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November 24, 2000

Environmental Actions of the New York State Legislature in 2000

New York Law Journal
Michael B. Gerrard is a partner in the Manhattan office of Arnold & Porter. He has practiced environmental law since 1978, formerly chaired the Environmental Law Section of the New York State Bar Association, and is the author or editor of five books in the field. Barnett Lawrence, an attorney in the firm's Washington, D.C. office, assisted in the preparation of this article.
The 2000 session of the New York State Legislature saw the enactment of more environmental measures than any other session in the past decade. Most of these new laws were favored by the environmental community; according to the environmental group EPL/Environmental Advocates, the legislature passed 13 bills to which it gave positive environmental ratings in 2000, compared with two in 1999. Major legislation enacted in 2000 included a pesticide notification law, an attempt to limit acid rain in New York by restricting the sale of sulfur dioxide credits to Midwestern sources, limits on jet ski emissions, and a ban on the use of MTBE as a gasoline additive.
While the 2000 session produced several significant pieces of environmental legislation, a number of measures failed to become law, including Superfund refinancing and a new brownfields program. These issues are expected to be at the top of the environmental agenda during the 2001 legislative session.
Air Quality
Over strong objections from the electric utility industry, the legislature enacted a bill that attempts to reach over the state's borders to reduce acid rain that falls in the state. Chapter 36 penalizes New York facilities that trade or sell emission credits to companies in midwestern states that contribute to acid rain in New York.1
The acid rain provisions of the 1990 Amendments to the federal Clean Air Act imposed strict controls on large power plants and set up a trading program for sulfur dioxide emissions. Each plant was given a certain emissions allowance. Plants that get below the limit can sell any excess allowances to other plants. However, prevailing winds that blow from west to east cause emissions from midwestern power plants to drift east and cause acid rain in New York and other eastern states. If an eastern utility sells emissions allowances to a midwestern plant, the pollution can drift back over the eastern states.
Chapter 36 is designed to address this problem. It applies to any sulfur dioxide allowance credits generated by sources in New York. A fee is imposed on any company that sells these credits to sources in any of the "acid precipitation source states," defined in the law as New Jersey, Pennsylvania, Maryland, Delaware, Virginia, North Carolina, Tennessee, West Virginia, Ohio, Michigan, Illinois, Kentucky, Indiana, and Wisconsin. While sales would still be allowed, the seller would realize no benefit because the fee would equal the amount received by the entity selling the offsets.
The electric utility industry and others brought an action on November 15, 2000 in the U.S. District Court in Albany challenging Chapter 36 on Commerce Clause and preemption grounds.
In another effort to limit air pollution, New York enacted two pieces of legislation to regulate personal watercraft, such as those known by the trademark name Jet Ski. One law (Chapter 417) requires all new spark ignition engines used in personal watercraft engines manufactured or sold in New York to meet California air emissions and labeling regulations. According to the Governor's office, adoption of the California standards, the most stringent in the nation, will result in engines that are three times cleaner than those required under federal emissions standards. The other piece of legislation (Chapter 415) authorizes local regulation of personal watercraft. The legislation allows cities, towns, and villages to regulate or even prohibit personal watercraft in municipal waters up to 1,500 feet from the shoreline.
The budget negotiations for Metropolitan Transportation Authority (MTA) funding resulted in an agreement under which MTA will purchase more clean-fuel buses. MTA had announced plans to purchase a new generation of diesel-powered buses for New York City, but state legislators objected during budget hearings. Governor Pataki helped negotiate an agreement under which MTA agreed to add 300 compressed gas buses and 250 hybrid-electric buses to its fleet and to step up its retrofitting of diesel buses.
