Nuclear NY: “ZEC” Subsidies Permitted by Second Circuit

On September 27, 2018, the Second Circuit Court of Appeals upheld the District Court’s ruling in Coalition for Competitive Elec., et al. v. Zibelman, et al., and determined that New York State’s ZEC program is neither field nor conflict preempted. No. 17-2654, 2018 WL 4622696 (2nd Cir. Sept. 27, 2018). Moreover, the court found that the plaintiffs lacked Article III standing to raise a dormant Commerce Clause claim. In August 2016, the New York Public Service Commission (PSC) adopted the
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Environmental Due Diligence: What’s The Latest On Federal Environmental Review?

Just a few days ago, the U.S. House of Representatives’ Judiciary Committee — in a tight split — voted to support a bill that seeks to target the slow pace of the permitting process for infrastructure and development projects that require review by federal agencies. The bill, named the “Permitting Litigation Efficiency Act,” is expected to impose limits on federal review of projects, i.e., an apparent two-year deadline for federal agencies to determine whether a project can go forward. Other
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NYS DEC Adopts First Major Update to State’s Environmental Quality Review Regulations in 20 Years

On June 28, 2018, the New York State Department of Environmental Conservation (DEC) promulgated revisions to the State Environmental Quality Review Act (SEQRA). These are the first substantial revisions to SEQRA in over 20 years.The amendments go into effect beginning January 1, 2019 and will apply to all pending and future actions. Under SEQRA, actions are classified into three main designations: Type I, Type II, and Unlisted. The new amendments provide major changes to the types of projects that fall under the Type I and Type II classifications. The new
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Legionella Strikes Again In New York City

As we recently reported, New York City recently increased its enforcement of regulations for treating cooling towers, particularly given that the increased risk of legionella from cooling towers during the warmer summer months. Legionnaires’ disease is caused by pathogen known as legionella. Legionella is a water-borne bacteria, transmitted through aerosolized droplets of water, e.g., the mist or condensation by-products of HVAC cooling towers on top of buildings. While a relatively common bacteria, legionella, when not properly treated in a water system,
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Kivalina and AEP Claim Another Victim – New York Climate Change Suit Falls

Like the proverbial acid relentlessly burning its way through materials in which it comes in contact, the relentless reasoning underlying the Am. Elec. Power Co., Inc. v. Connecticut, 564 U.S. 410 (2011) (AEP) and Native Village of Kivalina v. ExxonMobile Corp., 696 F.3d 849 (9th Cir. 2012) (Kivalina) climate lawsuits has claimed another victim. After taking out the lawsuits filed by the cities of San Francisco and Oakland earlier this summer (Order), Kivalina and AEP now have been used to eliminate the climate change suit filed by the City of
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PFAS Alert: New York State Court Certifies PFOA Class Action

On July 3, 2018, a state court in New York certified a class action lawsuit that involves residents of Petersburgh, New York who claim exposure to varying levels of the chemical, perfluorooctanoic acid (PFOA). PFOA is in the class of chemicals known as per-and polyfluoroalkyl substances and was used to make heat, water, and stain resistant household and commercial products. Think Teflon, Scotchgard, GORE-TEX, fast food wrappers, etc. This is the first class action matter that’s been certified in the State of New York that involves
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New York Federal Court Rejects Landowner’s Claimed Right to Drill, But Will Challenges Continue?

A federal court in New York recently dismissed a landowner’s claim that the state’s ban on hydraulic fracturing violated the takings clause of the Fifth Amendment and due process rights. In Morabito v. The State of New York, et. al., the plaintiffs filed a complaint in the Western District of New York, asserting that the state’s decision to prohibit high-volume fracking activities constituted a regulatory taking and/or arbitrary and irrational restriction on plaintiff’s property rights. The plaintiffs, who are farmers, own various properties in western New York atop
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New York State Requires Manufacturers of Household Cleaning Products to Disclose Chemical Ingredients. Heads Up! This Includes Nanomaterials.

On June 6, 2018, the State of New York’s Department of Environmental Conservation (NYSDEC) launched a new initiative to require the public disclosure of chemical ingredients in household cleaning products. The cited authority for this program derives from Environmental Conservation Law (ECL) Article 35 and New York Code of Rules and Regulations (NYCRR) Part 659. The statute and regulations authorize the commissioner of NYSDEC to require manufacturers of domestic and commercial cleaning products distributed, sold, or offered for sale (including over the internet) in the state
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Be Prepared: New York City Cooling Tower Enforcement Heats Up As Summer Approaches

It has been about three years since Legionnaires’ disease made national headlines associated with the cooling tower of the Opera House Hotel in the South Bronx.  Legionnaires’ disease is a serious type of pneumonia caused by a waterborne pathogen known as Legionella. It is contracted when susceptible individuals inhale water droplets or mist containing elevated levels of legionella bacteria. New York City has as many as 1,200 towers that are evaporative heat exchangers usually installed on the top of a building as part of its air conditioning system in which water
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NY’s Highest Court Makes it Clear – NYS DEC Has Authority to Unilaterally Remediate Hazardous Waste Sites

In October 2016, New York’s Appellate Division held that the New York State Department of Environmental Conservation (DEC) overstepped its boundaries when it unilaterally undertook the remediation of FMC’s site in Niagara County, New York. FMC Corp. v. New York State Dept. of Envtl. Conservation, 143 A.D.3d 1128 (3d Dept. 2016). NY’s highest court – the Court of Appeals – smacked down the Appellate Division’s ruling and reversed it. The facts: For over 60 years, FMC has owned and operated a 103-acre property in the Village
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