Over the course of the last century, New York has created numerous laws, commissions, and government agencies to protect public health and the state's natural resources.⁽³⁾ Much of this responsibility now lies with the New York State Department of Environmental Conservation -- the DEC. But the DEC is only one player in an elaborate regulatory scheme that involves the federal government, the state, regional bodies, local governments, non-profits, regulated entities, and citizens. To truly understand environmental policy and politics in New York, it is essential to understand the intergovernmental dynamics governing environmental policy making and program implementation, and the underlying environmental legal framework.

As we close out the 1990's, it is the states which find themselves at the center of environmental program implementation in America. However, until roughly the turn of this century, responsibility for environmental protection rested primarily with local governments. They were in charge of ensuring the adequacy of water supplies, protecting public health, and controlling public nuisance. The federal role in environmental policy began around 1890, but was primarily limited to issues of natural resource management -- agriculture, mining, timber, western land development, water supplies, and wildlife conservation⁽⁵⁾.

In the late 1960's, this began to change. Public concern for environmental protection was on the rise and the public demanded more action to stop pollution. Growing national concern was reflected in the rise of conservation groups such as the Sierra Club and Friends of the Earth, which were becoming increasingly visible and powerful. These social and political forces culminated in 1970 with the first Earth Day, the creation of the U.S. Environmental Protection Agency (the EPA), and the passage of the landmark National Environmental Policy Act (NEPA).

In response to public pressure, Congress followed NEPA with a series of laws to protect the air and water.⁽⁶⁾ These early national environmental laws were enacted with a strong federal focus because public concern for the environment was widespread, the regulated community demanded that requirements be fairly consistent across states, and, at the time, most state environmental protection programs were not well developed. Over the last three decades, Congress has passed more than a dozen major pieces of environmental legislation.⁽⁷⁾

The dramatic growth in federal environmental responsibilities did not come without opposition. Concerns over states' rights and the cost of federal environmental mandates have prompted several attempts to scale back federal involvement in environmental protection.  Perhaps the most successful of such attempts was initiated by the Reagan Administration. Reagan's philosophy of "New Federalism" sought to decentralize and defund federal programs and activities and shift responsibility back to the states.⁽⁸⁾

Under plans laid out by then EPA Administrator Ann Gorsuch and Secretary of the Interior James Watt, new federal regulations would be delayed or eliminated; federal natural resources would be sold or utilized; environmental grants to the states would be eliminated within five years; and federal environmental programs would be rapidly delegated to the states.⁽⁹⁾ The theory, according to James Watt, was that "greater cost sharing would diminish the demands for federal involvement in many [environmental] programs."⁽¹⁰⁾

In many ways, this program was very successful. During Reagan's tenure, significant new responsibilities for environmental program implementation were transferred to the states. Between January 1981 and October 1982 the number of environmental programs delegated to states increased from 33 percent of eligible programs to 56 percent -- a 70 percent increase.⁽¹¹⁾ At the same time, federal funds for state programs were dramatically reduced. Between 1980 and 1981, EPA grants to the states were cut by more than 50 percent from $6.8 billion to $3.1 billion (constant 1995 dollars).⁽¹²⁾

Federal funds now account for a much smaller portion of state environmental spending than when Reagan took office in 1980. According to the Congressional Budget Office, in 1982, federal funds accounted for 49 percent of state air and water budgets, and 76 percent of state solid and hazardous waste budgets.⁽¹³⁾ By 1996, federal funds only accounted for 25 percent of all state spending to operate environmental protection programs.⁽¹⁴⁾

A backlash against the Reagan administration's efforts to scale back federal environmental activity resulted in the passage of new federal environmental laws and amendments to existing laws. Several of these laws were "self-implementing", requiring little or no regulatory development by the EPA. Others contained "hammer provisions" -- i.e., obligations which went into effect if the EPA failed to adopt regulations within specified time frames.⁽¹⁵⁾ These laws greatly reduced federal and state policy making flexibility and did little to reverse the decline in federal financial support for environmental protection.⁽¹⁶⁾

