UN Human Rights Expert Presents "Framework Principles on Human Rights and the Environment"

UN Human Rights Expert Presents "Framework Principles on Human Rights and the Environment"

On March 2, 2018, Professor John H. Knox, the United Nations Special Rapporteur on Human Rights and the Environment, presented his final report, "Framework Principles on Human Rights and the Environment" to the U.N. Human Rights Council.  The culmination of five years of work,  the Special Rapporteur's report sets out the principles for understanding and implementing human rights obligations relating to the environment. These principles are drawn from international treaties and the decisions of human rights bodies that either issue binding decisions or have the authority to issue interpretations of human rights law. This report advances the recognition of the intersectionality of environmental and human rights; moreover, we expect that it will influence the development of substantive environmental rights internationally.  We also expect that it will support the litigation efforts of parties seeking to compel the United States to remedy violations of fundamental rights caused by its failure to adequately address climate change. 

Elliott & Elliott Launches New PennEast Pipeline Documents Public Archive

FERC header-bannerElliott & Elliott announces the launch of a new publicly-available Dropbox archive of documents relating to the proposed PennEast natural gas pipeline.  The archive, which will be continuously updated, includes documents from the Federal Energy Regulatory Commission (FERC) docket for the PennEast pipeline project (PF15-1), the Delaware River Basin Commission (DRBC), and other agencies and organizations.  The archive also includes guides to accessing electronic information at FERC Online, including instructions on subscribing to a docket, and the FERC "citizen guide", An Interstate Natural Gas Facility on My Land:  What Do I Need to Know?  The Dropbox archive is available at: https://www.dropbox.com/sh/fwhs6dcjtmrptq9/AABmUxo8I0N4z_n_l4J-WJ8Ea?dl=0

(Please be patient for large files to load.)

We welcome additional submissions of documents and other information on the #PennEast pipeline for the archive.  Submissions can be sent to: pipeline@elliott-lawyers.com

City of Easton Ordinance Targets Foreclosures, Abandoned and Blighted Properties

easton city sealThe City of Easton (PA) has enacted an abandoned property ordinance  (pdf) to combat neighborhood deterioration, targeting property foreclosures, and abandoned and blighted properties.  It creates an array of new tools for the City to eliminate nuisance conditions, promote neighborhood stability, and protect property values. The new tools include:

  • creating a registration system for properties that are in default of a mortgage, foreclosed, abandoned or blighted;
  • requiring owner and mortgagee inspections of properties that are in default of a mortgage;
  • requiring owners who do not live within a 30-mile radius of the City to designate a local property manager;
  • imposing an escalating annual registration fee for properties in default of a mortgage, abandoned or blighted;
  • imposing new property maintenance standards in addition to existing city property maintenance codes, including duties on mortgagees;
  • requiring owners and mortgagees to maintain such properties in a secure manner to prevent access by unauthorized persons;
  • creating additional authority for the city to lien properties for costs incurred by the city to assure compliance with maintenance standards;
  • imposing substantial fines (not less than $1,500) for violations, including a failure to: register the property, pay any fees within 30 days after they are due, or maintain or secure such properties.

The new ordinance was prompted by the large number of foreclosures and property vacancies induced by the implosion of the market for securitized mortgages and collateralized debt obligations and the resulting Great Recession.  Following abandonment by owners, foreclosing banks frequently refuse to take responsibility for property maintenance.  The National League of Cities has recognized this as a nationwide problem.  Property owners, property mangers, and mortgagees for properties located within the City of Easton would be well-advised to familiarize themselves with these new requirements.

EPA Guidance to Commercial and Industrial Lessees for CERCLA Liability Protection for Historic Contamination

The United States Environmental Protection Agency (EPA) recently issued revised guidance clarifying its position that commercial and industrial tenants can protect themselves from contamination liability under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, or "Superfund") by relying on an “all appropriate inquiry” of the ownership and uses of the property, timely performed by the landlord, or by timely performing the all appropriate inquiry themselves. Under EPA’s prior guidance, it was unclear that these statutory defenses were available to tenants. CERCLA imposes strict, joint, and several liability on designated persons, including owners and operators of facilities, where there has been a release or threatened release of hazardous substances. Although the mere execution of a lease does not necessarily impose CERCLA sec. 107 liability, tenants leasing contaminated properties may fall within the “operator” liability designation even if the contamination occurred prior to the tenant’s use of the property. Tenants are also listed in the CERCLA sec. 101(40) definition of "bona fide prospective purchaser" ("BFPP"). CERCLA provides a liability defense to BFPPs who can meet certain requirements, including the making of an "all appropriate inquiry", ordinarily a Phase I environmental site assessment, prior to purchasing or leasing the property. This defense can protect against CERCLA liability at a site that has historical environmental contamination that was not caused by the tenant. Subject to certain conditions, the BFPP defense applies even when the inquiry reveals historical environmental contamination on the property to be purchased or leased.

