Every Time It Rains Sh*t Pours into the River.....Really.

Yep....really. Many older cities in the Northeast, the Great Lakes region and the Pacific Northwest have combined sewers as opposed to separate pipes for sewage and stormwater. This means that the pipes, which carry industrial wastewater and domestic sewage also carry stormwater (the runoff from rain or snowmelt). These systems of pipes were put in place when sewage systems did not exist and therefore there was no advantage to separating the systems because it was all going to the same place (a waterway) anyway. This is an old design, which states have not allowed since the 1950s or so, now the pipes are separated. Combined sewer systems serve roughly 772 communities containing about 40 million people. The EPA map below provides a rough illustration of the prevalence of combined sewer systems in the U.S.:



Generally, when weather is dry, industrial wastewater and domestic sewage go into the combined sewer, are treated at a sewage treatment plant, and then are discharged into a nearby water body. However, when it rains or snow melts, the pipes fill up and there are outflows, which pour the untreated mix of rain, industrial filth and crap into our waterways. Allowing all of the wastewater to flow on to the treatment plant would overwhelm and shut down the system.



In New York City, as little as .25" of rain leads to raw sewage overflows, there are 422 sewage outfalls and 27 billion gallons of raw sewage pours into the waterways each year.



The two, seemingly obvious answers to this problem, are prohibitively expensive and in many cases impossible. To replace the pipes would mean ripping up entire cities and laying down a whole new system and to create larger treatment facilities is less difficult but difficult nonetheless. In many cities, such as New York City, land is scarce and certainly too scarce to install the facilities that would be required to even come close to handling the amount of wastewater necessary.

So because stopping it is so difficult, treatment facilities are actually given permits to discharge raw sewage into our waterways. Under the Clean Water Act (CWA) any point source, which emits effluent (wastewater - treated or untreated - that flows out of a treatment plant, sewer, or industrial outfall. Generally refers to wastes discharged into surface waters) must have a National Pollutant Discharge Elimination System (NPDES) permit. In 1994, EPA published the Combined Sewer Overflows Control Policy. The first milestone under the CSO Policy was the January 1, 1997, deadline for implementing nine minimum technology-based controls.

These nine controls are:
1. Proper operation and regular maintenance programs for the sewer system and the CSOs
2. Maximum use of the collection system for storage
3. Review and modification of pretreatment requirements to assure CSO impacts are minimized
4. Maximization of flow to the publicly owned treatment works for treatment
5. Prohibition of CSOs during dry weather
6. Control of solid and floatable materials in CSOs
7. Pollution prevention
8. Public notification to ensure that the public receives adequate notification of CSO occurrences and CSO impacts
9. Monitoring to effectively characterize CSO impacts and the efficacy of CSO controls

The next step will be to develop long-term CSO control plans that will ultimately provide for full compliance with the CWA, including attainment of water quality standards. See Philadelphia's here, and New York City's is starting to take shape under PlaNYC.



The solutions to this issue may be death by a thousand cuts, we can't control how much it rains, but we can control how much water we use. Putting a brick in your toilet's water tank and generally conserving water when its raining and snow is melting will help alleviate the pressure on the system. Demanding that cities find a way to build bigger treatment plants to handle the flow will also go a long way. And the initiatives that have some of the greatest net positive effects are those that catch the rainwater and snowmelt before it makes its way into the sewer, called green infrastructure: tree pits, more park land, green roofs and rain barrels. Cement cannot catch any water and cities are filled with cement, replacing as much cement as we can with permeable, water-holding surfaces will keep that clean rain water from mixing with sewage and pouring into waterways.

Standing Behind the Bus Could be More Dangerous than in Front

Rich Kassel, senior attorney at NRDC, recently spoke to my NYCELLI class. He was instrumental in cleaning up the New York City MTA Bus Fleet. His campaign to dump dirty diesel was a result of personally choking on the diesel fumes emitted by the busses while riding his bike to work. The enjoyment of his bike ride took a swift turn after he exited Central Park and he decided to do something about it.

