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Practices

Environmental and Land Use

The Environmental and Land Use Practice Group at Carter Ledyard & Milburn LLP (“CL&M”) represents public and private entities on all aspects of environmental and land use law. Our experience includes permitting, licensing, environmental impact review, environmental due diligence, compliance, litigation, arbitration, and administrative proceedings under federal, state and local laws.

CL&M is a full-service law firm, and the Environmental and Land Use Practice Group draws on the expertise of professionals in other practice groups, including those focusing on real estate, corporations, taxation, condemnation, tax-exempt organizations, maritime, intellectual property, trusts and estates, and other areas of law.

The Environmental Practice Group is directed by partners Christine A. Fazio and Christopher Rizzo and senior environmental counsel Stephen L. Kass. The Group also includes partners Paul Proulx and Judith Wallace, counsel Clifford P. Case, III, Julie A. Weisman and Theodore Y. McDonough, and associates Karen E. Meara and Rocco Sainato.

Group members have broad prior experience at federal, state and municipal agencies, private consulting firms, and non-profit organizations in the environmental field, as well as decades of practice in the area of environmental and land use law at CL&M, environmental regulatory agencies, and other respected private firms.

Principal Areas of Expertise:

Land Use and Zoning

CL&M’s attorneys have strong expertise with regard to application of New York City’s Zoning Resolution and Building Code and related laws in other New York municipalities. CL&M attorneys are very familiar with the New York State and local government standards for clients to obtain special use permits, area and use variances, rezonings, and other zoning flexibilities. When necessary, we have also opposed local land-use decisions and crafted innovative settlements, solutions and compromises.

Representative matters:

  • Representing the East River Fifties Alliance on its groundbreaking application to the City Planning Commission for a zoning text amendment that would limit building heights and incentivize affordable housing in the East Fifties area of Manhattan.
  • Assisting the Metropolitan Transportation Authority in a ground lease of MTA’s former headquarters at 347 Madison Avenue. That building is in the City’s newly-created Vanderbilt Corridor special zoning district, which permits developers to apply for special permits from the City Planning Commission to increase floor area in exchange for making transit improvements, purchasing development rights from landmarks or both. In this case, MTA is working with a possible lessee to develop a package of transit improvements for the special permit.
  • Serving as land use counsel to the joint venture developing an East Harlem site called Lexington Gardens. The full-block site is composed of private land improved with a project-based Section 8 building and a City-owned parking lot. Together the project qualifies as a “Large Scale General Development” and is eligible for a zoning Special Permit.

Environmental Impact Review

CL&M is among the most experienced and well-respected New York law firms working in the fields of environmental impact assessment and land use. We advise clients on residential, commercial, transportation, energy, and other projects, from relatively small matters to the largest, most complex projects in the metropolitan region.

Our project permitting practice includes representing developers seeking approvals under local zoning, subdivision, historic preservation, waterfront, and wetlands regulations; advising utilities and power companies on the siting and licensing of energy facilities such as power plants, wind turbines, electric transmission lines, and natural gas pipelines; representing transportation agencies on transportation and transit-oriented developments; and representing public benefit corporations on projects involving urban redevelopment and public-private partnerships.

The core of this practice area is advising on the preparation of environmental impact statements under the National Environmental Policy Act (“NEPA”) and related federal laws, the New York State Environmental Quality Review Act (“SEQRA”), and New York City’s Environmental Quality Review (“CEQR”). On energy projects, we also participate on behalf of clients before the Federal Energy Regulatory Commission (“FERC”), the Department of Interior, and the New York State Public Service Commission. We also have extensive expertise in assisting agency clients in complying with regulations of the U.S. Department of Housing and Urban Development (“HUD”) for Community Development Block Grant funds.

