Real Property & Environmental Law Alert

Real Property & Environmental Law Alert

Transactional Real Estate, Development/Redevelopment & Environmental Law

Category Archives: Environmental & Green Issues

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Supreme Court Limits EPA’s Authority to Regulate Carbon Emissions from Stationary Sources

Posted in Environmental & Green Issues
Since the Supreme Court’s 2007 decision in Massachusetts v. EPA, it has been clear that the U.S. Environmental Protection Agency (“EPA”) has the authority under the Clean Air Act (“CAA”) to regulate emissions of greenhouse gases (“GHGs”) from mobile sources because GHGs fall within the CAA’s definition of an “air pollutant.” When EPA sought to regulate GHG emissions from stationary sources (mainly power plants and factories), however, the Court sang a slightly different tune. In Utility Air Regulatory Group v. Environmental Protection Agency (“UARG”), the Court rejected EPA’s attempt to regulate GHG emissions from stationary sources under two regulatory programs based solely on those emissions, while affirming the agency’s ability to regulate such emissions from so-called “anyway” sources that are already undergoing regulatory review because of emissions of other pollutants… Continue Reading

Sixth Circuit Becomes Latest Federal Appeals Court to Rule That CERCLA’s Contribution and Cost Recovery Provisions Provide Mutually Exclusive Remedies to PRPs

Posted in Environmental & Green Issues
The United States Court of Appeals for the Sixth Circuit became the latest federal court of appeals to weigh in on the dichotomous nature of Superfund claims made under Sections 107 and 113 in the wake of the United States Supreme Court’s decision in United States v. Atlantic Research Corp., 551 U.S. 128 (2007). In Hobart Corp. v. Waste Management of Ohio, Inc., the Sixth Circuit held that Sections 107(a)(4)(B) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675, “provide mutually exclusive remedies,” an issue left open in Atlantic Research… Continue Reading

New Jersey Supreme Court Finds Neither Plan Approval Nor Complete Remediation are Prerequisites to a Spill Act Contribution Action

Posted in Environmental & Green Issues
In Magic Petroleum Corporation v. Exxon Mobil Corporation, the New Jersey Supreme Court held that a party funding remediation of a contaminated site may bring a contribution claim against other potentially responsible parties (“PRPs”) before completing remediation and prior to receiving the New Jersey Department of Environmental Protection’s (“DEP’s”) written approval of the remediation plan. In so doing, the Court has provided certainty, to a degree, to the environmental remediation process in New Jersey… Continue Reading

David J. Freeman to Chair Panel on Brownfield Reform at New York State Bar Association Environmental Law Section Fall Meeting

Posted in Development/Redevelopment, Environmental & Green Issues
David J. Freeman, a Director at Gibbons P.C., will chair a panel on reform of New York State’s Brownfield Cleanup Program at the Fall Meeting of the Environmental Law Section of the New York State Bar Association. The panel will discuss the Governor’s and Legislature’s actions this year―passage of an extension of the tax credit aspects of the Program, without enacting underlying reforms―and what is likely to happen next year. It will feature such prominent experts as Edward McTiernan, General Counsel of the New York State Department of Environmental Conservation; Christopher Goeken, Director of Public Policy and Governmental Relations of the New York League of Conservation Voters; Darren Suarez, Director of Governmental Affairs of the New York State Business Counsel; Jody Kass, Executive Director of New Partners for Community Revitalization; Philip Bousquet, Partner at Bousquet Holstein; and Linda Shaw, Partner at Knauf Shaw… Continue Reading

New York Court of Appeals Upholds Municipal Authority to Ban Fracking

Posted in Environmental & Green Issues
New York’s highest court dealt a blow to the hydrofracking industry on June 30 when it upheld, in a consolidated opinion in Matter of Wallach v. Town of Dryden and Cooperstown Holstein Corp. v. Town of Middlefield, the authority of municipalities to use their zoning powers to ban hydrofracking. The Court of Appeals held that provisions on the towns’ zoning ordinances that prohibited hydrofracking anywhere within their borders were not preempted by the “supersession clause” of the state’s Oil, Gas and Solution Mining Law (OGSML). That clause, said the Court, prevents municipalities from regulating the “how” of hydrofracking but does not bar them from limiting “where” it can take place… Continue Reading

New York Legislators PASS Extension of State Brownfield TAX CREDITS

Posted in Environmental & Green Issues
In the waning hours of this year's legislative session, the New York State Assembly and Senate have passed identical bills extending the sunset date for tax credits under the New York State Brownfield Cleanup Program from December 31, 2015 to March 31, 2017. To qualify for such credits, sites must obtain their Certificates of Completion from the New York State Department of Environmental Conservation (DEC) by the sunset date… Continue Reading

New Jersey Department of Environmental Protection Proposes New Rules Aimed at Streamlining Coastal Permitting Process

