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Environmental Regulation of Real Property

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Nicholas A. Robinson, Kevin Anthony Reilly


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Environmental Regulation of Real Property enables you to anticipate and solve a wide range of environmental law problems. It not only offers in-depth analysis of federal environmental statutes having a bearing on land use, but also looks closely at rules imposed by state and local governments. The book covers the entire field of environmental law—from protecting air and water quality to preserving wildlife habitats and landmarks—including constitutional law, real estate law, litigation and corporate transactions.

You'll find detailed coverage of such topics as: when environmental regulation amounts to a constitutional taking; the use of environmental impact statements; hazardous waste control; state and local control of real estate development; protection of water courses, aquifers and drinking water; preservation of agricultural land and historic sites; the relationship between real property taxes and environmental land use controls; and conducting due diligence reviews and environmental audits.

Book #00575; looseleaf, two volumes, 1,662 pages; published in 1982, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-016-6


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 1662
  • ISBN: 978-1-58852-016-6
  • Pub#/SKU#: 575
  • Volume(s): 1

Author Image
  • Nicholas A. Robinson
Nicholas A. Robinson is the Gilbert & Sarah Kerlin Distinguished Professor in Environmental Law at the Pace University School of Law. Former Deputy Commission and General Counsel of New York's Department of Environment Conservation, Prof. Robinson established Pace's nationally ranked environmental legal education programs and has practiced and taught environmental law for more than 35 years. He is a graduate of Brown University and of Columbia University Law School.

He has served as General Counsel to the New York State Department of Environmental Conservation and was legal advisor to the World Conservation Congress in Switzerland from 1996-2004.



Author Image
  • Kevin Anthony Reilly
Kevin Anthony Reilly received his J.D. from St. John's University School of Law, his LL.M. in Environmental Law from Pace Law School, and he pursued doctoral studies in History at the City University of New York. He is a principal appellate court attorney with the New York State Supreme Court, First Department, and an adjunct professor of law at St. John's University School of Law, where he teaches, among other courses, Land Use Planning and Environmental Law courses. He is past Chair of the New York State Bar Association's Environmental Law Section, former Editor of the Section's Journal, the New York Environmental Lawyer, and co-author of Understanding Environmental Law (LexisNexis). Mr. Reilly also writes the annual Commentaries analyzing New York's Environmental Conservation Law for McKinney's Consolidated Laws of New York (Thomson West). Presently he is a member of the Planning Board of Ridgewood, New Jersey, and was a former long-term elected member of the Board, chairman of the Lawyers' Committee, and presently a member of the Land Management Committee, of the Breezy Point Cooperative, Inc., a seaside community adjacent to the Gateway National Recreation Area.

VOLUME 1

CHAPTER 1
Introduction

§ 1.01 Purpose of Text
§ 1.02 Users Guide
§ 1.03 The Federal Statutory Context for State Environmental Regulation
[1] The Clean Air Act
[2] The Clean Water Act
[3] Solid and Hazardous Wastes
[4] Other Federal Statutes
§ 1.04 Legal Ethics and Environmental Regulation of Real Property

CHAPTER 2
Natural Constraints on Development

§ 2.01 Scope
§ 2.02 Introduction
§ 2.03 Basic Elements of Ecology and Natural Science
[1] Biosphere
[2] Basic Systems
[3] Biomes
[4] Physical Constraints
§ 2.04 Activity Injurious to Natural Systems
§ 2.05 Inventory Techniques for Identifying Ecosystem and Natural Resource Problems
§ 2.06 Finding the Facts
[1] Literature and Reports
[2] Consultants
[3] Government Sources

