Update On Closing Down Norlite Hazardous Waste Incinerator
May 28, 2024
Professor Todd Ommen, Director of the Pace Environmental Litigation Clinic, discusses DEC’s efforts to reclassify Norlite’s fly ash as hazardous waste with Mark Dunlea for Hudson Mohawk Magazine (The Sanctuary for Independent Media), addressing the environmental and community impacts of Norlite’s operations and comes in the wake of Norlite’s recent shutdown and worker layoffs.
In 2022, the Clinic filed a Motion to Intervene in the State of NY and New York State Department of Environmental Conservation v. Norlite, LLC on behalf of Lights Out Norlite in the Supreme Court of New York Albany County. Lights Out Norlite aims to sue Norlite Facility for its members’ prolonged exposure to harmful air contaminants and challenge DEC’s enforcement inaction, citing violations of constitutional rights under the Green Amendment.
The Norlite Facility, an aggregate production and hazardous waste incineration facility, has long plagued the community in Cohoes, NY through its emission of harmful pollutants. Nearby residents are severely impacted by the Facility’s production of fugitive dust emissions, which blanket their homes, cars, and other property in a sheet of dust. The air contaminants in this dust significantly increase the risk of adverse health effects in the surrounding communities.
Norlite Decision
June 22, 2023
New York Supreme Court in Albany County has granted the motion to intervene filed by the Clinic in a groundbreaking Green Amendment action regarding a hazardous waste incinerator in upstate New York. The Clinic brought claims on behalf of Lights Out Norlite and local residents, arguing that the Norlite facility – which has been repeatedly fined over the past two decades – cannot be operated in a way that protects the health and environment of the residents, including an environmental justice neighborhood directly adjacent to the facility. The Court granted the motion to intervene, rejecting both Norlite’s and DEC’s arguments that intervention was unnecessary or prejudicial. As the Court states, the fact that DEC claims it “‘already seeks to protect the rights of the intervenors to clean air and a healthful environment’ cannot be considered an adequate substitute for the intervenors’ Green Amendment claim, especially in light of DEC’s enforcement history against Norlite, and certainly cannot be a basis upon which this Court denies their intervention.”
Nitrogen Pollution in Suffolk County
October 10, 2023
Clinic intern Joe Beletti-Naccarato drafted a letter on behalf of Save the Sound, Group for the East End, and Peconic Bay Keeper, which was presented to the Suffolk County Legislature at their General Meeting. The Letter detailed how Suffolk County’s inaction in addressing pervasive nitrogen pollution violated county residents’ Green Amendment rights by depriving them of clean water and a healthful environment. For decades nitrogen pollution from septic systems and cesspools has contaminated the groundwater which serves as the county’s sole source of drinking water and caused harmful algal blooms in surface waters destroying ecological communities and the local shellfish industry. The letter called for Suffolk County to take expedient actions to address these issues including voting to fund a program the County proposed but has since refused to implement, which would improve septic systems in the county as well as expand sewer infrastructure and prohibit the permitting of new septic systems that do not filter out nitrogen.
Letter to Suffolk County (PDF)
Lights Out Norlite
December 20, 2022
The Clinic filed a Motion to Intervene in the State of NY and New York State Department of Environmental Conservation v. Norlite, LLC on behalf of Lights Out Norlite in the Supreme Court of New York Albany County. Lights Out Norlite seeks to intervene in the State case to sue the Norlite Facility for its members’ decade-long exposure to harmful air contaminants. Lights Out Norlite also seeks to challenge DEC’s lack of enforcement action with regard to the Facility as a violation of its members’ constitutional rights to clean air and a healthful environment, pursuant to the recently enacted Green Amendment.
The Norlite Facility, an aggregate production and hazardous waste incineration facility, has long plagued the community in Cohoes, NY through its emission of harmful pollutants. Nearby residents are severely impacted by the Facility’s production of fugitive dust emissions, which blanket their homes, cars, and other property in a sheet of dust. The air contaminants in this dust significantly increase the risk of adverse health effects in the surrounding communities. Despite voicing their grievances to DEC for years, DEC has only issued mere slaps on the wrist in the form of penalties. Lights Out Norlite through its motion to intervene seeks to ensure that the proper remedy is awarded – the immediate and proper closure of this Facility.
Saratoga Biochar
September 26, 2022
The clinic filed an Article 78 Petition on behalf of Clean Air Action Network, challenging the Town of Moreau Planning Board’s approval of a site plan via a Negative Declaration to build a facility that would burn sewage to produce carbon fertilizer. The Planning Board approved this facility without independent study of the many potential negative environmental impacts, despite the fact that this would be the first facility of its kind in New York and in violation of SEQRA. Intern Megan Gaddy prepared the documents, and the case is currently pending in the Saratoga County Supreme Court.
Saratoga Biochar Petition (PDF)
Second Avenue Apartments
July 2, 2022
In 2020, the citizens of Troy were introduced to an apartment complex project that would destroy forest land and animal habitat on the outskirts of Troy. This parcel of land constitutes the last untouched forest along the Hudson River within the City of Troy and is of high historical, archeological, and cultural significance due to its sacredness to local Indigenous peoples. On July 2, the Clinic filed an Article 78 petition challenging two decisions by the Troy City Council relating to this potential apartment complex development. First, the decision to rezone the particular parcel of land for the purposes of allowing the apartment complex development and second, the decision by the Council to declare a Negative Declaration and concluding there are no significant environmental impacts associated with the rezoning decision. Legal intern, Logan O’Connell, prepared the papers and the case is currently pending in the NYS Rensselaer County Supreme Court.