Under EPA’s revised guidance, a tenant can have derivative BFPP protection by relying on the landlord’s all appropriate inquiry or by performing the all appropriate inquiry itself prior to commencing operations if the landlord failed to timely undertake it or has acted in a way to invalidate this protection. The new guidance indicates how EPA will exercise its enforcement discretion under CERCLA. It is important to note that EPA may still take enforcement action against a tenant if it is potentially liable for reasons other than its status as a tenant or where the owner is not in compliance with state or federal regulatory requirements or cleanup orders.

A prospective lessee of commercial or industrial property should determine if the owner or landlord of the property timely performed an all appropriate inquiry prior to its purchase of the property, where the inquiry, purchase and lease occurred after January 11, 2002. If not, the tenant may want to consider performing a Phase I environmental site assessment prior to entering into a lease to obtain protection from CERCLA liability claims.

A link to EPA’s guidance document is here: "Revised Enforcement Guidance Regarding the Treatment of Tenants Under the CERCLA Bona Fide Prospective Purchaser Provision"

Spotlight on the New Benefit Corporation

PA Department of State With the recent adoption of the Pennsylvania Benefit Corporation Act (effective January 22, 2013), Pennsylvania has joined 11 other states that have authorized the creation of a new type of corporation known as a “benefit corporation.” Benefit corporations have many of the usual characteristics of a traditional business corporation, but are subject to new requirements with respect to purpose, accountability, and transparency. Benefit corporation must have a purpose to create “general public benefit” in addition to any other lawful purpose. The Act defines a general public benefit as a material, positive impact on society and the environment, taken as a whole, as assessed against a third-party standard.

A benefit corporation may also have a “specific public benefit” purpose. Examples of such benefits include: 1) providing low-income or underserved individuals or communities with beneficial products or services; 2) preserving the environment; 3) improving human health; 4) promoting the arts, sciences or advancement of knowledge. The Act also establishes requirements for transparency in the fulfillment of these purposes. A Pennsylvania benefit corporation must publish an annual benefit report to inform both its shareholders and the public about its success in meeting its public benefit purposes. The benefit corporation must select a comprehensive, credible, independent, and transparent third-party standard against which it can assess and measure its performance.

The creation of this business entity reflects an increasing awareness of a corporation’s obligations to look beyond solely shareholder value and bottom-line earnings to a “triple bottom line” that includes social impacts and environmental protection as well as monetary profits.

National Parks Conservation Coalition Seeks Injunction to Prevent Construction of Susquehanna-Roseland 500 kV Transmission Line

 A coalition of national, regional and local conservation groups has filed a motion for a preliminary injunction in federal court to stop construction of the Susquehanna-Roseland transmission line through three popular national parks – the Delaware Water Gap National Recreation Area, the Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail—while the court considers claims that the power line will cause irreversible ecological and scenic damage.  A copy of the press release announcing the court filing can be read here. A copy of the Motion for Preliminary Injunction and legal memorandum in support of the motion is available here.

The press release states:

At stake is nothing less than the Delaware Water Gap’s spellbinding views, pristine environment, and diverse wildlife that include bald eagles, peregrine falcons, and black bears. The Delaware Water Gap National Recreation Area was named a Top 10 most-photogenic national park for fall foliage, and is the eighth most visited national park unit in the country. The Delaware River is one of the cleanest rivers in the nation. The Appalachian Trail, completed 75 years ago, and designated as the nation’s first national scenic trail in 1968, is enjoyed by 2-3 million people each year. Together, these national parks offer some of the very best outdoor recreational opportunities for those living in the Mid-Atlantic region. “Countless public dollars and volunteer hours have gone into protecting special places like the Delaware Water Gap,” explained Mark Zakutansky, Mid-Atlantic Policy Manager for the Appalachian Mountain Club. “Allowing irreplaceable scenic vistas, trails, and wildlife habitat to be permanently damaged violates the Park Service’s mission and sends the wrong message about the value of our national treasures. We have to halt this construction, at least for now, so the court can review the case.”

We previously posted on the environmental impact statement for the Susquehanna-Roseland transmission line on September 1, 2012 and onDecember 3, 2011.