At least as important as the changed nature of the pollution problem are the political and financial considerations that are motivating the states to demand more policy-making control. The vast majority of environmental legislation passed by Congress over the last 30 years was designed to be implemented by the states.⁽²³⁾ In fact, it is because these programs were designed to be run by the states that many states developed and expanded their environmental protection and regulatory infrastructures.⁽²⁴⁾

New York also has a long history of innovation in environmental protection. At the end of the 19^th century, the state undertook one of the earliest and most aggressive attempts ever made at ecosystem protection. By the late 1800's, much of the state had been left barren by lumbering; only 25 percent remained forested. The potential destructive effect of deforestation on canals and watersheds was of great concern to state officials.⁽³²⁾ In response, the state created several commissions to protect and restore these resources. In 1872, New York created a Commission of State Parks to begin protecting state lands.⁽³³⁾ This was followed in 1885, by the creation of a Forest Commission, established to protect the Adirondack and Catskill Forest Preserves.⁽³⁴⁾

In 1892, seven years after creating the Forest Preserves, the state established the Adirondack Park to be "forever reserved, maintained, and cared for as open ground for the free use of all the people...and as timber supply." Because of fears that state law was insufficient to protect the Preserves, voters incorporated the "forever wild" clause into the 1894 state constitution, the only such provision in any state Constitution.⁽³⁵⁾

In 1911, concerns about the number of environmental commissions and bureaus prompted the creation of a new Conservation Department to centralize many water and natural resources protection functions. The Department was run by a Conservation Commission made up of three members. It was divided into three divisions -- Lands and Forests, Fish and Game, and Inland Waters. In 1925, it was reorganized into the "new" Conservation Department which was headed by a single commissioner. In 1926, further reorganization added two new divisions: Parks and Water Power and Control.⁽³⁶⁾

The reorganization could have occurred in many ways. But early on, the governor decided to concentrate the majority of environmental responsibilities in the Conservation Department, hoping that the reorganization would refocus the Department's attention on overall natural resource problems, rather than on the special interests of fish and game clubs, forest producers, and so forth. Election year politics was also a factor in the 1970 reorganization. The Governor was keenly aware of the growing political power of the environmental movement. He saw the creation of a unified environmental protection agency as a way to illustrate his commitment to environmental issues.⁽⁴¹⁾

The law establishing the Department of Environmental Conservation was enacted on the first Earth Day, April 22, 1970.⁽⁴²⁾ It took effect on July 1. The new Department took over the functions of the Water Resources Commission and the Air Pollution Control Board; assumed water pollution control and solid waste from the Department of Health; took pesticide control from Department of Agriculture and Markets; and gained all the responsibilities of the Natural Beauty Commission. It was also given all the responsibilities of the Conservation Department, except those of the Division of Parks. Parks became a separate division under the Executive Department. The Department of Health retained control over drinking water protection programs and watershed rules and regulations.⁽⁴³⁾ [See Figure 1]

Taken together, the new DEC inherited quite a menu of responsibilities: the protection of the state's air, land, and water resources; the management of most state-owned lands; the propagation and management of fish and aquatic life; the promotion of agricultural and forest land and open space; oversight of the forest preserve; and also an extensive public education program. But it gained sweeping new responsibilities and powers as well, such as developing and promulgating regulations to protect the state's resources from pollution and degradation; assessing new technologies to identify long-range environmental impacts and mechanisms to minimize those impacts; and promoting social and economic growth in the state.

