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SPR Environmental Law Blog

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The United States Supreme Court's ruling last week in Burlington Northern & Santa Fe Railway Co. et al. v. United States et al. ("Burlington") received much attention for its holding that Shell Oil Company was not liable as a CERCLA potentially responsible party (PRP). html version


The American Recovery and Reinvestment Act of 2009 ("Recovery Act" or "Act"), a.k.a. the stimulus package signed into law by President Obama last month, provides for billions of dollars in additional funding for a variety of existing environmental projects and programs including, but not limited to, water quality and wastewater infrastructure projects, drinking water infrastructure projects, brownfield remediation, cleanup of leaking underground storage tanks, cleanup of Superfund sites, and projects designed to reduce diesel emissions. html version


The feature article of this edition focuses on recent advances in greenhouse gas regulation in the U.S. Also featured in the newsletter is piece on a Mayor Bloomberg's "Greener, Greater Buildings Plan" to reduce energy consumption and associated greenhouse gas emissions in the City. pdf version


The feature article of this edition focuses on natural gas exploration in New York. Also featured in the newsletter is piece on a group of New York residents' claims for property damage against General Electric and their alleged role in contaminating soil. pdf version


SPR attorneys Steven Russo and Elizabeth Knauer will be two of the featured speakers at a conference on SEQRA hosted by Lorman Education Services on December 2, 2008 in New York City. The seminar is designed for attorneys, engineers, city and county planners, environmental professionals and other professionals. html version


On September 5, 2008, Governor David Paterson signed legislation amending that Environmental Conservation Law ("ECL") to require notice to residential and commercial tenants and occupants of indoor air contamination. The new law, which passed the State Senate and Assembly on June 24, 2008, is codified in a new section 27-2405 of the ECL. html version


On June 24, 2008, the New York State Legislature passed a bill to amend the 2003 Brownfield Cleanup Program Act ("BCP Act"). The bill, which is anticipated to be signed into law by Governor Paterson, modifies the BCP Act by capping the tangible property tax credits available under the program, restructuring the site preparation credits associated with cleanup costs, and creating new reporting requirements for site owners. html version


On January 22, 2008, Governor Eliot Spitzer submitted a Budget Bill to the New York State Assembly and Senate that included proposed amendments to the 2003 Brownfield Cleanup Program Act ("BCP Act"). In an effort to achieve substantial savings to the State Financial Plan, the proposed bill seeks to "reform" existing law primarily by tightening eligibility standards for tax credits and limiting the amount of those credits available under the program. html version


On November 15th, the Ninth Circuit vacated regulations published by the National Highway Traffic Safety Administration (NHTSA) establishing corporate average fuel economy (CAFE) standards for "light trucks" - sport utility vehicles, minivans, and some pickup trucks - manufactured in 2008 through 2011. html version


The New York State Department of Environmental Conservation ("DEC") has issued proposed regulations to implement the Regional Greenhouse Gas Initiative ("RGGI").
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For the fourth year in a row Sive, Paget and Riesel has been awarded the #1 ranking in the Environmental Law category in New York by Chambers and Partners, an independent law firm and attorney ranking publication. html version


On June 11, 2007, the Supreme Court of the United States issued an opinion in United States v. Atlantic Research Corp. decision. whether Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA," or "Superfund") provides a potentially responsible party ("PRP") such as an owner or operator of a contaminated site with a claim to recover response costs from other PRPs. html version


Dan Riesel once again will chair this year's ALI-ABA Course in Environmental Litigation. This year's course, which will be held on June 27-30 at the University of Colorado School of Law, is the 32nd Annual Advanced ALI-ABA Summer Course of Study. html version


The Citizens' Environmental Coalition, Sierra Club, and the New York Public Interest Research Group ("Petitioners") have sued the New York State Department of Environmental Conservation ("DEC") over the recently promulgated regulations governing the Brownfields Cleanup Program ("BCP") and other remedial programs. html version


The feature article of this edition focuses on the urgent issue of climate change and recent efforts of the RGGI program to establish rules curbing the emissions of greenhouse gases in the Northeast. Also featured in the newsletter is an analysis of the increased importance of LEED certification in the New York construction sector and greater environmental context. pdf version


The Environmental Protection Agency ("EPA") and Department of Justice ("DOJ") have recently issued a model agreement, or order on consent (the "Model Agreement"), for parties purchasing certain contaminated properties eligible for the "bona fide prospective purchaser" ("BFPP") defense under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"). The Model Agreement gives purchasers of contaminated property an opportunity to receive protection from a federal lawsuit, and provides an avenue for resolving cleanup issues at sites not eligible for the New York State Brownfields Cleanup Program ("BCP"). html version