The campaign began with an advertisement on the back of MTA busses that stated: ''Standing behind this bus could be more dangerous than standing in front of it.'' The MTA initially refused to run the ad but relented after NRDC brought a lawsuit claiming that their First Amendment rights had been violated.



Particle pollution (also called particulate matter or PM) is the term for a mixture of solid particles and liquid droplets found in the air. Some particles, such as dust, dirt, soot, or smoke, are large or dark enough to be seen with the naked eye. Others are so small, they can only be detected using an electron microscope. PM comes from incomplete combustion of fuel, and has been linked in dozens and dozens of studies to a wide range of health impacts, including increased asthma emergencies, bronchitis, cancer, heart disease and premature deaths. And in 1995, 52% of street-level PM in Midtown came diesels.

At first the campaign attempted to force busses to used compressed natural gas (CNG). But converting to CNG was very expensive, politically difficult and not scalable to other fleets. Therefore, they moved onto set fuel-neutral and technology neutral performance targets. This was a novel idea at the time, although now performance standards, which allow emitters of pollution to get to the set standards any way they choose, is the norm. Between 1995 and 2006 the MTA NYC transit bus annual PM emissions fell by 97%. It was politically difficult to work with MTA and force them to undertake expensive action just for a environment and health impacts. However, when the EPA changed the standards, it changed the market and the feasibility of navigating the economics of the problem along with the politics. 90% of the NYC Transit’s emission benefits came from retiring and replacing the older buses regardless of fuel or technology chosen for the new buses.

The most interesting this about this diesel conversation was yet to come, however. You see, the core of diesel soot is black carbon. In the arctic, this black carbon absorbs light and settles on snow melting that snow and making the snow and ice darker thereby accelerating the melting. The melting of the ice and darkening of the polar ice caps accelerates climate change. Most of the notorious greenhouse gases live in the atmosphere for decades. Therefore, even if we slow the emission of greenhouse gases now, we won't see any impact for a long time. Black carbon, however, only remains in the atmosphere for a few weeks. Diesel engines contribute 25% of the world's black carbon emissions. There is potential to make a large impact on climate change in the short term with a focus on diesel initiatives.



One of these initiatives in the Clean Air Council's "Green Ports Initiative," which focuses on drayage trucks. Drayage trucks are diesel-fueled, heavy-duty trucks that transport containers, bulk, and break-bulk goods to and from ports and intermodal rail yards to other locations. The EPA has set emissions limits for these trucks, the issue however, is that these limits are only applicable to new trucks and drayage trucks can stay in operation for decades. The Council will focus on creating structures which provide incentives and subsidies for truck owners to retrofit and replace these old, dirty trucks.

Marcellus Shale: Air Quality Issues

I rarely share personal events on this blog, but because my professional life has converged with the subject matter of this blog it seems fitting. I recently moved on to a position as a staff attorney for the Clean Air Council in Philadelphia, Pennsylvania. I will be working remotely from New York City until the summer as leases and sig-ot's masters degrees wrap up.

I recently blogged about the basics of Marcellus Shale drilling, as well the state of affairs in New York. My work at the Council focuses on the air issues with respect to Marcellus Shale drilling in Pennsylvania. There has been a great deal of focus on the water issues but drilling can have a significant effect on air quality.

Natural gas production generates significant air emissions from venting, flaring and other releases, as well as compressors, engines, glycol dehydrators, condensate tanks and waste pits. See Earthworks "Sources of oil and gas air pollution." Air pollution can compromise the health and welfare of people who live in gas-producing areas by causing or contributing to respiratory problems, asthma, cancer and other conditions. See Earthworks, "Air Contaminants."

These issues have been described in a 2009 Report authored by Al Armendariz. While Pennsylvania has done limited air sampling which show limited emissions, the sampling is just that, limited. They do not look at the cumulative impacts of air emissions from all of the drilling operations and they are short-term and limited in scope. Further, the Barentt Shale in which Armendariz did his study, is the most active shale "play" in the country. Strong regulations need to be put in place before the air emissions pile up on us. In 2005, 4 Marcellus Shale permits were issued in Pennsylvania, 71 in 2007, 476 in 2008, 1,985 in 2009, 3,314 in 2010 and the Pennsylvania Department of Environmental Protection (PA DEP) is on track to issue over 7,000 permits in 2011.



