Feed on
Posts
Comments

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

A very important public trust decision was issued yesterday by the New York State Court of Appeals in a case brought by the Pace Environmental Litigation Clinic’s good friends and allies at the Super Law Group. New York State’s highest court ruled in Capruso v. Village of Kings Point that legislatively unauthorized “non-park” uses of public parkland by municipalities are continuing wrongs that can be challenged at any time by the public or the state, and that statute of limitations and laches defenses may not be asserted by municipalities to block efforts to enjoin such violations of the Public Trust Doctrine.  This ruling applies even where the municipal misuse of parkland has been ongoing for decades.

Why is this decision so significant?  Because decisions by municipalities to misuse public parkland (i.e., to use parkland for purposes other than public recreation without state legislative approval) are often made in secret between municipal agencies, with no notice to the public.  Moreover, even where such misuses of parkland may be deemed evident to park users, as the Court of Appeals noted, it is “unreasonable to expect ordinary citizens who use . . . parks to know whether a particular use by a municipality has received approval by the State Legislature and whether municipal infrastructure located on parkland is intended to serve the park or public areas outside of the park.” This critical ruling will likely cause New York municipalities to think more deliberately before they decide to invest public funds in projects that could much later be found not to constitute park uses.

Our Clinic regularly utilizes the Public Trust Doctrine to protect parkland and other natural resources.  Most recently, we blocked a proposal by the City of New York to use 20 acres of Spring Creek Park in Brooklyn as a solid waste management facility and stopped the City of Poughkeepsie from leasing all of the public dock space in Waryas Park to a for-profit tour boat company.  We salute the efforts of the Petitioners and their counsel in this case to protect nonrenewable natural and public resources, with an extra tip of our hats to Attorney General Eric Schneiderman and Assistant Solicitor General Bethany Davis Noll for their public interest advocacy and excellent work on the companion appeal.

If any readers are interested in the applicability of the Public Trust Doctrine to municipal parkland under New York law, we strongly recommend the excellent Handbook on the Alienation and Conversion of Municipal Parkland in New York, published by the New York State Office of Parks, Recreation and Historic Preservation.

By: Christopher Halfnight, MEM Candidate, Yale School of Forestry & Environmental Studies

Unconventional oil and gas development is fundamentally changing the U.S. energy landscape, bringing both new challenges and new opportunities.  Federal and state laws regulate some aspects of the shale oil and gas development life-cycle, but the pace and scale of shale plays in states from Pennsylvania to Texas to North Dakota risks a host of potential impacts at the local level – impacts that may fall through a governance gap without effective exercise of municipal land use and zoning authority.

Researchers at the Yale Center for Environmental Law & Policy and the Land Use Law Center at Pace Law School, with support from the Oscar M. Ruebhausen Fund at Yale Law School and the Yale Climate and Energy Institute, are leading an outreach, analysis, and guidance effort to help address this potential shale gas governance gap at the local level.  As outlined in the team’s White Paper, outright bans on fracking risk state preemption, while uncontrolled drilling risks negative community and environmental impacts.  The project team aims to support municipal leaders in developing sound, balanced, and effective local regulatory, non-regulatory, and planning practices to address the impacts of shale oil and gas development.  With the proper tools, local authorities can effectively govern many aspects of fracking by better interfacing with state regulators and industry, or exercising local powers to mitigate land use impacts and environmental damage, while ensuring safeguards for net economic, social, and community benefits.

