Developments in Federal and State Law

Michael B. Gerrard Editor

ENVIRONMENTAL LAW IN NEW YORK Volume 26, No. 9

September 2015

RESPONSE BY THE NY PASSIVE HOUSE BOARD OF DIRECTORS TO AN INTRODUCTION TO PASSIVE HOUSE PRINCIPLES AND POLICY Counter Viewpoint We commend Environmental Law in New York for its interest in high performance building, as evidenced by the March 2015 Viewpoint article, ‘‘An Introduction to Passive House Principles and Policy’’ by Katrin Klingenberg and Mike Knezovich of PHIUS.1 However, we feel the information provided was incomplete.

IN THIS ISSUE Response By the NY Passive House Board of Directors to An Introduction to Passive House Principles and Policy.................. 147 LEGAL DEVELOPMENTS ......................................................... 151 ^ ASBESTOS..................................................................... 151 ^ ENERGY ........................................................................ 152 ^ HAZARDOUS SUBSTANCES ..................................... 152 ^ HISTORIC PRESERVATION....................................... 152 ^ INSURANCE.................................................................. 153 ^ LAND USE..................................................................... 153 ^ OIL SPILLS & STORAGE............................................ 155 ^ SEQRA/NEPA................................................................ 156 ^ TOXIC TORTS .............................................................. 156 ^ TRANSPORTATION..................................................... 157 ^ WETLANDS .................................................................. 157 NATIONAL DEVELOPMENTS.................................................. 158 NEW YORK NEWSNOTES ........................................................ 158 WORTH READING...................................................................... 160 UPCOMING EVENTS.................................................................. 161

We are writing to more fully inform policymakers about Passive House developments. We intend to: 1. Demonstrate that the Passive House Institute has been, and is today, active and instrumental in the ongoing development of Passive House buildings in the U.S. 2. Provide policymakers with examples where Passive House has already been adopted by government agencies in the U.S. 3. Describe a way forward that encourages the most rigorously energy-efficient buildings while discouraging monopolies.

[Editor’s Note: This month’s lead article is a response we received from the Board of Directors of NY Passive House to a Viewpoint article published in the March 2015 issue of Environmental Law in New York entitled ‘‘An Introduction to Passive House Principles and Policy’’ by Katrin Klingenberg and Mike Knezovich of Passive House Institute US (PHIUS).]

4. Propose mechanisms policymakers can utilize to encourage voluntary Passive House adoption. New York Passive House (NYPH) is a non-profit trade association affiliated with the Passive House Institute.2 NYPH has actively promoted Passive House buildings and low-energy buildings in the New York region since early 2010. With a membership made up of 185 Passive House professionals who design, build, and certify Passive House buildings, we are

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Katrin Klingenberg & Mike Knezovich, An Introduction to Passive House Principles and Policy, 26 ENVTL. LAW http://www.phius.org/Releases/Environmental-Law-In-NY-March-2015.pdf. 2 Our Mission, NYPH, http://nypassivehouse.org/about/ (last visited July 13, 2015).

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making Passive House a reality today across New York State and the New York City metropolitan region.

PASSIVE HOUSE DEVELOPMENT: FURTHER BACKGROUND Passive House is an international standard established and maintained by the Passive House Institute, an independent research organization based in Darmstadt, Germany. 3 The Passive House Institute has a staff of over 60 persons that conduct intensive and ongoing research about low-energy buildings from homes to hospitals and from the tropics to the Arctic. The research and the tools that the Passive House Institute have developed over the past 25 years form the basis of state-of-the-art low-energy building today. All of the Passive House Institute’s research is available to practitioners and policymakers. Passive House is being successfully implemented around the world, across North America and New York State—in every climate and geographical region. The Passive House voluntary database lists thousands of buildings.4 The North American Passive House Network (NAPHN)5 is the largest association of Passive House practitioners in the U.S. comprising regional groups from Maine to California, including New York, and it is aligned with the Passive House Institute. At the time of this writing, all of the certified Passive Houses in New York City have been certified by the Passive House Institute. The residential tower for Cornell Tech, which had its groundbreaking on June 16th, and will be the world’s tallest Passive House, is being certified by the Passive House Institute through its accredited certifier, the Passive House Academy. Today there are at least three organizations active in North America providing Passive House Institute accredited building certifications: Passive House Academy, Peel Passive House Consulting, and CertiPHIers Cooperative, with another 27 accredited certifiers worldwide.6 A key component to successful Passive House construction is in the training of architects, engineers, and contractors. The Passive House Institute has had the only regularly scheduled certified professional and tradesperson training in New York, provided by the Association for Energy Affordability and the Passive House Academy at facilities in Brooklyn, Manhattan,

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and the Bronx. These trainings have had the financial support of the New York State Energy Research and Development Authority. Today New York has the single largest concentration of Passive House trained professionals in the U.S.7 The international Passive House standard is working, and working well in New York and across the U.S.

Milestones in U.S. Passive House Development Passive House construction has developed out of a long history of building science research with pioneering contributions from around the world, including the work of North Americans.8 Policymakers should have a basic outline of the introduction of Passive House in the U.S. 1998: Dr. Wolfgang Feist, founder of the Passive House Institute, made a presentation on Passive House, in the U.S., at the American Council for an EnergyEfficient Economy. 2002: Architect Katrin Klingenberg traveled to Germany to tour Passive Houses with Manfred Brausem, a Passive House pioneer there. She returned to the U.S. and began designing her own Passive House, which broke ground that October in Urbana, Illinois and became the first Passive House in North America.9 2006: The first Certified Passive House was completed in the U.S.—the Biohaus, an educational building in Bemidji, Minnesota.10 2007: PHIUS was formed by Katrin Klingenberg and Mike Kernagis. 2008: Peel Passive House Consulting became the first North America-based Passive House Institute accredited building certifier.11 2008: Passive House got a big boost in the United States from a New York Times article called ‘‘No Furnaces but Heat Aplenty in ‘Passive Houses,’ ’’ by Elisabeth Rosenthal,12 featuring a family living in Darmstadt, Germany, and a house in Berkeley, California— sparking a wave of popular interest.

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PASSIVE HOUSE INSTITUTE (PHI), http://www.passivehouse.com (last visited July 13, 2015). PASSIVE HOUSE DATABASE, http://www.passivhausprojekte.de/index.php?lang=en (last visited July 13, 2015). 5 NAPHN: NORTH AMERICAN PASSIVE HOUSE NETWORK, http://www.naphnetwork.org (last visited July 13, 2015). 6 Passive House Institute accredited Building Certifiers, PHI, http://passivehouse.com/03_certification/02_certification_buildings/03_certifiers/01_ accredited/01_accredited.php (last visited July 13, 2015). 7 See generally Trainings: Descriptions & Schedules, NYPH, http://nypassivehouse.org/category/courses/ (last visited July 13, 2015). 8 The Passive House — historical review, PASSIPEDIA: THE PASSIVE HOUSE RESOURCE, http://www.passipedia.org/basics/the_passive_house_-_historical_ review (last visited July 13, 2015). 9 KATRIN KLINGENBERG ET AL., HOMES FOR A CHANGING CLIMATE: PASSIVE HOUSES IN THE UNITED STATES (2009). 10 Das BioHaus, PASSIVE HOUSE DATABASE, http://www.passivhausprojekte.de/index.php?lang=en#d_1760 (last visited July 13, 2015). 11 Building Certification, PEEL PASSIVE HOUSE CONSULTING, http://peelpassivehouse.ca/services/building-certification/ (last visited July 13, 2015). 12 Elisabeth Rosenthal, No Furnaces but Heat Aplenty in ‘Passive Houses,’ N.Y. TIMES, Dec. 26, 2008, http://www.nytimes.com/2008/12/27/world/europe/ 27house.html?pagewanted=all. 4

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SEPTEMBER 2015 2009–2010: PHIUS became a Passive House Institute accredited building certifier and exam provider.