Under the Clean Air Act (CAA) states create a State Implementation Plan (SIP), which will enforce air standards in accordance with the CAA. The Environmental Protection Agency (EPA) must then approve the SIP. Minor sources of air pollution in Pennsylvania must obtain a construction permit or Plan Approval and then an Operating Permit. However, for sources that meet certain conditions the two steps can be combined. For the exploration and production phase, sources can obtain a General Permit 11 or GP-11, and for the production and recovery phase, facilities can obtain a GP-5. If a source emits a certain amount of air pollutants it will be considered a major source and subject to Title V permit requirements and potentially to requirements of the New Source Review (NSR) and Prevention of Significant Deterioration (PSD) Programs, which are requirements for sources that have the potential to emit significant pollution or are going to be located in an area that is not in attainment for certain CAA pollution standards.

The CAA, itself, has multiple loopholes for the oil and gas industry. While some emissions requirements exist for individual wells, oil and gas drilling is exempted from aggregated “major source” requirements under the National Emission Standards for Hazardous Air Pollutants (NESHAP). Which, in practical terms, means that if you have multiple interrelated emitters of hazardous pollution at one site, each piece of machinery or building's emissions are counted separately. Additional, Hydrogen sulfide, which is emitted from oil and gas operations, is currently exempt from regulation as a hazardous air pollutant under the CAA.



Pennsylvania also creates a number of loopholes which have allowed drilling operations to escape many of the CAA standards. Paragraph 38 of the Air Quality Permit Exemptions, exempts oil and gas exploration and production facilities from the requirements for Plan Approval or Operating Permits, except for compressor stations equal to or greater than 100 horsepower. Currently, a proposal to narrow these exemptions is pending. In order to qualify the location would have to meet limitations on NOx, VOCs and HAPs. Further, flaring during drilling would be limited to 14 days at each site.

As discussed above, when a source is determined to be major it is subject to additional programs and more stringent controls. Therefore, defining a source is a very important step under the CAA. PA DEP must determine whether operations should be considered as part of one facility or source and thus have their emissions "aggregated." The emissions, from whatever the source is determined to be, dictates whether it will be a minor source, subject to GP-11 or GP-5, or a major source, subject to Title V and NSR or PSD. In September 2009, the EPA issued a memorandum that emphasizes a case-by-case approach that looks at three criteria: 1) common ownership or control; 2) whether the operations are on contiguous or adjacent properties; and 3) whether the activities belong to the same industrial grouping.

In December of last year PA DEP issued technical guidance regarding aggregation. The memo laid out the current state of law on aggregation and concluded:

[G]as comes from the well and can only go to one compressor station, to one processing facility for finishing and to one compressor station to take the gas to market. Another example would be where gas cannot enter a market pipeline without additional processing to meet market pipeline specifications. In these situations none of the steps in the development chain can exist without the other even if there is a far distance between them. Accordingly, it would be reasonable to find that emissions from all steps in that process must be included in the permitting analysis as a single source. Such a conclusion is consistent with past EPA guidance that treated two or more facilities as one plant based on specific facts showing a functional inter-relationship between the emission points. Moreover, this approach carries out the purposes of the NSR program, which is to ensure the attainment or maintenance of the NAAQS, and aggregates pollutant-emitting activities that as a group would fit within the ordinary meaning of “building,” “structure,” “facility,” or “installation.”

However, on February 26th of this year PA DEP, under Tom Corbett's new administration, rescinded the guidance and has called for comments on whether there should be guidance and what it should be. A number of petitions and suits have been filed out of Colorado regarding the aggregation issue and my guess is the same will happen in Pennsylvania.

