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A N 8 8 D 8 B 1 WWW. NYLJ.COM AR SINCE VOLUME 250—NO. 95 THURSDAY, NOVEMBER 14, 2013 ENVIRONMENTAL LAW Expert Analysis Michael Bloomberg’s Environmental Record, Bill de Blasio’s Promises

n Nov. 23, 2001, under the headline pushed through a law that phases out this kind of “Michael Bloomberg’s Environmental oil in favor of natural gas and cleaner, lighter oil. In Agenda,” this column began, “The stun- By September 2013 Bloomberg was able to announce ning victory of Michael R. Bloomberg in Michael B. that the city had achieved its best air quality in the Nov. 6 election means that City Hall Gerrard more than 50 years. Owill be occupied by a man who has no record in The biggest disappointment has probably been environmental affairs.” The column went on to the failure of the mayor’s congestion pricing plan, summarize the promises found in Bloomberg’s which would have imposed charges on motor- campaign literature and other statements. ists for entering Manhattan south of 60th Street, Now with Mayor Bloomberg’s term about to close attention to the environment. with the dual aims of reducing traffic and helping end and Bill de Blasio’s about to begin, we can While climate change was not high on the pub- to finance mass transit. The idea was included compare the outgoing mayor’s accomplishments lic agenda in 2001, it was by 2007. PlaNYC set out in the 2001 campaign material, and Bloomberg to his promises, and also look at what the incom- more than 120 initiatives, programs and goals advanced it in his 2007 plan. The U.S. Depart- ing mayor has pledged. to reduce greenhouse gas (GHG) emissions by ment of Transportation agreed to provide $354 To sum it all up, Bloomberg’s environmental more than 30 percent over the next two decades. million in funding. The City Council approved achievements far exceeded his promises in most Some 75 percent of GHG emissions in the city it by a vote of 30 to 20, but it could not obtain areas. His one major failure (congestion pricing) come from buildings (both directly and in the the necessary approval of the State Legislature. was not for lack of trying. Mayor-elect de Blasio generation of electricity for use in buildings), Another disappointment was the effort to says he plans to continue and extend most of and increasing energy efficiency in buildings was have new taxicabs be hybrid vehicles, which his predecessor’s policies, though with a new a key strategy. The administration assembled have much lower fuel use and GHG emissions emphasis on workforce training. committees of experts and, working with the than conventional gasoline-powered cars. This Bloomberg’s Record City Council, adopted numerous changes to the program was invalidated when the courts con- Building Code and other laws to improve the cluded it was preempted by the Energy Policy and In its first term, the Bloomberg administra- energy and water efficiency of new and exist- Conservation Act and the Clean Air Act, which tion compiled a rather lackluster environmental ing buildings; additional amendments are being vest exclusive control over vehicle emissions record. During the 2005 reelection race, the New adopted on a continual basis. with the federal government.1 York League of Conservation voters gave its low- The Greener, Greater Buildings Plan (a part of est score (“average”) to the first term for the PlaNYC) included many elements. One was Local mayor’s work on sustainability and sustainable Law 84, enacted by the Council in 2009, which A hallmark of Bill de Blasio’s campaign development. He suspended the city’s glass and requires many buildings to measure and report for mayor was a rejection of many of plastics recycling program in 2002 for budgetary annually their energy and water use, to allow reasons, even though his 2001 campaign paper benchmarking comparisons to other buildings Bloomberg’s policies. But not so for his touted the importance of recycling. of comparable size, use and age, and in turn to environmental policies. However, by several accounts Bloomberg identify opportunities for improvement. Some experienced a transformation in 2006 when he other elements included the adoption of a local The 2001 campaign plan said that the city was given projections that the city’s population energy code; the creation of a financing entity “should move toward a bike friendly and pedes- would grow by one million people by 2030. He called the New York City Energy Efficiency Cor- trian friendly environment to foster alternatives directed preparation of a systematic study of how poration; requirements that every ten years, to the use of motor vehicles.” That pledge was the city would cope with this influx, and a result large buildings conduct an energy audit and a certainly carried out, with Bloomberg’s introduc- was the release of PlaNYC 2030 on Earth Day in retro-commissioning (a tune-up of their systems tion of more than 300 miles of bicycle lanes, a 2007. This was a comprehensive look at how to to improve efficiency); upgrading of lighting, the bike-share program, and