As broad as the mission was in 1970, the Department's responsibilities have grown dramatically over the last thirty years. Since 1970, the DEC has added or expanded responsibilities in the areas of hazardous waste management and remediation, solid waste management, pollution prevention, multimedia pollution control, nonpoint source pollution control, environmental quality review, acid rain control, greenway development, and global warming prevention.⁽⁴⁴⁾

The State Constitution stands at the pinnacle of New York's legal authorities. Its most prominent environmental provision is the "forever wild" statement contained in Article 14. Adopted more than a century ago in 1894, this provision mandates that The lands of the state . . . constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.⁽⁴⁷⁾

The Common Law is a second type of legal authority that has had significant impact on environmental protection efforts in the State. Common law is judge-made law. This distinguishes it from statutory law which is enacted by the legislature. Common law causes of action, such as private and public nuisance, enjoy a rich history that reaches back centuries.⁽⁴⁸⁾ The case books are full of legal decisions that determine which types of insults to our environment are actionable.⁽⁴⁹⁾ In this way, the courts have played a significant role in defining the scope of the governments' power to regulate conduct that may adversely impact others or the environment. It also has helped define the ability of affected individuals to halt such conduct or receive compensation for it.⁽⁵⁰⁾

Environmental Statutes. The third branch of "environmental law" is comprised of statutes the legislature has enacted to establish state environmental policy. As previously mentioned, the body of such law has expanded dramatically over the past quarter-century. As the authors of a leading environmental law casebook put it, "[i]n less than 30 years, environmental law has grown from sparse common law roots into a vast system of public law that lies at the heart of the modern regulatory state."⁽⁵¹⁾

While the state legislature has been quite active in enacting environmental laws which respond to particular environmental concerns,⁽⁵²⁾ it has also enacted two articles of the Environmental Conservation Law (ECL) with a more general orientation. These articles, 1 and 3 of the ECL, provide the state with overall direction in its environmental protection efforts. As an example, Article 1-0101 provides that it is the State's policy to "conserve, improve and protect its natural resources and environment and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well being."⁽⁵³⁾ The broad nature of this policy statement raises the question of the extent to which these articles serve as independent sources of authority for the DEC; empowering it to act in situations where the agency lacks authority under a specific state environmental law.⁽⁵⁴⁾

Agency Regulation. The fourth key type of legal authority is the body of regulations which agencies such as the DEC promulgate to help implement environmental statutes. Agencies adopt regulations to provide clarification and direction to staff, regulated parties, and interested citizens on the requirements of particular environmental policies. These rules are subject to judicial review and on occasion, the state's courts have invalidated an agency rule-making (For example, if, in the courts' view, an agency exceeded the scope of its authority as defined in the governing statute).⁽⁵⁵⁾ Nevertheless, the courts have generally been deferential to state agencies in reviewing the defensability of their rule-makings.⁽⁵⁶⁾

Because no amount of regulation can foresee every situation, agencies often rely upon internal policies and guidance documents to help in the application of the regulations. While "guidance documents" are not legally binding, they have enormous importance in the actual implementation of environmental law in the State. It is therefore important for anyone interested in understanding the content of a particular environmental law or how it is applied to identify and review any relevant "guidance" that has been developed.⁽⁵⁷⁾ The State Bar Association Environmental Law Section compiled an index of these documents in the early 1990s, which the Section periodically updates. In addition, the DEC is now required to publish an index of guidance documents in the Environmental Notice Bulletin each January.⁽⁵⁸⁾

Executive Orders. Executive Orders are issued periodically by governors to establish various State policies.⁽⁵⁹⁾ They require no legislative action and can affect state policy and program implementation. For example, Executive Order No. 20, issued by Governor Pataki in November 1995, establishes a Director of Regulatory Reform and empowers the Director to create an Office of Regulatory Reform and to participate actively in the rule-making and regulatory development process.⁽⁶⁰⁾
 

DEC's obligations in the rule-making arena derive largely from Article 2 of the State Administrative Procedures Act (SAPA). This act imposes two different types of responsibilities on the Department. First, it requires the DEC, as well as a handful of other agencies, to prepare and publish semiannual "regulatory agendas" in the State Register. These agendas consist of "a list and brief description of subject matter being considered for rule-making."⁽⁶²⁾ This requirement is intended to encourage DEC to articulate possible topics for rule-making activity and enhance transparency in government (i.e., allow the public to know what its government is doing). To date, the legislature has not required the covered agencies to adhere rigidly to these agendas. Consequently, while the agendas are a potentially important tool for those interested in monitoring agency activities, covered agencies are free to refine their rule-making plans over the course of the year.