The Corbett administration has engaged in excessive pandering to the natural gas industry. Tom Corbett, received more than $1 million from 15 or more gas drillers during his campaign. He refuses to place a tax on the gas industry and is the only one to do so in the country. He appointed an anti-regulation coal mogul as a jobs czar and gave him the ability to streamline drilling permits. Emails recently leaked from PA DEP indicate that all Marcellus Shale related actions must be approved by the politically-appointed deputies and secretary of the DEP, even though this is not required for any other industry. Just yesterday, deposition transcripts indicated that most inspectors spend little time on Marcellus Shale issues and know little about the laws and regulations they are enforcing. It is a sad state of affairs in Pennsylvania.



The rich keep getting richer on the backs of the poor and middle class. Industry will not be paying for your kid's asthma inhaler or the cancer you get from sucking in benzene. The oil and gas industry, like many others, are not forced to internalize the cost of the burdens they place on the environment or public health and welfare. Neither industry nor Pennsylvania will even slow down to determine whether natural gas is even cleaner than coal. Corbett and his cronies are allowing the natural gas industry to steamroll Pennsylvania's environment and its citizens without taking the time to even know how much damage they are doing.

The 2nd Coolest Park in Manhattan

In most cities the Hudson River Park would be the best there was but this is Manhattan and the charm of Central Park knows no match. The Hudson River Park, however is an untapped gem in a city of zipping taxis, tourists walking forward while looking up and packed subway cars.

Last weekend I had the pleasure of discovering this park with the man who was instrumental in it's creation, Al Butzel. I discussed the Westway Fill Project on this blog last month. Mr. Butzel met us at 26th street and the Hudson River at Pier 66. There we went out on the pier where a restaurant is set up. There was a big round bar and the cases of beer sitting next to tin buckets gave me a good indication that if it wasn't 9:00 am on a Saturday this place would be hopping. The bar is surrounded by contorted steel "art pieces" and tied up to the pier is a party boat called the Frying Pan. Next trip to the park I will definitely be starting from the southern section of the park and making my way north to retire at Pier 66, beer in hand with a breathtaking view of the city. Across the street from Pier 66 you can see a massive warehouse building with a lot of windows, this is an original building where cargo was stored from the busy port.


We made our way south, meandering out one carefully manicured finger pier and down another. We wandered through Chelsea piers, where absurdly rich parents take their children for gymnastics, basketball practice and skating. The best thing about the Chelsea piers was a section where pictures of the way the piers looked at the turn of the century are blown up to twice your height along the walk. We then walked past a cement pier, that will be turned into park land soon. This is Pier 54 where the Lusitania was last docked before being torpedoed and also where the Carpathia docked discharging those that it saved from the Titanic Disaster (see below). The only remaining relic from that time is a portion of the overhead steel roadway that stands at the entrance of Pier 54. Down a block or so, across the street inland, is a reddish building on a corner with a cupola, this is the hotel where the survivors were taken.


The park is briefly interrupted by an NYC sanitation building before returning to grassy knolls, carousels, skate parks and yoga classes. It is amazing to think that these quiet parks outside a bustling city were once the notorious, rough and tumble piers depicted in "On the Waterfront." Look here for a map of the park and before and after pictures.



As a new environmental attorney it was a very inspiring morning. Against the state and city governments, environmental attorneys were able to, over the course of many years, and armed only with NEPA, a procedural act that requires no particular outcome, create a beautiful park when others meant for it to be landfill, highways and high-rises.

The Business of Recycling

A few weeks ago I had the opportunity to tour the Sims Metal Management, Claremont Material Recovery Facility (MRF) in Jersey City, New Jersey. The MRF processes all of the metal, glass, plastic and a portion of the paper collected by the New York City Department of Sanitation (DSNY) through its curbside program and has done so under a 20-40 year contract signed in 2008.


The most interesting thing that I learned was how market-based recycling is. Mixed materials come in from the street and they go through a variety of filters to separate them into their various material types (aluminum cans and foil, clear and colored HDPE jugs (laundry detergent), PET bottles (soda bottles), film plastic (bags), bulky plastics (such as toys and buckets), bulky metals and mixed plastics. These materials are then baled and sold according to the market price, based on supply and demand. The bales are sold to bottle makers, steel mills, paper mills, etc. For the City it also comes down to markets: as landfill prices increase ($70/ton) and technology improves, recycling ($40/ton) is the most cost-effective way to get rid of much of the City’s garbage.