Representative matters:

  • Serving as New York counsel to Enbridge Inc. relating to development of new or replacement of natural gas pipelines, including preparation of environmental resource reports required under NEPA.
  • Advising the Metropolitan Transportation Authority and Long Island Rail Road on the environmental and land use approvals for the Western Rail Yard project, a six-million-square-foot transit-oriented development over the LIRR’s West Side Rail Yard. The project, to be built principally on a deck over the busy, active rail yard, will include roughly 5,000 market-rate and affordable apartments, commercial buildings, open space, a public school, and connections to the City’s new High Line Park.
  • Assisting the Long Island Power Authority on the planning, environmental review, and approval of the largest solar energy project in New York State through installations at the federal Brookhaven National Laboratory and Suffolk County-owned parking lots and railroad stations on Long Island.
  • Representing the Roosevelt Island Operating Corporation in Cornell University’s “NYC Tech Campus” project; development of new open space; the refurbishment of the iconic Roosevelt Island Tram to Manhattan; and improvements to other island infrastructure.
  • Advising a public client on a proposed electric transmission line from New Jersey to New York City.
  • Advising the LowerManhattan Development Corporation on rebuilding the World Trade Center Site in Manhattan.
  • Advising the MTA and LIRR on the Atlantic Yards development project in Brooklyn, which includes a new stadium for the NBA Nets basketball team.
  • Advising Lincoln Center for the Performing Arts Inc. on its use and development of its campus, including IMG’s Fashion Week.
  • Other commercial, residential, transportation, industrial, and energy projects, including a municipal water treatment plant, private sewage sludge treatment facilities, the expansion of Lincoln Center, the Westchester Mall in White Plains, proposed landfills, airports, highways, bridges, residential subdivisions, shopping centers, surface mines, and water supply installations.

Air and Water

The Group has extensive expertise in Clean Air Act and Clean Water Act permitting. We advise power companies and manufacturing facilities on New Source Review and Title V applicability, requirements to obtain minor source permits, and general compliance with federal and state air regulations. We also advise clients on issues related to ambient air quality standards, including air dispersion modeling for both stationary source and mobile source projects.

We have extensive expertise on federal, state and local water-related regulations, including Clean Water Act discharge permits, state water quality certifications, state and local tidal and freshwater wetlands permits, stormwater permits, and in-water structure permits from the Army Corps of Engineers and state agencies.

We have worked with public and private clients on projects designed to revitalize underutilized urban waterfronts, including the provision of open space and greenways, the rehabilitation of aging bulkheads, improvements to navigation, and floodplain management. We help clients secure federal and state permits and consistency determinations with state and local coastal zone policies. CL&M has also advised clients on title issues affecting the types of development permitted along the waterfront and near-shore parklands.

Representative matters:

  • Advising energy companies on Prevention of Significant Deterioration, New Source Review and Title V operating permit applicability and review procedures for new combustion units.
  • Advising the Lower Manhattan Development Corporation on the East River Esplanade Project in Lower Manhattan, which involves improvements to the two-mile esplanade on the East River from the Battery to East River Park.
  • Advising Battery Park City Authority on the redevelopment of Pier A in Battery Park.
  • Representing a municipality seeking to mitigate wetlands impacts associated with an 800-unit residential subdivision.
  • Defending a developer in a wetlands enforcement proceeding brought by state and federal regulators.
  • Representing shipping companies and associations on issues related to ballast water discharges.
  • Advising the not-for-profit Neptune Foundation on the relocation of the “ Floating Pool Lady”—a unique public swimming pool built on a barge—from Brooklyn Bridge Park to the Bronx.

Climate Change & Carbon Trading

The Group is well versed and engaged in this emerging area of environmental law, which we believe will continue to develop in importance despite the United States’ withdrawal from the Paris Climate Accord. We closely monitor domestic climate change litigation, state and federal climate change legislative proposals, and the changing landscape of corporate and environmental disclosure requirements. Notably, we helped form and now represent the Regional Greenhouse Gas Initiative, Inc., a non-profit adviser to the Regional Greenhouse Gas Initiative, a regional carbon dioxide emissions trading program for major electricity generators formed by New York and nine other northeastern states (although New Jersey has since withdrawn from RGGI). We also represent several land trusts in negotiating agreements for carbon credits.

We also represented four former EPA Administrators in the groundbreaking U.S. Supreme Court case of Massachusetts v. United States Environmental Protection Agency, in which the Court held that EPA has the authority under the Clean Air Act to regulate the emission of greenhouse gases and unlawfully failed to exercise that power to address the risks posed by climate change.

