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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U.S. Fish and Wildlife Proposes Changes to Eagle Management Program

Posted in Development/Redevelopment, Environmental & Green Issues
On May 4, 2016, the United States Fish and Wildlife Service (“FWS”) proposed amendments to regulations governing its comprehensive eagle conservation and management program. The proposal follows a successful challenge by environmental groups to FWS’ prior attempt to change its eagle rules, which was tossed out by a federal judge in 2013. The proposed modifications include changes to the manner by which FWS issues permits allowing otherwise prohibited activities which may unintentionally injure or disturb golden and bald eagles.… Continue Reading

Governor Christie Vetoes Offshore Wind Bill

Posted in Development/Redevelopment, Environmental & Green Issues
Recently, Governor Christie vetoed legislation designed to allow additional applications for offshore wind projects seeking approval from state regulators. The now-defunct bill, S988, sponsored by Senators Bob Smith (D-Middlesex) and Jim Whelan (D-Atlantic), sought to allow the New Jersey Board of Public Utilities (“BPU”) to open a 30-day period for the submission of offshore wind project applications. More specifically, the bill would have allowed BPU to accept and approve “a qualified wind energy project that is located in territorial waters offshore of [a] municipality in which casino gaming is authorized,” i.e. a wind project offshore from Atlantic City.… Continue Reading

Remedial Investigation Deadline Looms for New Jersey Contaminated Sites

Posted in Development/Redevelopment, Environmental & Green Issues
In less than three weeks, the statutory deadline to complete a site-wide remedial investigation (“RI”) for many contaminated sites in New Jersey will pass. Any site for which an RI has not been completed will be subject to direct oversight of the New Jersey Department of Environmental Protection (“NJDEP”), which would come with additional costs, less control over the remediation, and other burdens for responsible parties. Accordingly, responsible parties and their Licensed Site Remediation Professionals (“LSRPs”) should do everything in their power to complete an RI by the statutory deadline: May 7, 2016.… Continue Reading

NJ Legislature Considers Invalidating NJDEP Regulations

Posted in Environmental & Green Issues
On June 1, 2015, after significant outreach to the relevant stakeholders, the New Jersey Department of Environmental Protection (NJDEP) released for public comment sweeping proposed changes to the rules governing Coastal Zone Management (CZM), N.J.A.C. 7:7E-1.1 et seq., Stormwater Management (SWM), N.J.A.C. 7:8-1.1 et seq., and the Flood Hazard Area Control Act (FHACA), N.J.A.C. 7:13-1.1 et seq. However, the New Jersey Legislature is poised to use its constitutional authority to find that the proposed regulations are inconsistent with the legislative intent of the enabling statutes.… Continue Reading

No Safe Harbor: State Can Face Liability Under Spill Act

Posted in Environmental & Green Issues
Be careful what you wish for. That may be the message of the Appellate Division’s September 23 opinion in NL Industries, Inc. v. State of New Jersey, No. A-0869-14T3. Affirming a “thoughtful and erudite” 2014 Law Division opinion by Judge Douglas K. Wolfson, the appellate court held that the onerous liability regime of the 1976 Spill Compensation and Control Act (commonly known as the Spill Act), which imposes strict, joint, and several liability for cleanups on both the dischargers of hazardous substances and on the much broader class of parties “in any way responsible” for the hazardous substances, is equally applicable to the State. As a result, the State may be responsible for a portion of the remediation of a contaminated site on the shoreline of Raritan Bay that will likely cost more than $75 million.… Continue Reading

NYSDEC Hears Comments on Proposed Definition of “Underutilized”

Posted in Development/Redevelopment, Environmental & Green Issues
On July 29, 2015, the New York State Department of Environmental Conservation (NYSDEC) conducted a public hearing on its proposed definition of an "underutilized" site for purposes of the 2015 Brownfield Cleanup Act Amendments. As indicated in a prior blog, this definition is critical because being "underutilized" is one of the few ways that a New York City brownfield site can qualify for tangible property credits under the 2015 Amendments.… Continue Reading

Federal Court Finds Divisibility, Ruling in Favor of Volumetric Approach to CERCLA Divisibility in Fox River Sediment Cleanup Case

Posted in Environmental & Green Issues
In the latest development in the litigation over the environmental cleanup of the Fox River in northeastern Wisconsin, the U.S. District Court for the Eastern District of Wisconsin has found that NCR Corporation’s liability for the remediation of a section of the river is divisible—not joint and several under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Fox River is a Superfund site contaminated primarily with polychlorinated biphenyls (PCBs) from historic paper manufacturing and recycling facilities along the river. This opinion is believed to be the first such judicial decision that has ruled in favor of a divisibility defense since the Supreme Court’s 2009 decision in Burlington Northern & Santa Fe Ry. Co. v United States. Whether it is an indication of how Courts may address divisibility and apportionment of cleanup costs at complex sediment sites and other sites in the future remains to be seen.… Continue Reading

Starting January 1, 2015 New York Households Will Be Required to Recycle E-Waste

Posted in Environmental & Green Issues
Beginning January 1, 2015, any New Yorker who disposes of an old computer, television, or even an iPod, i.e., “electronic waste” (“e-waste”), by placing that item in the garbage or leaving it on the curb for collection will be in violation of the New York State Electronic Recycling and Reuse Act, N.Y. Envtl. Conserv. Law § 27-2601, et seq.. Individual consumers will instead be required to recycle such e-waste by dropping it off at a registered e-waste collector or by returning it to an e-waste manufacturer, or risk being fined $100 each time they fail to do so.… Continue Reading

Turnpike Authority is Not a “Local Government Unit”: Tax Court

Posted in Environmental & Green Issues
All politics, the saying goes, is local. Not so with government, according to a recent decision from New Jersey’s Tax Court. In an opinion that teaches more about legislative drafting than it does about tax policy, the court in New Jersey Turnpike Authority v. Township of Monroe parsed a complex definition of “local government unit” in the Garden State Preservation Trust Act (GSPTA). It held that the New Jersey Turnpike Authority did not come within that definition, and thus could not claim that status to obtain an exemption from roll-back taxes on a parcel it purchased in 2009.… Continue Reading

District of New Jersey Decision Highlights Procedural and Evidentiary Complexities Unique to the State’s Environmental Litigants

Posted in Environmental & Green Issues
In Leese v. Lockheed Martin Corp., one of the New Jersey’s foremost environmental jurists, the Honorable Jerome B. Simandle, Chief Judge of the United States District Court for the District of New Jersey, authored a comprehensive opinion explaining why several plaintiffs who alleged harm caused by contamination on their properties were without recourse under a number of state and federal environmental laws. In so doing, the Chief Judge highlighted the procedural and evidentiary complexities unique to environmental litigants.… Continue Reading

NJDEP Document Review Process Curtailed: More Autonomy for LSRPs

Posted in Development/Redevelopment, Environmental & Green Issues
Unable to keep up with submittals from Licensed Site Remediation Professionals (LSRP) and with the resulting increase in review times, the New Jersey Department of Environmental Protection (NJDEP) has recently decided to defer the review of non-Response Action Outcome (RAO) documents until an RAO is submitted. This announcement comes four years into the LSRP program, which as designed, has begun to eliminate the backlog of contaminated sites awaiting attention. However, the very success of the LSRP program has created its own backlog as NJDEP finds itself falling behind in review of submittals.… Continue Reading

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
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