Further, pretty much every material has a market, even those containers they tell you not to recycle. Those containers are placed in a mixed plastic bale and the only time those were so undervalued that they had to be sent to the landfill was in the first couple months after the economic crash in the fall of 2008. Now they are sold, not for as much as metal or bottles, but they are sold, and many times ground into building materials or put to other creative uses. So the myth that if you include “unrecyclable” material in your recycling bin, the whole bin will be tossed into a landfill, is BUSTED. Recycle anything and everything that could potentially be recycled, if you toss it, it will definitely go to the landfill, if you recycle it, it may not. Now if everyone went by this rule of thumb recycling centers would be so overburdened as to grind to a halt. But imagine one day when there is practically a recycling ticker, your recycling bin is electronically linked to the local recycling center, you toss your yogurt cup into a slot on top of the bin and - BING - a green check appears, prices are high enough on that type of plastic and it will successfully be recycled.


The process of separating the materials is remarkable. It include operations such as:
• Bulky metal is recovered with a grapple and drum magnet
• Bags are opened and glass is removed by a trommel screening device
• Hand sorting is used to capture a portion of the film plastics and bulky rigid plastics
• Tin cans are recovered with an overband magnet
• An air system removes a portion of the paper and film plastic
• Optical sorters are used to recover PET, HDPE and mixed plastics
• An eddy current magnet is used to recover non-ferrous metals

I used to work at the Empire State Building and all trash was placed into one bin and seemingly just thrown away. I asked Thomas Outerbridge, General Manager at Sims, if he knew why an enormous building like that would just toss all that paper and he assured me that they didn’t. And this is where the recognition that recycling is a market-based building comes into play. He responded that he was sure they did not throw it all away because paper is worth too much. Most likely, he said, they sort it at the building and sell the bales themselves or at least have a deal with a recycling company to get a cut.


In 2004, Sims was selected by the DSNY to be its long term recycling partner and the City recently selected the 30th Street Pier in the South Brooklyn Marine Terminal in Sunset Park, Brooklyn as the location for a new state of the art recycling facility. Sims will construct and operate this facility, which will allow the City to further reduce truck traffic by minimizing the distance between their pick-up routes and the recycling facility. The Sunset Park facility will also allow Sims to expand its network of water-served facilities and grow its barge-based system of transporting recyclables on the water and not City streets. The facility is scheduled to open in the summer of 2012, although it was at one time also scheduled to open in 2007.



In February 2011, Sims Metal Management was named to the Global 100 Most Sustainable Corporations in the World at the 2010 World Economic Forum in Davos, Switzerland for the third year in a row and moving up ten spots in the rankings to number 63.

NYCELLI, Class 2: Natural Resources and Green Spaces

I recently had the great pleasure of joining the New York City Environmental Law and Leadership Institute (NYCELLI). NYCELLI is an annual seminar for a select group of young environmental, or aspiring (in my case) environmental attorneys in New York City. It is a series of eight, three-hour classes that brings leaders in the field together to discuss various environmental topics. The seminar is meant to equip attorneys new to the field with the tools to go forward and do good. The seminar also includes multiple field trips which I am looking forwarded to documenting.

In an effort to share and maintain for my own reference, the knowledge imparted upon me during these seminars I will summarize these classes and trips on BTLB. I have bypassed class one because it was an introduction and orientation. It was a broad review of environmental laws and issues in New York that would lead to a blog entry of bullet points.

Class two however discussed natural resources and green space through the lens of four examples.

Greenways, Chris Reo, New York Law Department

Chris discussed greenways, as a context for showing the difficulty of getting anything done, although I do not know if this was his intention. Lets build a bike path, a small trail connecting one place to another for non-motorized vehicles, nope, not so fast. First you must find land. Then if the City doesn't own this land, you have to go about acquiring it, covering the costs for it and more likely than not there is contamination on the land that must be dealt with. Is the community in favor of it, most likely some folks are and some folks will be a thorn in your bike tire. Then you must deal with regulators. If there is an impact on the environment, especially wetlands or any other roadways other agencies will have an interest and regulation hurdles to overcome. Then you must deal with other developers and their conflicting interests. And perhaps most importantly with any long-term project, there is the issue of politics and election cycles. The City Law Department is directed by the City mayor. Differing administrations and economic situations will lead to issues with sustained commitment.

