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Daniel E. Estrin, Supervising Attorney, Pace Environmental Litigation Clinic
Adjunct Professor of Law, Pace Law School


For the second time in four years, Pace Environmental Litigation Clinic’s clients have caught Frasure Creek Mining, LLC in the act of submitting false information to government agencies on numerous quarterly discharge monitoring reports associated with pollutant discharges from its mountaintop removal coal mines in eastern Kentucky.

For more information about the thousands of violations of the Clean Water Act on which the Clinic and its co-counsel served noticed on Friday, November 14, 2014, here are links to our Notice of Intent to Sue and the Press Release prepared by our clients, Appalachian Voices, Waterkeeper Alliance, Kentuckians for the Commonwealth and Kentucky Riverkeeper.

Check out Appalachian Voices’ Flickr page for photos of discharges from some of Frasure Creek’s coal mines.

We’ll continue to update this post with links to articles/press coverage regarding our notice of intent to sue to enforce these violations of federal law.


Environmental Groups to File Federal Suit Against Frasure Creek Mining (Ronnie Ellis, CNHI, Frankfurt, KY)

Clean Mining a Deception in Kentucky, Groups Say (Michael Wines, New York Times)

Groups Again Allege Kentucky Mining Company Falsified Pollution Records (Erica Peterson, NPR/WFPL News, Louisville, KY)

Environmental groups accuse Kentucky coal company of resuming falsified pollution reports (Bill Estep, Herald-Leader, Lexington, KY)

Greens Threaten Ky. Mining Co. Over CWA Reports (David Siegel, LAW360)

Groups allege 28,000 mining violations, lax enforcement (James Bruggers, The Courier-Journal, Louisville, KY)

Groups say Ky. mine filing false reports again (Associated Press, Lexington, KY)


Same coal company, same old (illegal) tricks (Eric Chance, Appalachian Voices)

Groups Take Legal Action Against Coal Company for Falsifying Water Pollution Reports (Anastasia Pantsios, Ecowatch)

Kentucky Coal Company Falsified Water Pollution Reports, Environmental Group Alleges (Katie Valentine, ThinkProgress.org)



Municipalities across the nation are incorporating natural resource preservation principles into their zoning ordinances. They are not doing so uniformly, but their collective progress is impressive. Some local legislatures describe the protection of the natural environment as a specific purpose of zoning. Localities may protect open space in zoning districts by adjusting applicable density, lot size, and setback restrictions. For example, conservation zoning districts permit only private land uses that are compatible with the natural environment, while agricultural zoning districts preserve agricultural land for farming purposes and open space.  To read more click: http://lawprofessors.typepad.com/land_use/2014/10/using-zoning-to-protect-the-environment-an-excerpt-from-protecting-the-environment-through-land-use-.html.

Land Use Climate Bubbles are emerging in every region of the country that should rivet the attention of policy makers. In numerous communities, property values are declining because of repeated flooding, continued threats of storm surges, sustained high temperatures, constant fear of wildfires, the lack of water in residential, commercial, and agricultural areas, and real concerns with mudslides in vulnerable areas. This persuasive evidence that local economic bubbles are forming is reinforced by a variety of recent and persuasive reports at the national and international level.  To read on click: http://lawprofessors.typepad.com/land_use/2014/10/costs-and-consequences-of-climate-change-land-use-climate-change-bubbles-part-ii.html.

Sidney is in retreat. Situated next to the Susquehanna River in the Catskill Mountains of New York, the village was built on a floodplain on the south side of the river. In 2006, Sidney was hit by a record-breaking storm that dropped 14 inches of rain over the upper Susquehanna Basin. The village suffered major damage to multiple structures in its extensive flood prone areas, including the main street business district and adjacent residential neighborhoods. The community, of course, focused on rebuilding because the flood was thought to be a one in one hundred year event and that it would not likely happen again. Just five years later, Tropical Storm Lee hit the village, causing widespread structural damage in the floodplain. Things in this community then changed. To read more click http://lawprofessors.typepad.com/land_use/2014/10/the-remarkable-case-of-sidney-new-york.html.

Protecting the Environment Through Land Use Law: Standing Ground, starts with this quote from Emerson, “All of my best thoughts were stolen by the ancients.” The quote introduces Chapter One of this book, which is entitled The Long Arch of Local Environmental Law, illustrating that law has been employed for centuries to balance land development and natural resource protection. The chapter begins with this background: http://lawprofessors.typepad.com/land_use/2014/10/protecting-the-environment-through-land-use-law-standing-ground.html 


On October 20th at Pace Law School, Professor John Nolon will demonstrate how local governments can preserve natural resources, maintain critical environmental functions, respond to climate change, and build sustainable communities. His presentation coincides with the launch of his new book on local environmental law, Preserving the Environment Through Land Use Law: Standing Ground, and his receipt of a prestigious award from the International City/County Management Association (ICMA). Demonstrating his commitment to involving students in his work, the luncheon ceremony is being co-sponsored by the Land Use and Sustainable Development, Real Estate, and Environmental Law Societies.