CHAPTER 3
Constitutional Environmental Law

§ 3.01 Scope of Issues
§ 3.02 The Commerce Clause
[1] Authority for Federal Environmental Law
[2] Invalidating State or Local Environmental Laws as Burdens on Interstate Commerce
§ 3.03 Federal Versus State Jurisdiction
[1] The Supremacy Clause
[2] Abstention; Doctrine of Primary Jurisdiction
§ 3.04 Regulatory Takings Under the Fifth Amendment
[1] Introduction
[2] Federal Constitutional Jurisprudence
[3] State Appellate Court Jurisprudence
§ 3.05 Due Process and Equal Protection
[1] Notice
[2] Opportunity to Be Heard
[3] Equal Protection
§ 3.06 General Welfare
§ 3.06A Entry and Search of Private Property in Furtherance of Environmental Regulation and Enforcement
§ 3.07 State Constitutions
[1] General Considerations
[2] Types of Constitutional Provisions
[3] Environmental Aspects of Housing Equity
§ 3.08 Limits Imposed by the Eleventh Amendment
§ 3.08A First Amendment Aspects of Environmental Regulation and Enforcement
[1] Aesthetics, Signs and Speech
[2] Interference with, or Accommodation of, Religious Practices
[3]  The Right to Petition Government: Retaliatory Governmental Actions and the First Amendment
§ 3.09 Standing
[1] Prudential Considerations
[2] Standing to Intervene

CHAPTER 4
Environmental Impact Assessment

§ 4.01 Scope
§ 4.02 Uses of Environmental Assessments
§ 4.03 The Statutory EIS Requirement
§ 4.04 EIS Regulations
[1] Role of CEQ Regulations
[2] CEQ Regulations
[3] Function of Agency Regulations
[4] Federal Agency Contacts
[5] SEPA Regulations
[6] Coordinating Federal/State Environmental Reviews
§ 4.05 Environmental Impact Assessment Procedures
[1] Threshold Determination: Is an EIS Required?
[2] Decisions to Prepare an EIS
[3] Decision to Prepare a Supplemental EIS
[4] Contents of an EIS
[5] Procedures for Preparing an EIS
§ 4.06 Environmental Permits and EIS Procedures
§ 4.07 NEPA Challenges
[1] Standing to Commence a NEPA Action
[2] Statute of Limitations for NEPA Actions
[3]  Attorney’s Fees
§ 4.08 Comparative and International EIA
[1] Canada
[2] Mexico
[3] International Aspects

CHAPTER 5
Critical Area Controls

§ 5.01 Scope
§ 5.02 Environmental Controls Distinguished from Zoning
§ 5.03 Defining “Critical”
[1] Physical Constraints
[2] Ecosystems
[3] Historic and Cultural
[4] Combination of Elements
[5] Buffer Zones
[6] Bases for Designation
§ 5.04 Models and Concepts for Critical Area Laws
§ 5.05 State Critical Area Regulatory Programs
[1] States Adopting the ALI Model Land Development Code
[2] Critical Area in Regional Planning Authorities
§ 5.06 Critical Areas for Federal Public Lands
§ 5.07 Critical Areas in Coastal Zones
[1] Coastal Zone Management Act Areas
[2] Coastal Barrier Resources
§ 5.08 Environmental Land Use Controls as Critical Area Regulation

CHAPTER 6
Historic and Archeological Sites

§ 6.01 Scope
§ 6.02 Evolution of Controls
[1] Background Developments
[2] Relationship to Environmental Law
[3] Definitions of “Historic”
§ 6.03 Private Land Use Controls
§ 6.04 Municipal Ordinances
[1] Preservation Ordinances
[2] Transfer of Development Rights
[3] Acquisition and Eminent Domain
§ 6.05 Federal Laws for Historic and Archeological Sites
[1] National Historic Preservation
[2] State and Local Government Under the National Historic Preservation Act
[3] Federal Income Tax Incentives
[4] Federal Agency Constraints to Protect Historic and Archeological Sites
[5] Regulation of Historic and Archeological Sites in Surface Mining Law
§ 6.06 State Historic Preservation Laws

