NYSBA WINTER 2011 | VOL. 31 | NO. 1 The New York Environmental Lawyer A publication of the Environmental Law Section of the New York State Bar Association Message from the Chair “It was the best of times, it was the worst of times . .” —Opening line of A Tale of Two Cities, Charles Dickens These last several months force of the New York State Department of have been a roller coaster for Environmental Conservation (DEC), there- those who practice Environ- by raising into question the DEC’s ability mental Law. There have been to continue to perform its mission; opportunities, but also a host of (b) the continuing Recession, which limits challenges. the opportunities for younger lawyers For the Section leadership, to practice environmental law and casts we have had to confront the a general pall on the profession by both headwinds produced by the fol- diminishing the number of development lowing Four Horsemen, who opportunities and the desire and ability of represent perhaps not an apoca- businesses to expand; lypse, but a possible Dark Age: (c) the confounding scope of the New York (a) the State Budget Crisis that has result- State Gift Ban to State employees, which ed in a signifi cant downsizing of the work has made event planning that involves Inside From the Editor-in-Chief .........................................................................3 Member News ........................................................................................35 (Miriam E. Villani) 2010 Anniversary Program of the Environmental Law Section ......36 From the Issue Editor ..............................................................................4 (Louis A. Alexander) (Aaron Gershonowitz) Remarks of Peggy M. Shepard .............................................................37 From the Student Editorial Board ..........................................................5 Greening the New York Legal Profession—Encouraging (Genevieve Trigg and Anna Binau on behalf of the Student a More Sustainable Practice ............................................................41 Editorial Board) (Megan R. Brillault and Kristen Kelley Wilson) EPA Update—Year in Review ................................................................6 Offshore Wind: Navigating the Complex Regulatory Landscape ..42 (Marla E. Wieder and Chris Saporita) (Kevin P. Walsh and James P. Rigano) DEC Update ............................................................................................22 An Overview of the Draft Model Green Buildings Ordinance .......46 (John Louis Parker) (Brian Sahn) Member Profile: Janice Dean ................................................................28 Ethical Considerations for the Clean Air Act Attorney ....................52 (Justin Birzon) (Daniel Riesel and Victoria Shiah) BOOK REVIEW: The Law of Green Buildings: Regulatory and Eco Anti-Terrorism: EPA’s Role in Securing Our Nation’s Legal Issues in Design, Construction, Operations and Financing .....29 Chemical Plants ................................................................................63 (Reviewed by Justin Birzon) (Jonathan Kalmuss-Katz) Fall 2010 Meeting of the Environmental Law Section ......................31 Administrative Decisions Update .......................................................78 “Early Days of Cooperstown, New York: The Makings of An Recent Decisions and Legislation in Environmental Law................82 Environmental Crown Jewel” .........................................................32 (Hugh MacDougall) our public law Section members increas- held throughout the State this past summer. The quality of ingly problematic and complex and sends the presentations was very high and the enthusiasm of the the entirely wrong message to this branch speakers for their subject matter was inspirational. For me, of our Section membership on how im- the highlights were the fi eld trips on the Clearwater in the portant we view their contributions to the Hudson River at both the Region 2 and Region 3 programs. voice of the Bar; and We had an excellent turnout at the Fall Section meet- (d) the Democrats’ loss of the House in the ing in Cooperstown on October 1-3 and I was particularly mid-terms. One could view this as part of pleased to see a full audience for the “transitional lawyer” the normal cycle of national politics and CLE program on October 1. However, attendance by the simply take change in stride. However, Section’s public bar membership was low. based on past statements, the incoming In response, we held the Section’s Annual Meeting in Republican leadership appears certain New York City on the evening of January 27 (Thursday), to take a step backwards in the Climate following an EPA Update that was offered at no cost. The Change discussion. The passion of politics, customary Section CLE program was held the following while always present in the pre-election day. In addition, we tried to minimize the cost of the Sec- discussions, now seems poised to over- tion luncheon on Friday so that the full spectrum of Section whelm any prospect of thoughtful dia- membership could afford to attend and hear S. Richard logue on Climate Change issues. Fedrizzi, the President, CEO, and Founding Chairman of So—what can the Section do in response? the U.S. Green Building Council, the organization that has Leadership in Energy and Environmental To the Budget Crisis—NYSBA submitted this fall to the driven the LEED ( Design Governor’s Counsel and the Director of the Division of the ) movement. Budget the Section’s memorandum that underscores the To the Gift Ban—The Annual Meeting on Thursday concern over the reductions in the DEC work force. This night was open to all Section members and there was a memorandum was prepared following the Section’s Execu- cocktail reception as part of the meeting. The Public Integ- tive Committee directive at its October 3 meeting that the rity Commission considered the Annual Meeting one event Section go on record with its concern. rather than a series of individual events. As a result, we The full text of the memorandum can be found on were able to serve food and drink to public offi cials at any the Section’s web site and the following excerpt from the program held at the Hilton that was included in the pro- memorandum underscores our view of the DEC’s unique gram for the meeting. Any event held elsewhere or which position in New York State government: was not listed in the program is not subject to this rule, and an individual assessment must be made. New Yorkers face a unique set of econom- To the Republicans taking the House in the mid-term ic challenges; however, we are convinced elections— that the State’s efforts at economic devel- We made Climate Change the focus of our CLE opment cannot be achieved unless they program on January 28 as we kept the issue front and cen- are coupled with efforts to ensure strong ter as the new Congress takes offi ce. New York has been a environmental protection. Development leader in environmental strategies and that continues to be requires permitting and then monitoring true in the area of Climate Change. In our CLE program, (and as necessary, enforcement) of com- we addressed the report of the Sea Level Rise Task Force pliance with permit terms. The result is a and federal, state and municipal adaptive strategies. Cli- business and a natural environment that mate Change has already begun to impact upon our daily attracts business owners and allows them practice, and private law practitioners at the CLE program to attract and retain employees. offered their insights on select topics. We reached out to Governor Cuomo’s transition team In closing, I am reminded of the interview that the late Saturday Night Live to ask that a member of that team attend the Section’s An- Chris Farley of conducted with Paul nual Meeting in New York City to provide an update on McCartney, beginning with—“Remember when you were the Governor’s plans for DEC. We intend to be available as with the Beatles?” After McCartney’s acknowledgment, a resource for the new Governor as he seeks to close a huge Farley’s follow-up comment was—“That was awesome.” budget gap while still providing New Yorkers with a high I remember when Environmental Law was king and quality natural environment that not only serves as a criti- New York State was acknowledged as both a leader in cal component of our health and general well-being but environmental protection and as a model of economic op- represents an important variable when a business thinks of portunity. That was awesome. And I believe that it can be expanding its operation or setting up shop in New York. awesome again. Join me in working to make it so through To the Recession—We have tried to increase networking the work of the Section. opportunities while keeping costs down. The fi rst step in Barry Kogut this regard was the series of Regional Programs that were 2 NYSBA The New York Environmental Lawyer | Winter 2011 | Vol. 31 | No. 1 From the Editor-in-Chief As the New Year gets un- able Practice, Megan Brillault and Kristen Kelley Wilson derway, I am hopeful that 2011 explain how the legal profession can “go green.” We can will see some improvement do our part by continuing to get the word out so that for the environment, as 2010 more businesses become environmentally aware and “go was mostly a year of setbacks. green” despite the bad economy, and because of it. As far as efforts to address cli- Considering the many economic and environmental mate change, the Copenhagen benefi ts of green