Continue Reading »

Esopus Creek at the Shandaken Tunnel Outlet

This is a post for Ad-law geeks. The Pace Environmental Litigation Clinic just won its case challenging the EPA Water Transfer Rule on behalf of Trout Unlimited, Waterkeeper Alliance and Hudson Riverkeeper. The Clinic has been representing Trout Unlimited on this issue for well over a decade, since 2000 when the Clinic commenced litigation seeking to force  New York City mitigate the impacts of warm, turbid water from the Shandaken Tunnel (part of the New York City water supply system) on the fabled Esopus Creek trout fishery.
The very thorough opinion by Judge Kenneth Karas of the Southern District of New York is here:  20140328 WTR – Order granting summary judgment & vacating EPA WTR   In the Water Transfer Rule, EPA tried to exempt transfers of polluted water between water bodies from the permitting requirements of the Clean Water Act.   EPA claimed that no “addition” under the statute took place when pollutants in water were transferred from one place to another.  Under Chevron v NRDC, a court reviewing an agency legal interpretation must first determine whether the underlying statute unambiguously resolves the question (in which case the court must enforce the statute).  If the statute does not resolve the question, the court proceeds to Chevron Step II — a determination whether the agency interpretation resolving the ambiguity is “permissible.”    Since the Clinic had already won a ruling from the Second Circuit (twice) that the plain language of the Clean Water Act unambiguously required permits for such transfers, and that any other result would be “absurd,” we argued that the Water Transfer Rule failed Chevron Step I — that the language and history of the Clean Water Act left no ambiguity that water transfers require permits. Surprisingly, Judge Karas’s of the Southern District of New York found sufficient ambiguity in the Clean Water Act to proceed to Chevron Step II — the question of whether EPA’s resolution of the ambiguity was permissible.
Judge Karas’s analysis is probably the the most thorough consideration of how to apply Chevron Step II — the question whether EPA’s resolution of ambiguity in the statute is “permissible.”  Judge Karas points out that this analysis is not pro-forma — just because the statute is ambiguous does not mean that any resolution of the ambiguity is necessarily permissible. The agency can’t act arbitrarily, and must still consider the relevant factors and provide a reasoned basis for its decision, which EPA did not do here. Judge Karas faulted EPA for failing to provide any reason for favoring the interests of water management agencies over the interests of preserving water quality. And Judge Karas also found that EPA’s resolution of perceived statutory ambiguity was impermissible because it created irreconcilable conflicts with settled understandings of other terms of the Clean Water Act — particularly the section 404 permitting requirement for discharge of dredged material and the understanding of the term “waters of the United States” to refer to bodies of water, not physical water in pipes.   Judge Karas held that water in pipes cannot be a “navigable water” under the statute.  This latter point was the one point of agreement among members of the Supreme Court in the Rapanos case.

Judge Karas vacated the Water Transfers Rule and remanded it to EPA for reconsideration.  Let us hope that EPA, at least, reconsiders the rule rather than continue its decades long fight against water quality on this particular issue.

Under the Public Trust doctrine, navigable waters are held in an inalienable trust by State government.  Members of the public have a right to transit by boat on  waters susceptible to navigation.  This is true even where both shorelines are under private ownership, and even where the lands under the water are held in private ownership.  North Carolina has recognized right of navigation even for manmade canals, in a case called Fish House, Inc. v. Clarke.

In the continuing saga of the North Carolina Waterkeepers efforts to expose and remediate the release of toxic coal ash from Duke Energy ash dump ponds throughout the state, Cape Fear  Riverkeeper Kemp Burdette, Waterkeeper Coal Coordinator Donna Lisenby, and Waterkeeper Staff Attorney Pete Harrison  (a Pace Environmental Litigation Clinic alum) drove a jon boat up a canal connected to the Cape Fear river to investigate the ongoing coal ash leaks.  Watch this confrontation between Pete and the local sheriff’s deputy in this segment from the Rachel Maddow show:

Rachel Maddow on Duke Energy Coal Ash Ponds

When the deputy tells Pete to go get off the navigable canal and not came back, or Fish and Wildlife would “scratch them a ticket,” because the lands and the canal belong to Duke Power, Pete points out that the water belongs to everyone.

After the incident, North Carolina attorney Bob Epting, who has been working with the North Carolina Waterkeepers on these efforts, wrote the following letter to Sheriff Webster (who has been a supporter of efforts to clean up North Carolina’s waters) to remind the Sheriff’s office of the public’s navigation rights.  I am reproducing the entirety of this wonderful assertion of public trust principles here (with Bob’s permissions):

 

 Dear Sheriff Webster,

On March 13, Deputy Telkey encountered several representatives of the Riverkeepers, an organization I am interested in both as a supporter and as an environmental lawyer.