The State of New York Department of Environmental Conservation ("DEC") has adopted the long awaited overhaul to its Part 375 Hazardous Waste Remediation Regulations including, most significantly, its first ever Brownfields Cleanup Program Regulations. These final Part 375 Regulations are substantially the same as the draft regulations issued this past summer with one significant omission-they do not incorporate the hoped-for informal voluntary cleanup program that would have served as an alternative to the BCP for sites that might not readily qualify as "Brownfields". html version


Highlighting the Do's and Don'ts for corporate litigants, the feature article of this edition focuses on the responsibilities and pitfalls involving the preservation and destruction of email and other electronic data. Other articles include an analysis of EPA's recently issued regulations governing "all appropriate inquiry," an element of the innocent purchaser defense under CERCLA, and an analysis of the recently issued regulations for New York's Brownfields Cleanup Program. pdf version


SPR's combination of "unbeaten experience and local knowledge" earned the firm a second consecutive #1 ranking in New York Environmental Practice. Other articles in this newsletter address workplace safety, municipal law, hazardous waste site cleanups in New York and residential and park development. pdf version


In Cooper Industries, Inc. v. Aviall Services, Inc., The Supreme Court of the United States changed significantly the legal landscape for certain contribution claims brought under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA” or “Superfund”). pdf version


This newsletter focuses on managing environmental crises in co-ops and condos. It also includes an update on DEC changes to Brownfield eligibility and discusses recent case law concerning the disclosure of information provided to expert witnesses. pdf version


This newsletter focuses on the new Super Fund legislation just signed in to law by New York State and its potential impact as well as looking at the issues surrounding challenging a "positive declaration." pdf version


This newsletter focuses on new and effective ways of navigating development projects through government agencies as well as recent SPR work. pdf version

  • Please note that one of the cases discussed in "Fighting City Hall," Home Depot, U.S.A. v. Dunn, was recently reversed by the Appellate Division, Second Department. 305 A.D.2d 459 (2d Dept. 2003).


This newsletter explores issues concerning "Toxic Anxiety" and Toxic Mold litigation as well as recent SPR work. pdf version

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Articles

Climate Change Adaptation: Fostering Progress Through Law and Regulation (By Pamela Esterman with others, 18 NYU Envtl. L. J. 55 (2010))

Environmental Law: Developments in the Law of SEQRA, 2009 (By Mark A. Chertok and Ashley S. Miller, 60 Syr. L. Rev. (2010) (forthcoming)

Effective Representation of Clients in Environmental Disputes Resolution (By Pamela Esterman with Gail Bingham and Christopher Riti, 27 Pace Env. L. Rev. 61 (2010))

Disclosure of Climate Change Risk to Investors (By Jeffrey Gracer, Practical Law, The Journal, at 53 (Dec. 2009 / Jan. 2010))

United States Environmental Law Country Q&A (By Jeffrey Gracer, Practical Law Company Cross-Border Environmental Law Handbook, at 235 (2009/2010))

Ethical Considerations for the Clean Air Act Attorney (By Daniel Riesel and Vicki Shiah, ALI-ABA, Environmental Law Course of Study (2009))

April 2009, When New Data Gives Way to Claims Over Old Contamination (By Steven C. Russo & Ashley S. Miller, New York Law Journal, at 4 (April 1, 2009))

2009, Analysis of Climate Change Impacts in New York Under SEQRA, (By Mark A. Chertok and Ashley S. Miller, 59 Syr. L. Rev. __ (2009))

Nov. 2008, Ethical Considerations for the Environmental Lawyer (By Pamela Esterman, The Practical Real Estate Lawyer (Nov. 2008))

2008, Lender Beware: Navigating the Superfund Safe Harbor During Workouts and Foreclosures, (By Jeffrey Gracer & Christine Leas, New York Law Journal (2008))

2008, Climate Change Litigation: Could It Take Root Outside of the United States (By Jeffrey Gracer, Environmental Claims Journal (2008))

2008, Cross-Border Litigation Gains Traction in U.S. and Canadian Courts (By Jeffrey Gracer, Environmental Claims Journal (2008) (with Dennis Mahony and Tyson Dyck of Torys LLP))

Nov. 2007, Appraising Conservation Easement Donations: The Need for More Uniform Standards and Greater Oversight (By Jessica Steinberg, 37 Envtl. L. Rep. 10841 (2007))

July 2007, Soil Vapor Intrusion in the Workplace (By Steven C. Russo & Elizabeth Knauer, New York Law Journal (July 16, 2007))

2007, State and Regional Carbon Reduction Markets in the United States (By Jeffrey Gracer, Environmental Claims Journal (2007)

2007, Pragmatic Environmental Diligence Needed to Stay Competitive in Acquisition Race (By Jeffrey Gracer, Wiley, Natural Gas & Electricity (2007))

2007, Environmental Disclosure 2007 Annual Report (By Jessica Steinberg, The Year in Review 2007, ABA Section on Environment, Energy, and Resources Law (2007))


The transformation of obsolete and surplus industrial property owned by Consolidated Edison Company of New York, Inc (“Con Edison”) to commercial and residential property conforming to surrounding landscape involved several regulatory and business issues. more...


