NYSBA SPRING 2009 | VOL. 29 | NO. 2 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Message from the Chair Greetings from Albany as we ✔ revamped the Section Journal, which will debut in approach summer! I hope that this 2009-10; message conveys the gratitude that ✔ instituted a “Track B” program for newer attor- I feel toward the many people in neys at the 2009 Fall Meeting; the Section who helped to achieve what can only be termed as an ex- ✔ created guidelines for written materials for tremely successful Section year. Section programs—which reduces paper and pro- motes sustainability; 2008-09 Section ✔ hosted renown physicist Dr. James Hansen to Accomplishments speak at Annual Meeting Climate Change pro- gram; If you will allow me to toot the Section’s horn for a moment, here Joan Leary Matthews ✔ co-sponsored the NYSBA Task Force on Global is a list of the many accomplish- Warming and provided signifi cant support for ments that together we achieved: the Task Force’s work in Albany; ✔ established a blog; ✔ engaged in signifi cant outreach for new members; ✔ established the Classroom Project; ✔ offered law students Section benefi ts, including free membership and registration at programs; ✔ began a Section webinar series; ✔ commented on key legislation—Bottle Bill and ✔ partnered with the International Section to SEQRA Standing; present additional webinars; (continued on p. 4) Inside From the Editor ...................................................................................... 2 Tribute to Dorothy Miner (Kevin Anthony Reilly) Dorothy Miner Defended Our Architectual Heritage ...............24 Historic Preservation (Philip Weinberg) Historic Preservation Law 101 for New York Lawyers ...............5 Dorothy Miner Award ................................................................... 25 (Christopher Rizzo) (Leonard Koerner) Two Recent Cases Highlight Concerns About the Dorothy Miner Obituary ............................................................... 26 New York City Landmarks Preservation Commission’s (David W. Dunlap) Management of the Designation Process .............................. 13 (Susan M. Stern) Clean and Green: Remediating Contaminated Sites More Sustainably ............................................................................ 27 Landmarks and Sustainability ......................................................17 (Walter Mugdan) (John Weiss) Recent Decisions in Environmental Law ..........................................33 Historic Preservation at a Crossroads: The 2009–2013 New York State Historic Preservation Plan........................... 20 (Amy E. Facca) From the Editor The present issue features draws our attention to those ideas and experiences, some Historic Preservation, an area uniquely American, but many of older vintage and with that too often seems marginal wider cultural resonances. When we sacrifi ce that which to environmental law and is un- we can see, feel and physically experience, we risk los- derappreciated as an important ing sight of the less tangible components of who we are component of public policy. I which, in the forward rush of everyday life, may become am suffi ciently old-school to be as spectral as yesterday’s myths. convinced of the centrality of the I would like to thank Chris Rizzo, of Carter Ledyard humanities, generally, and espe- & Millburn, who gathered the articles in this issue that cially history, to our cohesion as a address Historic Preservation. Chris authored an article society. Even if historical themes that provides a primer on Historic Preservation Law in and lessons remain relatively Kevin Anthony Reilly New York. The article starts with an overview of the rel- unarticulated in our modern me- evant federal law, then digs into an excellent exposition dia culture, I deeply believe it to be a fact that the web of of New York State preservation law and New York City’s historical associations provides the fi laments that hold us Landmarks Law. Chris’s article not only interweaves the together, providing an underlying strength and—if care- several statutory structures but also discusses illustra- fully examined—an orderly way of understanding and tive case law, before fi nally marching the reader forward explaining ourselves. into history with projections of where preservation ef- Certainly, history as a discipline incorporates more forts seem to be heading. As always in life, tax credits tensions that it did a half century ago. Scholars reach may prompt behavior where other efforts fail, and Chris for more subtle explanations of events and social issues, discusses the tax ramifi cations of some preservation en- people and groups are being analyzed who in the past deavors. fell beneath the proverbial radar screen of traditional nar- Susan Stern, an architect who is also a newly minted rative history, and the net of causation and explanations lawyer, focuses her article on the New York City Land- gathers information and data that generate new and even marks Law. Susan examines two recent cases that turned controversial ways of looking at people and events. If the on procedural considerations which, as employed by the fi eld of history is more contentious, though, it also is that Landmarks Preservation Commission, seemed to un- much richer. It follows that Historic Preservation, some- dermine the protection of New York City’s cultural and times defi ned as preservation of the built environment, historical resources. John Weiss, Deputy General Counsel should also take on newer and deeper meaning. Its im- of the Landmarks Preservation Commission, explains the portance lies not in cultural fetishes nor only as a means LPC permitting process, then addresses his article to the to enshrine staid exhibits, but as a means to bring into the sustainability aspects of preservation, notably where pres- immediacy of the present the ideas, sensations, thoughts ervation efforts intersect with energy conservation. Final- and dreams that animated prior generations, and which ly, Amy Facca, Preservation Planner at New York State’s welded together diverse peoples and cultures and built Offi ce of Parks, Recreation and Historic Preservation, a unique polity. History, and its motivating ideas and concludes by analyzing Historic Preservation at a Cross- experiences, can be better appreciated when its artifacts roads, the 2009-2013 New York State Historic Preservation and cultural reference points can be looked at, felt, and Plan. Amy’s discussion, and the underlying document, pondered. both broaden and deepen how we view preservation as However, just as historical studies sometimes get rel- an ideal, and she analyzes how preservation should be egated within academia to the ideological margins, and implemented operationally in a far more comprehensive within our culture historical persons and events survive manner. The article provides guidance as we grapple with too often as caricature, so, too, Historic Preservation is be- how to understand and preserve the past, in the future. ing drained of its richer possibilities. When the planning It is sad, but strangely coincidental, that my pre- for historical structures, monuments and locations is con- liminary discussions with Chris about this issue of this sidered, it seems that the choice comes down to Disneyfy- journal occurred in the wake of Dorothy Miner’s passing. ing our past or, alternatively, bulldozing it to make way Dorothy, from her perch in the New York City Landmarks for the glittering baubles proudly displayed by America’s Preservation Commission, and at Columbia University, truly impressive commercial dynamo. As Henry Adams was an early voice—some suggest she was a force of presciently observed a little more than a century ago, nature—for Historic Preservation, which she pursued that dynamo inevitably consumes our past and with it over the years with an ethos and a zeal that can best be our deeper sense of a national identity that, in its bet- described as an intellectual crusade, in the best sense. ter expression, is linked to formative ideas and experi- Her voice strengthened as the public’s appreciation for ences. Historic Preservation, then, also has value when it 2 NYSBA The New York Environmental Lawyer | Spring 2009 | Vol. 29 | No. 2 the monuments of its past ripened during the 1960s and The Peter A. Berle Environmental Integrity Award 1970s, and she provided backbone for preservation efforts was recently established by the Century Foundation in as political leaders championed real estate development New York City, in cooperation with the National Audu- in later decades. In recent years, Dorothy was affi liated bon Society, the Natural Resources Defense Council, the with Nick Robinson’s bailiwick in Pace University’s En- Environmental Defense Fund, our Environmental Law vironmental Law program. A memorial service was held Section, and friends of Peter Berle. Lou Alexander was recently at Columbia University which was well attended the Section’s representative on the Award Selection Com- by many people involved with preservation efforts, pro- mittee. Steve Kass, Peter Berle’s former partner, was cen- fessionally as well as locally, and several Section mem- trally involved in creating the award and in developing bers. The service was followed by a reception at the near- the selection process. The inaugural award was jointly by Cathedral of St. John the Divine. The New York Times presented on May 3 to the eminent climate scientist James wrote