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The New York Environmental Lawyer a Publication of the Environmental Law Section of the New York State Bar Association

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The New York Environmental Lawyer a Publication of the Environmental Law Section of the New York State Bar Association NYSBA SUMMER 2011 | VOL. 31 | NO. 3 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Message from the Message from the Outgoing Chair Incoming Chair Ah, but a man’s reach It is a great pleasure and should exceed his grasp, or honor to serve as the thirty-fi rst what’s a heaven for? Chair of the Environmental Law Robert Browning Section. Looking over the list Far and away the best prize of past Chairs on the Section’s that life has to offer is the website is daunting. Among the chance to work hard at work names are pioneers in the fi eld worth doing. of environmental law, prominent practitioners in the public and Theodore Roosevelt1 private sector, and many indi- When I began my term as viduals with whom I have en- Chair, I wanted to try some joyed working on Section affairs things that had not been done Barry R. Kogut Philip H. Dixon and from whom I have learned in an effort to embellish the his- much. I will do my best to make sure that the coming torical role of the Environmental Law Section as a forum year is interesting, productive, and enjoyable for Section for discussion and resolution of critical environmental members. (continued on page 2) (continued on page 3) Inside From the Editor-in-Chief .........................................................................4 Legislative Forum 2011: Supplemental Handout ..............................28 (Miriam E. Villani) (Erica Levine Powers) From the Issue Editor ..............................................................................6 New York Begins to Address Smart Growth and Sprawl ................30 (Keith H. Hirokawa) (David K. Gordon) From the Student Editorial Board ..........................................................7 2011 Update on Laws Impacting Green Buildings in New York ....37 (Genevieve Trigg and Daniel Ellis, II on behalf of the (Christopher G. Rizzo) Student Editorial Board) No Boundaries: Exploring the Potential Cumulative Impacts of EPA Update ...............................................................................................8 Natural Gas Drilling on Air Quality in the Northeast ................48 (Chris Saporita, Marla E. Wieder and Joseph A. Siegel) (Jay Duffy) DEC Update ............................................................................................20 Where We Stand in the Wake of the Supreme Court’s Decision (John Louis Parker) in American Electric Power Co. v. Connecticut .................................55 Member Profiles (Andrew B. Wilson) Long-Time Member: James A. Sevinsky .......................................22 Solar Energy Development: Proposed Legislation as an New Member: Andrew B. Wilson ..................................................22 Essential Element in New York State’s Future .............................61 Member News ........................................................................................24 (James P. Rigano) 2011 Legislative Forum Final Report ...................................................26 Greening the Legal Profession—Law Office Climate (Jeffrey Brown, Michael J. Lesser and Andrew B. Wilson) Challenge Profiles .............................................................................64 Legislative Forum 2011: Supplemental Handout ..............................27 Administrative Decisions Update .......................................................66 (Andrew B. Wilson and Michael J. Lesser) (Prepared by Robert A. Stout Jr.) Recent Decisions and Legislation in Environmental Law................69 Message from the Outgoing Chair (Continued from page 1) issues. I thought that I had been given a unique opportu- Hudson that offered the view of the majestic Manhattan nity to do this given that 2010 marked the 30th anniver- skyline (Region 2 program) and the sail out of Beacon, sary of the Section and the 40th anniversary of the New New York (Region 3 program) that provided a view of York State Department of Environmental Conservation Storm King Mountain where some say modern environ- (NYSDEC). It turned out to be a wild ride that required mental law had its beginnings. an extraordinary amount of time and effort, but I enjoyed The remarks of the luncheon speakers were all inspir- it and the Section made progress. ing and I was particularly pleased to have had the good fortune to hear Peggy Shepard, the executive director and Summer of 2010 co-founder of WE ACT for Environmental Justice, who We planned CLE programs at all 9 NYSDEC Regions spoke at the Region 2 program. Ms. Shepard’s remarks with luncheons, speakers, and fi eld trips with welcoming were printed in the 2011 Winter edition