“Don’t Mess With Texas!” or its environment

“Legal Planet,” the environmental law and policy blog published by the law schools at UC Berkeley (my alma mater) and UCLA (legal-planet.org) on March 28, 2016, reports on a surprisingly positive environmental record from several cities in Texas, particularly with regard to sustainable energy use. See the article by Berkeley Law Professor Dan Farber, entitled “Deep in the Heart of Texas
Some green patches in one of the reddest of the Red States.” http://legal-planet.org/2016/03/28/deep-in-the-heart-of-texas/

Deep in the Heart of Texas

Some green patches in one of the reddest of the Red States.

The Texas AG’s office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism.  Yet even in Texas there are some rays of hope.  While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it.

Other cities are taking action for non-environmental reasons. The city of Georgetown, Texas, for instance, has announced plans to become 100% renewable. Lest there be any misunderstanding, the major hastens to explain that “environmental zealots have not taken over our city council. . . Our move to wind and solar is chiefly a business decision based on cost and price stability.”

A similar move is taking place in Denton, Texas, while El Paso and San Antonio are phasing out coal. (see here for more details)  Energy efficiency is another area where Texas does well, with a recent study putting Houston, Dallas and San Antonio in the top twenty U.S. cities for energy efficiency, with El Paso  and Fort Worth not far behind.

People are often surprised to learn that Texas is the national leader in wind power, with the twice the generating capacity of any other state.  On one notable night last December, the state got 45% of its power from wind, though the year-round average was only about 10%.  Texas was one of the first states to adopt a renewable portfolio standard and has invested heavily in transmission  capacity for wind.  Coal is only 28% of the generation mix, a bit more than nuclear and wind combined, with almost half its energy produced by natural gas.

None of this is to deny that the general political atmosphere in Texas remains anti-environmental.  Maybe that will shift as climate change begins to have a greater impact there.  As a coastal state, Texas will be impacted by sea level rise, which will amplify current storms risks in places like Houston, while it will also suffer from growing temperatures and up to 4500 additional heat-related deaths per year.  In the meantime, however, it’s good to know that there are actually some positive developments already taking place in the Lone Star State.


Connecticut Senator Murphy and Representative Esty introduce legislation to restore brownfield incentives

The State of Connecticut has once again reaffirmed its role as a leader in the remediation and redevelopment of brownfield properties, by the actions of its U.S. Senator Chris Murphy and Representative Elizabeth Esty in having introduced  legislation that would restore incentives for developers seeking to reuse brownfield properties.   

The legislation (S. 2734, the Creating Livable Environments And New Usable Property Act,  https//www.govtrack.us/congress/bills/114s3734/text/is) deals with two incentive programs.

First, it would revive a tax deduction that expired in 2011 for commercial developers who invest in brownfield projects.  It would allow them to deduct the entirety of costs they incur for environmental cleanup of the property in the same year that the expenditure is incurred rather than being required to “capitalize” the expense and spread its recovery  over a five-year period.

Second, it would reauthorize brownfield tax credits for qualified nonprofit developers, allowing them to avoid paying unrelated business income taxes on earnings from the sale or exchange of certain properties in need of environmental cleanup. That tax credit expired in 2009.

The brownfield tax deduction that expired in 2011 was little used, inasmuch as most brownfield redevelopment projects do not create income in the same year that the expense is incurred and the law did not allow for the developer to carry over the expenses until the project showed income.  The proposed legislation similarly does not appear to provide for such a carry over, but nonetheless signals Congressional encouragement for brownfields development. The tax credit for not for profits should help dispel concerns that the income produced from their brownfield projects could result in tax consequences they would hope to avoid.

See article in the March 23, 2016 New Haven Register:  http://www.nhregister.com/business/20160323/murphy-esty-seek-to-revive-tax-credit-legislation-for-brownfield-cleanup,




Meriden, Connecticut:”How To” on Brownfields

See the article below from the February 22, 2016 Meriden Record-Journal about how the City of Meriden has leveraged grants from the state and federal governments to redevelop its old industrial downtown.  Please contact me if you would like to learn more about brownfield redevelopment opportunities in Connecticut or if you have any questions about the remediation and redevelopment of environmentally challenged properties throughout the U.S.