In a measure supported by real estate and environmental interests, New York enacted a tax credit to encourage building owners and developers to use advanced technology, such as fuel cells and photovoltaic panels, that reduces pollution and energy use.2 The credit was part of the state budget signed by Governor Pataki on May 15, 2000 (Chapter 63, part II). Environmentally sound or "green" buildings are generally defined as those that use energy more efficiently and provide workers with well-lighted spaces and clean air. The credit is limited to a total of $25 million for all projects over five years. The legislation provides several types of credits, including a credit of five percent of the capitalized cost of a project to builders that meet energy goals and use nontoxic materials in construction. To qualify, buildings must meet requirements for energy use, indoor air quality, waste disposal, and water use. Another tax credit is available for 10 percent of the cost of new air conditioning equipment that uses refrigerants that do not harm the ozone layer. Builders that use fuel cells and photovoltaic panels are eligible for additional credits.
Chapter 451 requires the New York State Energy Research and Development Authority to establish minimum energy efficiency standards for appliances purchased by the state. The appliances include fluorescent lamp ballasts, air conditioners, heat pumps, refrigerators, water heaters, lamps, and dishwashers.
Chapter 190 was a response to an accident at Consolidated Edison's Indian Point Nuclear Plant. In 1972, ConEd installed steam generators at the plant, but the manufacturer later discovered that these generators were susceptible to corrosion. In February 2000, a tube in a generator at the plant suffered a tear that allowed radioactive fluid to leak and mix with water and steam. The plant was shut down pending review of the incident by the U.S. Nuclear Regulatory Commission. ConEd decided to replace the generators and to purchase power from other utilities in the interim at a cost of $165-200 million. Chapter 190 bypassed a Public Service Commission review process and prohibited ConEd from recovering these costs from ratepayers. The legislature found that by continuing to operate steam generators known to be defective, ConEd failed to exercise reasonable care on behalf of its customers.
However, a federal court struck down Chapter 190. The court held that the law violated the Equal Protection Clause of the U.S. Constitution.3 The court found that the law's classification of ConEd was not rationally related to the state's legitimate interest in deterring negligence at nuclear power plants. ConEd's alleged negligence did not justify the creation of a statutory class aimed directly at it. The court also held that the law violated the constitutional prohibition against bills of attainder and enjoined New York State from implementing or enforcing the law.
Hazardous Waste
Chapter 138 brings New York in line with EPA regulations by exempting "universal wastes" from hazardous waste generator fees and special assessments. EPA defines universal waste to include batteries, certain pesticides, thermostats, and fluorescent lamps. New York regulations currently require all hazardous waste to be accompanied by manifests that allow the state to document the amount of fees and assessments owed. EPA regulations exempt universal waste from the manifest requirement and have created an interstate network for the collection and recycling of these wastes. By exempting universal waste from assessments and fees, the legislature hopes to promote more effective management of these wastes and to enable New York to gain access to the interstate network.
Chapter 285 is a major new law that requires notification before pesticides can be applied by commercial lawn applicators or in schools or day care centers. It was the result of years of intense lobbying by environmental groups and breast cancer advocates.4 The law was vigorously opposed by the pesticide industry and other business interests.
The law requires commercial pesticide applicators operating in counties that have adopted local programs to give at least 48 hours advance notice to the occupants of dwellings on adjoining properties with a boundary within 150 feet of the planned application. The owners or managers of multiple-unit dwellings who receive these notices must provide written notice to the occupants. The details of the written notices will be defined in regulations to be issued by DEC.
In addition to new requirements for commercial lawn applicators, Chapter 285 includes separate sections that apply to schools and day-care facilities. At the beginning of each academic year, schools must notify staff members and parents that the school may periodically use pesticides, and that staff members and parents who wish to receive advance notice of this use can register. Everyone who registers must receive written notice, at least 48 hours in advance, before pesticides are applied. Day-care facilities must provide at least 48 hours notice of a pesticide application by posting a notice in a common area of the facility that is conspicuously visible to persons dropping off or picking up children.
