A federal court in New York recently decided that the migration of subterranean contamination onto a neighboring property was not, by itself, a sufficient basis to hold a neighboring landowner jointly liable for remediation costs under the federal Comprehensive...
Year: 2012
Can Entering Into a CERCLA Consent Decree Preclude Subsequent Cost Recovery Actions?
Congress enacted the Superfund Act, whose formal name is the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, in 1980 to promote the clean up (remediation) of properties, typically abandoned landfills or other sites, that had been...
DEC “Incidental Take” Permit Regulations Survive Challenge
On July 26, 2012 the Appellate Division, Third Department affirmed the dismissal of a challenge to the New York State Department of Environmental Conservation's recently amended endangered species regulations. The regulations, contained in 6 NYCRR Part 182, included a...
Binghamton Fracking Ban Struck Down in New York State Supreme Court
Fracking proponents recently succeeded in overturning Local Law 11-006 the city's ban on fracking, but this ruling is unlikely to drastically alter the landscape for municipal fracking regulation in New York outside of Binghamton.In a decision dated October 2, Broome...
“Fracking NY” Blog Series: Update – Decisions Upholding Zoning Bans on Fracking in NY Appealed
Previously in our "Fracking NY" Blog Series, we summarized the two recent New York Supreme Court cases - Anschutz Exploration Corp. v. Town of Dryden, 940 N.Y.S.2d 458 (Sup. Ct. Tompkins Co. Feb. 21, 2012) and Cooperstown Holstein Corp. v. Town of Middlefield, 2012...
“Fracking NY” Blog Series: Update – Federal Regulations
Since our last post regarding the current federal regulations of high-volume hydraulic fracturing (i.e., "fracking") for extraction of natural gas from shale, there have been several developments on the federal level.President Obama Issues Executive Order Establishing...
Court Holds Citizens Cannot Sue for Violations of Section 404 Permits under Clean Water Act
The Fifth Circuit Court of Appeals held that the Clean Water Act does not allow citizen suits to enforce the conditions of a § 404 Permit. See Atchafalaya Basinkeeper v. Chustz, No. 11-30471 (5th Cir. Apr. 25, 2012).A § 404 Permit, issued by the Army Corps...
New York City Approves “Zone Green” Amendments to the City Zoning Resolution
On May 1, 2012, the New York City Council unanimously approved changes to the New York City Zoning Resolution that will encourage green construction for new buildings and green retrofits for existing buildings, among other environmentally-sound innovations. These...
11th Circuit Decision Follows that of Niagara v. Mohawk: Under CERCLA, Parties Who Enter Into Consent Decree with Government Are Limited to a § 113(f) Contribution Claim
Since the Second Circuit Court of Appeals decided Niagara Mohawk Power Corp v. Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010), a number of other Circuits have followed the Second Circuit's holding that parties who enter into a consent decree with the U.S....
Environmental Due Diligence in Real Estate Transactions Blog Series: Part IV – Working with Environmental Consultants
In our series highlighting the tools of environmental due diligence in real estate transactions, we've covered the basics of (1) what is "environmental due diligence," (2) what are the important environmental provisions you need in a purchase and sale contract, and...