The Marin County Board of Supervisors amended their building code in 2013 to include, for the first time, the following definitions: * ‘‘Passive House’’ means a building that meets the Passive House standards as developed by the Passive House Institute, Germany, providing cost effective energy efficiency, indoor air quality, and comfort through modeling using the PHPP energy-modeling program. * ‘‘PHPP’’ means the ‘‘Passive House Planning Package’’, an energy-modeling program developed by the Passive House Institute, Germany, used in developing buildings to the Passive House Standard. The new Marin County code encourages ‘‘green building’’ by authorizing the establishment of incentives for ‘‘green building compliance.’’ It further notes: ‘‘The applicable green building rating system shall be that which is most recently adopted by Build It Green or the U.S. Green Building Council or the Passive House Institute.’’16



Mayor Bill de Blasio announced a policy, One City: Built to Last, in September 2014, to dramatically reduce greenhouse gas emissions from buildings city-wide by 2050.17 The policy states that New York City will look to ‘‘Passive House, carbon neutral, or ‘zero net energy’ strategies to inform the standards.’’ At the groundbreaking of the world’s tallest Passive House on June 16, 2015, Mayor de Blasio stated: ‘‘Passive House makes sense as a phrase[,] . . . [b]ut I think it’s a very activist notion. It’s a transformative notion. . . . This is one example of how New York City can show . . . the world a model that works in today’s reality.’’18



Community Board One in downtown Manhattan, an important civic leader, incorporating the World Trade Center, Wall Street, City Hall, and Chinatown areas, in December 2014 overwhelmingly passed a resolution in support of the International Passive House Standard. It reads in part: ‘‘CB 1 supports the investigation of the implementation of the PH Standard for its potential application to new construction and renovation in our community. It also encourages the completion of a public project in Lower Manhattan to demonstrate a zero-net energy standard and cost saving potentials. . . .’’19



The Pennsylvania Housing Finance Agency (PHFA), formed by the Pennsylvania legislature to provide affordable

2011: Passive House Academy, an accredited Passive House building certifier and professional trainer, began regular operations in the U.S.13 2011: PHIUS issued its own separate building certification and professional training protocols, branded PHIUS+. Later the same year the relationship between PHIUS and the Passive House Institute ended. 2015: CertiPHIers Cooperative began accredited building certification operations in the U.S.14

Tools for Passive House Construction Building highly energy-efficient, comfortable, healthy, and robust buildings requires careful planning. The foundation of this planning for Passive House construction is the Passive House Planning Package (PHPP) energy model. The PHPP has been carefully developed by the Passive House Institute over the past 25 years. The PHPP has been used in every climate and for virtually all occupancy types. Its accuracy has been widely validated. In addition to the PHPP, Passive House designers and builders utilize other specialized tools as situations warrant such as Therm software developed by Lawrence Berkeley National Laboratory to calculate specific thermal bridges and WUFI software developed by Fraunhofer IBP to provide specialized hygrothermal modeling. Other tools include a blower door to physically test airtightness, the certification protocols, and, perhaps most importantly, the trained professionals themselves.

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PASSIVE HOUSE ADOPTION IN NORTH AMERICA Policymakers should know that Passive House has been adopted in numerous forms by government bodies and public agencies across North America. A current accounting includes the below list. NYPH also has a blog post dedicated to the subject that gets regularly updated.15

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PASSIVE HOUSE ACADEMY, http://www.passivehouseacademy.com/ (last visited July 13, 2015). CERTIPHIERS, http://www.certiphiers.com/ (last visited July 13, 2015). 15 Passive House Examples in Public Administration and Regulation, NYPH, http://nypassivehouse.org/passive-house-in-public-administration-andregulation/ (last visited July 13, 2015). 16 Marin Cnty., Cal., Ord. No. 3607 (Nov. 12, 2013) (definitions are codified at MARIN CNTY. CODE § 19.04.130), available at http://nypassivehouse.org/ wp-content/uploads/2014/12/Marin-County-Bldg-Code.pdf. 17 N.Y.C. MAYOR’S OFFICE OF LONG-TERM PLANNING & SUSTAINABILITY, ONE CITY: BUILT TO LAST (2014), http://www.nyc.gov/html/builttolast/assets/downloads/pdf/OneCity.pdf. 18 N.Y.C. Office of the Mayor, Transcript: Mayor de Blasio Delivers Remarks at Groundbreaking For Cornell Tech Campus (June 16, 2015), http:// www1.nyc.gov/office-of-the-mayor/news/409-15/transcript-mayor-de-blasio-delivers-remarks-groundbreaking-cornell-tech-campus. See video clip at http:// foursevenfive.com/cornells-new-campus-breaks-ground-and-passive-house-is-main-attraction/. 19 Cmty. Bd. #1 – Manhattan, Resolution regarding International Passive House Standard for New York City (Dec. 18, 2014), available at http:// nypassivehouse.org/wp-content/uploads/2014/12/CB1-Passive-House-Resolution.pdf. 14

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homeownership, now provides incentives for Passive House compliance of multifamily buildings. The criteria for meeting ‘‘Energy Efficiency Goals’’ require developments to meet Passive House Certification requirements but do not require final certification. They read in part: ‘‘The development meets/will meet Passive House Certification (nationally or internationally) for energy efficiency.’’ Also, ‘‘All third party consultants must be Passive House certified.’’20 



The San Francisco Planning Department issued new guidelines in October 2014, giving preferential treatment to ‘‘green building’’ including Passive House, and naming ‘‘Certified Passive House Certification or EnerPHit Certification by the International Passive House Institute’’ as one means of meeting the green building criteria.21 The city of Vancouver, British Columbia, is looking first and foremost at removing barriers to Passive House construction, publishing a guide on how to build Passive House.22 A March 2014 letter from Vancouver to Canadian Passive House Institute - West (CanPHI-West) issued a clarification intended to remove such barriers, in one instance accepting Passive House Institute window certification in lieu of accepted performance tests by the National Fenestration Rating Council (NFRC) or Canadian Standards Association (CSA).23 And on June 8, 2015, Vancouver made the Passive House standard an alternative option to LEED (the U.S. Green Building Council’s Leadership in Energy and Environmental Design) standards in the City’s Green Buildings Policy for Rezoning. The Administration Bulletin states in part: ‘‘The Green Buildings Policy for Rezoning allows the Passive House standard (also referred to interchangeably as Passiv Haus) to be used as an equivalent method to the LEED/ASHRAE requirements to achieve and measure a high standard of building performance. A Certified Passive House building is one that meets the International Passive House standard as defined by the Passive House Institute in Darmstadt, Germany.’’24

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NYPH recommends the use of Passive House Institute protocols, trainings, and certifications as being the best approach available to practitioners today—however, NYPH also understands there can be and are multiple pathways to making very low-energy buildings. NYPH believes that with the rigorous metrics of Passive House as a goal, there should be no monopolies by private organizations. Today Passive House metrics are well established and are accessible for policymakers to utilize in a non-branded generic manner to provide low-energy buildings. And today the building energy efficiency code widely used in the U.S., the International Energy Conservation Code, also defines a ‘‘low-energy building.’’25 The code says low-energy buildings are: Those with a peak design rate of energy usage less than 3.4 Btu/h  ft2 (10.7 W/m2) or 1.0 watt/ft2 (10.7 W/m2) of floor area for space conditioning purposes. This code definition practically matches the functional definition of Passive House, which defines a peak load limit option of 10 W/m2. Consequently many of today’s Passive House buildings already achieve the current code standard for a low-energy building. The goal is low-energy buildings, and Passive House is a tool to reach it. With such a generic goal, defined as functionally equivalent to Passive House, all interested parties can accelerate adoption of the means and methods to achieve it in a competitive marketplace.

MECHANISMS POLICYMAKERS CAN UTILIZE

A FUTURE WITHOUT MONOPOLY: LOW-ENERGY BUILDINGS

The policy of New York State and New York City to achieve 80% carbon reductions by 2050 is critical to ensure our longterm prosperity. As we know, building operational energy use is a very large component of our current carbon emissions,26 and dramatically reducing our building energy usage with available tools such as Passive House construction is essential to achieving success.

The history and activity of Passive House building in the U.S. is inseparable from the fundamental contributions made by the Passive House Institute and its ongoing scientific leadership.

Consequently we ask that policymakers help lower barriers to voluntary low-energy building adoption. We ask that you ensure clear goals and an open and dynamic market that resists

20 Pa. Housing Finance Agency, 2015 Multifamily Housing Application Package and Guidelines, Tab 03, Self-Scoring Sheet, at 173 (rev’d Dec. 15, 2014), http://www.phfa.org/developers/developer/housingapplication.aspx (last visited July 13, 2015). 21 San Fran. Planning Dept., Planning Director Bulletin No. 2, Planning Department Application Processing Guidelines, at 2 (rev’d Oct. 2014), available at http://nypassivehouse.org/wp-content/uploads/2014/12/SanFranciscoApplicationsForGreenBuildings.pdf. 22 CITY OF VANCOUVER, PASSIVE DESIGN TOOLKIT FOR HOMES (July 2009), http://vancouver.ca/files/cov/passive-home-design.pdf. 23 Letter from Deputy Chief Bldg. Official & Green Bldg. Mgr. to Canadian Passive House Inst. — West (Mar. 17, 2014), available at http://nypassivehouse.org/wp-content/uploads/2014/12/Vancouver-BC-CMO-SUS-Passive-House-Equivlencies-Letter.pdf. 24 City of Vancouver Planning & Dev’t Servs., Green Buildings Policy for Rezoning - Process and Requirements, at 2 (amended June 8, 2015), available at http://nypassivehouse.org/wp-content/uploads/2014/12/Vancouver-Green-Buildings-Policy-for-Rezoning.pdf. 25 ICC IECC C101.5.2 (2012), available at http://publicecodes.cyberregs.com/icod/iecc/2012/icod_iecc_2012_ce1_sec002.htm. 26 N.Y.C. MAYOR’S OFFICE OF LONG-TERM PLANNING & SUSTAINABILITY, ONE CITY: BUILT TO LAST (2014), http://www.nyc.gov/html/builttolast/assets/downloads/pdf/OneCity.pdf.