Brownfield cleanup grants helping reshape downtown Meriden

Published: February 22, 2016 | 

By Molly Callahan Record-Journal staff

MERIDEN — Between cleanup grants, Transit-Oriented District planning and implementation grants, and Choice Neighborhood grants, the city has received more than $24 million in state and federal money for downtown Meriden in recent years.

Any visit downtown yields the sights of a city in transition, with construction in almost any direction one looks. The former Hub site is nearing completion as a flood storage basin and park; a new train station on State Street is taking shape; a Meriden Housing Authority and Westmount Development Group joint venture at 24 Colony St. is springing up; 11 Crown St., 116 Cook Ave., and the former Factory H site are all nearing cleanup and demolition; and residents of the Mills Memorial Apartment complex are leaving and the buildings are about to be torn down.

All this, while year after year, residents urge elected officials to attract more businesses and more private development to lighten the tax burden on homeowners.

According to information provided by city Economic Development Director Juliet Burdelski, within the past decade Meriden has received $24,401,000 in state and federal grants.

The city received at least $12.9 million toward the Hub park alone from the state Department of Economic and Community Development, the state Department of Energy and Environmental Protection, and the U.S. Environmental Protection Agency.

Another big area of investment has also been in brownfields cleanup.

The EPA defines a brownfield as “any land in the United States that is abandoned, idled, or underused because redevelopment and/or expansion is complicated by environmental contamination that is either real or perceived.” Unlike Superfund sites, which pose a real health or environmental risk, brownfield sites “represent an economic or social threat, since they prevent development and therefore stifle local economies.”

Between state and federal sources, Meriden has received more than $5.7 million in brownfield grants.

“Meriden industrialized very early so it’s largely built out,” said City Manager Lawrence J. Kendzior. “As such, there are very few large undeveloped parcels of land.”

Through the early 1800s, handfuls of factories harnessed the power of Harbor Brook, which nearly bisects the city. Meriden got the nickname “Silver City” for the breadth of its silver manufacturing capabilities, and its contribution to the war effort during World War II lent the designation “the Nation’s Ideal War Community.”

“Residents have urged us to look at some of the older sites, many of which we have because of the industrial heritage,” Kendzior said. “For the past 15 years, we’ve been concentrating on that, and doing it in a professional, planned manner has been very successful.”

Tim Sullivan, deputy commissioner of the DECD, said Meriden “is one of the more active cities in our state’s brownfields program.

“There’s a lot of interest from developers in downtown Meriden because it’s doing the TOD,” he said, referring to the Transit-Oriented District. “We’re really excited and thrilled to be partnering with the city and its team. They’re doing real-world planning … and we’re supportive of what Meriden is planning.”

The DECD has furnished more than $4 million of the total $5.7 million the city has received in brownfield funding.

Meriden is certainly not the only municipality in the state actively seeking funding to clean up brownfields. Sullivan noted Gov. Dannel P. Malloy’s focus on making brownfield cleanup and assessment money available. “The state’s been provided with unprecedented resources to remediate brownfields,” Sullivan said.

Opponents of the program locally are quick to point out that whether or not the money is coming from Meriden or from the state or the federal governments, it is still taxpayer dollars going toward these projects.

“Certainly it is all tax money,” Kendzior said, “but No. 1, it’s an investment … and No. 2, these are what I call ‘categorical grants’ — the choice isn’t between spending the money here and not spending it at all; the choice is between the money being spent here or it being spent somewhere else.”

Further, Sullivan said that for every dollar invested by the state, they find $4.99 invested by non-state sources — either federal, municipal, or private sources.

In Meriden, Kendzior said that for city-owned sites downtown there’s a roughly 200-1 ratio of non-city to city funds. That is, for an investment of $200 million downtown, the city used roughly $1.5 million of its own money.

The city has either designated or is in the process of designating private developers for a number of city-owned parcels, including 116 Cook Ave. and the former Factory H site; the Hub site; and 11 Crown St. The city has also approved plans for private development on the flots bordered by State and Mills streets. In most cases, developments include a mix of housing and commercial space.

Critics of cleanup measures also decry the burden on the city to clean up sites rather than putting the onus on the new property owners.