of The New York remarks by the respective Regional Directors, a logistical Environmental Lawyer through the efforts of Lou Alexander. triumph that would not have been possible without the enthusiastic support of NYSDEC. I attended each of the Fall Section Meeting in Cooperstown, New York programs that were presented and gave the ethics talk (October 1-3, 2010) (which was prepared by the Section’s Ethics Commit- tee Co-Chairs, Randy Young and Yvonne Hennessey) at I read a story about an interview of a baseball pitcher Regions 9, 2, and 3. A number of the settings for the CLE who was reported to have said, “One word describes programs were extraordinary— baseball—you never know.” That story may have been apocryphal, but I wondered how successful our Fall meet- • The Syracuse Center of Excellence Headquarters ing would be given that we had to maneuver between the Building2 for the Region 7 presentation on the Scylla and Charybdis of an economic recession and the renaissance of Onondaga Lake. It started with a dramatic impact on the NYSDEC work force associated historical review of the glory that was Onondaga with Governor Paterson’s budget cutting. This left an air Lake by a representative of the Onondaga Histor- of uncertainty that was unusual for an event planned in ical Association and continued through substan- the jewel called Cooperstown at the majestic Otesaga. tive presentations on a myriad number of legal Luckily, the Fall meeting was a success in terms of both issues concerning the remediation effort at the numbers and the quality of the speakers, which was evi- Lake. It ended with the poignant and thoughtful dent at both the Friday afternoon CLE that was designed observations of Dr. Cornelius Murphy, now the for the younger practitioners and the main event CLE on President of the SUNY College of Environmental Saturday morning. Science and Forestry, but at one point, a young re- search scientist given the task of venturing out on The list of those whose contributions made this meet- a lake that was suffering from an extended period ing special is long, but a special set of kudos goes out to: of industrial and municipal use associated with • Section member Janice Dean, a native of the demands of an urban community; and Cooperstown, who was instrumental in securing • The Beacon Institute Center for Environmental the Friday dinner speaker, Hugh MacDougall, the Innovation and Education at Denning’s Point3 for Cooperstown Village Historian, who spoke on the the Region 3 program on SEQRA that was moder- Early Days of Cooperstown; ated by Joan Leary Matthews, whose passion for • NYSBA President Steve Younger, who was at the the subject matter made the panel discussion and Otesaga for another Bar Association event, but audience participation exceptional. made an appearance at our Friday dinner to offer Some of the fi eld trips were extraordinary in their his perspective from the “Big Bar” and provide emotional impact. For example, standing on the top of a an additional layer of elegance to the proceed- closed landfi ll cell at the Seneca Meadows Landfi ll was ings; and impressive in terms of both a view of the range of clock- • Former Section Chair Walter Mugdan, who ar- work activities down below (which includes the use of ranged for our Saturday dinner speaker, James falcons to control the presence of unwanted birds) to the Moorman. Mr. Moorman served as Assistant impact on the surrounding landscape. Attorney General for Lands and Natural Re- However, the view of the Hudson River from the sources at the U.S. Department of Justice and then deck of the sloop Clearwater will remain for me the high- worked on the private side as a partner at Cad- light of the Regional Programs. I did the sail on the lower (continued on page 106) 2 NYSBA The New York Environmental Lawyer | Summer 2011 | Vol. 31 | No. 3 Message from the Incoming Chair (Continued from page 1) At the outset, I want to thank Barry Kogut for his an overview of the new ethics rules, and a review of “hot incredible energy and initiative over the past year. In ad- topics” such as a development of natural gas deposits in dition to our usual Fall and January programs and Spring the Marcellus Shale, trends in green buildings law, and Legislative Forum, Barry undertook special programs recent land use cases. over the summer of 2010 in the various Department of Environmental Conservation regions commemorating the The Section’s dinner on Saturday night will feature fortieth anniversary of the agency and the thirtieth an- as speaker Michael Relyea, President of the Luther Forest niversary of the Section. I cannot hope to surpass Barry’s Technology Campus Economic Development Corpora- effort. He has provided a great example of vigorous and tion, who will discuss the challenges and successes of re- effective leadership, as have the other Chairs with whom gional high-tech economic
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