New York City Bar Issues Report on Raising Awareness of Climate Change

NYC Bar Issues September 14, 2016 Report

Last month, the New York City Bar Association issued its Report on the New York City Bar Association’s Program on Opportunities to Raise Public Awareness about Climate Change and the Need for Action. The report follows a March 31, 2016 conference on the same topic that brought together a variety of professionals from New York’s businesses, religious institutions, nonprofits and other entities to discuss an aligned, coordinated message on the fight against climate change.  Speakers included Professor Jeffrey Sachs of the Earth Institute at Columbia, Cardinal Timothy Dolan, and many legal, communications, advocacy, public sector and other professionals.

The Bar Association’s work around raising awareness of climate change, spearheaded by the Association’s Environmental Law Committee (of which I am a member) arose out of the realization that while law is an important tool in the fight against climate change, it is insufficient without the political will to create meaningful changes. Given that many sectors – from businesses and NGOs to government and religious institutions – are already making great strides with respect to climate, the conference brought them together to discuss how they might collaborate on the common goal.

A variety of recommendations came out of the conference and are outlined in the report. Future Bar Association work will include working with the New York City Mayor's Office of Sustainability to support their climate change efforts and further coordination of the various sectors and government in their climate change efforts and discussions. The attorneys working on the report and its recommendations are also seeking to be a catalyst for a marketing campaign to promote collective enthusiasm around New York City's carbon reduction efforts.

The Bar Association’s efforts around raising awareness of climate change and the need to take coordinated action against it are intended to tap into New York’s energy, excellence and leadership to make a meaningful difference in the public perception of the fight against climate change.

The report, with a summary of the March 2016 conference and resulting recommendations, as well as full transcripts from the day’s speakers, can be found on the New York City Bar Association website.

What is parkland alienation?

Transferring municipal parkland or converting it to nonpark use can be legally complex.

Like access to water and certain other very important property interests, parkland is generally considered subject to the public trust doctrine, which means that the land is held “in trust” by the government for all citizens to use and enjoy. The public trust doctrine is a common law concept that is applied differently among a variety of resources and jurisdictions.

Parkland alienation requirements stemming from the public trust doctrine first appeared in New York caselaw in 1871, when the court in Brooklyn Park Commissioners v. Armstrong held that the then-city of Brooklyn could not sell parkland without obtaining prior legislative approval. This holding has been reaffirmed many times since, including in Friends of Van Cortlandt Park v. City of New York (2001) and Union Square Park Community Coalition, Inc. v. New York City Dept. of Parks and Recreation (2014). The court in Williams v. Gallatin (1920) described the logic for such holding: “A park is a pleasure ground set apart for the recreation of the public, to promote its health and enjoyment… no objects, however worthy, such as courthouses and schoolhouses, which have no connection with park purposes, should be permitted to encroach upon it without legislative authority plainly conferred.”              

Pursuant to the above, municipalities generally cannot transfer parkland or change the use of parkland to non-outdoor recreation without first obtaining passage of authorizing legislation from the NYS legislature, called “alienation legislation.” Depending on the programs by which the park was established and whether state or federal funds were used for the park, the alienation process may require replacement of parkland with “equal” land. The alienation requirements apply not only in the obvious case of a municipality seeking to transfer public parkland to a private entity for development, but also in cases where the land is transferred to a private entity but continues to be used for recreational purposes and cases where the land is to be used for public purposes other than outdoor recreation (think museums or public works facilities). State parks are not subject to alienation requirements in New York; however, they may be subject to other similar requirements pursuant to their enabling legislation or if they received federal funds.

The alienation approval process can be lengthy -- as much as a year or more, and significantly longer the if park’s transfer or change in use must also go through the federal parkland conversion process (for parks that have received federal funds). Prior to passage of the alienation legislation, the transfer or change in use in parkland must go through the New York State Environmental Quality Review (“SEQRA”) or City Environmental Quality Review (“CEQR”) review processes; if the federal conversion process applies, the transfer or change must also go through National Environmental Policy Act (“NEPA”) review. Once the applicable environmental review is completed, the municipality may request a Municipal Home Rule resolution, a necessary precursor to the alienation legislation, from the state legislature. Only after these two items have been completed may the alienation legislation be enacted. Throughout the process, the municipality must rally the support of state legislators from both the state assembly and the senate.

It is recommended that beginning work with NYS Dept of Parks (and counsel, if desired) as soon as the transfer or change in use is being considered. A qualified attorney may guide the municipality through the alienation process as well as through the technical and potentially onerous environmental review process.

Parkland alienation is understandably controversial in many instances, as advocates and community members, as well as elected officials, are often loath to lose public space. Parks advocates may also wish to work with counsel who can advise on whether municipal officials have complied with the alienation, conversion and environmental review requirements, as these can be important advocacy points.

Note: I used as a reference the Handbook on the Alienation and Conversion of Municipal Parkland in New York published by the New York State Office of Parks, Recreation and Historic Preservation (2012), which expands upon many of the concepts and requirements described above.

What is the new New York State Superfund Date of Discovery Rule?

New opportunity for relief for claimants exposed to hazardous substances at superfund sites

Last week, New York Governor Andrew Cuomo signed into law a change to statute of limitations rules to allow plaintiffs three years following the designation of an area as a state or federal superfund site to file hazardous material exposure claims. Prior to this change in law, such claims were required to be filed within three years of discovery of the impact or injury.

