. Representatives of the Section also attended environmental enforcement, legislative initiatives and a subsequent memorial service for Connie in New York budget impacts. City. As always, I want to encourage you to become in- Also recognized at the Annual Meeting was the Sec- volved in a Section committee if you have not already tion’s Brownfi elds Task Force, ably and energetically done so. If you have any questions about a specifi c com- chaired by Dave Freeman and Larry Schnapf. The Task mittee, feel free to contact the Section offi cer who is listed Force prepared a detailed report suggesting a number of as the liaison for that committee on the Section’s website changes to improve the effectiveness of the State’s Brown- at www.nysba.org/environmental. fi eld Cleanup Program, along with suggested legislative language to implement a number of those changes. The Phil Dixon 2 NYSBA The New York Environmental Lawyer | Winter/Spring 2012 | Vol. 32 | No. 1 Message from the Editor-in-Chief It is spring again. I love this wind, is a step that is gaining support. New York has shown time of year. The scent of the a continued interest in offshore wind development.
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