As an example, Chris discussed the NYC Highline. It is an abandoned old railroad last used in the 1970s. Early in his career, under one administration, he was arguing to tear it down. Developers could only build so high until they topped out at the railroad. They were enjoined from tearing it down and later in his career he was arguing to keep the railroad there and convert it into a greenway. That project was ultimately successful and pictured above.

There are also property issues when creating greenways. Dolan v. City of Tigard, is the seminal case on this issue. In Dolan, the city required a landowner who had applied for a permit to build a parking lot to dedicate some of his land to a bike path in order to reduce congestion. The Supreme Court ruled that the condition on the permit was not reasonably related to the city's public purpose in such a way to justify infringing upon the property owner's rights. The burden lies with the City.

It is difficult to encourage greenway development, you can encourage the city to use land it already owns, but it only owns so much land. The City can condemn land, but that takes a long time and victory is not assured. The City can also build greenways into zoning but they must overcome Dolan which generally means you cannot compel the development and can lead to fragmentation of greenways.

As with anything, the hurdles are numerous, but these things cannot be made too easily either. Regulations and public involvement force thoughtful placement of greenways. Paving bike paths through wetlands or dividing communities or diverting traffic would not be good for anyone either. Greenways cannot be filtered through the same process as building a highway or skyscraper either though. A tailored method of regulating their placement and development is necessary.

The Westway Fill Project - Al Butzel


The west side of New York City used to have an elevated highway. This allowed access to the piers on the west side without having to cross a major highway. In 1973, however, the highway collapsed. The shipping industry in New York had begun to fade and so the redevelopment project that was proposed was to fill in the water in between the piers with landfill. They would then create a tunnel through the landfill in the Hudson River and build commercial and residential buildings on top. Granted 25% of downtown Manhattan is landfill, (see: Evolution of the Manhattan Coastline) but in 1973 to propose building more land where a river stands?!?

The best part, the crazy river ruiners thought, was that because this was a federal highway project the federal government would pay 90%. Even better, there was NO marine life in between the piers....?? The proposal went through the NEPA process and an Environmental Impact Statement, indicated that there would be no environmental impact to burying the Hudson River in landfill creating 700 new acres of "land."

The Department of Transportation needed two permits to go forward: an air permit from the EPA due to the increased emissions from the vehicles using the new highway and a permit from the Army Corps of Engineers for the fill. The air permit was initially denied and eventually granted in 1980. The Corps wanted to grant the fill permit, however, the EPA and the National Marine Fisheries Service had objections. These objections elevated the issue to the division level. The Corps however issued the permit in 1980 and litigation was brought. Al was at the forefront of this. The judge dismissed all claims except for the fisheries claim and eventually enjoined the project. The Second Circuit upheld the decision and sent it back to the Corps to comply with NEPA.

The EIS had very little information regarding the marine life between the piers and so the DOT agreed to undertake further study and update the EIS. The study found a significant population of striped bass lived between the piers. The draft of the EIS said that there was a significant environmental impact. The final version, however, had the same information but just placed "no" in front of "significant impact" and called it a day. NRDC then took over in the litigation, the trial was set.

There was a provision within the highway money that it could be traded in for mass transit use. So with only ten days left on the trade-in and trial looming, the City decided to opt for the trade-in. 1.3 million went to mass transit improvements.

In 1998, the Hudson River Park Act was created by state legislation and the State built a park on the piers with no fill.

Bronx River Alliance - Linda Cox

The Bronx River Alliance grew out of efforts in the 1970s to reclaim the Bronx River and 1990s to address some of the environmental justice issues occurring in the Bronx. The waterway is a 23 mile fresh water river that begins in Westchester county, with 8 miles running through the Bronx.

