Two Recent Appellate Division Decisions Reject Segmentation Arguments: It Cannot be Segmentation Unless There is a Plan

Two recent Appellate Division decisions addressed segmentation claims and concluded that there cannot be segmentation unless there is a plan. Under SEQRA (the State Environmental Quality Review Act), it is illegal to take a project that may have significant impacts and break it in to smaller parts (segments) for environmental review purposes, each of which taken alone is not likely to have significant impacts. The…

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New Caselaw Highlights the Boundary Between Environmental Law and Corporate Law

A recent decision by the 9th Circuit Court of Appeals highlights the boundary between environmental law and corporate law. US v Sterling Centercorp Inc., 2020 WL 5885920 (10/5/20). The case arose out of a Superfund Site in California that was the subject of a number of corporate transactions. Defendant Sterling was the corporate parent of Keystone Copper Corporation, a corporation that owned the site from…

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Chesapeake Action Network v EPA: Court Tells EPA to Reconsider Rule Because Petitioners Did Not Have a Fair Opportunity to Comment

It is not unusual for a developing rule or other agency action to be something of a moving target, with an agency responding to comments in a way that leaves some in the regulated community complaining that they did not receive the required fair opportunity to comment before the rule or agency action became final. The DC Circuit’s opinion in Chesapeake Action Network v EPA…

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Environmental Impact Statements: Which Effects of an Action are Impacts that must be Considered?

The recent decision by the 11th Circuit Court of Appeals in Center for Biological Diversity v US Army Corps of Engineers, 2019 WL 5690619 (Nov. 4, 2019) concluded that impacts of an action that are “at most, tenuously caused” are not impacts that must be considered in preparing an environmental impact statement. The case arose out of an application by a fertilizer manufacturer for a…

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Dispelling 5 Misconceptions About Environmental Issues, Continued

My post listing the top 5 misconceptions about environmental law received positive feedback, so I am continuing it in this post, listing misconceptions 6 through 10. The top 5 were statements that many transactional attorneys believe, but are false. Misconceptions 6-10, on the other hand, are sometimes true. 6. The investigation found contamination, so we must report it to the State. That statement is sometimes…

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Center for Biological Diversity v US Forest Service: To What Extent Does Failure to Take Steps that Might Mitigate Environmental Harm Caused by a Third Party Make Someone Responsible for that Environmental Harm?

The 9th Circuit Court of Appeals decision in Center for Biological Diversity v US Forest Service, 2019 WL 2293425 (May 30, 2019) raises important questions about the extent to which someone might be held liable for failing to prevent someone else from causing environmental harm. The Center for Biological Diversity alleged that the Forest Service violated the Resource Conservation and Recovery Act (also known as…

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Dispelling 5 Misconceptions About Environmental Issues

I am starting to prepare course materials for a course entitled “Environmental Law for Non-Environmental Lawyers.” The purpose of the course would be to dispel many of the misconceptions that people have about environmental issues. As a starting point, here are 5 easy ways to tell that the person talking about the environmental issue has no clue: 1. “There are no hazardous substances in the…

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Freedom of Information: How Transparent is Government Decision Making?

The federal Freedom of Information Act (5 USC 553 et. seq.) and New York’s Freedom of Information Law (Public Officers Law section 87) require government agencies to provide records to the public upon request. There are exemptions, but the basic policy is that government records should be open to the public. A recent decision by the federal district court for the District of Columbia addresses…

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Neighbors Win on Imminent and Substantial Danger Claim and Court Grants Them No Remedy

In Lijam, LLC v General Electric Company, 2019 WL 1011021 (March 2019), neighbors of a contaminated site sued under the Resource Conservation and Recovery Act (RCRA), claiming the site “may present an imminent and substantial danger to health or the environment.”  The neighbors won on summary judgement, with the court concluding that General Electric was liable under RCRA.  The court then denied the neighbors’ request…

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Obtaining Regulatory Guidance from the Regulators

A major part of practicing environmental law is the ability to advise based on an assessment of how an agency is likely to behave.  The rules and regulations are often not as clear as a regulated party would like. Interpreting the rules and regulations, or using how they have been interpreted in other contexts to determine a recommended course of action, can be difficult.  I…

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