Posted in Environmental & Green Issues
On June 10, 2014, the New Jersey Department of Environmental Protection (“DEP”) introduced a series of proposed technical revisions to land use rules -- via a 1,055 page proposal -- designed to encourage redevelopment in coastal areas decimated by Hurricane Sandy. DEP Commissioner Bob Martin -- who also served on Governor Christie’s Red Tape Review Commission, which was launched in 2011 to streamline regulatory processes across state government -- explained that “[t]hese revisions will add clarity to our regulatory processes and provide better predictability in the regulatory process.”… Continue Reading

Gibbons Real Property & Environmental Practices Highlighted by Chambers USA

Posted in Environmental & Green Issues, Transactional Real Estate & Leasing
The Gibbons Real Property & Environmental Department, and seven of its attorneys, were among the 10 Gibbons practice areas and 27 individual attorneys ranked in the 2014 edition of the Chambers USA Guide to America’s Leading Lawyers for Business. Gibbons has appeared in the Chambers guide since its inception, and, for the past three years, Gibbons has also contributed the state overview for the New Jersey section of the publication. The firm’s Environmental Department ranked in Band 1 and Real Estate ranked in Band 2. Chambers annually rates the nation’s leading business lawyers and law firms through comprehensive interviews with top companies, attorneys, and business executives, plus extensive supplementary research… Continue Reading

The EPA Seeks to Regulate Carbon Emissions from Existing Power Plants

Posted in Environmental & Green Issues
On June 2, 2014, the Environmental Protection Agency (“EPA”) introduced new rules – via a 645 page proposal – designed to reduce the emission of carbon and other greenhouse gases (“GHGs”) from existing power plants. Although this is the first time the EPA has proposed such standards, the EPA claims that it is empowered to do so under the ambiguous provisions set forth in Section 111(d) of the Clean Air Act (“CAA”), 42 U.S.C. § 7411(d)… Continue Reading

Second Circuit Holds That CERCLA’s “Act of War” Defense Shields Owners and Tenants from Cleanup Liability for Dust Created By Towers’ Destruction on 9/11

Posted in Environmental & Green Issues
In the first decision of its kind, the Second Circuit on May 2, held that the September 11, 2001, attacks on the World Trade Center were “acts of war” for purposes of the affirmative defense for such acts contained in the onerous liability provision of the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Accepting the arguments raised by Gibbons and other firms representing the owners and tenants of the buildings (and the airlines whose planes were hijacked), the Court found that even though they were not committed by uniformed military forces of a nation-state, the attacks were nevertheless acts of war for CERCLA purposes (though not necessarily in other legal contexts) because they (1) were “indistinguishable from military attack in purpose, scale, means, and effect,” (2) were recognized as acts of war by both the President and Congress, and (3) “wrested from the defendants all control over the planes and the buildings, obviated any precautions or prudent measures defendants might have taken to prevent contamination, and located sole responsibility for the event and the environmental consequences on fanatics whose acts the defendants were not bound by CERCLA to anticipate or prevent.”… Continue Reading

U.S. Supreme Court Gives Downwind States Breathing Room Under the Clean Air Act

Posted in Environmental & Green Issues
On April 29, 2014, in EPA, et al v. EME Homer City Generation, LP, the United States Supreme Court ruled in favor of the US Environmental Protection Agency (“EPA”) and its controversial “Transport Rule” which curbed nitrous oxide and sulfur dioxide emissions in 27 upwind states. The Supreme Court held it was appropriate to defer to EPA’s expertise in crafting a method of implementing the Clean Air Act’s (“CAA”) “Good Neighbor” provision to reduce pollution from upwind states onto their downwind neighbors… Continue Reading

Market Growth of Fuel Cell Products Follow Patent Growth of Fuel Cell Technologies

Posted in Environmental & Green Issues
Recently, Wal-Mart placed an order for 1,738 fuel cell powered forklifts that move products in Wal-Mart’s warehouses. This highly publicized order spotlights the emerging commercial markets, the technologies and patents that have made the production of energy through fuel cells more cost effective. The commercial use of fuel cells is certainly not new, however. Advancements in the technology have decreased costs associated with the production of energy from fuel cells and consequently there has been a rise in the commercial use of fuel cells. The Clean Energy Patent Growth Index shows that for the last decade fuel cell related patents outpaced all other clean energy technology patents until 2013 when solar patents for the first time surpassed fuel cell patents… Continue Reading

Susanne Peticolas Authors Section on Bankruptcy for NJ Environmental Law Handbook

Posted in Development/Redevelopment, Environmental & Green Issues
Susanne Peticolas, a Director in the Gibbons Real Property & Environmental Department, contributed a section on environmental issues in bankruptcy to the 8th edition of the New Jersey Environmental Law Handbook. Her section discusses the issues created by the conflicting policies underlying bankruptcy law, focusing on a fresh start for the debtor, as well as environmental law, which focuses on making the polluter pay. The section covers a wide range of relevant topics, including which environmental claims are bankruptcy “claims,” how environmental claims are impacted by the automatic stay, the identity of the claim holder, and the relief that is being sought… Continue Reading