For brownfield sites specifically, the money used to clean them up is vital to garnering private development, Kendzior and Sullivan say.

“You’re not going to get private investment in something where there’s not a reasonable opportunity to make it profitable,” Kendzior said. “The cost to remediate these sites would make some of them effectively undevelopable.”

Sullivan added that across the state it’s been proven that brownfield sites will not be developed unless there is some effort to clean them up.

“There’s a strong case in Meriden and across the state of these market failures — the marketplace isn’t going to take over these sites, the cost of remediation simply aren’t going to lend to profitability,” he said. “The transformative power that cleaning up these sites can have on cities and downtown neighborhoods is great. It’s a great opportunity to breathe new life into old sites.”

mcallahan@record-journal.com 203-317-2279 Twitter: @MollCal


Volkswagen’s Diesel Emission Fraud

Please see the excellent analysis of the VW emission fraud in the Sept. 29, 2015 issue of Legal Planet by Tim Malloy: http://legal-planet.org/. Is this a situation where someone should be doing some jail time?


What Does That Name Mean Now?

Posted on September 29, 2015 7:08 am by Timothy Malloy

Stunning. But not shocking. That was my reaction to the massive fraud admitted by Volkswagen recently. Stunning in its sheer size and reach; half a million cars in the United States and another ten and a half million globally. Yet not very surprising given the fact that use of mechanical and digital cheat devices has been something of a proud tradition in the automotive industry since the advent of emissions controls. But 11 million cars? And in the context of a marketing strategy that boasted about the environmental virtues of clean diesel? That is the stunner.

What are we to make of this, coming just on the heels of the Justice Department’s reaffirmation of its intent to get tough on corporate crime? With all the necessary caveats about waiting for all the facts, a few things seem unlikely to change. Volkswagen has admitted to a willful, sophisticated and until now successful campaign to subvert environmental law in multiple countries. This isn’t negligence or even reckless behavior; some coder or group of coders in the bowels of the company or one its suppliers sat at a computer somewhere and wrote the nefarious code. As EPA described it in the Notice of Violation, the software included in the cars’ engine control module purposefully switched to “dyno calibration” during emissions testing.  Chances are someone tested it to make sure it would work, perhaps Volkswagen engineers even compared the performance and emissions of test cars on a track and on a dynamometer. And it is doubtful that the software engineers and design engineers came up with this on a lark. As the recent New York Times article detailed, Volkswagen took a chance on clean diesel over hybrid technologies and advanced emissions controls and lost. As the demands of increasingly stringent regulations and need for progressively better performance closed in on it, managers at the company made a choice to cheat.

So what happens to cheaters? Commentators like to say that Citizens United stands for the proposition that corporations are people, entitled to the same rights and privileges as natural persons. That probably stretches the actual holding too far, but it gets the general idea right. It follows that corporations ought to be subject to similar obligations and consequences for misconduct. But when push comes to shove, a corporation is not a natural person, and of course you cannot put a corporation in jail. But you can put its managers and employees in jail. Even though that rarely happens, this case may be the very one to turn that tide. Eleven million cars across the globe. Brazen, clear fraud for years followed by attempted deception when questioned by the California Air Resources Board and the EPA. The new Department of Justice’s guidelines (just out this month) embrace the notion that “[o]ne of the most effective ways to combat corporate misconduct is by seeking accountability from the individuals who perpetrated the wrongdoing.” The VW debacle sounds like an excellent test case for this principle.

And you can certainly impose penalties to dissuade this company and others from similar behavior in the future. Volkswagen faces federal penalties in the United States upwards of 18 billion dollars, although maximums are rarely if ever paid. Automakers have paid 300 million and 900 million in fines recently, the former for emissions violations in 1 million cars and the latter for ignition switch defects linked to more than 100 deaths. Of course no one died in a crash as a result of excess emissions of oxides of nitrogen (NOx). But let’s not forget that, according to EPA, pollution resulting from NOx emissions is associated with a range of serious health effects, including increased asthma attacks and other respiratory disease, and premature death due to respiratory-related or cardiovascular-related impacts. Children, the elderly, and people with pre-existing respiratory disease are most at risk. The point is that Volkswagen’s tons of intentional excess NOx emissions clearly damaged public health.

