NYSBA SUMMER/FALL 2012 | VOL. 32 | NO. 2 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 It is hard to believe that It is an honor and privilege my term as Chair of the Envi- to be the thirty-second Chair of ronmental Law Section is over. this great Section. Thank you Please join me in welcoming Phil Dixon for a smooth and Carl Howard as the new Chair. instructive year (2011-2012) and Over the past year, the Section thank you Arthur Savage, who was involved in a variety of ac- got us started so well back in tivities. Each one seemed to fol- 1981. In fact, in my four years low close on the heels of the last. as an offi cer I have had the It would not have been possible pleasure to work with truly out- to have pulled them off without standing Chairs; namely, Joan the efforts of Section members Leary Matthews, Alan Knauf, and NYSBA staff. Philip H. Dixon Barry Kogut and Phil. That is an Carl Howard all-star lineup. I am delighted to October 2011 saw a successful Fall Meeting, held in say that the offi cers who will serve with me, Kevin Reilly Saratoga Springs as a joint meeting with the Municipal as Vice-Chair, Terresa Bakner as Treasurer, and Michael Law Section. The program drew more than 135 regis- Lesser as Secretary, are all wonderfully dedicated to (continued on page 2) (continued on page 3) Inside From the Editor-in-Chief ............................................................................................4 BOOK REVIEW: Greening Local Government, Eds., (Miriam E. Villani) Keith H. Hirokawa & Patricia E. Salkin ..........................................................28 From the Issue Editor ..................................................................................................5 (Reviewed by Andrew B. Wilson) (Justin Birzon) The Illusion of the Blue Flame: Water Law and Unconventional From the 2012-2013 Student Editorial Board ..........................................................6 Gas Drilling in New York State ........................................................................ 30 (Andrew Bridgman) (Anne Marie Garti) From the 2011-2012 Student Editorial Board .......................................................... 7 Evolving Environmental Law and Advice to “Green” Lawyers ...................... 41 (Krysten Kenny) (Alexis Saba and John Wood) EPA Update................................................................................................................... 9 Hydraulic Fracturing in the Marcellus Shale: The Need for Legislative (Marla E. Wieder, Chris Saporita and Joseph A. Siegel) Amendments to New York’s Mineral Resources Law ................................. 46 (Patrick Siler) The 2012 Environmental Law Section Fall Meeting ............................................21 (Michael J. Lesser) The Argument for a National Carbon Bounty: Solving the Energy- Environment Disconnect ................................................................................... 60 Committee Report: Agriculture and Rural Issues Committee .......................... 23 (Caryn Davies) (Peter G. Ruppar) Echoes of Westway—Agency NEPA Decision Annulled for Errors Member Profiles in Baseline Assumptions Long-Time Member: Daniel Riesel .................................................................. 24 North Carolina Wildlife Federation v. North Carolina Department of New Members: Megan Brillault and Kristen Wilson ................................... 25 Transportation, 677 F.3d 596 (4th Cir. 2012) ......................................................68 Member News ............................................................................................................26 (John D. Hoggan, Jr. and David G. Carpenter) In Memoriam: Alice J. Kryzan .................................................................................27 Recent Decisions and Legislation in Environmental Law ..................................70 (Gail Port) Message from the Outgoing Chair (continued from page 1) trants. The Section’s Program Co-Chairs, Ginny Robbins speaker Robert Hallman, Deputy Secretary to the Gover- and Kevin Ryan, did a wonderful job coming up with nor for Energy and the Environment, who shared with us exciting topics and speakers. The Section’s dinner speaker an overview of his offi ce and important issues confront- on Saturday night was Michael Relyea, head of the Luther ing the State. The Section also undertook other programs Forest Technology Campus, where Global Foundries is in 2012, such as the annual petroleum spills symposium. constructing a large chip-fab plant. The Saturday CLE In addition to our programs, the Section took part in program offered an update on SEQRA, an overview of the “Diversity Challenge” initiated by then-NYSBA