Under the Marijuana Regulation and Taxation Act (“MRTA”), a new government entity was created to license the cultivation, processing, distribution, sale, and delivery of cannabis in New York State. Each commercial activity involving adult-use cannabis will require a license. Accordingly, because the law generally limits (1) vertical integration and (2)…

The lawsuit claims ORES violated New York’s Environmental Quality Review Act (SEQRA)

Legal action threatens to halt renewable energy siting projects currently under ORES consideration in New York State while the case is reviewed

(NEW YORK, NY) — Today, local governments, community organizations and conservation and public interest…

New York State just legalized cannabis for adults 21 and over, making it the 15th state to legalize adult-use marijuana despite the fact that the substance remains illegal under federal law. The law, which supporters tied to a move to promote racial equity, also expunges marijuana convictions for actions that…

After determining that a $66-million-dollar chateau was illegally constructed, a French court ordered the owner to tear it down. The owner had apparently failed to obtain the required planning permissions before constructing the 32,000 square foot palace. Accordingly, the Court ordered the owner to take down the chateau and restore…

During the 2021 budgeting process, New York State adopted Section 94-c of the Executive Law forming the new Office of Renewable Energy Siting (ORES). This year, in the 2022 budget (available here), the state seeks to exempt ORES from reviewing the environmental impacts of individual renewable…

In January of 2021, New York State Governor Andrew M. Cuomo called for the legalization of adult-use cannabis in his annual “State of the State” address. This proposal comes after a multi-year effort to regionally coordinate state cannabis policy with the governors of New Jersey, Connecticut, and Pennsylvania. The goal…

In 2020 New York State formed the Office of Renewable Energy Siting (ORES) to further expedite the process for siting large renewable energy facilities. Implementing legislation can be found here. In general, the new process is less transparent than the Article 10 process it replaces, does…

On Friday, June 12, 2020, New York State passed a package of police reform bills in response to weeks of widespread demonstrations. The reform measures (1) ban the use of chokeholds by law enforcement officers, (2) give the state attorney general power as a special prosecutor in cases of police-involved…

A timely opinion article published by The Hill on June 10, 2020 reminds us of the ways that environmental justice issues are intertwined with the institutionalized disadvantages of certain groups, typically along racial and socioeconomic lines. These inequalities are not just economic, nor are they limited to issues involving our…

Under Article 10 of the Public Service Law municipal and local parties have the opportunity to participate in the siting process for major electric generating facilities. Because review of a large project can be complicated and costly, intervenor funds are available to offset the cost of participating in the process.…

In response to inquiries on essential construction activities under Gov. Andrew M. Cuomo’s Executive Order 202.13 and Executive Order 202.6 limiting exempt construction activities to “essential” and emergency constriction, New York State Department of Environmental Protection’s (DEC) Division of Environmental Remediation issued guidance identifying the following…

On March 30, 2020, Gov. Andrew M. Cuomo issued Executive Order 202.13 which, among other things, modified Executive Order 202.6 to clarify that only certain construction activities will be considered exempt from in-person restrictions as of March 28, 2020 and authorizing Empire State Development Corporation to…

By the end of 2020, more than 40 states could allow some form of legal marijuana / cannabis, including in more conservative jurisdictions, like North Dakota and Mississippi¹. However, because possession of marijuana / cannabis remains illegal under Federal Law, these state-law developments could further increase confusion across the country…

On March 7, 2020, Governor Andrew M. Cuomo issued Executive Order 202 (the “Order”)¹. The Order found that “a disaster is impending in New York State, for which the affected local governments are unable to respond adequately” and, as a result, the Governor exercised his executive authority and declared “a…

Governor Cuomo has proposed major changes to the way power plants are sited in New York State. The draft legislation is available here and here. The law is sweeping in its scope and changes all aspects of power plant siting including permitting and approval, the role…

On February 7, 2020, the Siting Board announced a meeting to adopt emergency changes to the Article 10 regulations. The notice is available here. Later, on February 11, 2020, the Siting Board issued a memorandum describing the rule changes, available here. The Siting Board adopted the…

During his annual budget address, Governor Cuomo expressed concern over the slow speed of the Article 10 power plant siting process. He proposed modifications to site more projects more quickly.

Specifically, the Governor noted, “We have to do it faster. It currently takes five to 10 years to begin…

On November 18, 2019, the New York State Bar Association’s Committee on Professional Ethics (the “CPE”) issued an opinion that “lawyers may assist clients in complying with New York’s medical marijuana laws,” even though marijuana/cannabis remains illegal under federal law.¹

The CPE reasoned that, although Rule 1.2(d) of the New…

According to a 2019 report, the Metropolitan Transit Authority’s (“MTA”) Traffic Mobility Review Board (“TMRB”) will meet behind closed doors to consider how best to institute “congestion pricing.”¹ According to the MTA, the TMRB — which is tasked with recommending toll prices for drivers entering Manhattan’s central business district —…

Even in states where Cannabis has not yet been legalized for recreational or adult use, many municipalities are starting to consider what they need to do to prepare themselves for legalization. For example, according to recent news reports, local health and criminal justice officials in Philadelphia, Pennsylvania have started to…