David Yassky, Dean of Pace Law School said, “John Nolon’s Land Use Law Center is known nationwide for developing practical experience for students, pursing rigorous and relevant scholarly endeavors, and serving the community and profession. We are proud to join Professor Nolon in the launch of his latest book, and we join ICMA in honoring him for his contributions to the legal and local government professions.”

Jason Czarnezki, Executive Director of Pace Environmental Law Programs, “The nationally ranked Environmental Law Program at Pace Law School has pushed the boundaries of environmental law for decades: redefining its practice and preparing the next generation of lawyers for the serious challenges ahead. Professor Nolon’s work with local governments contributes greatly to expanding the field of environmental law. He has sparked much progress by his innovative interpretations and applications of local land use authority. His new book demonstrates this in granular detail, and this award from the ICMA is a well-deserved recognition of his contributions to professionalism in municipal government nationally.”

Standing Ground looks at the legal foundations of local environmental law within the federal legal system. It establishes a comprehensive framework for understanding how local land use protects the environment, and outlines policies to make urban neighborhoods environmentally sensible and livable. Standing Ground also demonstrates the Pace Land Use Law Center’s innovative work since Professor Nolon founded it in 1993. The Center fosters the development of sustainable communities and regions by promoting innovative land use strategies and dispute resolution techniques. For the last 20 years, Professor Nolon and the Center have offered training programs, conferences, seminars, clinics, continuing education classes, and frequent publications and resources on land use, real estate, affordable housing, and environmental issues.

Robert J. O’Neill, ICMA Executive Director, said, “ICMA’s mission is to create excellence in local governance by developing and fostering professional management to build sustainable communities that improve people’s lives. ICMA Honorary Membership is awarded to recognize an individual outside of the local government management profession for his or her distinguished public service and contributions to improving and strengthening local government. For his numerous contributions to increasing local governments’ capacity to build sustainable communities, it is our great pleasure to award Professor Nolon Honorary Membership in the ICMA.”

Paul Beyer, Director of Smart Growth, New York State Department of State, “I have seen the positive influence of John Nolon’s work at the local level throughout the state, as well as on state agency programming. I call him the State’s Dean of Smart Growth and Sustainable Land Use Planning and am delighted to hear about this well-deserved award from the ICMA.”

“In the Preface and Acknowledgements to the book, Professor Nolon makes clear his appreciation for the students who worked with him in its production and the contributions of the staff attorneys of the Land Use Law Center. He mentions by name nearly two dozen students who labored with him over the past two years to create Standing Ground. We are so pleased that the ICMA is honoring his contributions to the profession of municipal government since that is precisely what the book achieves,” said Jessica A. Bacher, Executive Director of the Land Use Law Center.

The ICMA award will be presented by ICMA Member and Pace Law Student J. Justin Woods, JD/MPA Candidate, (2016). Woods and Meredith Robson, the incoming Village Manager of Ardsley, New York, collaborated to nominate Professor Nolon for this award.

Robson said, “For over 20 years, Professor Nolon and the Land Use Law Center have been training local leaders in smart growth and effective municipal planning strategies. Their resources, seminars, and publications on land use, affordable housing, and local environmental issues have provided treasured counsel to countless local officials and citizen volunteers.”

“Professor Nolon and Pace Law School have built an extraordinary Center for Pace Law students to engage in innovative land use law practice focused on sustainable development. I am so grateful to work with Professor Nolon and the Center staff, and I am proud to be part of honoring Professor Nolon for all he has given to the field of planning and local government, and more importantly, for the service he provides to Pace Law students and local communities,” said Woods.

Standing Ground is published by West, the Environmental Law Institute, and the American Planning Association. All royalties are dedicated to the Land Use Law Center, and will be used to support the work of Pace Law students engaged in the Center’s programs. Standing Ground can be ordered from the Environmental Law Institute website at www.eli.org/eli-press-books.

For more information:

Any questions about the event can be directed to J. Justin Woods, Land Use & Sustainable Development Fellow at the Pace Land Use Law Center, at jwoods@law.pace.edu.

Media inquiries can be to Pace Law School through Joan Gaylord, Manager of Pace Law External Affairs, at (914) 422-4389 or jgaylord@law.pace.edu.

Any questions about the ICMA or the ICMA award can be directed to Michele Frisby, ICMA Director, Communications & Public Information, at mfrisby@icma.org.

Vacant properties are a persistent land use issue in the most financially distressed regions, as thousands of properties currently sit empty throughout nation. “Zombie” properties result when a bank begins foreclosure proceedings on a property, and the owner abandons the property before the process can be completed. Existing in limbo until the foreclosure paperwork is finally finished, the properties sit rotting for years, attracting unsavory activities and decreasing neighborhood property values. In Newburgh, N.Y., alone, ten percent of all homes are in some state of abandonment, and many of these properties are zombie properties based on the Center’s study of confirmed vacant properties in Newburgh. Other cities that have experienced an industry exodus, such as Poughkeepsie (for which the Center has conducted a similar study), Niagara Falls, Buffalo, and even Westchester County localities face a similar plight and are eager to begin taking substantive steps to resolve them.