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SEPTEMBER 2015 exclusive private pathways. Resist the formation of monopolies. There are options today, and we should encourage more options tomorrow—while keeping the rigorous Passive House goals in hand. Policymakers should look to all levers available to encourage Passive House construction by lowering barriers, providing incentives, and considering mandates. Lower Barriers to Adoption: While incremental energy code improvements underway are moving toward greater energy efficiency, they are also locking in relatively high carbon emissions for decades to come, particularly when compared to the dramatic efficiencies locked in with Passive House construction. To accelerate our progress toward low-energy buildings, policymakers should consider two complementary approaches: code exemption and code modifications. 



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IN SUMMARY To reach our carbon reduction goals, to make low-energy buildings, Passive House construction is one of the most powerful tools we have. Led by the Passive House Institute, Passive House has been developed for over 25 years and represents a collective and global effort that continues its progress today here in New York and across the U.S. Policymakers can accelerate these efforts through critical mechanisms such as mandated government leadership, multiple certification pathways, lower barriers, and voluntary incentives. Policymakers can spur deeply energy-efficient buildings on a voluntary basis and provide economic and environmental benefits to New Yorkers across the state and citizens across the U.S. As policymakers consider our proposals, New York Passive House and the Passive House Institute are ready to provide further technical assistance.

Code Exemption: We ask that policymakers in New York and other states help construction projects leapfrog the energy code by providing an alternative compliance pathway. While the existing code allows for exemptions from enclosure requirements for some buildings, because Passive House addresses total energy usage, we propose a broader exemption from the entire energy code for both residential and commercial buildings. We have asked that policymakers consider exempting construction projects from the energy code that obtain certification from the Passive House Institute, or a determined substantially similar certification (such as PHIUS). We suggest that a Passive House pre-certification be obtained and provided to the Department of Buildings (DOB) with jurisdiction prior to issuing of building permits, in addition to filing the final Passive House certification with the DOB upon substantial completion.

The members of the NY Passive House Board of Directors are Andreas Benzing, Ben Igoe, Christopher Spencer, Emily Jones, Floris Keverling Buisman, Greg Duncan, Jeremy Shannon, Ken Levenson, Lois Arena, Stas Zakrzewski, Buck Moorhead, and Shawn Torbert.

Code Modifications: Building and energy codes—often working within a ‘‘lowest common denominator’’ framework—have certain stipulations that unnecessarily make it more difficult to achieve Passive House performance. These include prescriptive requirements regarding ventilation and component certifications. Similarly, historic preservation approval requirements often unnecessarily burden energyefficient retrofits. Such codes can be amended to encourage Passive House construction while protecting health and safety as well as protecting our architectural heritage.

In an asbestos wrongful death action pending in the Western District of New York, a federal magistrate judge granted the plaintiff’s motion to permit late service of an expert report. The updated report was dated January 6, 2015, just two days before the defendants’ deposition of the expert. The defendants objected to the report, asserting that there was no prior notice of the report and that the scheduling order did not permit a new report. They asserted that the updated report contained citations to medical and scientific literature not contained in the expert’s earlier report, as well as 32 new paragraphs on specific causation and an alteration to the expert’s opinion on the impact of the plaintiff’s prior radiation treatment for Hodgkin’s disease. The plaintiff responded that the updated report was ‘‘substantively . . . identical’’ to earlier reports but had been updated to comply with federal rules as opposed to the state rules pursuant to which it was originally submitted. The magistrate indicated that the additional information in the updated report was not ‘‘previously unknown or unavailable data’’ required to supplement or correct the report, but rather was ‘‘basic evidence regarding the nature and use of asbestos and its effect on human health.’’ Moreover, the magistrate noted that the plaintiff had not provided an excuse for withholding the information. Nonetheless, the court denied the defendants’ motion to preclude the report because its

Incentivize Adoption: We should consider incentivizing voluntary adoption of low-energy building construction with tax and other incentives. As with lowering barriers, we recommend that multiple certification pathways be allowed and encouraged. Mandate ‘‘Beacon Projects’’: Encourage mandates for government-owned buildings where possible. Such government leadership can ‘‘seed’’ the market, building market competency and capacity.

LEGAL DEVELOPMENTS

ASBESTOS Federal Court Allowed Updated Report from Plaintiff’s Expert

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exclusion could severely compromise the plaintiff’s ability to establish the elements of the wrongful death cause of action and because the opinions in the updated report were not novel and would not be expected to substantively alter the defense of the action. The court permitted the defendants to conduct supplemental depositions and to supplement their own expert witness disclosure. Byer v. Bell Helicopter Textron, Inc., 2015 U.S. Dist. LEXIS 69905 (W.D.N.Y. May 28, 2015).

compensation for the easement in good faith. The court also said that defendants’ contentions that the easement would interfere with their development of the property were relevant to the issue of just compensation, not to whether Millennium was entitled to a permanent easement. The court granted the easement and scheduled a bench trial to determine just compensation. Millennium Pipeline Co., L.L.C. v. Acres of Land, Inc., 2015 U.S. Dist. LEXIS 68478 (W.D.N.Y. May 27, 2015).

Appellate Division Said Valve Manufacturer Was Not Liable for Asbestos Claims Arising from Dismantling of Its Products

HAZARDOUS SUBSTANCES

The Appellate Division, First Department, dismissed an asbestos personal injury action against a valve manufacturer, reversing the denial by the Supreme Court, New York County, of the manufacturer’s motion for summary judgment. The plaintiff had alleged that he developed peritoneal mesothelioma as a result of exposure to asbestos in the course of his work dismantling and salvaging scrap metal from steam systems in vacant buildings. He made claims against the manufacturer grounded in strict products liability and negligence in the defective design of the valves. The First Department, citing Restatement (Second) of Torts § 402A, concluded that the manufacturer was not liable as a matter of law because the plaintiff’s salvage work was not a reasonably foreseeable use of its product. As persuasive authority, the First Department cited decisions by the high courts in Indiana and Florida and the federal district court for the Western District of Pennsylvania that also concluded that dismantling and demolition were not reasonably foreseeable uses of products. Hockler v. William Powell Co., 2015 N.Y. App. Div. LEXIS 4679 (1st Dept. June 9, 2015).

ENERGY Federal Court Granted Easement Over Chemung County Property for Natural Gas Pipeline The federal district court for the Western District of New York granted a permanent easement to Millennium Pipeline Company, L.L.C. (Millennium) for maintenance and operation of a natural gas pipeline across defendants’ property in the Town of Veteran in Chemung County. The court granted Millennium a temporary easement in 2008, and the pipeline has been in operation since 2008. The court cited the federal Natural Gas Act, which grants private gas companies the right to obtain interests in property through eminent domain for rights of way for the transportation of natural gas. The court noted that once the Federal Energy Regulatory Commission (FERC) issues a Certificate of Public Convenience and Necessity (which in this case FERC had done), and a gas company is unable to acquire the needed land by contract or agreement, the only remaining issue is the amount to be paid to the owner as just compensation. The court rejected the defendants’ claims that Millennium had not negotiated

Appellate Division Affirmed That PERC Is Not ‘‘Petroleum’’ Under Navigation Law The Appellate Division, Third Department, held that perchloroethylene (PERC) does not constitute ‘‘petroleum’’ for purposes of Article 12 of the Navigation Law. The issue arose in an action by the owner of a strip mall in Columbia County against its dry cleaning tenant after an environmental site assessment suggested that the ground behind the dry cleaning establishment had been contaminated by PERC, which the dry cleaner used until approximately 1985. The Third Department rejected the plaintiff’s argument that PERC constituted ‘‘petroleum’’ under the Navigation Law because it was a petroleum-derived compound. The Third Department said that this would be a ‘‘novel expansion’’ of the law and would bring within the scope of the Navigation Law a ‘‘vast and diverse range of products and substances derived from petroleum—many of which pose none of the same dangers as petroleum itself.’’ The appellate court therefore concluded that summary judgment had properly been granted to defendants on the Navigation Law claim as well as on indemnification and contribution claims premised on Navigation Law liability. Fairview Plaza, Inc. v. Estate of Rigos, 2015 N.Y. App. Div. LEXIS 4802 (3d Dept. June 11, 2015).