In addition, our attorneys have been very active in the carbon trading arena. They have assisted in numerous transactions involving the sale of forest-based emission reduction credits under the California Forest Protocols and have developed model Emission Reduction Purchase Agreements for use in other carbon credit negotiations. Our attorneys have assisted clients in developing carbon credit programs for major international energy projects under the Kyoto Protocol and have negotiated trans-border contracts for the sale of credits on the voluntary market. They also have advised clients with respect to how future legislation might affect the development or renovation of new power plants or the negotiation of long-term power purchase agreements. The firm also represented a major market participant in litigation concerning the trading of contracts for emission reduction credits.

CL&M assisted the Canadian provinces of British Columbia, Ontario and Quebec, which are participating with the State of California in the Western Climate Initiative, to form a new non-profit corporation, Western Climate Initiative, Inc., to provide administrative and technical services to support state and provincial greenhouse gas emissions trading programs.

In addition the Environmental Practice Group advises clients on the role of climate change in environmental impact review under NEPA and SEQRA, and corporate disclosure of climate change risks under SEC and other guidance.

Transfer of Development Rights

CL&M’s attorneys have negotiated zoning lot development agreements that transfer development rights among adjoining property owners “as-of-right” under the New York City Zoning Resolution or via special use permits.

Green Buildings & Sustainable Development

We advise private developers and development agency clients on the inclusion of environmental sustainability measures in development projects, including sustainable design guidelines governing the development of millions of square feet of mixed-use development, best management practices for mitigating environmental impacts during project construction, the enforcement of private developers’ commitments to obtain Leadership in Energy and Environmental Design (“LEED”) certifications, and the installation of state-of-the art energy efficiency, pollution control technology, and combined heat and power systems.

Representative matters:

  • Assisting the Lower Manhattan Development Corporation on the development of environmental performance commitments for construction projects in Lower Manhattan.
  • Preparing lease agreements for a major commercial landlord in New York City to require green commitments by tenants.

Hazardous Materials, Brownfields & Pesticides

The Group provides on-going counseling and representation to clients in connection with unanticipated releases of hazardous materials, as well as the development and implementation of corporate policies relating to environmental standards and procedures. We routinely write articles and advise clients about changes to and new interpretations of New York’s Brownfield Cleanup Program (“BCP”) and the development of New York City’s brownfield regulations.

We frequently advise clients on permitting and compliance issues associated with the management of hazardous substances under the Resource Conservation and Recovery Act (“RCRA”), the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), the Toxic Substances Control Act (“TSCA”), the Emergency Planning and Community Right-to-Know Act (“EPCRA”), the New York Navigation Law, and other state and local laws.

Representative matters:

  • Representing potentially responsible parties at federal and state Superfund sites (including serving as common counsel to PRP groups).
  • Litigating cost-recovery actions against other potentially responsible parties and regulatory agencies.
  • Advising industrial, municipal, and institutional clients on compliance with RCRA, CERCLA, and other federal, state, and local statutes and regulations governing hazardous wastes and substances.
  • Representing companies of all sizes and their principals, as well as municipalities, in government enforcement actions and citizen suits.
  • Representing companies and individuals in pesticide compliance matters relating to pesticide registration, sale and use.

Energy

CL&M is pre-eminent in the field of energy facility environmental review and permitting, having represented major regional public authorities in conducting environmental reviews and permitting for a new large combined-cycle power plant, several smaller simple-cycle plants, new substations and transmission lines, and renewable energy projects (such as energy efficiency initiatives, pilot projects and solar projects).

We have assisted clients in the transfer of major power plant assets, including due diligence review of agreements and preparing for the transfer of contracts and permits pursuant to state and local laws, and in the permitting and environmental review for major transmission and pipeline facilities.

Representative matters:

  • Serving as New York counsel to Enbridge Inc. for development of new and replacement pipelines to bring natural gas to the New Jersey-New York metropolitan region and to the northeast. The projects involved licensing and environmental review by the Federal Energy Regulatory Commission under the Natural Gas Act and National Environmental Policy Act.
  • Assisting the Long Island Power Authority on the planning, environmental review, and approval of the largest solar energy project in New York State through installations at the federal Brookhaven National Laboratory and Suffolk County-owned parking lots and railroad stations on Long Island.
  • Representing a public client on a filing under Article VII of the New York Public Service Law regarding an electric transmission line in upstate New York.
  • Conducting due diligence for a Canadian company’s acquisition of power plant assets in New York and New Jersey.