Federal Court Dismisses As Premature Lawsuit Challenging DRBC Failure to Comply With NEPA in Developing Natural Gas "Fracking" Regulations

A federal district court judge has dismissed as premature three consolidated lawsuits challenging the failure of the Delaware River Basin Commission (DRBC) and other federal defendants to comply with the National Environmental Policy Act in the course of drafting and considering regulations that would permit natural gas development in the Delaware River Basin.   In a memorandum and opinion dated September 24, 2012, the court dismissed the actions for lack of jurisdiction.  The court found that because the DRBC has merely released draft regulations for public comment, plaintiffs had not yet established an "injury-in-fact " requisite to establish Article III standing for federal court jurisdiction. The court observed, "The line between proposed regulations and final regulations may be subtle, but the court believes it is real[.]" The court recognized that "a plaintiff can show an injury-in-fact through showing the creation of an increased risk of invasion of concrete interests; in NEPA cases, this chain of reasoning is extended to allow for an injury based on the increased risk in uninformed decision-making that will create an increased risk in the invasion of a concrete interest." However, generally in such cases, "the agency has done something that has affected legal rights or obligations of some party in a way that made an invasion of plaintiffs interests more likely, or refused to do something that allowed an already existing invasion to continue."  Here, because the regulations are merely draft, "the court has no way of judging reliably how probable it is that the regulation will be enacted, and thus no way of judging whether risks that natural gas development may create are more than conjecture." The court also found that the claims were not ripe for judicial review.

However, the dismissal is by no means the end of the lawsuit. We can reasonably anticipate an appeal of the dismissal. Moreover, under the court's ruling, a challenge to the regulations as violative of NEPA would be ripe and appropriate if, and when, such regulations are issued in final form and plaintiffs are able to establish the requisite "injury-in-fact."

The Court Found That All Plaintiffs Had Interests Sufficient to Bring the Lawsuit

Although the court rejected the plaintiffs' claims of "injury-in-fact" to confer Article III standing, the court found that all of the plaintiffs had concrete interests sufficient to bring the lawsuits: State of New York, Delaware Riverkeeper, Riverkeeper, Inc.Damascus Citizens for Sustainability, and the National Parks Conservation Association. The interests that New York State asserted are particularly interesting, because they involve air pollution as well as concerns over water quality.  One set of interests asserted by New York was maintaining the status quo in the Upper Delaware River, home to numerous endangered species. New York claims ownership of the shellfish, fish, birds, and other animals that live wild on New York’s land and in its waters. New York also asserted property rights in land, facilities, and the rights to conservation easements along the Upper Delaware, which gave New York proprietary interests sufficient to confer standing.  New York’s other asserted interest is tied to preventing increases in ozone (O3) concentrations over New York’s population, which can increase due to natural gas production. As New York asserted,  ozone can cause respiratory health problems, asthma attacks, and may also be linked to higher mortality rates. The court declared that New York's "desire to prevent its residents from suffering from increased ozone exposure is analogous to a state’s desire to secure the abatement of a public nuisance—in other words, a quasi-sovereign interest in the health of its residents."

The Troubled History of DRBC Compliance With NEPA

The court did not address the merits of the plaintiffs' claims that DRBC violated NEPA by drafting natural gas development regulations without complying with NEPA's procedural requirements.  However, one need look no further than the court's simple review of DRBC history to see that DRBC's compliance with NEPA requirements is problematic:

After NEPA was enacted in 1970, the DRBC promulgated regulations implementing it as to its own operations. (NGO Pls. Mem. (11–CV–2599 Docket Entry # 79–1) at 4–5.) The CEQ’s guidelines on preparing EISs published in the 1970s included the DRBC as a federal agency. (Id. at 5.) The DRBC performed NEPA analyses during that decade. (Id.) In 1980, however, the DRBC suspended its NEPA-implementing regulations due to lack of financial resources and indicated it would rely on an agency of the federal government to serve as “lead agency” and perform EISs for DRBC projects. (Id.) In 1997, the DRBC repealed its NEPA regulations. (Id.)

It is hard to imagine how an agency could successfully claim that it can avoid NEPA obligations because of "lack of financial resources."  We note that historically the DRBC has prepared environmental impact statements and in several cases the Commission conceded that it was a federal agency for purposes of NEPA. See, e.g., Bucks County Bd. of Commissioners v. Interstate Energy Co., 403 F. Supp. 805, 808 (E.D. Pa. 1975) (DRBC as the designated federal agency to prepare and review an EIS); Borough of Morrisville v. DRBC, 399 F. Supp. 469, 479, n.7 (E.D. Pa. 1975) (DRBC conceded it was a federal agency for purposes of NEPA). In Delaware Water Emergency Group v. Hansler, 536 F.Supp. 26, 36 (E.D. Pa., 1981), while the court expressed some doubt on the matter, it also noted that the DRBC did not dispute that NEPA obligations applied to it, and stated 'to the extent that the United States' member of the Commission votes in favor of an application or otherwise acquiesces in accordance with the Compact, such approval might be deemed Federal action.'"

