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New State Legislation Requires Increased Climate Resilience for New York Infrastructure

As in other areas of environmental policy, New York State is a leader in grappling with global climate change. Since 2009, the New York State Department of Environmental Conservation has had a policy in place that requires it to consider energy use and greenhouse gas emissions when it prepares or reviews an Environmental Impact Statement under the State Environmental Quality Review Act.

Yet Another Legal Challenge to the East 91st Street Marine Transfer Station Fails

A marine transfer station operated on the East River at 91st Street for nearly six decades, temporarily storing municipal waste along the East River before loading it onto barges for disposal outside of Manhattan. But in 2004, the New York City announced plans to build a newer, larger MTS on the site as part of a new City-wide Solid Waste Management Plan. The City wanted to move even farther away from its reliance on expensive and environmentally unfriendly truck-based disposal methods, but the proposal for East 91st Street quickly became embroiled in years of litigation. 

What does the President's Climate Action Plan mean for New York City?

After the cap and trade program died in Congress in 2009, and the successor to the Kyoto Protocol never appeared at the 2009 Copenhagen Climate Conference, climate change stagnated on the national agenda of the United States. With a hyper-partisan Congress, it became apparent that the political will to address climate change through the legislature simply did not exist. However, in June of 2013, President Obama introduced a roadmap for climate action that sought to address climate change while sidestepping congressional involvement entirely.

EPA Announces New Tenant Protections Under Superfund

EPA has just extended to tenants the Bona Fide Prospective Purchaser ("BFPP") protection, by which Congress previously exempted certain prospective owners from harsh Superfund liability. Even where the landlord loses its BFPP protection, the new EPA enforcement guidance memo allows tenants to hold onto it, assuming the tenant can meet certain requirements. 

Extension of New York State Fracking Moratorium Passes State Assembly, But its Ultimate Fate is Unclear

On March 7, 2013, the New York State Assembly passed legislation to extend the moratorium in place on high pressure horizontal hydraulic fracturing - hydrofracking or fracking - of shale that has been in place since 2008. Though the bill, Assembly Bill 5424-A, passed the Assembly by a wide margin of 95 to 40, the legislation must still be approved by the State Senate and signed by Governor Cuomo before taking effect. It is unclear if the Senate, which is controlled through a power sharing agreement among Republicans, Democrats and the Independent Democratic Caucus, will act on the bill. 

After Surviving a Legal Challenge, the Coney Island Boardwalk is "Going Green"

There are perhaps few other sights so closely associated with the summer scene at Coney Island than the wooden boardwalk. Predating even the venerable Coney Island Cyclone roller coaster, the boardwalk has been the main thoroughfare along which have strolled generations of New Yorkers and tourists alike, out for a game of ski-ball, some ice cream, or simply to enjoy the ocean views.

Generalized Community Knowledge Does Not Trump Expert Conclusions

The Appellate Division of New York State Supreme Court, Third Department, upheld a lower court decision that it was improper for a local planning board to deny a special use permit based on "generalized community knowledge" in opposition to a development proposal, when an unchallenged expert report concluded that the proposal would not harm the environment.

EPA Issues Interim Guidelines for Urban Agriculture on Brownfield Sites

Urban agriculture is exploding in cities - large and small - throughout the nation. In many cities, local land use laws and zoning ordinances are being amended or drafted to support this new-found passion. But with precious "green" space in cities (and rooftops in limited supply), many urban farmers may be forced to turn to contaminated spaces, i.e., brownfields, for their farming needs. But can these farmers ensure that these brownfield spaces are clean enough; how clean should soil be to be clean for farming? 

"As Is" Clauses

Seldom is a knowledgeable buyer with experienced counsel willing to accept property "as is." Nonetheless, if that is the agreed term of the transaction, then special care must be taken to make that provision effective. It will be construed against the seller.

No Asbestos, PCBs, USTs

It may be appropriate to add specific representations on individual contaminants or areas of concern to buyer or lender. In addition to those listed, formaldehyde and radon may be of concern to the buyer.

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