HISTORIC PRESERVATION Federal Court Upheld Landmark Preservation Commission’s Denial of Hardship Finding for Upper East Side Tenement Buildings The federal district court for the Southern District of New York ruled that an Upper East Side property owner had failed to state a claim for a substantive due process violation in connection with the New York City Landmark Preservation Commission’s (LPC’s) denial of a preliminary ‘‘hardship’’ finding. The application for the hardship finding concerned two buildings located on a block that included 15 six-story buildings that made up the First Avenue Estate, a residential complex that was a ‘‘light-court’’ style tenement complex ‘‘intended to diverge from the ‘dark and unventilated’ housing typically available’’ to the working poor in the late nineteenth and early twentieth centuries in New York City. Thirteen of the buildings, for which

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SEPTEMBER 2015 construction was completed in 1906, were designed by a ‘‘renowned architect’’ and were designated as a landmark in 1990. The two buildings that are the subject of this lawsuit— which were designed by an ‘‘undistinguished’’ architect and for which construction was completed in 1915—were excluded from the 1990 designation by the New York City Board of Estimate. In 2004, the property owner took steps to develop a condominium tower on the site of the two buildings. In 2006, however, LPC modified the 1990 designation to include the two buildings. In 2010, the property owner submitted an application for a ‘‘certificate of appropriateness’’ to demolish the two buildings on the ground that they were ‘‘not capable of earning a reasonable return.’’ LPC denied this hardship application in 2014. Several months later, the owner filed this federal lawsuit, as well as an Article 78 proceeding. The court declined to dismiss the federal action pursuant to the Colorado River abstention doctrine. The court said abstention was not warranted because only two of the six Colorado River abstention factors weighed ‘‘moderately’’ in favor of abstention. The court went on to find that the property owner had failed to allege that it possessed a ‘‘valid property interest’’ to form the basis of a substantive due process claim. The court said that LPC’s decision-making process for evaluating hardship applications involved an ‘‘extensive amount of discretion,’’ which made the property owner’s chances of obtaining a hardship finding ‘‘uncertain at best.’’ The property owner therefore had failed to state a constitutionally protected property interest and could not maintain a substantive due process claim. Stahl York Avenue Co., LLC v. City of New York, 2015 U.S. Dist. LEXIS 66660 (S.D.N.Y. May 21, 2015).

INSURANCE Federal Court Ruled That Insurer Was Obligated to Pay $2 Million for Remediation Expenditures and $3.4 Million for Prejudgment Interest in Coverage Dispute Involving New Jersey Site The federal district court for the Southern District of New York entered a judgment resolving a dispute between Olin Corporation (Olin) and OneBeacon America Insurance Company (OneBeacon) over OneBeacon’s obligations under excess insurance policies it issued to Olin to cover the period from January 1, 1970 to January 1, 1973. The dispute concerned costs incurred by Olin in connection with environmental contamination at the Bridgeport Rental and Oil Services, Inc. site in New Jersey. The court found that OneBeacon had breached its obligations to indemnify Olin and that pro rata allocation was appropriate. The court found that OneBeacon was obligated to indemnify Olin, which earlier settled with its primary insurer, for all amounts allocated pro rata to the 1970-1974 years, and that Olin therefore was entitled to $2,057,850 for costs incurred as of December 31, 2014. The court noted that Olin’s remediation expenditures properly included legal fees incurred in connection with the implementation of remedies selected by government

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agencies to address the site’s contamination. The court rejected OneBeacon’s arguments in favor of restricting Olin’s entitlement to prejudgment interest to only a post-trial period beginning in 2014. The court determined that Olin had adequately apprised OneBeacon of Olin’s demands for damages and that OneBeacon had taken the position that it was not obligated to indemnify Olin from an early point in the litigation and had maintained this position for 21 years. OneBeacon therefore was required to compensate Olin in the form of prejudgment interest in the amount of $3,385,691.45 for the costs for which it was liable. The court also ruled that OneBeacon was obligated to fully indemnify Olin for expenditures incurred after December 31, 2014 to remediate or monitor conditions at the site. Olin Corp. v. Insurance Co. of North America, 2015 U.S. Dist. LEXIS 69358 (S.D.N.Y. May 28, 2015).

LAND USE Federal Court Refused to Dismiss Claims Against Sullivan County Municipalities for Alleged Discrimination Against Hasidic Jews The federal district court for the Southern District of New York allowed some constitutional claims to proceed against municipal defendants in Sullivan County in connection with the defendants’ efforts to prevent the conversion of a property in the Village of Bloomingburg into a mikvah (a bath used by Hasidic Jews for ritual immersion and purification) and to obstruct a housing development known as Chestnut Ridge. The court also allowed a Fair Housing Act claim related to the Chestnut Ridge development to proceed. The court concluded that plaintiffs had stated plausible First Amendment, equal protection, and due process claims arising from actions taken by the Town of Mamakating, its zoning board of appeals (ZBA), and the Town Supervisor to thwart the mikvah project. The court noted allegations that after the election of the supervisor, who co-founded an allegedly anti-Hasidic organization called the Rural Community Coalition, a stop-work order was issued for the mikvah project. In addition, the ZBA, whose chair was appointed by the supervisor, overturned a planning board approval of the mikvah’s site plan. The ZBA ruled that a mikvah is not a neighborhood place of worship (which would be a permitted use) without providing a reasoned basis. The court also found that the complaint contained legally sufficient allegations that these defendants’ actions intentionally discriminated based on the property owner’s affiliation with the Hasidic Jewish community and therefore stated an equal protection claim. Similarly, the court found that the Village of Bloomingburg, its board of trustees, and its mayor and two trustees were motivated by discriminatory animus and acted intentionally to discriminate against Hasidic Jews in connection with a vote to pass a moratorium on the issuance of building permits, which had an adverse effect on the Chestnut Ridge project. These allegations were sufficient to support an equal protection claim. The court also

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allowed the due process and Fair Housing Act claims of the Chestnut Ridge developer to proceed based on the diminution in the value of its investment caused by delays in closing sales on the completed residential units and its related inability to economically benefit from the development. The court dismissed other claims, including those related to the establishment of a private Hasidic school that received planning board approval after the complaint was filed. The court also dismissed claims based on alleged discriminatory enforcement because none of the plaintiffs alleged particularized injuries resulting from the stopwork orders mentioned in the complaint. Claims against municipal officials in their individual capacities were dismissed on legislative or qualified immunity grounds. Bloomingburg Jewish Education Center v. Village of Bloomingburg, 2015 U.S. Dist. LEXIS 74285 (S.D.N.Y. June 9, 2015).

Court of Appeals Said Public Trust Doctrine Did Not Apply to Greenwich Village Parcels to Be Used in NYU Expansion Plan The New York Court of Appeals ruled that four parcels of municipal land in Greenwich Village that were part of New York University’s (NYU’s) campus expansion plan had not been impliedly dedicated as parkland. The parcels—which were designated as streets on City maps and had for years been available to the public as playgrounds and parks, a garden, and a dog run—therefore were not subject to New York’s public trust doctrine, which would have required State approval for use of the parcels in NYU’s plan. The Court of Appeals agreed with the Appellate Division, First Department, which had reversed the Supreme Court, New York County, that New York City had not manifested an ‘‘unequivocal intent to dedicate the contested parcels for use as public parks.’’ The court said that the ‘‘restrictive terms’’ of the permit, memorandum of understanding, and lease/license that permitted use of the parcels for recreational and park-like purposes showed that the City ‘‘had no intention of permanently giving up control of the property.’’ The Court of Appeals wrote that the belief by a portion of the public that the parcels were public parkland ‘‘does not warrant a contrary finding.’’ Matter of Glick v. Harvey, 2015 N.Y. LEXIS 1479 (N.Y. June 30, 2015). [Editor’s Note: This proceeding was previously covered in the May 2013, July 2013, April 2014, and January 2015 issues of Environmental Law in New York.]

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Zoning Board of Appeals, 2015 N.Y. App. Div. LEXIS 5147 (3d Dept. June 18, 2015).

Appellate Division Affirmed Denial of Area Variances for Residential Lot in Village of Hempstead The Appellate Division, Second Department, upheld the denial of an application for area variances that would have enabled construction of a two-story residence in the Incorporated Village of Hempstead. The Village’s Board of Zoning Appeals found that the need for the variances was self-created, that the requested 20% variance from the required minimum lot area was substantial, and that the proposed variances would have a negative impact on the physical and environmental conditions in the neighborhood, which had existed in its present form for 50 years. The Second Department found that the Village’s Board of Zoning Appeals had engaged in the required balancing test and that the granting of variances for two other substandard lots in the area did not entitle the petitioner to the area variances. Matter of Affordable Homes of Long Island, LLC v. Monteverde, 128 A.D.3d 1060, 10 N.Y.S.3d 283 (2d Dept. 2015).

Appellate Division Upheld Area Variances for Mixed-Use Project in City of Long Beach The Appellate Division, Second Department, affirmed the granting of area variances for a mixed-use residential and commercial building in the City of Long Beach. The Second Department said that the City’s Zoning Board of Appeals (ZBA) had engaged in the required balancing test and considered the relevant statutory factors. The court said the ZBA’s determination was not arbitrary and capricious even though the variances were substantial and the applicant’s difficulty was self-created. The court said the ZBA had supported its findings that the project would not produce an undesirable change in neighborhood character, have an adverse impact on environmental or physical conditions, or result in a detriment to the health, safety, and welfare of the community. The court also said that the ZBA had rationally concluded that the benefit sought by the applicant could not be achieved without area variances. Matter of Goodman v. City of Long Beach, 128 A.D.3d 1064, 10 N.Y.S.3d 302 (2d Dept. 2015).