We will report on further developments in the case as they emerge.

National Park Service Issues Final Environmental Statement on PP&L Susquehanna-Roseland Transmission Line Through Delaware Water Gap National Recreation Area

The National Park Service has published its Final Environmental Statement (FES) on the Susquehanna-Roseland Transmission Line through the Delaware Water Gap National Recreation Area. The FES effectively approves the utilities' proposed route of a new 500kV line across the Delaware Water Gap National Recreation Area, Middle Delaware National Scenic and Recreational River, and the Appalachian National Scenic Trail in Pennsylvania and New Jersey.

The final environmental statement confirms NPS's previous determination that the "no action" alternative is the environmentally-prefereable alternative, but determined that the utilities' proposed route - among six alternatives evaluated - is its "preferred alternative", assuming the incorporation of "critical mitigation measures."  The "preferred alternative" is the one “which the agency believes would fulfill its statutory mission and responsibilities, giving consideration to economic, environmental, technical and other factors.”

NPS made this determination despite finding that the proposed route "would cause significant adverse impacts to geologic resources; wetlands; vegetation; landscape connectivity, wildlife habitat, and wildlife; special-status species; rare and unique communities; archeological resources; historic structures; cultural landscapes; socioeconomics; infrastructure, access and circulation; visual resources; visitor use and experience; wild and scenic rivers; and park operations."

Specifically, among other impacts, the alternative will cause:

  • conversion of 20.28 acres of forested wetlands to scrub shrub and/or emergent wetlands
  • adverse impacts to 15.22 acres of Exceptional Value Wetlands and/or rare and unique wetlands
  • clearing of 240 acres of vegetation, including 129 acres of mature forest
  • adverse impacts to multiple archaeological sites, at least 17 historic structures, 18 cultural landscapes, including the Appalachian National Scenic Trail.

The FES articulates NPS's intention to require mitigation of adverse impacts where possible:

The NPS expects to conclude consultation by including in any ROD a binding commitment to the mitigation measures disclosed in this EIS, as required by 36 CFR § 1508.8. Mitigation measures specific to the impact topics, where applicable, are presented in appendix F. The NPS would also establish mechanisms to ensure that all mitigation obligations are met, mitigation measures are monitored for effectiveness, and unsuccessful mitigation is quickly remedied. In instances where impacts cannot be avoided and mitigation is not feasible, compensation for resources lost or degraded through project construction, operation, and maintenance would be required. Examples of items that cannot be remedied through mitigation include impacts that degrade the scenic and other intrinsic values of the parks or impacts that result in the loss of recreational use and visitor enjoyment.

The Final Environmental Impact Statement is available here.

Note: This is an update to our prior posts on this topic of January 21, 2010 and December 3, 2011.

Pa. Appeals Court Strikes Down Act 13 Natural Gas Drilling Law as Unconstitutional

In a 4-3 decision issued today in Robinson Township, et al. v. Commonwealth of Pennsylvania (284 MD 2012), the Commonwealth Court struck down as unconstitutional Pennsylvania's "Act 13", a law that provided that natural gas well drilling, waste pits and pipelines be allowed in every zoning district, including residential districts.  In its 54-page opinion, the Court stated: Because the changes required by [the law, at 58 Pa. C.S. §3304] do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth’s preliminary objections to Counts I, II and III are overruled.  

Because 58 Pa. C.S. §3304 requires all oil and gas operations in all zoning districts, including residential districts, as a matter of law, we hold that 58 Pa. C.S. §3304 violates substantive due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications. Accordingly we grant Petitioners’ Motion for Summary Relief, declare 58 Pa C.S. §3304 unconstitutional and null and void, and permanently enjoin the Commonwealth from enforcing it.

This decision may have impacts which go beyond natural gas drilling. In particular, other statutory provisions purport to require municipalities to allow timbering in every municipal zoning district. We'll offer some further thoughts on the implications of this decision in a future blog. In the meantime, those interested in reading the opinion can find it on the Pennsylvania Commonwealth Court's website here.