Presi- new State ethics rules, and a review of recent develop- dent Vince Doyle. We designated the Co-Chairs of the ments in Marcellus Shale gas, green buildings and land Section’s Membership Committee, Rob Stout and Jason use. On Sunday morning, there was a CLE program intro- Kaplan, as co-coordinators of our Section’s response to ducing the new endangered species regulations. the Initiative, which was honored as one of ten fi rst-place The Annual Meeting in New York City in January “Diversity Champions.” The Section’s commitment goes 2012 was also well-attended and Carl Howard and Mike back two decades, when the Section began co-sponsoring Lesser did an admirable job as program co-chairs. DEC a fellowship program for minority law students to spend Commissioner Joe Martens was our luncheon speaker. summers working for government agencies or public As part of the Section’s efforts over the past several years interest organizations. At the 2012 Annual Meeting, we to attract younger attorneys to Section activities, the CLE awarded two such fellowships for the summer of 2012, programs for both the Fall Meeting and Annual Meeting to Rosemary “Rosie” Ortiona of Hofstra Law School and were designed to provide signifi cant overlapping credit Sanjeevani “Sunny” Joshi of Albany Law School. Rosie to both newly admitted and experienced attorneys. The worked at EPA, Region II, and Sunny worked at DEC in Friday morning CLE program included presentations on Albany over the summer. As part of its continuing efforts, Marcellus Shale, Brownfi elds, climate change and ethics. we also designated two former Section Chairs—Joan Leary Matthews and John Greenthal—to participate in At the 2012 Annual Meeting the Section gave its an- the monthly Section Cabinet conference calls as diversity nual Section award posthumously to Constantine Sidam- advisors to help ensure that the Section’s efforts in setting on-Eristoff, who was a friend and mentor to many in the up programs or policies maximized our efforts to achieve Section over the years, and who passed away last Decem- diversity. ber. The Section also volunteered to take part in imple- menting an environmental award program in the Re- With respect to our Section, it is also important to fos- public of Georgia, Connie’s ancestral home, in his name. ter diversity of interests and to bolster active participation Also recognized at the Annual Meeting was the Section’s in Section activities by attorneys for government agencies Brownfi elds Task Force, ably and energetically chaired by and public interest organizations. In this regard, over the Dave Freeman and Larry Schnapf. The Task Force, which past several years various ethical guidelines and restric- developed a detailed report suggesting a number of tions have been imposed on State employees that make changes to improve the effectiveness of the State’s Brown- their participation in Section events more diffi cult. It will fi eld Cleanup Program, was awarded the annual Section be a continuing effort to bring more rationality to this is- Council Award for its contributions. Continuing a trend sue. begun by my predecessor, Barry Kogut, the Section held All of these activities could not have been carried off its annual business meeting and reception on Thursday without the hard work of the various program co-chairs night, immediately after the EPA update program, rather and the wonderful Section Cabinet that I had the pleasure than during the Friday luncheon. This change appears to to work with over my term: Carl Howard, Treasurer Kev- have worked well, and resulted in a less frenetic atmo- in Reilly, Secretary Terresa Bakner, Section Delegate to the sphere at the Friday luncheon. House of Delegates Howard Tollin, Section Council rep- The Section’s annual Legislative Forum in May 2012 resentative Miriam Villani, and John Greenthal and Joan was also a success, with Legislation Committee Co-Chairs Leary Matthews. And, as always, the assistance of Lisa Jeff Brown, Mike Lesser, Andrew Wilson and John Parker Bataille and Kathy Plog at NYSBA was invaluable. Carl is arranging a program covering topics including environ- already off to an energetic start, and I’m sure the coming mental enforcement, legislative initiatives and budget year will see many quality programs and activities. impacts. We were also pleased to have as our luncheon Phil Dixon 2 NYSBA The New York Environmental Lawyer | Summer/Fall 2012 | Vol. 32 | No. 2 Message from the Incoming Chair (continued from page 1) furthering the great and important work of this Section. interested in whether or not you have fi lled out the Ques- Onward! tionnaire and will from time to time urge you to do so. Once we start making the aggregated