As our earlier blog post explained, New York State seems to be on the verge of passing comprehensive cannabis/marijuana reform legislation. This presents several new legal issues for municipalities, including questions about how to regulate the emerging industry. Local governments will likely be interested in regulating a variety of different…

Across the United States, more and more states have enacted (either through the legislature or through ballot initiatives) cannabis/marijuana decriminalization laws, medical marijuana laws, and even adult use (sometimes known as “recreational”) marijuana laws. The national trend suggests that we may see wide-scale legalization sooner than many expect, even at…

Many people have heard of New York’s Freedom of Information Law (“FOIL”) and its federal counterpart, the Freedom of Information Act (“FOIA”), but few understand how it works in practice or how to enforce the rights that those laws grant. At its core, FOIL gives the public the right to…

The Green Innovation Grant Program (GIGP) program, which is administered by the Environmental Facilities Corporation, provides grants on a competitive basis to projects that improve water quality and implement green infrastructure in New York State. In 2019, $15 million of grant funding was available for eligible projects through this program.…

What is the Empire State Development Grant?

In 2019, $150 million of capital grant funding was made available to Empire State Development (ESD) from the Regional Council Capital Fund. This grant provides funds annually for regional and local economic development across New York State.

ESD grant funding is available for…

What is the Downtown Revitalization Initiative (DRI)?

The Downtown Revitalization Initiative (DRI) was launched in the Spring of 2016. Every year, following a comprehensive application and review process, each of New York State’s ten Regional Economic Development Councils select one community in their area to receive a $10 million award…

The New York State Department of Environmental Conservation (the “DEC”) recently proposed changes to its regulations governing enforcement hearing procedures under 6 NYCRR Part 622.

The proposed rule change to Part 622 would “clarify the hearing process for administrative enforcement proceedings by: 1) making the regulations clearer and more accessible;…

Were you affected by the 2019 flooding along Lake Ontario or the St. Lawrence River? A new government program may be able to help.

New York State recently launched the 2019 Lake Ontario-St. Lawrence River Flood Relief and Recovery Program to help homeowners affected by the “historic flooding along the…

In June, a New York State appellate court — the Appellate Division, Fourth Department — struck down a town’s attempt to acquire certain private property rights (an easement) by eminent domain.

The Court’s decision didn’t address policy questions (like whether the Town’s reason for taking the easement outweighed the property…

In a May 19, 2019 blog post, I wrote about the environmental contamination at the old Tonawanda Coke Facility in Western New York. Earlier this month, the Buffalo News reported that a developer purchased the former Tonawanda Coke site, intends to redevelop the property as a computer data…

On August 26, 2019, Bull Run Energy LLC filed an application to construct a 449-megawatt (MW) wind energy facility in the towns of Altona, Clinton, Ellenburg, and Mooers. It is expected to include up to 139 wind turbines, together with associated access roads, an electrical collection system, meteorological towers, an…

In March of 2019, a Rochester resident sued the City of Rochester (the “City”) seeking to compel the City to provide footage from police body cameras under New York’s Freedom of Information Law (“FOIL”). The City resident specifically sought footage of body cameras worn by police officers who allegedly shot…

Earlier this year, an individual and two businesses (“Plaintiffs”) brought suit to challenge the Town of Canandaigua’s local sign ordinance. The complaint, which was filed in the United States District Court for the Western District of New York on June 28, claims that the Town’s local sign law violates Plaintiffs’…

Drafting effective legislation is hard. Drafting local legislation to regulate the development of wind and solar energy facilities is harder. Government officials and residents alike need to balance many competing interests when drafting a local law governing wind and solar energy siting. How much development is desirable? Where should wind…

On June 5, 2019, the Observer published an article on a potential Open Meetings Law violation by the Chautauqua County Planning Board. The article alleges that, at a June meeting, the Board was considering an application involving the acquisition of land for soccer fields for Jamestown Community College. Before presenting…

Nine years ago, for $1,200, a Dunkirk native bought a piece of land from the City of Lockport that contained a three-story, 16,000 square-foot building. His plan was to demolish the building and convert the property, which used to be an industrial power plant, into a gas station. But that…

The Siting Board cannot issue a Certificate unless it makes specific findings and determinations pursuant to Section 168 of the Public Service Law. These findings and determinations are described here. In a recent case, one wind energy developer argued that intervenor, municipal, and agency parties bear the burden…

Last week, the Commissioner of the New York State Department of Environmental Conservation (the “DEC”) announced that a Niagara County man had been sentenced for an attack on an Environmental Conservation Police Officer.¹ The attack allegedly occurred in 2018 when the defendant was driving an off-road Utility Vehicle (a “UTV”).…

Although the Siting Board makes the final decision to grant a Certificate of Environmental Compatibility and Public Need, most of an Article 10 proceeding is conducted before Presiding Examiners, not the Siting Board itself. The Presiding Examiners are administrative law judges from the New York State Department of Public…

Rochester, N.Y., May 15, 2019— The Daily Record selected Frances M. Kabat, Associate Attorney, The Zoghlin Group, PLLC. to receive an Excellence in Law Award, “Up & Coming Attorneys”.