Financially penalizing the corporation impacts many individuals. Volkswagen is an aggregation of people—including employees, managers, automobile dealerships and their employees, and shareholders—linked together by networks of contracts and other relationships. Certainly most of the people who are Volkswagen were not involved in this mess, and likely find it as repugnant as many outside the corporation. They are suffering now, and large penalties will exacerbate that pain. Thus setting the appropriate penalty is a difficult balancing act, which should take these consequential impacts into consideration. That said, a fair number of the affected individuals, particularly shareholders and upper level managers, most likely benefited from the bounty generated for Volkswagen by its fraudulent behavior and must be prepared to accept the costs as well.


“A Thumbnail Guide to Negotiating Agreements and Settlement of Disputes Involving Environmental Issues:

See my article on negotiation of agreements and settling disputes involving environmental issues at http://www.americanbar.org/content/dam/aba/publications/nr_newsletters/etab/201508_etab.authcheckdam.pdf. This is the ABA Section of Environment, Energy, and Resources Committee on Environmental Transactions and Brownfields Newsletter for August 2015. Here’ the article’s “Conclusion”:

“As with the negotiation of any other dispute
or contested subject, negotiations that involve
environmental issues frequently have monetary
aspects that provide for a Surplus that leaves
room for the parties to establish their respective
“walk away” positions. When those environmental
negotiations also involve difficult to quantify or
nonquantifiable issues, however, the Surplus may
not provide negotiating room that would otherwise
exist. Although “optimum” rather than “maximum”
results may always lead to reasonable outcomes,
such optimum outcomes take on increasing
importance in the presence of difficult-to-quantify
or nonquantifiable issues, regardless of the
existence or amount of a Surplus.

“In these circumstances, negotiators should:
• identify their non-negotiable walk away points
and design their negotiation strategies to
focus on and achieve the Rational Optimum
• use a methodology such as the decision tree
analysis discussed above to establish an
opening Anchor Point position that exceeds
the Rational Optimum Outcome sufficiently
to provide room for negotiating fallbacks that
will avoid concessions beyond the Rational
Optimum Outcome; and
• devise strategies that consider the alternatives
available if negotiations fail (and the likely
achievement of those alternatives).

“The prudent negotiator will use objective and
quantifiable criteria as standards, but the value
of experience (both personal and from research
sources) and the exercise of good judgment cannot
be overstated.”

To see how I came to this conclusion and for an explanation of the capitalized terms above, please link to the article. In any event, I will welcome questions and comments.

Notes on EPA’s Vapor Intrusion Technical Guide

See note below on EPA’s new Vapor Intrusion Technical Guide circulated by Center for Public Enviornmental Oversight Executive Director Lenny Siegel:

On June 11, 2015, the U.S. Environmental Protection Agency finally released its Vapor Intrusion Technical Guide, known officially as the OSWER Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air. The 3.2 MB PDF document is available on line from U.S. EPA, along with the simultaneously released 3.0 MB PDF Technical Guide for Addressing Petroleum Vapor Intrusion At Leaking Underground Storage Tank Sites and several related technical documents and tools, at http://www.epa.gov/oswer/vaporintrusion/guidance.html#EO12866OSWERVI.

The Technical Guide reinforces best practices at EPA and other vapor intrusion projects, and it is expected to influence responses led by EPA and state regulators and well as private parties, such as developers conducting independent responses. It is not a statute or regulation. That is, it does not impose any new requirements. Rather, it explains how to protect building occupants from potential vapor intrusion at sites being addressed under Superfund (CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act), RCRA (Resource Conservation and Recovery Act) Corrective Action, and their state counterparts. I expect states with their own guidance documents to incorporate EPA’s Guide by reference.

The Guide is thorough, comprehensible, and flexible. At 267 pages, it is not a quick read. But I suggest that all vapor intrusion stakeholders peruse the document, learning enough about it to use it as a reference throughout any vapor intrusion response project. The linked notes are not comprehensive. Instead I have tried to highlight significant recommendations, as well as pointing out surprises and other sections that answer long-asked questions. This document is not a complete review of the Technical Guide. People who want the whole picture should read the whole document.

To download the 17-page, 1 MB PDF, go to http://www.cpeo.org/pubs/FinalatLast.pdf.