pedestrian-only areas. provide more housing, infrastructure, parks, and largest consumer of energy in buildings; and sub- The redevelopment of “brownfields”—slightly other facilities and services to accommodate the metering of many tenant spaces. contaminated land—was also a Bloomberg pri- larger population. Suffused throughout it was Air quality in New York City has improved dra- ority. In 2001 he called upon the State Legisla- matically since the early 1970s, largely as a result of ture to adopt a law that allowed parcels to be the elimination of coal burning and waste incinera- cleaned in accordance with their intended use. tion within city limits, and federal requirements for MICHAEL B. GERRARD is Andrew Sabin Professor of Pro- The Legislature indeed adopted such a law in fessional Practice and director of the Center for Climate motor vehicle emissions equipment. The largest 2003. Bloomberg established a Mayor’s Office of Change Law at Columbia Law School, and senior counsel uncontrolled source of air pollution was the burn- Environmental Remediation in 2008 to develop a to Arnold & Porter. ing of heavy heating oil in buildings. Bloomberg city-operated brownfield cleanup program, and THURSDAY, NOVEMBER 14, 2013 in 2009 the City Council passed the New York a “Green Infrastructure Plan” to reduce combined for extreme heat danger.” He has pledged to “help City Brownfield and Community Revitalization sewer overflows, and carried out major upgrades lead other mayors and grassroots organizations Act to codify this program. to the sewer system and several of the largest across the country to demand national politi- Bloomberg was a vigorous supporter of parks wastewater treatment plants. cians enact the legislation and policies needed and open space long before he became mayor; he De Blasio’s Promises to radically reduce carbon use nationwide sat on the board of the Central Park Conservancy over the coming decades to limit the causes, and privately contributed to many other parks A hallmark of Bill de Blasio’s campaign for not just the consequences, of climate change.” groups. In 2001 he called for more staffing and mayor was a rejection of many of Bloomberg’s Another hallmark of the de Blasio campaign was maintenance of the parks, creation of more ball policies. But not so for his environmental policies. his emphasis on increasing the number and quality fields and other parks improvements. He created The de Blasio campaign released “A Framework of jobs. This carries through to his environmental the MillionTreesNYC program, with the goal of for a Sustainable City” that states, “We can and program. He plans to “integrate green skills into planting and caring for one million trees across must build on the successes of PlaNYC and con- workforce development,” including the incorpora- the five boroughs in the next decade. In June vene all stakeholders to build the most sustain- tion of training on ways to reduce energy costs 2013 he declared that more than 750,000 trees able city in the world. As mayor, Bill de Blasio into industry sector workforce development in all had been planted, 300 acres of new parkland had will convene public and private sector actors to schools, apprenticeships and training programs. been added, and 229 open spaces for children and expand and deepen PlaNYC, and he will update De Blasio’s paper says, “For many years, New 129 new community gardens had been opened. the plan every year on Earth Day.” York City’s trash was disproportionately shipped After a slow period in the first term, the recy- This Framework contains many other envi- to poor communities in the outer boroughs.” In cling program has grown considerably. Its cover- ronmental plans and promises: pursuit of “a fair, five-borough plan to handle age has been expanded to include rigid plastics; • “Expand the city’s investment in large-scale New York’s garbage,” he will open the 91st Street polystyrene food containers are proposed to be clean energy production, including wind, solar, Marine Transfer Station, which has been a con- phased out; collection of electronics waste and geothermal, hydropower and biofuels.” tentious issue on Manhattan’s East Side. textiles is being expanded; and a voluntary pro- • “Make every government-owned building as One area where the outgoing and incoming gram has begun to reduce food waste from res- green as is financially viable by 2020,” and, for the mayors have diverged is electronics recycling. De taurants and to donate or compost much of what private sector, “continue the commitment to the Blasio was one of the leaders in the City Council remains. Pilot projects for food waste composting New York City Energy Efficiency Corporation.” of the electronic recycling bill that Bloomberg have been announced for Manhattan and Staten vetoed and that the council overrode. Another Island. A processing facility for metal, glass, and disagreement is over hydraulic fracturing. Bloom- plastic recyclables was built in the Sunset Park The Bloomberg administration, work- berg, though opposing the use in the New York area