CHAPTER 7
Aesthetic Controls

§ 7.01 Scope
§ 7.02 Historical Origins of Regulation of Aesthetics
§ 7.03 Aesthetic Controls and the Regulation of Signage, Generally
[1] Scope of Regulation
[2] Police Power Regulation of Billboards and Signs
[3] Environmental Effects of Signs and Billboards
§ 7.04 Legal Roadside Controls
[1] State and Local Control
[2] Illustrative State Controls: New York State
[3] Federal Controls
§ 7.05 Recycling Beverage Containers
[1] Litter Controls
[2] Local Ordinances
[3] Constitutional Challenges
[4] State Statutes
§ 7.06 Tree Protection Ordinates
[1] History and Overview
[2] Tree Protection Ordinances in New York
[3] Alternatives to Tree Ordinances
[4] Types of Private Property Covered by Regulations
[5] What Is a Tree and What Trees Are Covered
[6] Clear Cutting and Density Provisions
[7] Generic Characteristics of Tree Ordinances
§ 7.07 Architectural Controls
§ 7.08 Environmental Impact Assessment of Shadows
§ 7.09 Siting Telecommunications Towers

CHAPTER 8
Noise Controls

§ 8.01 Scope
§ 8.02 Noise Regulation in Land Use Controls
§ 8.03 Factual Basis for Regulation
[1] The Effects of Excessive Sound on Human Health
[2] Economic Effects of Excessive Sound
[3] Defining Noise
§ 8.04 Substantive Law of Noise Pollution
[1] Common Law
[2] Federal Regulation
[3] State Regulation
[4] Local Regulation
§ 8.05 Environmental Impact Assessment of Noise

CHAPTER 9
Solar Energy Access

§ 9.01 Scope
§ 9.02 Noise Regulation in Land Use Controls
[1] Active Solar Systems
[2] Passive Solar Systems
[3] Land Use Implications of Solar Energy Use
§ 9.03 Providing for Solar Access
[1] Private Property Restrictions
[2] Title Insurance for private Solar Access Property Interests
§ 9.04 Governmental Controls
[1] State Provisions for Solar Access
[2] Local Government Controls
§ 9.05 Tax Incentives and Implications

CHAPTER 10
Flood Plain Controls

§ 10.01 Scope
§ 10.02 Impetus for Flood Controls
§ 10.03 Factual Basis for Regulation
[1] Persons Regulated
[2] Federal Agency Flood Plains Management
§ 10.04 Synthesis of Flood Plain Land Controls
[1] Overview of the Structure of the National Flood Insurance Program
[2] Identification of Flood Hazard Areas
[3] Emergency and Regular Aspects of the National Flood Insurance Program
[4] Land Use Controls
[5] Vacation Homes
[6] Mobile Homes
[7] Sanctions in Identified Flood Hazard Areas Not Covered by the National Flood Insurance Program
[8] Appeal Procedure
[9] Constitutional Considerations
[10] State Implementation
[11] Flood Insurance Claims Adjudication

CHAPTER 11
Wetlands

§ 11.01 Scope
§ 11.02 Natural Functions of Wetlands
§ 11.03 State Wetlands Acts
[1] State Laws Stricter than Federal
[2] Constitutionality of State Acts
[3] Extent of State Regulation
[4] Regulated Activities
[5] Enforcement
§ 11.04 Federal Wetlands Controls
[1] Scope of Federal Controls and Constitutionality
[2] Extent of Federal Controls
[3] Regulated Activities
[4] Mitigation Banks

CHAPTER 12
Watercourses

§ 12.01 Scope
§ 12.02 Water Systems and Typical Controls
[1] Streams and Lakes: Water Quality Standards
[2] Effluent Limitations for Streams and Lakes: the National Pollution Discharge Elimination Program Under the Clean Water Act
[3] Publicly Owned Treatment Works (POTWs)
[4] Area-Wide Controls
[5] Shore Stabilization
[6] Stream Protection
[7] Wild and Scenic Rivers
[8] Water Bodies and Wilderness Areas
§ 12.03 Areawide Controls on Land-Based Water Contaminant
[1] Urban Storm Runoff
[2] Agriculture/Silvaculture
[3] Animal Feeding Operations
[4] Ground Water Contamination
[5] Construction Runoff
[6] Mining
[7] Small Alternative Wastewater Systems
§ 12.04 Industrial Siting and Discharges
[1] Stormwater
[2] Pretreatment of Liquid Wastes
[3] Access to Premises and Information
[4] Restrictions on Disclosure of Confidential Information
§ 12.05 Utilities and Power Plants
§ 12.06 Septic System Controls
§ 12.07 Citizen Suits in Connection With Violations of NPDES or SPDES Permits