SAPA also establishes the "nuts and bolts" of the process agencies must follow in developing and finalizing regulations. SAPA requires agencies to provide public notice of proposed rules and to allow for, and consider, public comment.⁽⁶³⁾ Further, SAPA obligates agencies to undertake a number of evaluations of the impact of proposed rules, with the list of such evaluations having grown dramatically in recent years. For example, an agency seeking to propose a rule generally must prepare the following documents:

A Regulatory Impact Statement -- requiring consideration of, among other things, "approaches which are designed to avoid undue deleterious economic effects.";

A Regulatory Flexibility Analysis -- requiring consideration of approaches that will "minimize any adverse economic impact of the rule on small businesses";

A Rural Area Flexibility Analysis -- requiring consideration of approaches that will "minimize any adverse impact . . . on public and private sector interests in rural areas"; and

A Job Impact Analysis -- requiring consideration of the proposed rule's impact on existing jobs and new employment opportunities.⁽⁶⁴⁾

DEC retains the authority to modify, suspend or even revoke permits under appropriate circumstances, such as persistent or egregious violations of permit requirements.⁽⁶⁸⁾ A party's failure to meet permitting obligations creates the possibility of permit revocation and facility shut-down. It could also lead to criminal prosecution, or civil sanctions, depending on the circumstances. In short, the stakes in the permitting process are quite high.

Every state and local government agency which issues permits is subject to the State Environmental Quality Review Act (SEQRA). Enacted in 1975, the "basic purpose of SEQR[A] is to incorporate the consideration of environmental factors into the . . . decision making processes of State, regional and local government agencies . . . ."⁽⁶⁹⁾ DEC's regulations implementing SEQRA provide that "[n]o agency involved in an action shall carry out, fund or approve [i.e., permit] the action until it has complied with the provisions of SEQR[A]."⁽⁷⁰⁾

The focal point of the SEQRA process is the Environmental Impact Statement (EIS).⁽⁷¹⁾ An EIS must, among other things, evaluate the environmental impacts of a proposed action, including assessing possible mitigation steps, and identify and analyze reasonable alternatives to the action.⁽⁷²⁾ The public has the right to comment on the draft EIS. The final EIS must contain a summary of, and response to, significant public comments.⁽⁷³⁾ If the project is approved, the permitting agency must issue a "findings statement" in which it concludes that the proposed action is approvable under SEQRA. This means that the agency has balanced the impacts of the project against the benefits it will produce, and is satisfied that the project will minimize environmental impacts to the maximum extent practicable.⁽⁷⁴⁾

Parties dissatisfied with the SEQRA process have used the State judicial system as a forum to bring a wide array of legal challenges against the offending agency action. As a result, a large body of judicial precedent has evolved establishing key features of the process and the judiciary's role in monitoring agency compliance with SEQRA's substantive and procedural requirements.

Criminal Enforcement. The legislature has determined that certain types of environmental violations warrant criminal prosecution. As it has amended the laws over the years, the trend has been to make the sanctions increasingly severe. Several of the state's environmental laws now allow for felony prosecutions which could result in jail time as well as significant fines.⁽⁷⁹⁾

Civil Enforcement. An alternative to criminal prosecution is the initiation of civil action in the state's courts. In a civil action, a civil complaint is filed against an alleged violator in State Supreme Court. The DEC typically refers such cases to the State Attorney General's office for filing. The amount of the potential penalty depends on a wide variety of factors, including the number of alleged violations, their duration, and the specific laws allegedly violated.