Appellate Division Agreed with Village of Champlain Zoning Board That Keeping Chickens Was Not a Residential Accessory Use

State Supreme Court Said Pleasantville Woman Should Have Been Granted Permit Allowing Her to Foster Rescue Dogs

The Appellate Division, Third Department, affirmed a zoning board’s determination that keeping chickens was not a permissible accessory use in a residential zone. The Third Department said that this interpretation by the Village of Champlain Zoning Board of Appeals was neither irrational nor unreasonable given that poultry husbandry was included in the Village zoning code’s definition of agriculture. Matter of Meier v. Village of Champlain

The Supreme Court, Westchester County, reversed the denial of an application for a special use permit for a private, nonprofit dog kennel at a residence in Pleasantville. The application was made by a woman who owned four dogs, the maximum number allowed by the Town of Mount Pleasant Code, and who also had been fostering a rescue dog as a volunteer for a not-for-profit dog rescue organization. The Zoning Board of Appeals of the Town

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SEPTEMBER 2015 of Mount Pleasant (ZBA) denied the application on the grounds that the applicant’s fostering of the dog for the nonprofit organization was ‘‘for business purposes’’ (despite having been advised otherwise by the Town Attorney), which made the applicant ineligible for a special permit under the Town’s zoning ordinance. The court said that the ZBA’s ‘‘efforts to rationalize its decision, through convoluted rhetoric advocating the somewhat baffling classification of a voluntary, unpaid, act of kindness toward a rescue dog’’ as a business were arbitrary and capricious. The court also found that the ZBA had failed to identify any failure by the applicant to meet the preconditions for the special use permit and therefore remanded the matter to the ZBA for issuance of the permit. Matter of Bove-Fulgenzi v. Zoning Board of Appeals of the Town of Mount Pleasant, 2015 N.Y. Misc. LEXIS 1941 (Sup. Ct. Westchester County June 2, 2015).

State Supreme Court Affirmed Denial of Subdivision Approval in Town of Brookhaven The Supreme Court, Suffolk County, dismissed a property owner’s challenge to the denial by the Town of Brookhaven’s Board of Zoning Appeals (BZA) of an application for subdivision and related area variances. The application concerned two residential parcels in Selden that the owner held as a single aggregate parcel, even though each parcel had a separate and distinct tax map designation. The subdivision would have created two nonconforming lots from this existing nonconforming lot: (1) a nonconforming Parcel A on which a singlefamily residence would be constructed and (2) a nonconforming Parcel B on which a pre-existing single-family residence would be located. The court affirmed the BZA’s denial, finding that each of the seven variance requests made by the owner was significant and substantial. The court also said that the subdivision was not a vested property right or interest. Matter of Marrone v. Board of Zoning Appeals of the Town of Brookhaven, 2015 N.Y. Misc. LEXIS 1850 (Sup. Ct. Suffolk County May 13, 2015).

DEC Commissioner Ordered Property Owner in Herkimer County to Remove Steps and Dock from State Lands The Commissioner of the New York State Department of Environmental Conservation (DEC) issued a decision and order finding that a property owner in the Town of Webb, Herkimer County, had not complied with restrictions in the Environmental Conservation Law on the use of State forest preserve lands. The owner’s property was located adjacent to State forest preserve lands. The commissioner found that DEC staff had established that over the course of a number of years, the respondent cut vegetation from State land, constructed and maintained unpermitted steps across State land leading to the Stillwater Reservoir, and attached a dock to State lands. In addition, the respondent restricted the ‘‘free use’’ of lands in Adirondack Park by maintaining a floating dock and ramp over

submerged State lands and attaching the dock to State lands. The commissioner rejected the respondent’s argument that he was a riparian owner with a right of access to the Stillwater Reservoir. The commissioner also said that any approval from the Hudson River-Black River Regulating District for the construction of the steps and dock did not obviate the need to obtain approval from DEC for the structures. The commissioner imposed a $400 penalty, to be suspended contingent upon the property owner’s removal of the structures. In re Kincade, DEC VISTA Index Nos. CO6-20061107-24 and CO6-20080331-9 (June 11, 2015).

OIL SPILLS & STORAGE Washington Heights Building Owner Ordered to Pay $5,000 for Failure to Renew Storage Tank Registration The DEC commissioner ordered the owner of a 4,000-gallon aboveground petroleum storage tank on West 170th Street in Manhattan to pay a $5,000 civil penalty for failing to renew the tank’s registration. The registration expired on July 1, 2013. The commissioner also ordered the owner to submit a petroleum bulk storage registration application for the facility within 15 days. In re 715 Heights Corp., DEC Case No. 2601666JB (June 16, 2015).

DEC Commissioner Ordered Owner of Former Convenience Store to Rectify Violations of Petroleum Bulk Storage Requirements The DEC commissioner issued an order finding that the owner of the Birch Bark Deli, a convenience store in the Town of Franklin, Franklin County, had violated regulatory requirements for petroleum bulk storage facilities. The store formerly sold gasoline and diesel fuel. There were four aboveground petroleum storage tanks at the facility with a combined capacity of 14,550 gallons, including one tank for storage of gasoline and ethanol, one for diesel fuel, and two for No. 2 fuel oil for on-site consumption. The commissioner granted DEC staff’s request for default judgment and also concluded based on record evidence that the respondent had failed to display a current and valid registration certificate, had failed to permanently mark the fill ports on and to install secondary containment for the No. 2 fuel oil tanks, and had failed to temporarily close the gasoline-ethanol and diesel tanks, and to permanently close the gasoline-ethanol and diesel tanks, as well as one of the No. 2 fuel oil tanks. The commissioner imposed a $11,300 penalty, suspending payment of $8,300 on the condition that the respondent comply with other aspects of the order. In particular, the respondent was to notify DEC regarding whether she would temporarily or permanently close the gasoline-ethanol and diesel tanks, and to take steps specified in the order to effect the temporary or permanent closure. In addition, the commissioner’s order required the respondent to label the fill ports on and

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install secondary containment for the No. 2 fuel oil tanks. In re Daby, DEC Case No. R5-20140225-2100 (June 16, 2015).

SEQRA/NEPA Appellate Division Affirmed Dismissal of Challenge to Upper East Side Medical and Nursing School Facilities The Appellate Division, First Department, upheld New York City’s land use approvals for a plan to construct an 800,000square-foot development on Manhattan’s Upper East Side that would include an ambulatory facility for Memorial Sloan Kettering Cancer Center and a nursing school and other facilities for the City University of New York. The First Department concluded that in the review conducted pursuant to City Environmental Quality Review requirements, the City had taken a ‘‘hard look’’ at the project’s anticipated impacts and provided a ‘‘reasoned elaboration’’ of the basis for the project’s approval. The court rejected the petitioners’ argument that the final environmental impact statement (FEIS) should have considered the impacts of a garage to be constructed more than 50 blocks from the main project site. (The garage was to replace a sanitation garage that formerly occupied the project site.) The court concluded that the garage and the medical buildings were ‘‘two separate, independent projects that share no common purpose and are not part of a larger plan of development’’ even though they existed ‘‘by virtue of the same request for proposals and contract.’’ The First Department said the ongoing separate environmental review for the garage was proper. The First Department also said that the City was not required to consider petitioners’ preferred alternative scenario of residential development at the project site because this alternative would not have met the objectives and capabilities of the project sponsor. The First Department further held that the zoning map amendment did not constitute illegal spot zoning or ad hoc zoning legislation, that the use of incentive zoning was within the City’s broad authority and was proper, and that payment for nearby parkland was not an illegal quid pro quo for specific floor area ratio. In addition, the court said that the Manhattan Borough Board’s 6-5 vote in favor of the project was proper because one member of the 12-member board had recused herself, as opposed to abstaining, so that 6 votes in favor of the project constituted a majority. Matter of Residents for Reasonable Development v. City of New York, 128 A.D.3d 609 (1st Dept. May 28, 2015). [Editor’s Note: This proceeding was previously covered in the November 2014 issue of Environmental Law in New York.]