CHAPTER 13
Aquifer Protection

§ 13.01 Scope
§ 13.02 Ground Water Contamination
§ 13.03 Ground Waters as Property Rights
§ 13.04 Government Regulation of Ground Waters
[1] Indirect Regulation: The Environmental Review Process
§ 13.05 Remedies for Aquifer Contamination
[1] Toxic Dump Contamination

CHAPTER 14
Drinking Water Quality Regulation

§ 14.01 Scope
§ 14.02 Historical Background
§ 14.03 Generic Drinking Water Quality Issues to Be Considered for Development of Real Estate
§ 14.04 Safe Drinking Water Act
[1] Overview
[2] Persons Regulated
[3] Implementation of the Safe Drinking Water Act
§ 14.05 Other Federal Laws Governing Drinking Water
§ 14.06 Land Use Implications

VOLUME 2

CHAPTER 15 Prime Agricultural Land
§ 15.01 Scope
§ 15.02 Loss of Prime Agricultural Lands
§ 15.03 State Tax Controls to Maintain Agricultural Lands
§ 15.04 State and Local Farm Zoning Controls
§ 15.05 Federal Farmland Protection
[1] Preservation of Farmland
[2] Soil Conservation

CHAPTER 16
Air Resources and Land Use

§ 16.01 Scope
§ 16.02 Air Pollution Problems and Controls
[1] Public Health
[2] Air Quality Control Areas
[3] Non-Attainment Areas Designated for Stricter Controls
[4] Interstate Transportation Regions
[5] Rural Transportation Areas
[6] CFC/Stratospheric Ozone Controls
§ 16.03 Land Use Controls
[1] Clean Air Act Overview
[2] Controls In Non-Attainment Areas
[3] Toxic Emissionsand Hazardous Air Pollutants
[4] Acid Rain Controls
[5] Stratospheric Ozone
[6] Organic Air Emissions from Tanks, Surface Impoundments and Containers
§ 16.04 Transportation Control Plans
§ 16.05 Prevention of Significant Deterioration
§ 16.06 Marketable Emissions Permits
§ 16.07 Access to Premises and Information
§ 16.08 Industrial Facilities Checklist

CHAPTER 17
Coastal Zone Management

§ 17.01 Scope
§ 17.02 Coastal Issues
§ 17.03 Environmental Coastal Land Use
§ 17.04 Coastal Zone Management Law
[1] Overview of the Coastal Zone Management Act of 1972
[2] Management Program Development Grants
[3] Administrative Grants
[4] Coastal Zone Management Fund
[5] Coastal Zone Management Improvement Act of 1980
[6] Coastal Zone Act Reauthorization Amendments of 1990
[7] Federal Approval of State Programs
§ 17.05 State of Implementation of Coastal Laws
[1] State Coastal Legislation
[2] California’s Coastal Act of 1976
[3] Connecticut
[4] New Jersey
[5] New York
[6] North Carolina
[7] South Carolina
§ 17.06 Coastal Erosion
[1] Scientific Basis for Coastal Erosion Controls
[2] Coastal Controls in Response to Erosion
[3] Development Controls on Coastal Natural Features
§ 17.07 Coastal Nonpoint Source Pollution Controls

