Gibbons Law Alert

Gibbons Law Alert

Tagged: Environmental & Green Issues

Another Edition of “No Addition”: Supreme Court Applies Precedent to Confirm Plaintiffs’ Concession That Movement of Water Within River Channel Was Not a “Discharge”

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Posted in Environmental and Green Issues

On January 10, 2013

The answer you get depends on the question you ask. That’s the take-home lesson from the Supreme Court’s decision in Los Angeles Flood Control District v. Natural Resources Defense Council. All parties agreed on the answer to the specific question on which the Court granted certiorari. The Court, applying its own 2004 precedent, said they were correct — there was no “discharge” that violated the District’s permit because the flows in question simply went from one part of the same river system to another. The Court never reached the alternative ground for liability urged by the plaintiffs because it went beyond that narrow question. The result? A reversal and a win for the District on essentially procedural grounds.

Transitioning New Jersey to Alternative Energy Vehicles

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Posted in Environmental and Green Issues

On December 26, 2012

An article published last year entitled, “NJ Charges Forward with Electric Vehicle Network,” discussed the concerted efforts of New Jersey and several other states to develop a Northeast Electric Vehicle Network and promote alternative transportation fuels. The goal of this project is to encourage economic growth, maintain the region’s leadership in the area of clean energy, and reduce the region’s dependence on oil. Toward that end, two bills were recently introduced in the New Jersey State Legislature that would provide further incentive for New Jersey drivers to make the transition to alternative energy vehicles.

New York State Again Defers Decisions Regarding Hydraulic Fracturing

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Posted in Environmental and Green Issues

On December 21, 2012

On November 28, 2012, New York State confirmed that its health assessment of the proposed regulations governing hydraulic fracturing, also known as “fracking,” being conducted by a panel of three leading public health experts, would be delayed. Immediately thereafter, the State’s Department of Environmental Conservation (“NYSDEC”) filed for a 90-day extension of the November 29, 2012, regulatory deadline for finalizing fracking regulations.

Opening the Flood Gates?: U.S. Supreme Court Holds That Takings Clause Covers Temporary Flooding

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Posted in Environmental and Green Issues

On December 12, 2012

When government actions cause flooding of your land, does it constitute a “taking” that triggers the Fifth Amendment’s requirement of “just compensation?” Supreme Court precedent dating back to 1872 teaches that when the flooding is permanent, such as when a new dam creates a lake, a compensable taking has occurred. But what if the flooding is only temporary? Can that constitute a taking? The Federal Circuit said, “Never.” In Arkansas Game and Fish Commission v. United States, the Supreme Court disagreed, and said, “Sometimes.”

Gibbons Director David Freeman Reelected President of the New York City Brownfield Partnership

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 30, 2012

David J. Freeman, a Director in the Real Property & Environmental Department of Gibbons P.C., has been unanimously reelected to a second term as president of the New York City Brownfield Partnership, a public/private nonprofit organization dedicated to promoting the cleanup and redevelopment of brownfields in New York City. The Partnership is a member organization of more than 40 real estate developers and owners, community organizations, governmental agencies, and environmental professionals who are active on brownfield matters.

Commercial Tenant Relieved of Duty to Maintain Common Areas in N.J. Appellate Division Decision

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 29, 2012

Commercial tenants in multi-tenant shopping centers can now breathe a sigh of relief as the New Jersey Appellate Division in Kandrac v. Marrazzo’s Market of Robbinsville, safeguards the boundaries of commercial tenant liability for business invitees, reiterating that a commercial tenant does not owe a duty to its patrons to maintain a common area, such as a parking lot, that the landlord is contractually obligated to maintain.

New York Court of Appeals Clarifies Relationship Between SEQRA and Brownfield Cleanup Act

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 20, 2012

On October 23, 2012, the New York Court of Appeals handed down its decision in Bronx Committee for Toxic Free Schools v. New York City School Construction Authority. In it, the Court held that the public notice procedures that the School Construction Authority followed under the New York State Brownfield Cleanup Act (BCA) did not satisfy the related, but distinct public notice and comment obligations under the State Environmental Quality Review Act (SEQRA).

NJDEP Temporarily Waives Permitting Requirements For Rebuilding Infrastructure After Sandy

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Posted in Development/Redevelopment / Environmental and Green Issues

On November 19, 2012

On November 3, 2012, less than five days after Hurricane Sandy washed away much of the Jersey Shore and its infrastructure, NJDEP Commissioner Bob Martin signed Administrative Order No. 2012-13 (the “Order”), temporarily waiving permitting requirements for State, County and Municipal agencies seeking to rebuild after the storm. The swift action of NJDEP unleashed a storm of its own from critical environmentalists worried that the rush to rebuild the devastated areas would recreate the same vulnerabilities.

N.J. Appellate Court Clarifies That Owners of Pre-1993 Property Must Prove Due Diligence During Acquisition Under the Innocent Purchaser Defense Codified in the Spill Act

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Posted in Environmental and Green Issues

On November 14, 2012

On October 29, 2012, as Hurricane Sandy began its assault on the State, a New Jersey Appellate Court in New Jersey School Developments Authority v. Marcantuone created its own “storm” in Spill Act jurisprudence by holding that purchasers of contaminated property prior to September 14, 1993, can be liable under the Spill Act if they failed to conduct due diligence prior to purchase. In reaching this conclusion, the Appellate Division held that the long-standing 2001 decision in White Oak Funding, Inc. v. Winning had been superseded, in part, by the 2001 amendments to the Spill Act (“2001 Amendments”), which had been adopted a few weeks before the White Oak decision and became effective a week after the decision.

Environmental Issues a Growing Concern for Companies

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Posted in Environmental and Green Issues

On October 5, 2012

As companies in the northeast region take advantage of an improving real estate market, in the face of aggressive agency enforcement, and complex environmental programs and policies, the need for environmental counsel to assist with transactions, navigate potential pitfalls, and mitigate future liability, has become essential. In a recent article published by The Metropolitan Corporate Counsel, three new Gibbons Directors – William Hatfield, Camille Otero, and David Freeman – discuss the firm’s strategic decision to expand the practice group, the growth of the environmental law market, and how their experience can assist clients in this expanding field.

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