The new rule is good news for potential claimants, as it will generally allow applicable plaintiffs additional time to bring their exposure claims. The law has a “whichever is latest" formulation, which means that claims can be brought for three years following discovery of the condition or injury caused by the exposure or for three years following the naming of the relevant site as a superfund site, whichever is later. Previously, the law only allowed such claims to be brought for three years following discovery of the condition or injury (and this remains the case where the area where the exposure occurred is not named a superfund site). Explanatory language provided with the bill by the New York State Assembly indicated that the change in rules was meant to provide the opportunity for relief to claimants who became ill more than three years ago who did not know at the time they became ill that they had been exposed to hazardous substances, noting that “in many cases, the statute of limitations to bring a personal injury action has long since run before any contamination was ever discovered.”

The new superfund date of discovery law was inspired in part by the recently discovered perfluorooctanoic acid (PFOA) contamination in Hoosick Falls, New York, and the bill’s explanatory language acknowledges “many previously unexplained illnesses” among Hoosick Falls residents who “had no idea they had been exposed to any hazardous toxins until years after they had become sick.” Governor Cuomo designated the village of Hoosick Falls as a state superfund site in January 2016 and state regulators have been negotiating with (and in June 2016 signed consent decrees with) Honeywell and Saint-Gobain, two local manufacturers, regarding liability. The change in law removes a hurdle to personal injury claims arising out of the contamination.

Last week’s law has implications for the already tenuous nature of statutes of limitation in the environmental context. In general, the moment a statute of limitations begins to run on an environmental exposure claim can be difficult to pin down as it often hinges on the date the injury was discovered. Moreover, each instance of exposure may be an opportunity for liability to arise anew. Therefore, there is no easy way for polluters or property owners, lessors or operators to be certain that no claims will arise from past pollution incidents. The new rule adds a wrinkle in that, if a site is named a superfund site, past instances of pollution or exposure may give rise to new three-year windows for old claims to be filed. While there is no strong indication at this point that property owners will change their behavior as a result of the change in law, it is possible that some owners of very contaminated sites may see this change as an incentive to clean up contaminated sites to avoid risk of being designated as a superfund site.

Where does the NYC “bag bill” stand?

Though it passed the City Council with a huge amount of fanfare, City and State legislators have since agreed to delay implementation of plastic bag legislation until at least February 2017.

On May 5 , 2016, the New York City council passed a bill, Intro. 0209-2014-A, requiring city stores to charge a five-cent fee for each disposable plastic bag given to a customer to carry the items he or she purchases. The bill was passed by a vote of 28 to 20, a majority reached after several exceptions to the “bag tax,” including for takeout restaurants, pharmacies and some other vendors, as well as for customers using food stamps, were written into the bill. The current bill also replaces an earlier version that would have imposed a ten cent fee.

Once in effect, the law is expected to keep keep plastic bags out of city waterways, drains, streets and public spaces. According to the bill’s sponsor, New York City spends $12.5 million annually to landfill disposable plastic bags, an amount that could be reduced if the bag fee leads to a decrease in the use of such bags. A handful of other jurisdictions have also passed laws imposing bans or fees on plastic bag use, including the state of California (however, California’s legislation is subject to a November 2016 referendum) and Hastings-on-Hudson, New York (a full ban on single-use plastic bags; paper bags can be purchased for five cents at checkout). New Jersey is considering a similar measure at the state level.

The New York City legislation imposes a fee for disposable bags that is to be kept by the retailer. The City government can pass legislation imposing a fee without state approval, while a tax (i.e., a five-cent fee to paid to the government) would need to be enacted by the state.

So what’s the holdup? Why won't plastic bag legislation take effect any time soon?

Mayor De Blasio has expressed support for the bill and has been expected to sign it into law. Under normal circumstances, when a city mayor signs a bill approved by the majority of the city council into law, the matter is generally considered settled (subsequent administrations or legislatures could amend or rescind the bill, of course, or the law could become the subject of litigation, but the law would generally go into effect unless stayed or overturned in court). However, the New York City plastic bag bill has come into the crosshairs of state legislators, who have introduced their own legislation, Assembly bill A09904 and Senate bill S07336, with the goal of blocking implementation of the New York City plastic bag legislation. Specifically, the bills would “establish[] a prohibition on the imposition of any tax, fee or local charge on carry out merchandise bags.” The bill’s sponsors and cosponsors are generally from New York City districts, and it is understood that the state bills are directly targeted at the New York City legislation.

The New York State Senate bill was passed on June 7. In response, the New York City Council agreed with the New York State Assembly to delay implementation of the City legislation from October 2016 to February 2017, giving the city and the state the opportunity to develop mutually agreeable language to amend it. The fight is playing out on the advocacy stage as well, with groups such as the New York League of Conservation Voters continuing to campaign for meaningful bag legislation and a consortium of anti-legislation players organizing around “Bag the Tax” efforts. It remains to be seen what additional amendments to the bill state legislators will want to see in order to avoid the preemptive state legislation.

For all of the fanfare with which the plastic bag legislation was ushered in in New York City, many New Yorkers have been left scratching their heads as to why the fee wouldn’t go into effect as required by the City Council bill. While the bill has enjoyed great support among some constituencies, it has also garnered a significant amount of opposition (explained in more detail in some of the City’s local newspapers), which has led Albany lawmakers to look for a way to shut it down. Until the City and the State agree on a way forward, it appears that any sort of plastic bag fee or ban will remain in limbo.

PS. For a way more entertaining read about the fight for NYC bag bill, see the New Yorker’s recent piece on advocacy efforts around the bill.