Risks of Fracking Gas Well Leases: "Homeowners and Gas Well Drilling: Boon or Bust"

Underscoring the risks of Marcellus Shale formation gas well leases that we discussed in our post of December 4, 2011 is an EcoWatch article posted yesterday by New York attorney Elisabeth Radow, "Homeowners and Gas Well Drilling: Boon or Bust."   It contains a thorough and extensive analysis of numerous issues relating to gas well drilling and leases for such activities and the risks for property owners who enter into such leases.  Accompanying the analysis are a series of photographs of actual well drilling sites by photographer J Henry Fair, best known for his Industrial Scars series, in which he "researches our world’s most egregious environmental disasters and creates images that are simultaneously stunning and horrifying". Mr. Fair’s work has been featured in national and international media and has been exhibited world wide. The article and photographs make for sobering reading and viewing for anyone who has entered into such a lease or is considering such a lease.  Property owners who may enter into such leases should be fully cognizant of the significant environmental and legal risks of these transactions.  This article provides valuable information on these issues.

Congressional Research Services issues CRS Report to Congress on "Proposed Keystone XL Pipeline: Legal Issues"


On January 23, 2012, the Congressional Research Services issued a Report to Congress on "Proposed Keystone XL Pipeline: Legal Issues."   The entire report (PDF, 29 pp.) can be found here.  The report analyzes a variety of legal issues, including: the sources of Presidential and State Department legal authority regarding cross-border facilities, reconciling the Executive and Legislative roles related to foreign commerce and judicial interpretations of those roles,  constitutional concerns related to potential action by States related to the pipeline, preemption issues, the National Environmental Policy Act (NEPA)  process for permitting of the pipeline, and the availability of judicial review of actions taken under Executive Order 13337.  The Report to Congress provides a typically thorough review of the issues and is required reading for persons interested in the legal issues arising from the Keystone XL proposal.   The Summary of the Report states, in part: "New legislative activity with respect to the permitting of border-crossing facilities, a subject previously handled exclusively by the executive branch, has triggered inquiries as to whether this raises constitutional issues related to the jurisdiction of the two branches over such facilities. Additionally, as states have begun to contemplate taking action with respect to the pipeline siting, some have questioned whether state siting of a pipeline is preempted by federal law. Others argue that states dictating the route of the pipeline violates the dormant Commerce Clause of the Constitution which, among other things, prohibits one state from acting to protect its own interests to the detriment of other states. This report reviews those legal issues. First, it suggests that legislation related to cross-border facility permitting is unlikely to raise significant constitutional questions, despite the fact that such permits have traditionally been handled by the executive branch alone pursuant to its constitutional “foreign affairs” authority. Next, it observes generally that state oversight of pipeline siting decisions does not appear to violate existing federal law or the Constitution. Finally, the report suggests that State Department’s implementation of the existing authority to issue presidential permits appears to allow for judicial review of its National Environmental Policy Act determinations."

A companion report from CRS focusing on policy issues associated with the proposal, "Keystone XL Pipeline Project: Key Issues" (CRS Report R41668), is also available here.

"Murder on Main Street" - The duty of sellers to disclose "property defects" to their buyers

[Update:  As we predicted, the Superior Court opinion in this matter has been vacated and reargument has been granted. 2012 Pa. Super. LEXIS 30 (2012)]

The house with four bedrooms, 2-1/2 baths, two car garage and a white picket fence seemed to be the young couple's dream home, and - from all appearances - it was.  Or was it?  Not if you overheard the whispers of the neighbors.  Or read the front page of the local newspaper from over a year ago.

In Milliken v. Jacono, 2011 Pa. Super. 254, __ A.3d __ (2011), the Pennsylvania Superior Court held that sellers of residential real estate and their agents should have told their buyer that a previous owner had murdered his wife in the house, and then committed suicide.  [The full opinion of the Court can be found at http://lawyersusaonline.com/wp-files/pdfs-3/milliken-v-jacono.pdf.  The case seems certain to provoke litigation concerning the extent of a seller's obligation to disclose non-physical property defects unless the Pennsylvania legislature steps in and joins the many other states which have addressed the question of stigmatized property with statutory language.

While property can be sold by its sellers in an "as is condition", i.e., with all of its faults, the era of "caveat emptor" (or "buyer beware") is largely gone.  This case certainly advances the trend toward requiring disclosures.  With very limited exceptions, sellers of residential real estate in Pennsylvania are required by the Real Estate Seller Disclosure Law to disclose to their prospective purchasers "any material defects with the property known to the seller." The statute lists 16 subjects of mandatory disclosure, 12 of which relate to the physical condition of the property such as its roof, plumbing, heating, air conditioning, and the presence of insect infestation or hazardous substances.  (Other questions relate to the seller’s expertise in "areas related to the construction and conditions of the property and its improvements", the duration of seller’s possession, and legal matters such as title, condominium, and use limitations).  Sellers are required to deliver to their prospective buyers a written, signed, and dated disclosure statement before an agreement of sale is signed.