The Riverkeepers, including the Cape Fear Riverkeeper, were in a small flatboat on the public waters of the State of North Carolina, on a waterway flowing into the Cape Fear River from the Duke Energy coal-fired power plant near Moncure. They were there to take samples of the River water near where Duke Energy was discovered two days earlier illegally discharging toxic wastewater from its coal ash pond into the waters of the State. No permit exists to allow such a discharge, and we believe the discharge, if willful and intentional, may be a criminal violation of the federal Clean Water Act, as well as various State statutes and regulations.

Deputy Telkey will verify that the Riverkeepers never set foot upon or otherwise entered upon the land owned by Duke Energy on either side of the waterway.

Nevertheless, Deputy Telkey, accompanied by Duke Energy employees, approached our Riverkeepers, who were in their boat on the navigable waters of the State, and from the riverbank, accused them of trespassing on the property of Duke Energy, asked them for their identification papers, and then told them they would be arrested if they returned by water to that site. Later, Deputy Telkey telephoned and repeated the warning, saying that Duke Energy wanted to be sure the Riverkeepers knew they were forbidden to return to that site on that stream, which is some forty or more feet wide, free-flowing, and clearly navigable, as shown by the travel of these men by motorboat up its course from the Cape Fear River.

I acknowledge that Duke Energy asserts that they own the land on each side of this navigable waterway, and that it asserts the right, arising from that ownership, to keep citizens off the waterway, where the Riverkeepers were engaged in serious work important to the health and welfare of the downstream communities, for whom the River is their primary drinking-water source.

On the other hand, I want you and Deputy Telkey to know that I am of the opinion, contrary to Duke’s assertion, that every citizen of the State has legal access including the right to be on and use that stream, which is a part of the “navigable waters of the State.” I know that many, many citizens of Chatham County, and many other learned lawyers, share this opinion. If it were not so, the work of the Haw River Assembly, which you have enthusiastically supported over the years, would be greatly restricted. Knowing you and your public support and respect for the Haw, which flows together with the Deep to form the Cape Fear just upstream of this site,, I suspect that you understand that my opinion is correct.

Under these circumstances, as there are conflicting interpretations of the law, this may well be a legal question to be determined by the Courts.

In the meantime, please understand that, with all due respect, you and your deputies have no authority to order citizens to leave and not to return to use, enjoy, or navigate the waters of the State. It is the business of Judges to resolve such issues, after proceedings affording all the parties due process of law, to enter appropriate findings, conclusions and Orders.

Neither Deputies of the Sheriff’s Department, nor even the Sheriff himself, are vested with judicial authority, and you all should take care to refrain from and avoid being used by powerful corporate interests to enforce prohibitions that fly in the face of the law of this State and Nation.

(Consider what Aunt Bea would say, upon learning at the dinner table that Opie’s science project investigating a fish kill, had been terminated because a deputy threatened to arrest him for trespassing if he came back again to look for the source of the stuff he had actually seen the day before running into their favoirte fishing hole. Ask yourself, “WWAD?”)

If Duke Energy wishes to litigate these issues, we are prepared to meet them in such litigation, and in accordance with lawful process, and after procedural discovery is completed, to present ourselves and these issues to the Court for resolution.

We’d like very much to learn, for example, how long and in what quantities Duke employees have been illegally discharging toxic wastewater from this coal-ash pond into the River; what individual officers and employees of Duke Energy directed and approved such a course of action on Duke’s behalf; and whether as a matter of company policy such a course of action has been employed to empty or draw down coal ash ponds at any of Duke’s other other thirteen coal-fired plant sites in North Carolina.