CHAPTER 18
Regional Land Use Controls

§ 18.01 Scope
§ 18.02 Patterns of Regional Controls
[1] Regions Within States
[2] State-wide Controls
[3] Interstate Regional Controls
§ 18.03 The Adirondack Mountains (New York)
[1] Creation of the Adirondack Park Agency
[2] Judicial Acceptance of the Adirondack Land Use Controls
§ 18.04 The Pinelands (New Jersey)
[1] Description of the Pine Barrens
[2] Federal Legislation: The National Parks and Recreation Act of 1978
[3] State Legislation: Pinelands Protection Act of 1979
[4] Land Use Management Programs
§ 18.05 Regulation of Land to Control Water Quality
[1] Lake George Commission
[2] Lake Tahoe Commission
[3] Great Lakes Water Quality Agreement
§ 18.06 Nonmandatory Regional Planning: Hudson River Valley Greenway (New York)
§ 18.07 Regional Controls and the Need for a Master Plan: The Long Island Pine Barrens (New York)

CHAPTER 19
Real Property Taxes and Environmental Land Use Controls

§ 19.01 Scope
§ 19.02 Assessing Realty Under Environmental Controls
[1] New York Assessments
§ 19.03 Environmental Exemptions from Real Property Taxation
[1] Exemptions in New York State
§ 19.04 Pollution Taxes and Land Use

CHAPTER 20
Energy Implications

§ 20.01 Scope
§ 20.02 Overview of Energy Policy
§ 20.03 Siting Electric Power Plants and Transmission Lines
[1] Regulatory Considerations in General
[2] Effects on Property Values
§ 20.04 State Utility Commission Efficiency Rulings
[1] Regulatory Methods for Incorporation Environmental Costs
[2] State Regulatory Programs

CHAPTER 21
Siting New Developments and Modifying or Expanding Existing Uses

§ 21.01 Scope
§ 21.02 Natural Resource Inventory
§ 21.03 Design with Nature
[1] Guiding Principles for Development
[2] Residential
[3] Office Parks
[4] Retail Commercial and Shopping Centers
[5] Industrial Siting
[6] Highway Siting and Construction
§ 21.04 Integrating Independent Environmental Regulations through Impact Assessment Procedures
§ 21.05 State Siting Laws
§ 21.06 Disclosures and Opinion Letters for Development Financing
§ 21.07 Environmental Audits
§ 21.08 The Use of RICO to Create Civil Liability in Environmental Regulation Cases

CHAPTER 22
Hazardous Materials and Wastes

§ 22.01 Scope
§ 22.02 Hazardous Waste Treatment, Storage and Disposal Facilities: Regulations
[1]  General Regulation
[2]  Definition of Hazardous Waste
[3]  Generators
[4]  Transporters
[5]  Treatment, Storage and Disposal Facilities
§ 22.03 Enforcement Against RCRA-Regulated Facilities
[1]  Violations
[2]  Imminent Hazards: Abatement Orders
§ 22.04 Oil Spills and Petroleum Contamination
[1]  The Clean Water Act
[2]  The Oil Pollution Act
[3]  State Legislation
§ 22.05CERCLA Liability and Response
[1] Statutory Liens on Title to Contaminated Realty
[2] Responding to Hazardous Waste Sites
§ 22.06  Responsible Parties under CERCLA
[1]  Generators
[2]  Owners and Operators
[3]  Transporters
[4]  Parties That “Arranged for” Disposal, Treatment or Transport of Hazardous Substances
[5]  Persons Who Arrange for Recycling; Exemption
[6]  Liability of Fiduciaries
[7]  Lender Liability
§ 22.07  Extent of CERCLA’s Reach
[1]  Strict, Joint and Several Liability
[2]  Superfund Cleanups, the National Contingency Plan, and the National Priorities List
[3]  Retroactivity of CERCLA
§ 22.08  CERCLA Litigation Among Responsible Parties
[1]  Contribution
[2]  Equitable Allocation of Costs
[3]  Settling Party’s Protection Against Contribution Claims
[4]  Indemnification Agreements: Effective as Contracts, but Ineffective as CERCLA Claims
§ 22.09  CERCLA Defenses
§ 22.10  Emergency Preparedness and Community Right to Know (EPCRA)
§ 22.11  Citizen Suits
[1]  Basis for Citizen Suits
[2]  Available relief
[3]  Citizen Suits Barred
§ 22.12  Common Law Liability
[1]  General Considerations
[2]  Common Law Liability and Punitive Damages
[3]  Federal Governmental Responsibility for Environmental Torts
§ 22.13  Natural Resource Damage