To assist the real estate industry in complying with this law, the General Assembly directed the Pennsylvania State Real Estate Commission to prepare a form for these disclosures.  The Commission did so, but in addition to the specific disclosures required by the statute, it included in its form a final question for each seller: "Are you aware of any material defects to the property, dwelling or fixtures which are not disclosed elsewhere on this form?"  The form defines a "material defect" as "a problem with the property or any portion of it that would have a significant adverse impact on the value of the residential real property or that involves an unreasonable risk to people on the land." [The Commission's form is at http://www.pacode.com/secure/data/049/chapter35/s35.335a.html.] The statutory emphasis on the physical conditions of property - and the omission of any reference to non-physical, non-legal matters - was accepted by many lawyers and real estate agents as not requiring disclosure of other property characteristics that might affect value, including those which fall within the real estate agent’s mantra, "location, location, location."

But in holding otherwise, the Superior Court stated that the failure to disclose not only violated the requirements of the disclosure law, but constituted common law fraud because of the affirmative misrepresentation that there were no other "problems" with the property.  To prove the "materiality" of the failure to disclose, the buyer was prepared to introduce testimony from two real estate appraisers that the crimes had diminished the value of the property by ten to fifteen percent.  Notably, the Court chastised the sellers and the real estate agents for making inquiries to the Pennsylvania Real Estate Commission and the Pennsylvania Association of Realtors for advice in deciding whether they were required to disclose the murder/suicide to the buyers (both said "no"), stating "Instead of expending this effort, they would have been better served by simply acting in good faith and disclosing this fact."  This language is of particular concern to attorneys, suggesting as it does that if a question regarding disclosure is important enough to require legal consultation, then disclosure is required.

The Court did acknowledge there would be concerns that it was "proceeding down a slippery slope." In her dissenting opinion, Judge Kate Ford Elliott walked us down that slope by questioning whether a seller must disclose lesser crimes such as burglaries, or the proximity of sex offenders, or that there is a sewage plant across the way that can be smelled on humid days.  She even raises the circumstance of a house erected on ancient Indian burial grounds.  Such a seller might be advised to bring Ghostbusters through the home before putting it on the market so as to remove the "defect." Or find the buyers who will say, "I ain’t afraid of no ghosts."

The concerns associated with the sale of stigmatized properties are prevalent enough that the National Association of REALTORS® has produced an entire "Field Guide" on the subject for the guidance of its members.  See http://www.realtor.org/library/library/fg703.  The association defines "stigmatized property" as one which ‘‘has been psychologically impacted by an event, which occurred or was suspected to have occurred on the property, such event being one that has no physical impact of any kind."

We will be not be surprised if this decision is reversed on a motion to reconsider, or on appeal to the Pennsylvania Supreme Court.  Moreover, not only is the Pennsylvania real estate sales industry certain to press for a legislative "bright line" concerning a seller’s obligation, but also for immunity to sellers and their agents for failure to disclose non-physical "defects".

Speaking of Lead Poisoning, EPA Finalizes New Rules on Air Pollution from Secondary Lead Smelters; Will Affect Exide Laureldale, PA Facility

Today's Federal Register contains the Environmental Protection Agency's new Clean Air Act rules on air pollution from secondary lead smelters.   The new rule, amending the 1997 National Emissions Standard for Hazardous Air Pollutants for secondary lead smelters, imposes more stringent emission limits for lead compounds, adds work practice standards for mercury emissions, and imposes new requirements for testing, monitoring and record keeping.   In promulgating the new rule, EPA "determined that the risks associated with emissions from this source category are unacceptable primarily due to fugitive emissions of lead." The timing of the issuance of this final rule is ironic, as the lead emission standards are ultimately based on the outdated and lax "level of concern" for lead poisoning that the CDC's Advisory Committee on Childhood Lead Poisoning voted yesterday to cut in half.  See our post of January 4, 2011.

Moreover, although the rule is generally effective immediately, the compliance date for the revised stack and fugitive lead emission standards at existing sources -- such as existing sources at the Exide facility in Laureldale, PA - won't be effective for another two years: January 6, 2014.

The Exide facility was recently featured in an investigative report by the Center for Public Integrity as one of America's "poisoned places."