One would suspect that Duke has made some calculations as to the cost-savings it would enjoy from simply dumping their waste from these toxic ponds directly into the River, as opposed to draining and treating this wastewater before it is discharged, as the law requires. We would enjoy the opportunity to question Duke officials about such calculations, and how they might affect Duke’s plan to charge its customers with the costs of cleaning up these toxic ash ponds.

Inded, the federal grand jury is investigating such questions right now as to the chronic toxic pollution seeping from Duke’s waste ponds, especially the accidental release from the Dan River plant. This was no accidental spill though at Moncure. This was an intentional, contining illegal discharge, and its particulars should be of interest to that grand jury. In this sense, Riverkeeper’s actions are in aid of a criminal investigation, and ought not be obstructed by Duke’s unsupported assertion that it has a right to prevent access to these waters of the State.

These questions are essential to being able to determine the extent of the harm caused by Duke Energy by these actions, and what course Duke Energy should be ordered to follow in order to minimize and mitigate the risk and harm it has caused to the public health and safety. This is what Riverkeepers do, in the usual course of their work. They are not terrorists. Rather, they do work that is even more crucial to the public interest in these days when government agencies have been robbed of their ability to do meaningful investigative and enforcement work.

We intend to keep on monitoring and speaking out, as stewards of the rivers, including that part of the Cape Fear that runs through Chatham County beside the Moncure plant. In this regard, we will continue to exercise our rights of access to the River, including its navigable tributaries

In the meantime, I want you to know that we believe and have told the Riverkeepers that the people of North Carolina own the public, navigable waters of the State, and that they have the right to be on, use, and protect the public, navigable waters of the State. We have also cautioned them to take care not to enter edjacent privately owned property,

Please understand that the Riverkeepers’ efforts to monitor and analyze the effects of Duke Energy’s willful, intentional, unpermitted, discharge of toxic wastewater into Cape Fear River are legal and may not be prohibited by the Chatham County Sheriff’s Department without some underlying judiicial Order. It is the business of the Courts, to say whether Duke Energy may prohibit these folks from using the navigable waters of the State to establish and monitor the effects of Duke’s illegal discharge of toxic wastewater into the Cape Fear River.

I know you sir, and I know that in your heart, you will want to support this work.

With kind regards,

Robert Epting
EPTING & HACKNEY
PO Drawer 1329
Chapel Hill, NC 27514

 

Here is the Sheriff’s response:

 

.Elaine,

Thanks for meeting me earlier today in reference to the interaction of my deputy, the Riverkeepers and Duke Energy staff last week.
As you know, on March 13, 2014, a deputy was dispatched to Duke Energy (Cape Fear Coal Plant) in Moncure reference a trespassing call.
The deputy dealt with several issues including, “are occupants in a boat, on canal waters, on private property, trespassing”?
My deputy having limited information at hand – made a decision that in his opinion harmed neither side and kept the peace.
Since then we consulted with Jep Rose – the County Attorney about conflicting interpretations of property rights and water rights.
At this point in time with the information currently available, Mr. Rose has advised us to consider the canal waters to be a publicly navigable waterway. Again, thank you for meeting with me this afternoon and I appreciate your friendship and working relationship.

Sincerely,

Sheriff Richard. H. Webster
Chatham County Sheriff’s Office

 

Somewhere in heaven, Joe Sax is smiling.

Newly released e-mails show that when Duke Energy received notice that several citizens groups (including Waterkeeper Alliance and several North Carolina Waterkeeper organizations) were planning to sue it for Clean Water Act violations at its coal ash “storage” ponds, it started active negotiations with the North Carolina Departmnent of Environmental and Natural Resources.  These negotiations were aimed to thwart citizen enforcement and avoid taking remedial measures. Basically, as too often occurs when citizens discover ongoing violations that the environmental agencies would prefer to leave unenforced, the violator and the state environmental agency conspire to have the state commence a sham enforcement action in state court on the 59th day after notice. The State agency and the violator then propose a settlement of the case for nominal fines (often on the same day as the suit is filed) and the violator asserts that the collusive State enforcement action constitutes “diligent prosecution” that precludes citizen enforcement under Clean Water Act section 505.