of Brooklyn. In 2008, Bloomberg vetoed ing with the City Council, adopted nu- City watershed of this method for extraction of legislation requiring electronics manufacturers natural gas, co-signed an op-ed article in The to recycle a set amount of their New York City merous changes to the Building Code Washington Post in August 2012 supporting waste, but the City Council overrode the veto. and other laws to improve the energy hydraulic fracturing if carefully regulated. De Bla- New York is not the national leader in recycling and water efficiency of new and exist- sio supports the two-year fracking moratorium but it has made significant progress. ing buildings; additional amendments recently passed by the New York State Assem- One area where New York is a national leader is bly, and states that “questions about health and resilience to climate change. The 2001 campaign are being adopted on a continual basis. environmental safety remain unanswered, and statements did not anticipate the need for the we can’t afford to get this wrong.” city to adapt to climate change, but PlaNYC in • “Set a goal of zero waste in New York,” includ- In an interview in “The Nation,” de Blasio said 2007 recognized this challenge, which became ing by “strengthening and expanding existing that “one thing we need to do on a much greater screamingly apparent with Superstorm Sandy of recycling, instituting composting programs, and level is energy retrofits of buildings. I think this is October 2012. In June 2013 Bloomberg released establishing waste reduction programs, including, a part of the Bloomberg legacy of lost opportunity a major plan, “A Stronger, More Resilient New for example, bans on plastic bags and requiring where retrofits are so important in terms of reduc- York,” which may be the most comprehensive more materials to be recyclable or compostable.” ing emissions and energy efficiency.” He praised plan of any U.S. city to cope with climate change. • “Invest in infrastructure upgrades that Chicago’s model for financing energy retrofits. It draws on the projections of the New York City improve our resilience and ability to respond In 2009, City Council Member de Blasio Panel on Climate Change (another Bloomberg to an emergency,” including through the use of strongly opposed Mayor Bloomberg’s conges- creation) to formulate plans for such items as permeable surfaces and natural infrastructure, tion pricing plan. In 2012 he called Bloomberg’s coastal protection, buildings, economic recovery, and implementation of “a five-borough bioswales transportation commissioner Janette Sadik-Khan, insurance, utilities, transportation, and parks. initiative to minimize the pressure on our water a leading proponent of bicycle lanes, a “radical” Bloomberg has devoted much attention to and sewer system.” who was moving too fast, but his mayoral cam- clean water and water supply. The Third Water In a different paper, the de Blasio campaign paign’s papers say he “will continue expanding Tunnel, which broke ground in 1970, finally declared, “Mayor Bloomberg is to be commended bike lanes around the city.” He has called for opened in October 2013, at a total cost of $4.7 for his comprehensive plan for rebuilding a more numerous measures to improve pedestrian safety. billion. The Third Water Tunnel is drilled into resilient NYC. Bill de Blasio intends to make those Perhaps in 2017 or 2021, as Mayor de Blasio’s deep rock and has segments in the Bronx, Man- plans a reality through a process that involves tenure draws to a close, we will have an oppor- hattan, Queens and Brooklyn. It greatly improves every neighborhood in planning a more resilient tunity to look at his 2013 pledges and see how the security of the city’s water supply. future that makes our City an even better one.” they turned out. Construction is well underway on a new He joins with Bloomberg in rejecting what he ••••••••••••• ••••••••••••• drinking water filtration plant in Van Cortlandt terms “big headline-grabbing budget busting ••• 1. Metropolitan Taxicab Board of Trade v. City of New York, Park in the Bronx to treat water from the Cro- solutions like offshore barriers,” and calls for 633 F.Supp.2d 83 (SDNY 2009), aff’d 615 F.3d 152 (2d Cir. 2010), ton system (though this did not win him many targeted upgrades, such as armored stone shore- cert. den. 131 S.Ct. 1569 (2011). fans among parks advocates). The 2001 goal of line protections in Coney Island and hardening avoiding the need to build filtration plants for vulnerable overhead power lines in Queens. He the Catskill/Delaware system, largely through supports “lining our shores with sand dunes, Reprinted with permission from the November 14, 2013 edition of the NEW YORK LAW JOURNAL © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication upstate land use controls, has been achieved so especially on the Rockaways and other beach without permission is prohibited. For information, contact 877-257-3382 or reprints@alm. far. The Bloomberg administration has launched areas.” He specifically noted the need to “plan com. # 070-11-13-22