Month: January 2015

Greenberg Traurig
Steven C. Russo

January 5, 2015

Last week, New York Governor Andrew Cuomo vetoed a bill that would have extended the current Brownfield tax credit program for fifteen months beyond its expiration at the end of this year.  The Governor apparently wishes to use the possibility that the tax credits will expire as an impetus for broader and longer-term reform that his Administration seeks.  That proposed reform has its own problems, however, and where this will all come out is unclear, which is not optimal for Brownfield redevelopment.

New York State has one of the most successful Brownfield redevelopment programs in the nation and there is little doubt that the very generous tax credits provided to redevelopers of these former contaminated sites is a big reason for this success. Those credits expire at the end of 2015. Critics of the program, however, have argued that the credits are overly generous and include too many projects that would have been developed and remediated even absent the tax credits.  It is challenging to say the least to figure out which Brownfield sites would not have been developed “but for” the credits.

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Mayer Brown LLP
Mark R. Ter Molen, Jaimy L. Hamburg and Nicholas R. Johnson

January 15, 2015

This article was first published in Law 360

Imagine this scenario: in the course of constructing a new manufacturing facility, your company’s EHS manager applies to the state environmental agency for a general NPDES permit. While the permit application is pending, the agency informs your EHS manager that your new facility is in an “environmental justice” area and asks your company to analyze whether the proposed NPDES permit will adversely impact the health of low-income and minority citizens in that community, given the fact that elevated levels of lead have already been identified in the community drinking water supply. The agency also requests that your company hold a “listening session” at a local community center so that residents may comment on the permit application.

As general counsel, you believe your company has already satisfied all the statutory requirements for the NPDES permit to be issued. Do you comply with the agency’s additional requests? And what are the consequences if you do not?

While this factual scenario is hypothetical, the key legal question it raises is not: that is, the extent to which recent environmental justice policy initiatives undertaken by state and federal environmental agencies may create de facto binding obligations upon the regulated community.

The concept of “environmental justice” (EJ) in federal policy actions first gained traction in the late 1980s, when studies found racial disparities in both the siting of hazardous waste facilities and the way in which the federal government remediated toxic waste sites and punished polluters.

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