These collaborative “diligent” prosecutions have a long and sordid history – in one of the more blatant cases, from South Carolina, the defendant’s lawyers actually filed the State enforcement action and paid the filing fee on behalf of the State. Friends of the Earth v. Laidlaw Environmental Services, 956 F. Supp. 588 (DSC 1997). I had thought there was an ethical rule against filing a lawsuit against your own client, but apparently in addition to the exception for a suit to collect your own fee, there is an exception for sham lawsuits in which the client is an eager defendant.

In the Duke Energy cases, not only did the State DENR and Duke Energy’s lawyers collaborate on the State enforcement actions, they also developed strategies to try and stop the citizen groups from intervening and being heard in the State court enforcement action. EPA Regulations provide that in order for a State to administer a delegated National Pollutant Discharge Elimination System permitting program, it must commit to “Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation.”  This condition of federal delegation did not phase the NC DENR.

The State Court ultimately thwarted DENR’s and Duke’s efforts, allowed the citizen groups to intervene, and denied entry of the proposed $90,000 settlement.   The case has become a major embarrassment for the State, as the exact environmental hazard the citizens groups were seeking to remedy – environmentally unsound long term disposal of coal ash wastes from power plants – has become the latest environmental disaster for the southeast, with a spill of tens of thousands of tons of coal ash slurry into the Dan River. The spill has prompted a federal criminal investigation into the relationship between the NC DENR and Duke Energy.

It is one thing when regulators fail to enforce environmental laws based on agency enforcement priorities or lack of resources. It is quite another when the same agencies expend their resources actively to thwart effective citizen enforcement. The environmental “protection” agencies all too often see their role instead as industry protection agencies – protecting industry from overeager citizen enforcement. This is not just a problem in the Carolinas – years ago, during the Pataki Administration, we learned that as soon as the New York State Department of Environmental Conservation saw that the Pace Environmental Litigation Clinic had filed public information requests for discharge monitoring reports from a series of municipal sewer treatment plants, an enforcement official at DEC circulated a memo recommending that DEC commence and immediately settle administrative enforcement actions against the plants in question as a way to prevent citizen enforcement.

One can only hope that the national embarrassment of environmental anti-enforcement in North Carolina will shame some environmental regulators to adopt a role of environmental defenses rather than industry defenders.

Real estate prices in many parts of the country are beginning to fall due to the real and perceived effects of climate change on land use. What is happening on the land is an indicator that a climate bubble is forming. The probability of it bursting is increasing — in some places at breakneck speed. On Friday, state water officials in California announced that they will stop supplying local water agencies that serve 25 million residents and three quarters of a million acres of farmland. The price of that land will inevitably be affected – and severely. In cut-off communities, the specter of living on water delivered by trucks will slow the pace and lower the price of home and business sales. The need to prove water supplies into the future to secure land use approvals in Colorado causes developers to buy water rights from farms and ranches, greatly diminishing their productivity, property values, and the nation’s food supply. Record high temperatures in Kansas affect crop production, increase the cost of crop insurance, and lower the sales price of farmland. Some climate forecasts predict that in the not-too-distant future corn will no longer grow in Kansas. Corn-belt towns dependent on agriculture will experience a precipitous decline of business and property values.

Continue Reading »

OK, so the title is a bit of hyperbole. But every social movement has its inspirational leaders, and Pete played a huge role in galvanizing the environmental movement. His great gift was the power of song — not [just] as performance but as political participation. He brought people together for a cleaner Hudson River and so brought people together for a cleaner world.

Here in the Hudson Valley we like to take credit for the birth of environmental law with cases like the Storm King pumped storage case (Scenic Hudson v Federal Power Commission) where activists successfully asserted environmental rights before there were practically any environmental laws on the books. Pete’s Hudson River Sloop Clearwater was part of that suit — but much more importantly, Pete Seeger was instrumental in organizing and inspiring people to push for environmental change.  He and his Hudson River sloop became a visual and audible symbol for activist environmentalism.  It is hard to imagine the “environmental decade” without Pete Seeger.