Note: In 2000, our firm and our co-counsel at Williams, Cuker and Berezofsky (now, Williams Cedar) successfully concluded federal litigation on behalf of victims of environmental pollution from the Exide/General Battery Facility with a court decree which provided for the remediation of our clients' contaminated properties and future environmental compliance. We brought successful federal claims under the Clean Water Act, Clean Air Act and Resource Conservation and Recovery Act ("RCRA").  A copy of the court opinion on summary judgment cross-motions (LEAD Group, et al. v. Exide,  United States District Court, E.D. Pa., 1999) is here.  A copy of the consent decree is available upon request.

Advisory Committee on Childhood Lead Poisoning Prevention Votes to Adopt New Recommendations to Reduce Childhood Lead Poisoning

The federal Advisory Committee on Childhood Lead Poisoning Prevention for the Centers for Disease Control and Prevention (CDC) today voted to adopt new recommendations to reduce childhood lead poisoning. The recommendations are found here in a downloadable PDF document.  The CDC is expected to act on the Committee's recommendations within 90 days. If adopted, the new approach would eliminate the current blood lead "level of concern" level of 10 micrograms/deciliter. The standard would be replaced by a childhood BLL reference value of 5 micrograms/dL, based on the 97.5th percentile of the population BLL in children ages 1-5 to identify children and environments associated with lead-exposure hazards.

The Advisory Committee's recommendations are based on the weight of evidence that includes studies with a large number and diverse group of children with low BLLs and associated IQ deficits.  The Committee notes that adverse effects such as attention-related disorders and impaired academic achievement are reported at blood lead levels well below 10 micrograms/dL.  In addition, it reports new evidence that adverse health effects include cardiovascular, immunological, and endocrine effects. It concludes that "the absence of an identified BLL without deleterious effects combined with the evidence that these effects, in the absence of other interventions, appear to be irreversible, underscores the critical importance of primary prevention."

If the advisory committee's recommendations are adopted by the Centers for Disease Control, we can expect that a more stringent regulatory regime regarding environmental lead exposures will follow.

The Perils of Natural Gas Well Drilling / "Fracking" Leases in Pennsylvania's Marcellus Shale

Natural Gas Hydraulic FracturingThe New York Times' exposé of the problems with natural gas/hydraulic fracturing continues with an illuminating article, "Learning Too Late of the Perils in Gas Well Leases."  As the article says, "Americans have signed millions of leases allowing companies to drill for oil and natural gas on their land in recent years. But some of these landowners — often in rural areas, and eager for quick payouts — are finding out too late what is, and what is not, in the fine print."   While some landowners have been paid significant sums under these leases, others are discovering they are paying a costly price for "permitting industrial activity in their backyard."  Problems caused by the fine print in such leases can include: (1) the refusal by the gas company to compensate for damages to water supplies, livestock or crops; (2) noise and light pollution, 24 hours/7 days a week; (3) losing control over the use of the property, as most leases grant gas companies broad rights to determine where they can cut down trees, store chemicals, build roads and drill wells; (4) industrial waste disposal on the property; (5) enduring indefinite extensions without additional landowner approval. Another article in the series, "Rush to Drill for Natural Gas Creates Conflicts With Mortgages" , describes the mortgage problems that such leases can create.  Some banks refuse to issue mortgages on properties subject to these leases.  Many mortgages require permission from the lender before they sign a lease; signing without permission can put a homeowner in instant default. Many gas well drilling leases will permit the gas company to operate in ways that violate rules in the mortgage.

An archive of more than 1,000 Pennsylvania gas leases can be viewed online on the New York Times website here. The archive can be used to compare lease terms and evaluate costs and benefits. An archive of documents relating to the problems with mortgages caused by gas leases is available here.

According to John Quigley, former Secretary of Pennsylvania's Department of Conservation and Natural Resources, "at least seven million acres -- 25 percent of the state’s land area -- has been leased for drilling. About 4,000 Marcellus wells have been drilled in Pennsylvania so far, and over the next several decades, tens of thousands -- maybe hundreds of thousands -- of wells will be drilled."

Landowners who have signed -- or who are asked to sign -- natural gas well drilling leases should be aware of these potential problems, and have the leases and other real estate documents reviewed by counsel.

National Park Service Issues Draft Environmental Impact Statement on Susquehanna-Roseland 500kV Transmission Line

NPS Draft EIS for Roseland Update: The National Park Service has now published the Final Environmental Statement on the project. See our September 1, 2012 post for updated information.

The National Park Service has published its Draft Environmental Impact Statement (DEIS) for construction and right-of-way permit as requested by Pennsylvania Power and Light Electric Utilities Corporations (PPL) and Public Service Electric and Gas Company (PSE&G), in connection with their proposed Susquehanna-Roseland transmission line.  The project is more fully described in our previous post of January 21, 2010.