Jessica Bacher, Executive Director of Pace Land Use Law Center, has been a key player in the process of property remediation in localities struggling with vacant properties. She serves as Chair of the ABA State and Local Government Section’s Distressed Properties Sub-Committee of the Land Use Planning & Zoning Committee, and her forthcoming article in the Urban Lawyer, A Local Government’s Strategic Approach to Distressed Property Remediation, co-authored with Meg Byerly Williams, discusses this issue in detail. In Newburgh specifically, Jessica has worked closely with city staff and local non-profits on code enforcement best practices, the development of one of the first land banks in New York State, and creation and amendment of local laws to better address the concerns posed by vacant properties.

Vacant properties also have caught the attention of the New York Attorney General’s Office. The Attorney General strongly advocates legislation that directly addresses the vacancy issues faced by localities, and the legislature will consider this legislation again in January 2015 during the new legislative session. The legislation will require banks to register vacant properties in a central database and pay for their upkeep. Jessica believes this is a crucial step to effectively address the vacancy issue: “a statewide registry would alleviate a significant local burden and shed light on an issue that until now has gone almost unnoticed. The registry would help to clarify the extent of the problem, so appropriate strategies and enforcement techniques can be developed and deployed.” The bill also creates a standardized definition of the term “abandonment,” provides guidelines for determining abandonment, requires banks to provide notice to those residing in foreclosed properties that they have a right to remain in the property until the conclusion of the foreclosure proceedings, and imposes penalties on banks that do not wrap up their foreclosure proceedings in a timely manner (up to $1,000 per day). If passed in the upcoming legislative season, the bill will ease the uphill battle localities face when addressing vacant property issues.

Professor Ann Powers:

Two Pace students, Ann Bermont (’14) and Anthony Papetti (’14), were among those responding to a request by the International Union for the Conservation of Nature (IUCN) for assistance  preparing briefing materials for IUCN’s oral presentation in a case before the International Tribunal on the Law of the Sea (ITLOS). Case #21 Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC) involves the rights and obligations of coastal states in managing fisheries and preventing illegal fishing. It will be heard by the Tribunal in September in Hamburg.

Professor Ann Powers:

For those of you interested in the UN’s process for establishing Sustainable Development Goals as mandated by Rio+20, the Open Working Group approved its  “Outcome Document” on Saturday after a final week-long session.   It will be taken up by the General Assembly in the fall.


There are separate goals on water, energy, climate, oceans and terrestrial ecosystems.   The document was drafted by the co-chairs of the Working Group, with input from states, NGOs, IGOs and other stakeholders through many meetings and iterations.   Scores of states were active participants throughout the process and the galleries were often packed with civil society representatives.  If you have ever tried to draft a document in a committee, then imagine it multiplied by orders of magnitude.  It was often painful to watch, often boring, but the final document reflects a global general consensus of what must be done post 2015.  There are still contentious items, such as climate and some of the implementation issues, and the General Assembly may make changes, but just getting this far should be counted as an achievement.

Ann Powers

Associate Professor of Law

Pace Law School


Professor Ann Powers from the IUCN Academy of Environmental Law Colloquium in Tarragona:

Although an extensive range of energy topics are being covered, the Colloquium has focused primarily on terrestrial activities and has provided only limited discussion opportunities for those whose primary interests are the health and protection of our oceans and coastal waters.  The first occasion came Wednesday in a workshop which dealt with the well-recognized impacts, actual and threatened, of oil production in and transportation on water.  Highlighted were the issues raised by potential oil production in major new fields off the coast of Brazil. Also of special relevance was an examination of offshore oil and gas exploration in the Arctic, with a proposal by the speaker for specific actions by the European Union.  A workshop scheduled for Thursday on the issues faced by developing countries, particularly small island developing states, was cancelled when speakers were unable to attend the conference, but resulted in a small group discussion of the role of SIDS in the climate debate, and a case study of a developed island state, Singapore.

On Friday then, the workshop on the Marine Environment, Renewable Energy and Governance, drew and appreciative audience of oceans and coasts professors, who applauded excellent presentations on building the blue economy, international law and governance related to energy, and marine spatial planning.   While we are unlikely to see renewable energy development in areas beyond national jurisdiction anytime in the near future, there are already numerous wind, wave, and tidal projects in national waters around the globe which present potential environmental concerns.

Following the workshop, the IUCN/WCEL Specialists Group on Oceans, Coasts and Coral Reefs met to consider projects and activities for the next year.  It was decided to focus on renewable energy in the marine environment, with the intention or raising the profile of the issue both in the work of IUCN and in general.

Pictured: Professor David Cassuto discussing water allocation law.


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