Another new pesticide law (Chapter 348) prohibits use of pesticides containing the active ingredient 4-aminopyridine, including Avitrol, in New York City. Avitrol is used to poison nuisance pigeons, but the legislature determined that it causes unnecessary suffering in pigeons and could lead to the poisoning of other wildlife, pets, and children.
Solid Waste
Chapter 146 will promote recycling by providing funds from the State Environmental Protection Fund for local recycling coordinators. It also provides funds for the planning, educational, and promotional activities of municipal recycling programs. Local governments have struggled to pay for their solid waste activities as the result of a decline in the price of recyclable material and "flow control" litigation that restricted local governments' control over solid waste.
Chapter 464 creates the State Council on Scrap Tire Management and Recycling. By February 1, 2001, the Council must submit recommendations to the Governor and legislature for a permanent and dedicated funding source to support scrap tire management and recycling programs.
Chapter 35 bans the use of methyl tertiary butyl ether (MTBE) as a gasoline additive. MTBE has been used as an oxygenate in gasoline to reduce air emissions, but has been found to contribute to surface and groundwater contamination. DEC has identified numerous drinking water wells in the state that have been contaminated with MTBE. The legislation takes effect on January 1, 2004.
Other Legislation
Other legislation enacted in 2000 of interest to the environmental community includes:
  • Chapter 28 extends DEC's authority to regulate striped bass to the end of 2003. It also requires DEC to establish a temporary advisory committee to prepare a report on the Hudson River striped bass fishery.
  • Chapter 31 extends the time period to May 1, 2002, during which the State and New York City can transfer land to the United States for establishment of the Gateway National Recreational Area.
  • Chapter 116 authorizes DEC to enter into emergency contracts when emergencies threaten public health, safety, or essential services.
  • Chapter 135 extends the 50 percent interest rate subsidy for municipalities in the State Water Pollution Control Revolving Fund to September 30, 2003.
  • The Agricultural Environmental Management Act (Chapter 136) formalizes and enhances the Agricultural and Environmental Management (AEM) initiative by the New York State Department of Agriculture and Markets. The AEM initiative offers educational and financial assistance to farmers for the development of agricultural programs that limit water pollution and other environmental concerns.
  • Chapter 456 was enacted to help local governments preserve open space and agricultural resources. It extends until July 31, 2011, the ability of local governments to use a cost-effective method to protect these resources -- purchasing interests or rights in land through the use of land installment purchase obligations.
  • Chapter 463 authorizes the Village of Saugerties to build a permanent winter home for the Hudson River Sloop Clearwater, a ship operated by a non-profit group to promote environmental protection of the Hudson River.
  • Chapter 517 allows the Village of Keene in the Adirondacks to exchange 144 acres of land along the Ausable River for 12 acres of Adirondack Forest Preserve land to be used as a cemetery. The result is a net gain of significant land for the Forest Preserve.
The following two bills have passed both the Senate and Assembly, but have not yet been signed by Governor Pataki:
  • Civil liability immunity (A.498-B, S.8080). This bill would protect citizens from corporate retaliation with a civil liability immunity for actions taken in furtherance of the rights of public petition and participation.
  • Long Island Power Authority termination fee prohibition (A.8505-D, S.8193). This bill would prohibit LIPA from assessing additional termination fees for voluntary termination of residential electric service when customers switch to alternative energy sources.
  • The Property Condition Disclosure Act (A.1173-C, S.5039-A). This bill would require the sellers of one- to four-family buildings to give prospective buyers a property condition disclosure statement that states all known defects relating to the property.

1 For more detail, see Michael B. Gerrard, "Attempted Extraterritorial Control of Pollution," NYLJ, May 26, 2000, at 3:1.
2 For more information on the tax credit, see DEC's web site at
3 Consolidated Edison Company of New York v. Pataki, No. 00-CV-1230 (N.D.N.Y. Oct. 10, 2000).
4 For more detail, see Michael B. Gerrard, "New York's Pesticide Notification Law," NYLJ, Sept. 22, 2000, at 3:1.