The National Park Service found that PPL's proposed route and all alternatives that would cross the Delaware Water Gap National Recreation Area would have adverse environmental impacts.  The DEIS concludes that the environmentally preferred alternative is "no action": to deny the request for the right of way and construction permit.

A public comment period including public meetings has started and will end on January 31, 2012. Comments can be submitted electronically at the NPS Planning, Environment and Public Comment page.

Three public hearings (6:00-9:00pm) will be held:

Tuesday, January 24, 2012 (snow date 1/31 if required) Fernwood Hotel and Resort U.S. 209 Bushkill, PA 18324

Wednesday, January 25, 2012 (snow date 2/1 if required) Stroudsmoor Country Inn - Ridgecrest RD#4 Stroudsmoor Road Stroudsburg, PA 18360

Thursday, January 26, 2012 (snow date 2/2 if required) Farmstead Golf and Country Club 88 Lawrence Road Lafayette, NJ 07848

EPA Orders Coal-Fired Portland Generating Station to Reduce Sulfur Dioxide Interstate Air Pollution

Portland Generating Station
Portland Generating Station

The U.S. Environmental Protection Agency has ordered the coal-fired Portland Generating Station in Northampton County, PA to put an end to its interstate air pollution. In a 95-page decision issued on October 31, 2011, EPA ordered the plant, operated by GenOn REMA LLC (GenOn Energy), to reduce its sulfur dioxide emissions by 81 percent within three years.  The decision also establishes interim emission rate limits which the plant must meet within one year. The decision constitutes final rulemaking, and adds a new rule at 40 C.F.R. Section 52.2039. It has been reported that this is the first EPA rulemaking directed at a single pollution source. 

The EPA found that emissions of sulfur dioxide (SO2) from the Portland plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The decision provides a detailed analysis of EPA's authority under Section 126 of the Clean Air Act to provide a remedy to downwind states subjected to pollution from out-of-state sources.  It also reviews the emissions data, air pollution dispersion modeling, available control technologies, and other technical issues supporting its decision.

UPDATE: The EPA decison was published in the November 7, 2011 Federal Register (76 Fed. Reg. 69052, et seq.) and is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-07/pdf/2011-28816.pdf.

EcoWatch: New National Environmental News Service

EcoWatch has launched its new national news service in partnership with Waterkeeper Alliance, the first media source to focus exclusively on news from more than 700 environmental organizations across the country. EcoWatch offers original content in its Insights column from national leaders in the environmental movement. It will provide nationwide and state-by-state environmental news, and content in five major areas: water, air, food, energy and biodiversity.

“The current assault on America’s environmental laws, like the Clean Water Act, creates a pressing need to educate and engage people to protect our infrastructure, the air we breathe, the water we drink, to provide our children with the same opportunities for dignity and enrichment as our parents gave us,” said Robert F. Kennedy, Jr. founder and president of Waterkeeper Alliance. “This website encourages people to be part of the solution and engage in democracy.”

The site is well-designed and content-rich, offering objective information and deep insight from voices we need to hear.

Chrin Landfill Agrees to Pay $114,00 DEP Fine for Odor & Air Violations

DEP Logo copy Chrin Brothers Sanitary Landfill has agreed to pay a $114,000 fine to the Pa. Department of Environmental Protection for odor, air pollution and waste management violations, according to an article in the Express-Times (Easton, PA).  It also agreed to withdraw an appeal of the fine which had been pending before the state Environmental Hearing Board. (We reported that appeal in our post of January 31.) In addition to paying the fine, Chrin also agreed to improve its waste and odor management practices. According to the article by reporter Colin McEvoy, "Chrin said the landfill will adopt new off-site odor-minimization procedures and implement twice-daily patrols to monitor the landfill perimeter for potential odors. The company will also instruct its haulers on proper management of particularly odorous loads to avoid problems during disposal, he said, and will deploy a rapid-response team to inspect those loads whenever they are accepted."  Chrin also agreed to give up any further appeal rights.

National Research Council Issues New Report: "America's Climate Choices"

The National Research Council released today a new report, "America's Climate Choices", the final volume of the "America's Climate Choices" suite of activities. The report examines the nation’s options for responding to the risks posed by climate change. The report concludes that it is imprudent to further delay actions to substantially reduce greenhouse emissions, and offers a series of recommendations for national policy.  The primary recommendation is for the nation to substantially reduce greenhouse gas emissions, with the "most effective strategy" to "begin ramping down emissions as soon as possible". The NAS recommendations also include mobilization for adaptation to climate change, including adaptation planning and implementation "at all levels of society".  

A PDF of the entire report can be downloaded for personal use.  It will make sobering reading.