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NYSBA WINTER 2003 | VOL. 23 | 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 Chair One of the difficult issues • Law firms which pay the Bar Association and Sec- facing the Environmental tion dues of their attorneys will, for financial rea- Law Section is how to involve sons, want to limit participation by their environ- younger environmental law mental lawyers; and practitioners in the Section’s • Law offices will also want to see that their attor- work. In the long run, the neys’ “non-billable”/“outside activities” time is Section will expand and diversified so that not everyone is doing the same thrive only if we are able to thing. attract more junior attorneys into active participation in To the extent that choices have to be made among our committees and into lead- attorneys, law offices will generally select their more ership positions within the senior attorneys to participate in Bar Association work, Section. particularly if those more experienced practitioners have invested their time in the Section over the course of Having said that, however, I recognize that one of many years. Such decisions could preclude participation the primary strengths of the Section is the extremely by younger attorneys. knowledgeable and deeply experienced New York State environmental lawyers who have led and continue to I also fear that younger attorneys might feel some lead the Section. In a field as relatively young as envi- reluctance to become actively involved in the Section. If ronmental law and in a Section which is itself barely 20 they perceive that the Section is populated by more years old, the attorneys who have served as chairs of the experienced attorneys who will dominate its activities Section’s committees and as officers of the Section are among the best environmental lawyers in the state and the country and, I am happy to say, people who will Inside continue to practice environmental law for one, two or From the Editor .......................................................................................3 more decades to come. “Flow Control” Revisited— So, what is the problem? Clearly, attracting younger The Local Government Can Control Its Citizens’ Trash..............5 (Michael D. Diederich, Jr.) attorneys into the Section and retaining and benefiting from the expertise and leadership of more experienced The Hudson River Valley: A Natural Resource Threatened by Sprawl............................................................................................9 attorneys are not mutually exclusive concepts. But, in (Janet Kealy) practice, they are proving to be for, among others, the following reasons: THE MINEFIELD Too Broad, Too Vague, Too Much: The Sarbanes-Oxley • All law offices will want to ensure that their attor- Act § 307 Proposed Regulations ...................................................24 neys are dedicating time to their offices’ work first (Marla B. Rubin) and foremost and that New York State Bar Associ- Administrative Decisions Update ......................................................31 ation activities are undertaken in the context of (Prepared by Peter M. Casper) their primary obligations; Recent Decisions in Environmental Law ..........................................36 for years to come, will they feel it is worth the invest- And, the Section itself needs to do a better job of ment of their time? Will they perceive us as ingrown reaching out to younger attorneys—and law students— and overly “clubby”? The younger environmental attor- so that they will enthusiastically want to participate neys may attend CLE programs, but will they join and even if they have to bear the dues themselves by: contribute to committees? • emphasizing, through one-on-one outreach By no means and in no way do I or the Section want efforts, the value of developing a breadth of to discourage, or in any way limit, the active participa- knowledge through attendance at our programs tion of the environmental lawyers who have developed and a depth of knowledge in a particular aspect of the Section into absolutely the best source for environ- environmental law through active committee mental knowledge, wisdom and leadership. Their com- involvement; bination of energy, enthusiasm and experience is what • stressing the importance of networking and the makes the Section special. We do not want to lose the unparalleled opportunities for it within the Sec- professional (and personal) qualities that these individu- tion; als have brought to our work. • in the case of law school students, speaking with In a sense, it is an attractive problem to have— them about Bar Association and Section member- having a Section of loyal, deeply involved and commit- ship while they are involved in their environmen- ted senior attorneys, the leaders of the environmental tal law society at law school and using the good bar. Too often, it is the other way around—the best auspices of the many distinguished professors lawyers are too busy to devote time and effort to Bar involved in Section work to “talk us up”; and Association work. • inviting some young attorneys and students to But, at the same time we need to ensure that we attend the Annual Meeting as our guests to make room for the beginning attorneys. Law offices demonstrate first-hand how valuable and how should encourage them to participate by: much fun it is. • allowing them to have time to do it; The Section’s ad hoc Committee on Diversity is • if possible, defraying some of the cost of participa- working on the issue of attracting younger environmen- tion; and tal lawyers in order to make our Section more heteroge- • making them feel welcome by having senior attor- neous. Your suggestions to assist and enhance their neys in those offices introduce them to Section work—and, ultimately, your Section—are invited and activities which they will enjoy and feel rewarded deeply appreciated. doing. John L. Greenthal Did You Know? Back issues of The New York Environmental Lawyer (2000-2002) are available on the New York State Bar Association Web site. (www.nysba.org) Click on “Sections/Committees/ Environmental Law Section/ Member Materials/ New York Environmental Lawyer.” For your convenience there is also a searchable index. To search, click on the Index and then “Edit/ Find on this page.” Note: Back issues are available at no charge to Section members only. You must be logged in as a member to access back issues. For questions, log in help or to obtain your user name and password, e-mail [email protected] or call (518) 463-3200. 2 NYSBA The New York Environmental Lawyer | Winter 2003 | Vol. 23 | No. 1 From the Editor Our Chair, John Greenthal, environmental developments, and to encourage a more aptly notes the Section=s need robust discussion of the issues that interest all of us. As for participation by younger such, we encourage not only committee productivity, attorneys. The benefits go both but also encourage readers to seek out and join commit- ways. Newer attorneys can tees that interest them. The Journal has also expanded draw on the Section=s many the Editorial Board, specifically with the goal of provid- resources, mix with many ing channels for readers to explore publication of arti- leading attorneys in the envi- cles in areas of interest to them. I strongly encourage ronmental field, and enhance readers to contact me, or Editorial Board members, to their education from our many discuss publishing opportunities. activities. As with all things, I also want to remind readers that the Transporta- though, younger attorneys tion Committee, co-chaired by Phil Weinberg and Bill become older attorneys, and Fahey, is actively looking for new members. As I noted newer attorneys become more experienced attorneys, in a prior column, the critical importance of the trans- and they will have many contributions to make at pres- portation field is often underappreciated, and there is ent and in the future. Hence, I join in John=s invitation, significant potential for the development of new ideas and also emphasize that support in this regard by their that will impact on economic, political, social and demo- employers is important. But I also, again, want to indi- graphic variables that influence how population centers cate the Section=s—and especially the Journal=s—interest will function in the future. The New York City metropol- in another important professional niche, government itan area, with its matrix of waterways, bridges and tun- attorneys. Being a government attorney myself, I know nels, trains and subways, interstates, highways, street that there is a perspective and a mission unique to the traffic, neighborhoods, and differing jurisdictions divid- many specialists that work in government, and I also ed among several municipalities and three states, in a know that they often remain apart from the private sec- region that is a major economic engine for the country tor and, all-too-often, from professional organizations. and even the world, is a prime example of a set of prob- The many former government attorneys who have lems waiting for creative new solutions. If transporta- migrated to private practice and who fill the Section=s tion deteriorates, much of the economic and social life of ranks can attest to these same observations. Many gov- the metropolitan area deteriorates with it; conversely, ernment attorneys are specialists by training, and are the greater the degree of regional integration of com- often policy makers as a consequence of their achieve- muting and commercial shipping, the more cohesive, ments within government. The experience can be a rari- convenient, and economically viable and livable the fied one. They are relatively free from the need to molli- region becomes. All of these factors have environmental fy clients, or to maintain a revenue flow, or to espouse ramifications. particular viewpoints, excepting, of course, commentary Michael Diederich submits an article on flow control = that interferes with their agency s mission.

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