Corporate & Real Estate Transactions

In cooperation with our Corporate, Real Estate, and Condemnation groups, the Environmental Practice Group advises potential buyers, sellers, and lenders as to the potential environmental risks involved in the transfer and development of real property; joint ventures; secured or equity financings; and mergers, acquisitions, and corporate reorganizations. Our representation includes the supervision of environmental audits and the preparation of indemnification agreements with or among potentially responsible parties. Group members have broad experience in the interpretation and application of current due diligence standards for the conduct of site assessments, having participated in the development of the U.S. Environmental Protection Agency’s “Standards for Conducting All Appropriate Inquiries” under CERCLA.

Landmarks & Historic Preservation

The Group is well versed in the landmarking and historic preservation requirements of the National Historic Preservation Act and the related Section 106 consultation process of the Advisory Council on Historic Preservation. We also advise clients on state and local historic preservation laws, including the New York State Historic Preservation Act, and the New York City Landmarks Preservation Law. CL&M represents developers who seek to rehabilitate and reuse properties of historic significance (or to develop adjacent to such properties).

Co-Ops and Condos

Our attorneys regularly represent cooperative and condominium boards in a variety of real estate, construction and land-use matters. Representative matters include negotiation of development agreements and construction agreements with neighbors; resolution of zoning and building code issues; and litigation between neighboring land owners over a variety of disputes.

Free Speech

We advise our public-sector clients on First Amendment matters as they arise in the land-use context, including development of strong policies for management of demonstrations and advertising on public property.

Litigation

The Group is also part of the Firm’s Litigation Department and group members have significant litigation experience. We frequently litigate cases at the trial and appellate levels, before federal and state courts, and before administrative agencies. Our experience includes Article 78 proceedings, jury and bench trials, administrative adjudications, pre-trial practice, appeals, arbitration, mediation, and complex settlements.

In addition to our current docket, CL&M attorneys were involved in many cases that established or expanded contemporary environmental rules or procedures, including Scenic Hudson Preservation Conference v. Federal Power Commission (the path-breaking litigation that led to the development of much of contemporary environmental law),Sierra Club v. U.S. Army Corps of Engineers (Westway), and Jackson v. New York State Urban Development Corporation (“hard look” standard under SEQRA), as well as many other federal and state cases involving air quality, water quality, historic preservation, traffic management, waste disposal, open space preservation, land-use planning, surface mining and other environmental disputes.

Environmental Liability Insurance Coverage

CL&M represents insureds, including public agencies, public benefit corporations and nonprofits, in negotiating, evaluating, and procuring specialized insurance coverage policies covering environmental and toxic-tort-related risks.

Freedom of Information Laws

Environmental permitting and licensing proceedings, and litigation challenging or defending projects and actions on environmental grounds, often involve the rules and regulations, and related case law, that has developed concerning the right of the public to obtain access to various types of information in governmental hands. CL&M has extensive experience in making and responding to information requests under both the New York State Freedom of Information Law (“FOIL”) and the federal Freedom of Information Act (“FOIA”). CL&M’s work on behalf of private clients and government agencies has given it unparalleled knowledge of the nuances of FOIL and FOIA law, including request and appeal procedures, response timelines, and the law of agency exemption and privilege.

International Environmental Law

Environmental Practice Group members have represented European, Canadian, Latin American, Japanese and Israeli businesses and individuals in corporate transactions, property acquisitions, environmental reviews, and litigation. Mr. Kass also helped to develop proposed environmental regulations for the hydrocarbon industry in Ecuador and has written extensively on the environmental law of the World Trade Organization (WTO) and the North American Free Trade Agreement (NAFTA) and its Supplemental Agreements on Environmental Cooperation, as well as on the environmental implications of the ISO 14000 standards for corporations engaged in international trade. Mr. Kass is an active member of the Council on Foreign Relations and other professional organizations concerned with international development and has served as Chair of the New York City Bar Association’s Special Committee on International Environmental Law, the Association’s Committee on Inter-American Affairs, and the Association’s Council on International Affairs.

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