The Daily Record’s Excellence in Law program honors members of the legal community with three distinguished awards: Top Women in Law,…

Property owners, businesses and municipalities across New York State are experiencing flooding at an historic rate. The causes run the gambit from poorly maintained municipal stormwater systems to the flooding we have seen in 2017 and 2019 along Lake Ontario. Water is one of the most destructive forces of nature…

Last week, the Town of Westerlo Planning Board determined that the Costanza Solar Project will not have a significant adverse environmental impact provided specific conditions are met, including (1) updating the Stormwater Pollution Prevention Plan (“SWPPP”) and (2) doubling the quantity of evergreen plantings in the c-100 area.

Because projects…

After the Tonawanda Coke plant closed, government officials and local researchers expressed concerns about the environmental impacts that chemical contamination could cause to nearby neighborhoods and the Niagara River. Those concerns were justified by the discovery of about 900,000 gallons of ammonia waste, leaking tanks, and soils contaminated with “heavy…

The United States Department of Justice (the “DOJ”) recently opened a criminal inquiry into another automobile manufacturer’s emissions-certification process.¹

In the last several years, as emissions and fuel efficiency standards have tightened, automobile companies have faced accusations of violating those standards and falsifying tests or technical data. Some have questioned…

Earlier this year, the New York State Department of Environmental Conservation (the “DEC”) presented the results of a comprehensive environmental investigation of the Niagara Sanitation Landfill near North Tonawanda, New York¹. The Landfill had accepted a variety of waste from the surrounding community over the course of its operation from…

In working with municipalities and individuals across the State we have encountered a common concern. Many people believe that Article 10 of the New York State Public Service Law (available here) expressly preempts all local zoning and land-use laws. This concern can lead to a fatalistic…

On April 24, 2019, Excelsior Energy, LLC (a subsidiary of NextEra Energy Resources, LLC), submitted a Public Involvement Program for a proposed solar energy facility to be located in the town of Byron, New York. Additional information about the project is available on the New York DPS DMM website for…

Greene County’s plan to construct a new jail in Coxsackie, New York raises questions about how the proposed project will impact the environment and nearby residents. The project has made news recently as politicians and the public debate the size and cost of the proposed facility.¹ According to recent reporting,…

On April 1, 2019, Morris Ridge Solar Energy Center, LLC (a subsidiary of EDF Renewables, Inc.), submitted a Preliminary Scoping Statement (“PSS”) for the proposed 1,350-acre Morris Ridge solar energy facility. Morris Ridge is proposed for the Town of Mount Morris in Livingston County, New York. Additional information about the…

The United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers have proposed a new definition of Waters of the United States in an attempt to clarify federal authority under, and applicability of, the Clean Water Act (“CWA”)¹. The deadline for submitting public comment on that proposed definition…

A local recycling company in Wayne County was recently fined $725,000.00 by the New York State Department of Environmental Conservation (the “DEC”) for the illegal handling of electronic waste (“e-waste”)¹. This whopping fine consisted of $225,000.00 that was to be payable within two years and an additional $500,000.00 fine that…

The Coast Guard and the New York State Department of Environmental Conservation (the “DEC”) are investigating tar balls and oil sheen that were found at Coney Island and along Long Island beaches in March, 2019¹.

According to the Coast Guard, oil found in the Arthur Kill waterway may have come…

In January of 2019, three hunters were charged in the Town of Mount Morris when a stray bullet struck a nearby house. Although the residents of the home were inside, nobody was injured. According to the New York State Department of Environmental Conservation (the “DEC”), the hunters could end up…

On February 26, 2019, a novel procedural teleconference was held in the matter of Canisteo Wind Energy LLC. Canisteo Wind is a nearly 300 megawatt wind project proposed for Steuben County, New York. The DMM website for the case is available here.

The procedural teleconference was…

DEC Commissioner Basil Seggos announced in late 2018 that New York State had executed an Order on Consent with SA Dunn & Company, LLC (“Dunn”), which operates the Dunn Facility (a landfill and sand mine operation), for ongoing violations of its state mining permit¹.

The Order was the culmination of…

On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York.

Although the Horseshoe Solar project…

On February 27, 2019, Invenergy Solar Project Development LLC submitted a revised Public Involvement Plan (“PIP”) for the proposed 3,800 acre Horseshoe Solar energy facility. Horseshoe Solar is proposed for the towns of Caledonia and Rush, primarily in Livingston County, New York. The project also includes a major electrical substation…

On February 8, 2019, Galloo Island LLC withdrew its Article 10 Application for the 102.3 megawatt “Galloo Island Wind Farm”. Additional information about this proceeding, and the circumstances of the Applicant’s withdrawal, are available on the DMM website for Galloo Island.

The withdrawal comes after repeated…

The Town of Carmel’s “decision to dump mounds of asphalt millings eight feet high near the … shore [of Lake Mahopac]” sparked an Investigation by the New York State Department of Environmental Conservation (the “DEC”)¹. That’s because a January 2019 DEC ruling prohibited the use of asphalt milling as fill…