State Supreme Court Rejected Challenges to Brooklyn Bridge Park Building Heights The Supreme Court, Kings County, ruled against plaintiffs who argued that two buildings constructed in Brooklyn Bridge Park exceeded height limitations imposed to protect views. The court said that the parameters for the buildings were dictated by a

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Modified General Project Plan (MGPP) approved by the Brooklyn Bridge Park Development Corporation in December 2006. The MGPP set the maximum heights for the two buildings as ‘‘approximately 55 feet’’ and ‘‘approximately 100 feet in height,’’ but was ‘‘completely silent’’ regarding how to measure height. In particular, the MGPP did not address two contested issues: ‘‘the point at which calculation of the building height commences’’ and what building features (rooftop structures such as bulkheads and mechanicals, in particular) were to be included in or excluded from the height measurement. Plaintiffs’ experts contended that the measurement should commence at the sidewalk level and continue to the highest point of any rooftop structure, including bulkhead and mechanicals. Defendants’ architect opined that building height should be measured from average grade level and that rooftop structures such as mechanicals should be excluded from the height measurement. The court was sympathetic to the plaintiffs’ concerns, stating that ‘‘[t]he casual passerby walking along Brooklyn’s majestic Promenade is struck with an indelible impression that these buildings . . . are simply too large.’’ Nonetheless, the court noted that other branches of government had made the decision not to improve the view. The court concluded that the defendants’ methodology for measuring height was consistent with industry standards and municipal zoning codes. The court also said that it was appropriate for the building height measurement to take into account an approximately four-foot increase in grade elevation required as a result of zoning changes made after Superstorm Sandy. The court also rejected plaintiffs’ argument that the defendants had agreed to include rooftop structures in the height measurement. The plaintiffs’ argument was based on an email sent by an employee of the park’s designer to a representative of the Brooklyn Heights Association in 2005 indicating that mechanicals would be ‘‘included in the building envelope’’ and also on a response to a comment on the project’s draft environmental impact statement (DEIS) that said parapet and mechanical equipment ‘‘should be included in the proposed building envelope.’’ The court said these documents were ambiguous because they referred to the building envelope, not the height limitation. ‘‘[M]ore importantly,’’ the court said, ‘‘neither the substance of the e-mail nor the response to comment . . . was incorporated into the all-important MGPP.’’ The statements therefore had ‘‘no continuing relevance or binding effect.’’ In addition to rejecting the merits of the plaintiffs’ claims, the court also ruled that their lawsuit, which was commenced seven months after the taller building ‘‘topped out,’’ was timebarred. Save the View Now v. Brooklyn Bridge Park Corp., 2015 N.Y. Misc. LEXIS 2179 (Sup. Ct. Kings County June 10, 2015).

TOXIC TORTS First Department Affirmed Non Conveniens Dismissal of Ecuadorians’ Lawsuit Against Attorney and Plaintiff in Lago Agrio Case The Appellate Division, First Department, affirmed the dismissal on forum non conveniens grounds of a lawsuit

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SEPTEMBER 2015 brought by members of a group of indigenous Ecuadorians against the attorney Steven Donziger and the organization Frente De Defensa De La Amazonia a/k/a Amazon Defense Front or Amazon Defense Coalition (ADF). The plaintiffs claimed that they were entitled to a portion of a judgment awarded by an Ecuador court in the Lago Agrio litigation against Chevron Corporation for damage to the environment and the Ecuadorian people caused by Chevron’s predecessor’s petroleum operations. Donziger represented the Ecuador litigation plaintiffs, and ADF was a plaintiff in the Ecuador litigation and the trustee for the monies awarded by the Ecuadorian court. Plaintiffs in the New York State lawsuit also brought claims against Donziger and his law firms and ADF for breach of fiduciary duty and unjust enrichment and asked for imposition of a constructive trust. The First Department found that the Supreme Court, New York County, had properly found that the defendants had established that the lawsuit ‘‘lacks a substantial New York nexus.’’ The First Department said that Ecuador was a more convenient forum for the witnesses and parties, and that there was no unfairness in requiring the plaintiffs to prosecute their claims there. The appellate court also noted that the alleged misconduct of Donziger, a New York attorney, all related to the litigation in Ecuador. In addition, the court said that the Supreme Court had appropriately rejected the argument that Ecuador was not a suitable forum for the litigation and that, in any event, an alternative forum was not a requirement for a non conveniens dismissal. Huani v. Donziger, 2015 N.Y. App. Div. LEXIS 5014 (1st Dept. June 16, 2015).

TRANSPORTATION Court of Appeals Upheld New York City’s Taxi of Tomorrow Program The New York Court of Appeals ruled that the New York City Taxi and Limousine Commission (TLC) did not exceed its authority or violate the separation of powers doctrine when it established a particular make and model of vehicle to serve as the City’s official taxicab. The Court of Appeals opinion provided an overview of the history of taxis in New York City, recalling the image of Checker cabs, ‘‘the iconic taxi of yesteryear,’’ driving through City streets from the 1960s through at least the 1980s, and noting that for years in the early 2000s, only Ford’s stretch Crown Victoria could comply with the TLC’s required minimum leg room specs. The Court of Appeals noted that, with the exception of the Checker cab, taxicabs had usually been passenger vehicles that were ‘‘hacked up’’ to include equipment required by the TLC such as partitions and roof lights. The court indicated that use of hacked-up passenger vehicles was not ideal because of taxis’ ‘‘long hours and rough driving conditions’’ and safety risks arising from the circumstance that vehicles are tested for safety before they are hacked up. After a process that began in 2007, partly spurred by Ford’s announcement that it would discontinue the Crown Victoria, the TLC selected the Nissan NV200 as the ‘‘Taxi of Tomorrow.’’ The TLC elected to specify the particular make and

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model rather than to incorporate the specs from the model into its rules, as it had historically done. The Court of Appeals found that the TLC intended this ‘‘single model approach’’ to be more efficient than the ‘‘specs method,’’ and that its decision to use the single model approach fell within the ‘‘extremely broad authority’’ granted by the City Council to the TLC. The court also considered the factors set forth in Boreali v. Axelrod, the ‘‘seminal case addressing the proper delegation of power,’’ and determined that the TLC had not engaged in legislative policymaking. The court distinguished the Taxi of Tomorrow rule from the New York City Department of Health and Mental Hygiene’s recently overturned ‘‘ban on large sugary drinks,’’ where the Court of Appeals ‘‘focused on whether the challenged regulation attempted to resolve difficult social problems concerning matters of personal autonomy by ‘interfer[ing] with commonplace daily activities preferred by large numbers of people.’ ’’ The court concluded that the Taxi of Tomorrow rules did not involve such difficult social problems, and that ‘‘our analysis compels the determination that the TLC engaged in proper rulemaking, rather than improper legislating.’’ Greater New York Taxi Association v. New York City Taxi and Limousine Commission, 2015 N.Y. LEXIS 1432 (N.Y. June 25, 2015). [Editor’s Note: This case was previously covered in the January 2014 and September 2014 issues of Environmental Law in New York.]

WETLANDS Appellate Division Affirmed Amherst Property Owner’s Entitlement to Damages for Substantive Due Process, but Not Equal Protection, Violations The Appellate Division, Fourth Department, affirmed in part and reversed in part a judgment in favor of a property owner in an action against the Town of Amherst. A jury had awarded damages for substantive due process ($1,459,411) and equal protection ($1,588,000) violations in connection with a 2006 resolution of the Amherst Town Board that rescinded the Town’s sewer tap-in waiver request to the United States Environmental Protection Agency (EPA) on behalf of the property owner. The waiver was necessary for development of the owner’s property as an office park because the property was partially located in a designated wetland where the Town had agreed to prohibit new development from connecting to sewers funded by an EPA grant. Town representatives had agreed in a 2005 memorandum that only planning board, not town board, approval was required to finalize the waiver on the part of the Town. The Fourth Department concluded that the property owner’s action was timely due to tolling during the pendency of an earlier federal action, and that the owner was not limited to bringing an Article 78 proceeding. The Fourth Department also held that the property owner had established a constitutionally protectable property interest in the Town’s waiver request to EPA because the town board had no further discretion to exercise and the plaintiff established that site plan approval by the planning board and EPA’s granting of the waiver were certainties.

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Moreover, the property owner had submitted sufficient evidence that the Town’s conduct was ‘‘solely politically motivated’’ and that the town board’s action ‘‘was without legal justification.’’ Nor was the town board entitled to qualified immunity since it failed to establish that it was objectively reasonable to believe that withdrawal of the tap-in waiver request was appropriate. The Fourth Department ruled, however, that the trial court should have granted the Town’s motion for summary judgment dismissing the owner’s equal protection claim. The Fourth Department agreed with the Town that it had established as a matter of law that the owner’s property was not similarly situated to two other properties. The Fourth Department dismissed the Town’s appeal of an award of attorney’s fees to the property owner. Acquest Wehrle, LLC v. Town of Amherst, 2015 N.Y. App. Div. LEXIS 5255 (4th Dept. June 19, 2015); Acquest Wehrle, LLC v. Town of Amherst, 2015 N.Y. App. Div. LEXIS 5251 (4th Dept. June 19, 2015).

DEC Commissioner Ordered Issuance of Wetlands Permit for Reduced Park Project in Harrison The DEC commissioner ordered DEC staff to issue a freshwater wetlands permit to the Town/Village of Harrison that will allow construction of a park project known as ‘‘Project Home Run’’ on a remediated brownfield site. The commissioner noted that the park project—for which Harrison first submitted an application in 2007—had twice been reduced significantly in scope, with the second reduction requiring no filling or grading activities in a wetland. The filling and grading activities would be limited to 2.0 acres of the wetland’s adjacent area, and the project would include a 1.07-acre wetland buffer enhancement plan. The enhancement plan included the removal of all invasive plant species, and their replacement with native plants and a seed mix. The commissioner reversed an administrative law judge’s (ALJ’s) determination that adjudication was necessary to determine whether the reduced project would meet compatibility tests set forth in the wetlands regulations. The commissioner determined that submissions by DEC staff and Harrison demonstrated that the reduced project met the three compatibility tests and that objections made by the City of Rye and an individual did not raise substantive and significant issues that warranted a hearing. The commissioner also affirmed the ALJ’s determination that DEC’s amended negative declaration for the project was not irrational or affected by an error of law. In re Town/Village of Harrison, DEC Application Nos. 3-5528-00104/00001, 3-552800104/00002 (June 16, 2015).