In 1972, Pete Seeger helped push Congress over the edge to pass the Clean Water Act by sailing the Clearwater to Washington, D.C. and delivering a petition with hundreds of thousands of signatures in support of the Clean Water Act.

And nothing beats his testimony before the House Un American Activities Committee, where he refused to confirm whether he had ever been a communist or a vegetarian, but offered to sing for them.

So the Supreme Court has granted cert in the Sebelius v. Hobby Lobby, Inc. and Conestoga Wood Specialties Corp. v. Sebelius cases. In both of these cases, for-profit corporations are challenging the application of the birth control coverage employer mandates of the Affordable Care Act on the grounds that these mandates violate the religious freedoms of the corporate employers. Presumably, at least some members of the Court are eager to extend religious rights to business corporations just as they extended political rights to business corporations in Citizens United v. Federal Election Commission.

Of course, forty years ago in Sierra Club v. Morton, the Supreme Court refused acknowledge that the Sierra Club, a corporation chartered for the purpose of preserving the Sierra Nevada mountains, could have a cognizable interest in preserving the environment of the Sierra Nevada mountains. Based on that reasoning, the Court denied the Sierra Club Article III standing — the right to sue in court to protect environmental interests – relegating the Sierra Club to acting as a conduit for its members. Based on this precedent, the DC Circuit once suggested that the idea of a business corporation asserting environmental interests for standing purposes “is beyond the reach of legal fiction and belongs in the realm of poetic license.” According to the DC Circuit in Citizens Coordinating Committee v. Washington Metropolitan Transit Authority, “Though a corporation is a person for some purposes, we would be most reluctant to hold that it has senses and so can be affronted by deteriorations in its environment.”

That’s not the only possible view, however. In his famous dissent in Sierra Club, where he argued that rocks, rivers, and trees should have environmental standing (as well as corporations), Justice Douglas also pointed out that corporate parties have exactly those legal interests embodied in their charters, and made reference to “corporations sole” that embodied individual religious and political offices.

Justice Douglas got it exactly right. Corporations are creatures of the state and have exactly those rights and interests that are embodied in their corporate charters. So if the Supreme Court is ready to recognize religious freedoms on the part of corporations whose charters authorize them to carry out business for profit (and nothing else), then certainly the same court will be ready to revisit the Sierra Club case and recognize that a not for profit corporation organized specifically to protect environmental values can assert environmental and aesthetic initerests in court. Not.

The Land Use Law Center’s annual Land Use & Sustainable Development Conference is a significant educational event in the region, with more than 200 attorneys, business professionals, and local leaders learning about national, regional, and local challenges and innovations. This year’s theme: Leading Communities toward a Resilient Future

Join us on December 6th at the NYS Judicial Institute at Pace Law School in White Plains to discuss the challenges communities in the New York Metropolitan area face because of natural disasters, a changing climate, new demographics and technologies, and inequitable living conditions. Leaders are emerging who are creating new strategies for community resiliency in the face of economic, social, and environmental change. They are Leading Communities toward a Resilient Future. We invite you to attend to learn about the flexible tools, models, and policies that strengthen communities to build equitable, sustainable, and economically prosperous places for people. CLE and CM credits available. Early-bird Pricing Closes Nov. 6th! 

Read on for details on Conference Keynotes and Sessions!

Continue Reading »

Advances in district energy systems, combined heat and power, and trigeneration technologies allow multiple building owners to cooperate to produce energy on-site and share power for heating and cooling to reduce energy consumption in buildings by over 70 percent; local zoning is learning how to embrace and facilitate these novel land uses.

This blog post is based on my articles, Shifting Paradigms Transform Environmental and Land Use Law: The Emergence of the Law of Sustainable Development, and Land Use for Energy Conservation and Sustainable Development: A New Path Toward Climate Change Mitigation.

Continue Reading »

« Newer Posts - Older Posts »