CHAPTER 22A
Toxic and Hazardous Materials Affecting Use of Real Property

§ 22A.01 The Toxic Substances Control Act
[1] Regulated Substances
[2] Informational Requirements
[3] Testing Requirements
[4] Notice Requirements: New Chemical Substances or New Uses
[5] Regulatory Options
[6] Imminently Hazardous Substances
[7] Adverse Effects on Health or the Environment
[8] Enforcement
§ 22A.02 Asbestos in Schools and Other Buildings
[1] Hazardous Attributes of Asbestos
[2] Schools: TSCA Regulation
[3] Abatement Requirements at Asbestos-Contaminated Sites
[4] Work Environments: OSHA Regulation
[5] State and Local Regulation of Asbestos
[6] Recommendations for Property Owners and Employers
§ 22A.03  Polychlorinated Biphenyls
§ 22A.04 Radon
§ 22A.05 Lead
[1] Hazardous Attributes of Lead
[2] The Ban on Leaded Gasoline: the Clean Air Act
[3] Lead as a Toxic Substance: TSCA Regulation
[4] Residential Lead-Based Hazard Reduction Act

CHAPTER 23
Solid Waste

§ 23.01 Scope
§ 23.02 Solid Waste and Land Use
§ 23.03 Solid Waste Management Plans
[1] Federal Plans
[2] State Plans
[3] Antitrust Law Elements
§ 23.04 Garbage and Landfills
[1] Local Regulatory Authority
[2] Local Regulation of Solid Waste Disposal: Effect of the Commerce Clause
[3] Flow Control Ordinances and Their Impact on Interstate Commerce
[4] Federal Regulation of Municipal Solid Waste Landfills
§ 23.05 Recycling
[1] In General
[2] New York City’s Recycling Program: A Model for Large Municipalities
§ 23.06 Incineration and Resource Recovery
[1] Air Emission Requirements
[2] Environmental Impact Assessment
[3] Solid Waste Controls

CHAPTER 24
Regulation and Conservation of Wildlife and Their Habitats

§ 24.01 Scope
§ 24.02 Jurisdiction Over Wildlife
[1] Primary Jurisdiction Reserved to States
[2] Tribal Regulation of Hunting and Fishing
§ 24.03 State Urban/Suburban Wildlife Programs
§ 24.04 Regulation of Conduct and Habitat
[1] Fish and Game Laws
[2] Endangered Species
[3] Migratory Birds
[4] Other Federal Wildlife Preservation Laws
[5] Invasive Species
§ 24.05 Habitat Evaluation and Protection
[1] Environmental Impact Assessment
[2] Pollution Control
§ 24.06 Habitat Management
[1] Ecosystem Management
[2] Incentives for Voluntary Conservation of Wildlife Habitat
§ 24.07 Federally Protected Wilderness Areas, Wildlife Refuges and Other Preserves and Sanctuaries
[1] National Wildlife Refuges
[2] Wildlife Restoration Projects
[3] Game and Bird Preserves
[4] National Wilderness Preservation System
[5] Marine Sanctuaries

CHAPTER 25
Environmental Due Diligence for Real Estate Transactions

§ 25.01 Introduction
§ 25.02 The Rational for Due Diligence Review and Environmental Audits
§ 25.03 Legal Objectives
[1] Hazardous Waste Clean-up Liability
[2] Innocent Purchaser Defense
[3] Criminal Liability
[4] State Notification Requirements
[5] Federal and State Resource Conservation and Recovery Act Notification Requirements
[6] Liens
[7] Common Law Liability
[8] Environmental Use Constraints
[9] Valuation
§ 25.04 Due Diligence Reviews and Environmental Audits
[1] Pre-Audit Procedures
[2] Phase I Review
[3] Phase II Reviews
[4] Environmental Audits
[5] Risk Allocation

Index