NATIONAL DEVELOPMENTS Supreme Court Said That EPA Was Required to Consider Costs When Deciding to Regulate Hazardous Air Pollutants from Power Plants The United States Supreme Court ruled that EPA was required to consider cost at the outset of its regulatory process for

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controlling emissions of hazardous air pollutants from power plants. At the initiation of the process, the Clean Air Act requires a finding that regulation of such pollutants is ‘‘appropriate and necessary.’’ EPA had determined that regulation was ‘‘appropriate’’ because of human health and environmental risks posed by power plants’ emissions of hazardous air pollutants and because controls were available to reduce the emissions. EPA had said that regulation was ‘‘necessary’’ because other Clean Air Act requirements did not eliminate the risk. EPA explicitly concluded that ‘‘costs should not be considered’’ when deciding whether to regulate. When it issued the regulations, EPA also issued a Regulatory Impact Analysis that found that power plants would bear costs of $9.6 billion, while the quantifiable direct benefits would be $4 to $6 million per year and the total quantifiable benefits, including ancillary benefits, would be $37 to $90 billion per year. A majority of the justices agreed that EPA could not defer its consideration of costs until later in the decision-making process. The majority’s opinion, written by Justice Scalia, stated that ‘‘[r]ead naturally in the present context, the phrase ‘appropriate and necessary’ requires at least some attention to cost,’’ and that statutory context reinforced the relevance of cost. While a dissent by Justice Kagan contended that EPA had acted within its discretion by ‘‘declining to consider costs at the opening bell of the regulatory process given that it would do so in every round thereafter,’’ the majority said that the possibility of cost becoming relevant at a later stage did not mean that it was irrelevant to the ‘‘appropriate and necessary’’ finding. Michigan v. Environmental Protection Agency, 192 L. Ed. 2d 674 (2015).

NEW YORK NEWSNOTES DEC Issued Findings Statement on High-Volume Hydraulic Fracturing On June 29, 2015, DEC published its findings statement regarding horizontal drilling and high-volume hydraulic fracturing (HVHF). The issuance of the 43-page findings statement followed the filing of the supplemental generic environmental impact statement on May 13, 2015. Noting that the findings were the culmination of seven years of review, DEC concluded that there were no feasible or prudent alternatives that would adequately avoid or mitigate the adverse environmental impacts of HVHF development in the Marcellus Shale and other low-permeability gas reservoirs. Those impacts included impacts to state-owned lands, freshwater wetlands, forests and other habitat, streams, air resources, visual resources, agricultural lands, threatened and endangered species, and the spread of invasive species. Other impacts cited by DEC were related to spills, cuttings disposal, waste disposal, and community character. The findings also concluded that there were no alternatives that addressed the scientific uncertainties and risks to public health posed by HVHF, and that an HVHF prohibition was the best alternative based on the balance between protection of the environment and public health and economic and social considerations. The findings statement is

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SEPTEMBER 2015 available at http://www.dec.ny.gov/docs/materials_minerals_pdf/ findingstatehvhf62015.pdf.

New York City Law Requires Car Washes to Certify Compliance with Environmental Requirements A New York City law enacted on June 29, 2015 (Local Law 62 of 2015) requires that car wash operators certify their compliance with environmental requirements in order to obtain or renew their licenses. Car washes are required to regularly remove oil, sediment, and other residues from their oil/water separator systems and sand interceptors in accordance with manufacturer specifications and to comply with New York City sewer use rules. Car washes must also comply with City requirements for testing and reporting with respect to backflow prevention devices. They must also certify that they maintain material safety data sheets (MSDSs) for chemicals used in their facilities for which a federal, state, or local law or regulation requires MSDSs.

Energy Plan Set New York’s Goals for Emissions Reduction, Renewables, and Energy Efficiency The New York State Energy Planning Board released the 2015 New York State Energy Plan on June 25, 2015. The plan, The Energy to Lead, ‘‘coordinates every State agency and authority that touches energy’’ to advance the goals of the Reforming the Energy Vision (REV) energy strategy that the State launched in 2014. The plan sets forth three ‘‘Clean Energy’’ numerical targets for the year 2030: (1) a 40% reduction in greenhouse gas emissions below 1990 levels from the energy sector (power generation, industry, buildings, and transportation); (2) 50% of electricity generation from renewable sources; and (3) a 600 trillion Btu increase in statewide energy efficiency. The plan describes 43 initiatives in seven categories that are expected to achieve approximately half of the greenhouse gas emissions reduction target. The seven categories are Renewable Energy, Buildings and Energy Efficiency, Clean Energy Financing, Sustainable and Resilient Communities, Energy Infrastructure Modernization, Innovation and R&D, and Transportation. The plan is available at http://energyplan.ny.gov/Plans/2014.aspx.

DEC Proposed Regulations to Implement the Sewage Pollution Right to Know Act In the June 17, 2015 issue of the NYS Register, DEC published its proposed rules to implement the Sewage Pollution Right to Know Act (SPRTK Act). DEC has also announced that the public may sign up to receive notices of sewage discharges through the NY-Alert system. The SPRTK Act requires publicly owned treatment works (POTWs) and operators of publicly owned sewer systems (POSSs) to report untreated and partially treated sewage discharges to DEC and the local health department (or to the New York State Department of Health, if there is no local health department) within two hours of discovery of the discharge. Within four hours of discovery of a discharge,

POTWs and POSSs must report to the chief elected official, or authorized designee, of the municipality in which the discharge occurred, as well as to such officials in any adjoining municipality. Discharges that may present a threat to public health require notification to the general public within four hours of discovery. DEC’s proposal to implement the SPRTK requirements would not require reporting for discharges of partially treated sewage directly from a POTW so long as the discharges are in compliance with a DEC-approved plan or permit. The rules would require owners and operators of POTWs and POSSs to make notifications to municipalities and the general public for each day that the discharge continues. DEC said it would accept public comments on the proposed rules through July 31, 2015. Information about signing up to receive alerts about sewage spills through NY-Alert is available at http://www.dec.ny.gov/docs/water_pdf/publicalertdoc1.pdf.

EPA Approved Revision to New York’s Carbon Monoxide SIP On June 12, 2015, EPA published a final rule in the Federal Register approving New York’s revision of its state implementation plan (SIP) for carbon monoxide. New York had requested approval of its removal of a reference to a limited off-street parking program in the Manhattan Central Business District. The program, which New York City called ‘‘outdated,’’ will no longer be federally enforceable. EPA noted that New York’s SIP modeling had not taken any credit for emissions reductions associated with this program. EPA concluded that the revision would not interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment and maintenance of any National Ambient Air Quality Standards (NAAQS) or with any other applicable requirement of the Clean Air Act.

Proposed Brownfield Cleanup Program Definitions Set Parameters for Tax Credit Eligibility in New York City As required by this year’s amendments to the Brownfield Cleanup Program law, DEC released on June 8, 2015 the proposed definitions for two terms that will be key to determining whether brownfield sites in New York City are eligible for tangible property tax credits. The two terms—‘‘affordable housing project’’ and ‘‘underutilized’’—define the contours for two paths by which New York City sites may qualify for the credits. The regulations proposed a four-part definition for ‘‘underutilized’’ that would exclude sites where the proposed development is residential or restricted residential. To qualify as ‘‘underutilized,’’ a property would also have to be certified by the municipality as meeting other criteria, including that the site would not be developed without ‘‘substantial government assistance,’’ a term also defined in the proposed regulations. The definition of ‘‘affordable housing project’’ includes both home ownership residential projects and rental residential projects. Projects must be subject to a federal, state, or local

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affordable housing program, or a local governments’ regulatory agreement or legally binding restriction where units are set aside for tenants based on a defined maximum percentage of the area median income. The proposed regulations also amend the definition of ‘‘brownfield site’’ to make it compatible with the 2015 legislation. The text of the proposed regulations is available at http://www.dec.ny.gov/regulations/101915.html. DEC accepted comment on the proposal through August 5, 2015. The 2015 legislation requires that DEC adopt the definition of ‘‘underutilized’’ by October 1, 2015.