The Bronx River Alliance was formed in 2001 and its mission has been to improve and restore the river and the improve access to the communities through which it flows. The real start to the movement was when a concrete plant landed in the hands of the City due to tax issues. The City put it up for auction but community organizations got it pulled off the auction block and fought for it to be a park. The Department of Transportation wanted to make it a truck route but the community began to treat it as a park and that is what it became. (See picture above).

The goal of the Alliance is for there to be a greenway along the entirety of the Bronx River. They are working on rezoning efforts which will incorporate business improvement districts and developer contributions to the clean-up efforts. Currently, the standard of attainment for the river is not "fishable/swimmable," even though people swim in it regularly. The Alliance is pushing for the standard to be changed.

The primary polluter of the river is combined sewer overflow(CSO). The Riverkeeper has a great introduction into the issue of CSOs. Basically, all water runoff from the streets and sewage from homes and businesses go into one pipe which makes its way to the treatment plant. However, the pipe is only made to handle the sewage and a little rain. Whenever it rains a moderate amount the pipe becomes to full and the mix of sewage and rainwater goes into overflow pipes which spill out into waterways. The Alliance has been implementing green infrastructure to capture some of this runoff so it doesn't go into the combined sewer and flow into the rivers. The DEP released its Green Infrastructure Plan last fall. Green infrastructure focuses on green roofs, harvesting rainwater, creating green streets and islands and erosion control. However, currently there are very few incentives to engaging in these green strategies. The Alliance is working on building them into legislation and zoning laws.

Union Square Park, Butzel v. Reo

The final topic at the seminar was on the remodeling of the Union Square Pavilion. The Pavilion on the northern end of Union Square Park was scheduled for improvements. The City was concerned with its dilapidated condition and its failure to meet the requirements of the Americans with Disabilities Act. There had been mention of the Pavilion including a restaurant in it, however, which brought Al and the Union Square Community Coalition to the table. They brought a suit claiming that the City had violated the public trust doctrine. The Plaintiffs claimed that the Pavilion, which had historically been used for rallies and children's activities was going to be converted into a high-end restaurant and would not serve the public interest especially when the park is surrounded by restaurants.

The public trust doctrine is applicable to parks and states that once a property has been committed to park use then it cannot be alienated without the approval of the legislature. In 2001, the Friends of the Van Cortlandt Park brought an action to stop the City from building a water filtration plant in the park under the public trust doctrine and were successful. This has given new life to the doctrine.

The City, however, contends that restaurants are appropriate park uses. Questions of what constitutes an appropriate park use does not involve considered uses but actual uses and so they stated that because the restaurant was not set as a final decision yet that the Plaintiffs' claim was not ripe. But either way the City stated that the parks commissioner has wide latitude under the City Charter to determine a proper park use.

Al argues for a multi-factor test when considering proper park uses and claims that this isn't one. It is hard to agree, however. He made the point that if this was a McDonalds, no one would say it was a proper park use. But that cuts against his argument for a multi-factor, case-by-case analysis. This is not a McDonalds and a cafe was placed there before. There are restaurants and cafe's in multiple parks in New York City and it hasn't seemed to rob the public of their park.

The Court ruled, however, that the claim was not ripe and dismissed it. Because a final determination regarding whether to place a restaurant in the Pavilion had not been made there was not a concrete decision to rule upon. The Request for Proposal for a seasonal cafe in the Pavilion was recently issues and the Union Square Community Coalition is gearing up once again.

Monsanto v. Geertson: Using NEPA to Slow Run-Away Corporations

In Monsanto v. Geertson Seed Farms, the Supreme Court, in a 7-1 decision authored by Justice Alito, determined that a District Court's nationwide ban on the planting of genetically modified alfalfa seed was overly broad. The case however, is the first to look at these bioengineered seeds and places parameters on the procedures that must be complied with before they are available to plant.