Lenny Siegel
Executive Director, Center for Public Environmental Oversight
a project of the Pacific Studies Center
278-A Hope Street
Mountain View, CA 94041
Voice: 650-961-8918 or 650-969-1545
Fax: 650-961-8918

No Change in Almost 40 Years: Let’s Protect Those California Butterflies!

See posting from Lenny Siegel’s Brownfields Internet Forum, Aug. 14, 2015:

“Bay Area endangered butterfly to get designated preserve in Santa Clara County foothills
* * *
“Since the 1980s, the population of the Bay Checkerspot Butterfly, a species native to the San Francisco Bay Area, has been in a serious decline. As a result, it has been recognized as a federally threatened species.  But the butterfly will soon get help from the Department of Toxic Substances Control (DTSC) and the Santa Clara Valley Open Space Authority. A piece of land in the Coyote Ridge region in Santa Clara County will soon be designated as a preserve specifically for the butterfly. Referred to as the ‘Buffer Zone’, the parcel of land is in the western part of the United Technologies Corporation – Pratt Whitney Rocketdyne (UTC) facility in the Santa Clara County foothills, 14 miles southeast of San Jose. UTC previously developed, manufactured and tested solid rocket motors for a variety of space exploration and defense purposes on the land until it ceased operation in 2004. UTC is now decommissioning its facilities and equipment and cleaning up soil and groundwater at its 3,300-acre facility.”

My very first environmental case when I was an Assitant United States Attorney in Los Angeles in 1976 was the defense of the US Environmental Protection Agency in an action brought by the Pacific Legal Foundation seeking to enjoin EPA’s enforcement of a Clean Water Act permit for the Hyperion Sewage Disposal Plant of the Los Angeles City Water District.  PLF claimed that the City’s compliance with the permit would result in the creation of sludge that would have to be disposed in a landfill, endangering the habitat of the El Segundo Blue Butterfly, and hence violating the Endangered Species Act.   (There was also a NEPA claim that increased number of disposal trucks travelling through residential neighborhoods was not adequately dealt with in the EIS for the project.)    What an intro to environmental law!   My boss, the U.S. Attorney, used to refer to the case as “sewer generous,”  as opposed to “sui generis”; spent rocket fuel and whatever UT generated aint sewage, but close enough to merit this observation.  After settling this case in LA I was transferred back to Department of Justice headquarters Land & Natural Resources Division where I was assigned to the matter that grew into the prosecution of Hooker Chemicals for its responsibility for the infamous Love Canal disaster.  No looking back after that.


Not Environmental, but Important: USSC Upholds Affordable Care Act with Majority Opinion by Chief Justice Roberts

I encourage all to read both the majority opinion of Justice Roberts and the dissenting screed (excuse me, I mean “opinion”) of Justice Scalia in today’s Obama Care decision, King v. Burwell, 57 U.S. ____ (2015).  In short, Justice Roberts and the majority recognized that if giving to particular words of a statute their plain, everyday meanings, would destroy the very operation of the statute, those words must be deemed to be ambiguous and subject to judicial interpretation, allowing the statute to be implemented.  In this case the Supreme Court interpreted a provision of the Affordable Care  Act that appeared to limit tax credits for health care premium payments only to folks who purchase health insurance through “Exchanges established by the State” to allow such tax credits also for insurance obtained through Federal Exchanges.  If not so interpreted, the whole statute would fail and it would deny the credits to more than 18 million people whose insurance emanates from the 34 States that have Federal, rather than State Exchanges.

Justice Scalia, however, vented his continuing displeasure and apparent personal annoyance that the Court has once again (as it did in National Association of Independent Business v. Sibelius, 567 U.S. ____ (2012) interpreted the Affordable Care Act in a manner that would allow its continuing implementation.  His diction is full of snide and belittling, albeit amusing, comment that amounts to ad hominem criticism of Justice Roberts (e.g. referring to the majority’s reasoning as “interpretive jiggery-pokery” and “applesauce”).  On the other hand, Justice Roberts has, in each of his Affordable Care Act decisions, given new resonance and current meaning  to an enshrined doctrine of the law in the United States: “The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.” Oliver Wendell Holmes, The Common Law (1881), p. 1