The maturity of the Clean Water Act (“CWA”), 33 U.S.C. § 1361 et seq., and the ease of enforcement due to the self monitoring and reporting requirements, has led to a relatively effective pollution abatement scheme against “conventional” point sources, as opposed to such sources as animal feed lots and combined sewers.

The mechanisms of this point source enforcement scheme are varied and include civil administrative and judicial actions for fines and injunctive relief. more...

Interlocutory injunctive relief is an important and integral aspect of environmental litigation. Historically, injunctive relief has been used primarily in governmental enforcement efforts and by environmental groups. more...


The major federal environmental statutes enacted between 1970 and 1980 all contain provisions allowing private citizens to bring suit against alleged violators of the statutes. Citizen suits against alleged polluters, until recently, were primarily brought under the Clean Water Act because the permitting and self-reporting enforcement mechanisms provided easy pickings for citizen plaintiffs. more...


Superfund practice has undergone significant changes since its enactment in 1980. Gone are the large multiparty sites with their endless steering committee meetings. “Voluntary cleanups” and other alternative methods of dealing with contaminated sites appear to have largely supplanted the once ubiquitous government initiated CERCLA actions to recover “response” costs or to compel cleanup of hazardous materials, which have both decreased in number and cost. more...


The practice of environmental law requires lawyers to understand and apply complex legal, technical, political and moral concepts on a daily basis. Although the ethical problems faced by environmental lawyers are not unique, the issues posed are often exacerbated by the nature of the practice, with its technical and scientific aspects, its political overtones, and its significant implications for public health and safety. more...

Case Studies / White Papers

  • Mark A. Chertok with Kate Sinding
    Until the last several decades, wetlands - bogs and swamps and similar areas - were generally perceived as impediments to agriculture and development, and most useful when eliminated. The historical perspective of wetlands dramatically shifted in the early 1970's. more...
  • Daniel Riesel, Michael Bogin and Kate Sinding
    Government initiated litigation to recover "response" costs or to compel cleanup of hazardous materials has long dominated the Federal Reporters. However, government litigation pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., has "matured" and is no longer prevalent. more...

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Periodicals

  • Daniel Riesel and Dan Chorost
    In September 2005, the New York Law Journal published Daniel Riesel and Dan Chorost’s article entitled, “Initiatives Hit Workplace Violations With Environmental Laws.” The article describes a major new federal enforcement initiative aimed at increasing interagency coordination and prosecuting workplace-safety violations through the use of environmental laws. This development is significant to the regulated community because environmental statutes such as RCRA, CERCLA and the Clean Air Act carry criminal and civil penalties that are considerably more severe than those of the OSH Act. pdf version
  • Steven C. Russo and Elizabeth A. Read
    Environmental Justice has become the catch phrase in recent years for parties seeking to prevent or remedy the correlation between the location of noxious uses such as industrial facilities and the concentration of low income and minority residents.

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Books

  • Daniel Riesel
    A comprehensive guide to representing clients in civil and criminal environmental enforcement matters. The book goes through the structure of environmental enforcement, discusses how to address a governmental investigation, civil and criminal penalties and penalty policies, environmental self-auditing and the special issues concerning criminal representation and defense in environmental crimes prosecutions. Civil enforcement pursuant to all the major federal environmental statutes is also explored.

  • Mark A. Chertok, Michael Bogin and Dale A. Desnoyers
    "Brownfields" is a new label for an old ambition: the redevelopment of underused or abandoned industrial and commercial sites. Recent Federal and state initiatives have begun to remove some of the barriers to redevelopment of brownfields created by CERCLA and state laws, but successful brownfield development still requires careful attention to site conditions, investment in site analysis prior to acquisition and the structuring of the transaction.

  • David Markell, Daniel Riesel and Pamela Esterman
    This chapter in a multi-volume guide to practice in New York provides a review of constitutional and statutory issues relating to administrative agency practice before the State Department of Environmental Conservation. Throughout the chapter, the authors offer practical advice for interacting with the DEC at various stages of the enforcement process.
  • Steven Russo
    This chapter in a multi-volume guide to general practice in New York provides a broad overview of the major substantive areas of New York environmental practice, including environmental impact review, clean water, hazardous waste and state common law doctrines such as nuisance and trespass.

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