Congress enacted the Plant Protection Act (PPA) to "detect, control, eradicate and suppress plant pests and noxious weeds." It provides that "no person shall import, enter, export, or move in interstate commerce any plant pest." The PPA delegates the authority to regulate these plant pests to the Secretary of Agriculture and it in turn delegated the authority to the Animal and Plant Health Inspection Service (APHIS). APHIS regulations "govern organisms and products altered or produced through genetic engineering that are plant pests or believed to be plant pests." The agency retains strict control over these articles and forbids them absent explicit approval.



There are multiple ways to obtain approval but the method at issue in this case is a petition to APHIS to determine that the item does not present a plant pest risk and therefore should not be regulated. If deregulation would constitute a major federal action significantly affecting the quality of the human environment the National Environmental Protection Act (NEPA) requires APHIS to complete an Environmental Impact Statement (EIS). The EIS is a decision-making tool in which the environmental impacts of a federal action are assessed and considered along with alternatives. The only way to avoid preparation of an EIS is to prepare a shorter document entitled an Environmental Assessment (EA) and to issue a Finding of No Significant Impact (FONSI).

Here, in 2004, Monsanto Company and Forage Genetics International sought deregulation of Roundup Ready Alfalfa (RRA), a genetically modified seed that can withstand application of Monsanto's Roundup pesticide. APHIS prepared and received comments on an EA which received 520 negative comments out of the 663 received. Commenters objected that the EA did not effectively consider the potential consequences of deregulation which would include contamination of organic crops and add to the proliferation of Roundup resistant weeds. APHIS, however did not prepare an EIS and issued a FONSI .



The Plaintiffs, organic farmers, environmental groups and food safety advocates brought forth this action in 2006 claiming that the deregulation decision violated NEPA. The District Court found that APHIS's failure to consider contamination of organic alfalfa along with the development of Roundup resistant weeds ran afoul of NEPA. Due to the NEPA violation the District Court vacated the the deregulation decision, ordered an EIS before ruling on the deregulation petition and enjoined the planting of RRA , although farmers who had already bought the seed and relied on the deregulation decision were grandfathered in. The Ninth Circuit affirmed and the Supreme Court granted certiorari.

The first important rule to flow from the Supreme Court decision is that economic damages incurred to prevent environmental damages confers standing. Standing under Article II of the Constitution requires that an injury be concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling. Horne v. Flores, 129 S. Ct. 2579 (2009). Additional testing and measures taken to ensure the purity of organic alfalfa are sufficiently concrete, even if actual contamination does not occur, to satisfy the injury-in-fact prong of constitutional standing. Those harms are readily attributable to the APHIS deregulation decision and a judicial order prohibiting the growth and sale of the genetically engineered alfalfa would remedy the farmers injuries by eliminating or minimizing the risk of gene flow to conventional and organic alfalfa.

A plaintiff seeking a permanent injunction must satisfy a four-factor test before a court can grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for the injury; (3) that considering the balance of harms between the plaintiff and defendant a remedy at equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction. eBay, Inc. v. MercExchange LLC, 547 U.S. 388, 391 (2006). This traditional four-factor test applies when a plaintiff seeks a permanent injunction to remedy a NEPA violation. Winter v. NRDC, 555 U.S. 7 (2008).

The Court determined that the permanent nationwide ban was too broad because the respondents could not show that they would suffer irreparable injury if APHIS was allowed to proceed with any partial deregulation. If and when the APHIS pursues a partial deregulation that arguably runs afoul of NEPA, respondents may file a new action seeking appropriate relief. Further, a partial deregulation may not cause respondents any injury at all. If the scope of the partial deregulation is sufficiently limited with proper oversight, the risk of gene flow to their crops may not exist.



The Court upheld the vacatur of the deregulation decision and EIS requirement but overturned the permanent injunction. Therefore, no new seeds could be planted until the NEPA violation was cured. In December of 2010 the APHIS released a final EIS over 2,300 pages. The conclusion of the statement allowed unrestricted commercial growing or partially restricted growing. On January 27, 2011, Tom Vilsack, Agriculture Secretary announced his decision to allow unrestricted growing of RRA. The Center of Food Safety stated that they'll be back in court seeking to vacate Vilsack's approval.