Second Avenue Apartments Petition (PDF)
Friends of the Shawangunks
June 26, 2022
Pace Environmental Litigation Clinic filed an Article 78 petition on behalf of the not for profit Friends of the Shawangunks challenging the Town of Gardiner Planning Board’s approval of a special use permit construction of a home in a highly ecologically sensitive zoning district within the Shawangunk Ridge Protection Area. Due to the fragile ecosystem, Gardiner Town Code requires individuals to develop at the lowest possible elevation on their property to protect the ecosystems at higher elevations. The Clinic aims to prove that the Planning Board’s decision to approve the special use permit in violation of the unambiguous Town Code is arbitrary, capricious, and contrary to law. Intern Daniel Krupa prepared the documents, and the case is currently pending in the Ulster County Supreme Court.
Friends of the Shawangunks Petition (PDF)
Friends of Wickers Creek Archeological Site
March 22, 2022
The Clinic has put the final nail in the coffin of a Homeowners Association’s attempt to prevent access to a conservation easement created to protect and honor an historic Native American site. On behalf of the not-for-profit Friends of Wickers Creek, the Clinic sued the HOA back in 2017. We defeated a motion to dismiss, a motion for summary judgment, and won our own motion for summary judgment. The Clinic then briefed and won in the Appellate Division when the HOA appealed. Finally, the HOA sought leave to appeal to the New York Court of Appeals, which the Clinic opposed. On March 22, 2022, the Court of Appeals agreed with us and denied the motion, finally ending the litigation in favor of FOWCAS.
White Lake
March 15, 2022
The Clinic filed this Petition (PDF) on behalf of the Adirondack White Lake Association and Protect the Adirondacks!, challenging the Adirondack Park Agency’s 13 year-long refusal to hold any adjudicatory hearings on permit applications. The permit at issue was granted to a mining company to mine granite in a residential and recreational area next to the pristine White Lake. The permit was approved despite serious unresolved questions regarding noise impacts, legal access to the site, and other environmental impacts. The APA’s refusal to hold a hearing on these issues, despite a clear regulatory mandate, was arbitrary, capricious and contrary to law.
January 11, 2022
The Clinic submitted comments to the Adirondack Park Agency on behalf of our clients Protect the Adirondacks! and Adirondack White Lake Association. The comments urged the APA to conduct an adjudicative hearing on a permit application to revive a 100-year old mine next to the pristine White Lake and dozens of residences, and turn the mine into a stone quarry. Despite a clear legal duty to do so, the APA has not held an adjudicatory hearing in over 10 years, a dereliction that is particularly troubling given that the APA lacks the authority to deny a permit without such a hearing. As set forth in the comments, this quarry project is moving forward at full speed despite the lack of a sufficient review of the environmental impacts. The meeting to discuss the application will be held on January 13, 2022.
Constitution Pipeline
November 19, 2021
The Clinic, alongside co-counsel and former clinician Anne Marie Garti, has finally killed the Constitution Pipeline once and for all on behalf of our client Stop the Pipeline. After years of back-and-forth litigation over the initial order approving the pipeline, eminent domain proceedings and the water quality certification denial by the New York Department of Environmental Conservation, the pipeline pulled the plug. Now, based on Stop the Pipeline’s arguments, the Second Circuit has vacated the underlying orders approving the pipeline. Barring an unlikely successful appeal, this kills the project once and for all.
Article: 2nd Circuit Kills All Approvals for $683M NY Pipeline (PDF)
LaGuardia AirTrain Project
September 20th, 2021
On behalf of community and environmental groups Riverkeeper, Inc., Guardians of Flushing Bay, and Ditmar Block Association, the Pace Environmental Litigation Clinic filed a petition for review in the Second Circuit Court of Appeals, challenging the FAA’s ROD for the LaGuardia AirTrain project. The petition alleges that the FAA impermissibly constrained their environmental review, arbitrarily excluding alternatives in order to push through their desired outcome and ignoring cumulative impacts of the project. Despite their own initial critiques of the Port Authority of New York and New Jersey’s plans for the project, none of their original concerns were addressed in the deficient EIS. The FAA sped through the environmental review process under political pressure despite the risk of harm to communities of color and low income communities in the area.
Article: Groups sue FAA to halt NYC’s LaGuardia AirTrain
Sierra Club Amicus Brief
May 4, 2021
The Pace Environmental Litigation Clinic represented Sierra Club in submitting an amicus brief in support of Protect the Adirondacks in a vitally important case before New York’s highest court. The case centered around New York’s unique constitutional provision keeping the state’s forest preserve “forever wild.” The court adopted the interpretation of that clause advocated by Sierra Club and others that the clause must be read as a singular command, and forbids cutting down thousands of trees for snowmobile trails. This was a huge win for the natural state of the Adirondacks.
Sane Energy – Petition
March 18, 2021
The Pace Environmental Litigation Clinic filed a Petition on behalf of Sane Energy Project and several local residents near a proposed expansion of a National Grid natural gas facility. As alleged in the Petition, the New York State Department of Environmental Conservation made the incredible determination that a proposed expansion, which includes a greater than 30% increase in emissions, the construction of a massive new pipeline, and approvals from FDNY to truck natural gas over New York City bridges and through the neighborhood posed no potential environmental impacts and need not undergo an environmental review. This determination was arbitrary, capricious and contrary to multiple laws, and the Petition seeks to vacate it. The case was briefed and argued at a public hearing by clinic intern Claire McLeod.
Article: National Grid, Regulator Slammed With Lawsuit by Brooklyn Residents (bkreader.com)