DEC Released Proposed 10-Year State Wildlife Action Plan On June 4, 2015, DEC released its State Wildlife Action Plan (SWAP) for public comment. The SWAP is a 10-year plan that will update the 2005 Comprehensive Wildlife Conservation Strategy. The update is required for New York to remain eligible for federal grants through the U.S. Fish and Wildlife Service’s State Wildlife Grant Program. The draft SWAP identifies 366 Species of Greatest Conservation Need (SGCN), including 167 high-priority SGCN. The high-priority SGCN include little brown bats, spruce grouse, Blanding’s turtle, queen snake, American eel, sauger, winter flounder, horseshoe crab, dwarf wedgemussel, and American bumblebee. DEC said it would accept comments on the draft SWAP through July 17, 2015. The draft SWAP is available at http://www.dec.ny.gov/ animals/7179.html.

DEC Announced New Air Toxics Regulations In the June 3, 2015 issue of the NYS Register, DEC announced amendments to its air regulations that will affect regulated entities applying for new or modified permits or registrations for process emission sources or renewing existing permits or registrations for such sources. DEC said that the revised regulations streamline the regulatory process by integrating federal and state air toxics programs facility reporting requirements. The amendments repealed and replaced 6 N.Y.C.R.R. Part 212. In addition, Part 200 was amended to include a new definition for the determination of toxic equivalency factors for dioxin and dioxin-like compounds and to incorporate federal New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants (NESHAPs). The new Part 212 establishes a ToxicBest Available Control Technology (T-BACT) standard for toxic air contaminants and controls High Toxicity Air Contaminants (HTACs) to the greatest extent possible. The NYS Register notice described five changes to how Part 212 is enforced. First, the new regulations establish an alternative compliance option for HTACs, permitting facility owners and operators either to limit actual annual emissions from all process operations so as not to exceed mass emission limits specified for the HTAC or to demonstrate compliance with air cleaning requirements specified in the regulations. Second, for toxic air contaminants governed by NESHAPs, sources may demonstrate compliance with Part 212 by demonstrating compliance with the federal program,

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except for HTACs, which require a Toxic Impact Analysis (TIA) in addition to the demonstration of compliance with the federal NESHAP. (The TIA must demonstrate that emissions and the maximum offsite ambient air concentrations do not exceed specified limits.) Third, T-BACT is used to regulate non-criteria air pollutants. Fourth, regulated entities may perform air dispersion modeling analysis to demonstrate compliance with NAAQS or Annual and Short-term Guideline Concentrations (AGC/SGC) for emission sources with lesser emission rates. Fifth, the threshold emission rates for when control requirements become applicable were lowered for certain contaminants. The regulations provide for compliance to work in a ‘‘step-wise’’ process that provides for ‘‘off ramps’’ once a regulated entity can demonstrate that it has satisfied a step’s requirements. The new regulations are available at http://www.dec.ny.gov/regulations/ 101729.html.

State Established Emergency Rules to Protect Nail Workers’ Health The New York State Department of State published emergency regulations in the June 3, 2015 NYS Register that require the provision and use of personal protective equipment in nail salons. The emergency rules went into effect on June 15, 2015 and amend regulations that apply to ‘‘appearance enhancement’’ businesses. The new regulations require use of respirators when buffing or filing nails or using acrylic powders. They also require workers to wear gloves when handling potentially hazardous chemicals or waste and during cleanup, or when performing any procedure that has a risk of breaking a customer’s skin. Workers must also wear eye protection when pouring or transferring potentially hazardous chemicals from bulk containers and when preparing potentially hazardous chemicals for use in nail care services. Owners must make the foregoing equipment available at no cost to workers at each workstation. In separate emergency rulemakings, the Department of State set forth requirements for appearance enhancement businesses to post notices of violations, required posting of a nail practitioner bill of rights, and imposed bonding and insurance requirements to guard against underpayment of workers. The emergency rules were set to expire on August 15, 2015, but the Department of State indicated it would undertake a permanent rulemaking.

WORTH READING Building Energy Exchange, Retrofitting Affordability: Evaluating New York City’s Multifamily Building Energy Data for Savings Opportunities (June 2015), http://be-exchange.org/media/BX_RetrofittingAffordability-20150618-Website-2.pdf Christine A. Fazio & Ethan I. Strell, Green Infrastructure, Stormwater and Water Quality, N.Y.L.J., at 3 (June 25, 2015) Michael B. Gerrard, Survey of 2014 Cases Under State Environmental Quality Review Act, N.Y.L.J., at 3 (July 9, 2015)

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SEPTEMBER 2015 Thomas Maligno & Benjamin Rajotte, Trial by Water: Reflections on Superstorm Sandy, 26 Fordham Envtl. L. Rev. 345 (2015) Kingsley Osei, Overcoming Obstacles in Structuring Solar Projects in the Public Sector, N.Y.L.J., at 4 (July 10, 2015)

UPCOMING EVENTS September 10, 2015 LL87 & LL88: How to Get Value from Doing the Work, 6–7:30 PM, Urban Green Council, Science, Industry & Business Library, 188 Madison Avenue (at 34th Street), Lower Level, Room 018, New York City. For information, see http://urbangreencouncil.org/content/events/ll87-ll88-09-10-15. September 16, 2015 2015 Paris Climate Conference (COP 21): What to Expect and What Should Follow?, 6–8 PM, Earth Institute, Columbia University, Buell Hall, New York City. For information, see http://www.earthinstitute.columbia.edu/events/view/78694. September 16, 2015 Advanced Energy Consumers: Customer Models Driving Utility Industry Change from the Edge, Part of the Clean Energy Connections 2015 Season: An Evolving Energy Vision, New York City. For information, see http://www.cleanecnyc. org/the-grid-edge/. September 22, 2015 Power Source: Evolution of Energy Policies and Emerging Technologies, 30th Annual Fall Conference & Membership Meeting, Independent Power Producers of New York, Inc., Gideon Putnam Hotel, Saratoga Springs. For information, see http://www.ippny.org/page/fall-conference-2015-136.html. September 23, 2015 International Conference on Sustainable Development, Earth Institute, Columbia University, Alfred Lerner Hall. For information, see http://www.earth.columbia.edu/events/view/78695. September 30, 2015 Feeding Tomorrow: Technology and the New Food Ethics, a MOFAD (Museum of Food and Drink) Roundtable presented by The New School and the Museum of Food and Drink, 6–8

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PM, Wollman Hall, Eugene Lang College, 65 West 11th Street, Room B500, New York City. For information, see http://events. newschool.edu/event/feeding_tomorrow_technology_and_the_ new_food_ethics#.VaVCMlMcWPU. October 2–4, 2015 New York State Bar Association Environmental Law Section Fall Meeting, Gideon Putnam Resort, Saratoga Springs. For information, see http://www.nysba.org/Sections/Environmental/ Environmental_Law_Section.html. October 5–8, 2015 CitiesAlive 2015, 13th Annual Green Roof & Wall Conference, New York Marriott at the Brooklyn Bridge, 333 Adams Street, Brooklyn. For information, see http://www.citiesalive.org/. October 15, 2015 BuildingEnergy NYC 2015, Conference & Trade Show for Energy Efficiency and Green Building Professionals (sponsored by the Northeast Sustainable Energy Association), TKP New York Conference Center, 109 West 39th Street, New York City. For information, see http://nesea.org/buildingenergy-nyc-15. October 22–23, 2015 MAS Summit for NYC, Municipal Art Society, New York City. For information, see http://www.mas.org/programs/. October 28–30, 2015 Multifamily Buildings 2015: Building Bridges to Net Zero, An Association for Energy Affordability Conference, New York Marriott at the Brooklyn Bridge, 333 Adams Street, Brooklyn. For information, see http://be-exchange.org/events/126. November 18, 2015 The Ultimate Resiliency Plan: Microgrids and the Continued Segmentation of Electric Grid Assets, Part of the Clean Energy Connections 2015 Season: An Evolving Energy Vision, New York City. For information, see http://www.cleanecnyc.org/ the-grid-edge/. December 11, 2015 Land Use and Sustainable Development Conference, New York State Judicial Institute at Pace Law School. For information, see http://www.law.pace.edu/upcoming-events-0.

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For editorial questions contact Linda Folkman: by phone at (908) 673-1548, or by e-mail to [email protected]. For all other questions call 1-800-833-9844. ENVIRONMENTAL LAW IN NEW YORK (USPS 008-162, ISSN 1048-0420, EBOOK ISBN 978-1-5791-1260-8) is published monthly for $528 per year by Matthew Bender & Co., Inc., 3 Lear Jet Lane, Suite 102, PO Box 1710, Latham, NY 12110. Periodical Postage is paid at Albany, New York and at additional mailing offices. POSTMASTER: Send address changes to: Environmental Law in New York 136 Carlin Road, Conklin, N.Y. 13748-1531. LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties, Inc, used under license. Matthew Bender is a registered trademark of Matthew Bender Properties Inc. Copyright # 2015 Matthew Bender & Company, Inc., a member of the LexisNexis Group. Produced on recycled paper Note Regarding Reuse Rights: The subscriber to this publication in .pdf form may create a single printout from the delivered .pdf. For additional permissions, please see www.lexisnexis.com/terms/copyright-permission-info.aspx. If you would like to purchase additional copies within your subscription, please contact Customer Support.

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