Law Commons^™

New York Environmental Legislation In 2022, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Several significant environmental bills were enacted by the New York legislature and signed by Gov.Kathy Hochul in 2022, and several others were vetoed. As a result of measures enacted last year, New York will see $4.2 billion invested in environmental protection, restoration, climate resiliency and clean energy projects; potential disproportionate and inequitable impacts on disadvantaged communities will become a key factor in determining whether environmental permits are issued; and apparel containing intentionally added per- and polyfluoroalkyl substances (PFAS) will no longer be sold in the state. In addition, important changes were made to New York’s brownfield and wetlands laws. These …

Legislature Expands State’S Jurisdiction Over Freshwater Wetlands, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

Regulation of wetlands is one of the most significant ways that the government controls land use. While federal jurisdiction over wetlands is buffeted by the political and judicial winds, the New York Legislature has just expanded considerably the authority of the State Department of Environmental Conservation (DEC) to protect these areas and inhibit development there.

Lands, commonly labelled as bogs, swamps or marshes, which are inundated with water frequently enough to develop particular soils, hydraulic regimes or vegetative communities are generally classified as “wetlands” under certain environmental laws. The Tidal Wetlands Act and Freshwater Wetlands Act, added to the New …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Legal Pathways For A Massive Increase In Utility-Scale Renewable Generation Capacity, Michael Gerrard

Faculty Scholarship

Decarbonizing the U.S. energy system will require a program of building onshore wind, offshore wind, utility-scale solar, and associated transmission that will exceed what has been done before in the United States by many times, every year out to 2050. These facilities, together with rooftop photovoltaics and other distributed generation, are required to replace most fossil fuel generation and to help furnish the added electricity that will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and water heating) are electrified. This Article, excerpted from Michael B. Gerrard & John Dernbach, eds., Legal Pathways to …

Legal Pathways To Reducing Greenhouse Gas Emissions Under Section 115 Of The Clean Air Act, Michael Burger, Ann E. Carlson, Michael B. Gerrard, Jayni Foley Hein, Jason A. Schwartz, Keith J. Benes

Faculty Scholarship

Under President Barack Obama the U.S. Environmental Protection Agency has promulgated a series of greenhouse gas emissions regulations, initiating the necessary national response to climate change. However, the United States will need to find other ways to reduce GHG emissions if it is to live up to its international emissions reduction pledges, and to ultimately lead the way to a zero-carbon energy future. This paper argues that the success of the recent climate negotiations in Paris provides a strong basis for invoking a powerful tool available to help achieve the country’s climate change goals: Section 115 of the Clean Air …

Legal & Scientific Integrity In Advancing A "Land Degradation Neutral World", Shelley Welton, Michela Biasutti, Michael B. Gerrard

Faculty Scholarship

It is no secret that the fight against desertification isn't going well. In the two decades since the United Nations Convention to Combat Desertification ("UNCCD") came into force, desertification – defined as degradation in the quality of "arid, semi-arid, and dry subhumid" land areas – has worsened considerably. Recent United Nations estimates suggest that fifty-two percent of drylands currently under agricultural cultivation are moderately or severely degraded, and 12 million hectares of productive land become barren each year due to desertification and drought. And while drylands are the focus of the UNCCD, the challenge isn't limited to them: somewhere around …

Why Civil Liability For Disclosure Violations When Issuers Do Not Trade?, Merritt B. Fox

Faculty Scholarship

Civil damages liability for securities law periodic disclosure violations has come under attack, particularly fraud-on-the-market class-action lawsuits for investor losses incurred in connection with trading in the secondary market when the issuer has not sold shares. The main line of attack has been the weakness of the compensatory rationale for such suits. Without a compensatory justification, the attackers suggest, the availability of this cause of action is hard to defend given the very substantial use of social resources involved in the litigation that it generates. The critics are right concerning the weakness of the compensatory justification for civil liability. They …

The Birth, Death, And Rebirth Of The World Trade Center And The Fate Of New York, Michael B. Gerrard

Faculty Scholarship

The year in the title has finally arrived, and in Stanley Kubrick's classic film 2001: A Space Odyssey, the appearance of large monoliths marks important transitions in human civilization. In New York City, the construction, destruction and possible reconstruction of the twin monoliths of the World Trade Center also mark historical transitions. Among the things transformed with each event is our relationship to the physical environment.

Environmental Justice And Natural Areas Protection Trends & Insight, Michael B. Gerrard

Faculty Scholarship

There are 3,119,963 square miles in the continental United States. That sounds like plenty of space to put just about anything. However, when the facility seeking a home is environmentally controversial, finding even one square mile can seem almost impossible.

This country is now in its third major era in making siting decisions. The first era – unconstrained siting – lasted until the late 1960s. Then began the second era – protecting natural areas. In the early 1990s, we embarked upon a third era – environmental justice. The growing tensions between protecting natural areas and achieving environmental justice suggest that …

The Benefits And Risks Of Going It Alone, Michael B. Gerrard

Faculty Scholarship

Brownfield projects are essentially real estate developments with a twist, and the old real estate adage certainly applies: "Location, location, location." But if time is the fourth dimension, then time is also the fourth element in a successful brownfield project – preferably, spending as little of it as possible.

The timing of standard governmental cleanup processes is simply incompatible with many kinds of real estate projects. Forget about cleanups of National Priorities List (NPL) sites under the U.S. Environmental Protection Agency's National Contingency Plan (NCP); those take on average almost twenty years to complete. But even many state voluntary cleanup …

The Dynamics Of Secrecy In The Environmental Impact Statement Process, Michael B. Gerrard

Faculty Scholarship

The environmental impact review laws – the National Environmental Policy Act (NEPA) and its state counterparts – are premised on the idea of full and open disclosure. The notion underlying these laws is that if the government and the public are fully informed of the impacts of and alternatives to proposed actions, they will make wise decisions about whether and how to proceed. The Freedom of Information Act and its state counterparts even more explicitly seek to open up governmental deliberations to the public. Considered together, these two types of laws would lead one to believe that secrecy has little …