Having Trouble Filling Out the New SEQRA Environmental Assessment Forms? NYS DEC Has Scheduled a Series of Webinars to Help Shed Some Light on the Streamlined and Revised Forms

Posted in Development/Redevelopment, Environmental & Green Issues
It’s been six months since the new model State Environmental Quality Review Act (SEQRA) Environmental Assessment Forms (EAFs) became effective on October 7, 2013, and many individuals are still scratching their heads on how to efficiently and effectively complete the forms. In an effort to assist and instruct government agencies and the public on how to use the new model EAFs, the New York State Department of Environmental Conservation (NYS DEC) has announced a series of webinars to be held this spring. The webinars are designed to demonstrate how the new EAFs, the web-based framework for the guidebooks developed by NYS DEC, and the EAF Mapper, a software mapping program, work together to streamline the EAF completion process by both project sponsors (applicants) and reviewing agencies… Continue Reading

EPA and Army Corps Propose to Clear the Mud Stirred Up by Rapanos

Posted in Environmental & Green Issues
In 2006, the U.S. Supreme Court created great confusion in Rapanos v. United States over what wetlands fell within the coverage of the Clean Water Act (CWA) by setting out two separate tests for jurisdiction, one in the four-justice plurality opinion led by Justice Scalia, and one in a separate concurrence by Justice Kennedy. In an attempt to resolve the confusion, the Environmental Protection Agency (EPA) and the Army Corps of Engineers jointly released a draft rule. The rule is intended to clarify what streams and wetlands are covered by the Clean Water Act… Continue Reading

Divisibility Under CERCLA

Posted in Environmental & Green Issues
Although not expressly required under the statute, applied joint and several liability has usually been applied by courts when the government pursues cleanup against polluters under CERCLA. A party seeking to avoid joint and several liability has the burden of proving not only that divisibility of harm is possible amongst potentially responsible parties, but that a reasonable basis for such divisibility exists. Case law from federal district courts, circuit courts, and the U.S. Supreme Court makes it clear that satisfying this burden requires a very case-specific and fact intensive inquiry. Early planning and a focused strategy for how to frame the facts and theory of the case can make the difference in determining whether divisibility is both possible and reasonable… Continue Reading

Remedial Investigation Extension Application Deadline Further Extended to March 21, 2014 by NJDEP

Posted in Environmental & Green Issues
The New Jersey Department of Environmental Protection (“NJDEP”) has announced that it will continue to accept applications for the two year extension from the May 7, 2014, deadline to complete remedial investigations until March 21, 2014, due to the high number of weather-related statewide closings. Originally, applications had to be filed with NJDEP by March 7, 2014. … Continue Reading

New York City Brownfield Partnership Releases NYU Study on New York State Brownfield Cleanup Program

Posted in Environmental & Green Issues
The New York City Brownfield Partnership, a non-profit public-private partnership promoting the cleanup and redevelopment of brownfield sites in New York City, has just released a study analyzing the impact of the New York State Brownfield Cleanup Program (BCP) on the cleanup and redevelopment of brownfield sites in New York State. The study was directed by Barry F. Hersh, Clinical Associate Professor at New York University's Schack Institute of Real Estate, with financial support from the Partnership. The study provides timely and valuable information to the debate over proposed changes to the program… Continue Reading

Cuomo Budget Proposals Seek to Revise NY State Brownfield Cleanup Program

Posted in Environmental & Green Issues
Governor Andrew Cuomo has proposed major revisions to the New York State Brownfield Cleanup Program (BCP) in the budget he submitted to the state legislature last week. These changes, if enacted, will have a major impact on the types of projects that will be attracted to and accepted into the Program, and the extent to which they are eligible for tax credits… Continue Reading

Remedial Investigation Deadline Extended to May 7, 2016 if Conditions Met

Posted in Environmental & Green Issues
A number of Responsible Parties are breathing a sigh of relief. On January 21, 2014, Governor Christie signed legislation authorizing a two year extension for Responsible Parties to complete their remedial investigations before risking being placed under direct oversight of the New Jersey Department of Environmental Protection (NJDEP). The deadline has been extended from May 14, 2014, to May 7, 2016, under certain circumstances. Pursuant to the Site Remediation Reform Act (SRRA), the deadline applies to all site investigations or preliminary assessments that are being conducted to address discharges or contaminated areas of concern that have been or should have been identified on or before May 7, … Continue Reading

EPA Issues Final Rule Authorizing the Use of Electronic Manifests for Hazardous Waste

Posted in Environmental & Green Issues
On January 13, 2014, EPA issued its final rule authorizing the use of electronic manifests for hazardous wastes. The rule implements provisions of the Hazardous Waste Electronic Manifest Establishment Act ("Act") signed into law in 2012, which directed EPA to establish a national electronic manifest system for tracking hazardous waste. Although the final rule has been promulgated, the electronic system to handle electronic manifests will not be available until 2015 at the earliest… Continue Reading
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