Administrative Enforcement. An alternative to both criminal and civil enforcement is the use of administrative enforcement powers to pursue an alleged violation and ensure that it is remedied. Doing so involves DEC staff's filing an administrative complaint with DEC's Office of Hearings and Mediation Services, the office housing the agency's administrative law judges (ALJ). If the case goes to hearing, DEC staff serve as "prosecutors" and the case is heard by an ALJ. It is ultimately decided by the DEC Commissioner. Alleged violators who are dissatisfied with the outcome have the right to appeal to the state courts.⁽⁸⁰⁾

In reality, the vast majority of violations never reach trial.7⁽⁸²⁾ The cases are generally resolved by agreement between the state and the violating party. The resolution may simply consist of oral direction from the DEC to the alleged violator indicating what must be done to come into legal compliance. Alternatively, the Department may issue a written "notice of violation," in which it outlines the alleged violation and directs the alleged violator to return to compliance. It may also negotiate a written agreement with an alleged violator committing that party to return to compliance.

However, the report concluded that despite many accomplishments, many environmental challenges remain. In the area of pollution control, the study found that point sources of pollution,⁽⁸⁵⁾ the focus of most environmental control programs, no longer constitute the major environmental challenge. Nonpoint sources of pollution are now the largest contributors to the state's pollution problem.⁽⁸⁶⁾ The sources of these contaminants are often widely diffuse, and are hard to control using traditional end-of-pipe approaches. Effective nonpoint source control depends greatly on the actions of numerous individuals and often requires broad public education to be successful. Other problems identified by the Rockefeller Institute, such as acid rain, global warming, and ozone control, are national and international in scope and cannot be solved by state governments in isolation.

These challenges are not unique to New York. The federal government, several states, and a number of private organizations are grappling with many of the same issues. The widespread change in the nature of the pollution problem have prompted some observers to call for less command and control regulation and more cooperative "compliance" related activities.⁽⁸⁷⁾ Others have called for more industry specific multi-media regulations and regulations specifically targeted to the protection of ecosystems.

The DEC, EPA and other environmental agencies responded to these calls with several efforts aimed at promoting multi-media pollution prevention and the protection of entire ecosystems.⁽⁸⁸⁾In New York for example, the ecosystem protection approach is being used to cleanup, regulate, and protect Lake Champlain, the Long Island Sound, the Great Lakes and the Hudson River Estuary. The DEC has also created a Pollution Prevention Unit and initiated multi-media inspections at several large facilities.

Despite these efforts however, moving from command and control to alternative regulatory systems is not as easy as it may seem. First, most federal and state environmental laws were written to address pollution problems as if they were created in isolation from one another. They do not easily allow for integration of information, money, or staffing resources.⁽⁸⁹⁾ Second, the level of scientific knowledge necessary for broad scale ecosystem protection is extensive and generally not available without a large public and private expenditure of funds; something which is unlikely to occur except with regard to the largest and/or most important ecosystems. Even assuming that the information and financial resources can be made available for these efforts, their success still greatly depends upon an effective public education campaign. Numerous industries and individuals must buy into the final regulatory protection plan for it to be successful.

In addition to pollution control challenges, the Rockefeller Institute study found that effective natural resources management remains a challenge in New York. A greater number of New Yorkers (and out-of-state visitors) are using state-owned resources for increasingly diverse and sometimes incompatible sets of activities. Mountain bikers, hikers, hunters, animal rights activists, cross-country skiers, snowmobilers, and others continue to conflict over the appropriate use of the state's resources. While this debate is often over the allocation of natural resources for various purposes, it is also much deeper, pitting the "wise-use" movement, which views private property rights as preeminent, against preservationists and others, who see land and water conservation as creating a crucial legacy for future generations.

Two regions of the state where these challenges are particularly apparent are in the Adirondack and Catskill mountains. Both regions contain large amounts of state owned lands set aside for protection. Much of this property is tax exempt and the use of both public and private property is heavily regulated by the state. The Catskills are also home to the New York City watershed and state law gives the City the power to establish watershed rules and regulations to protect the water-supply. These rules affect local land uses and the potential economic uses of property within the region. As a result, disputes over the acceptability of various land uses, local control over land use, and the impact of public land ownership on the local tax base and opportunities for economic development have been, and continue to be, very heated in these regions.⁽⁹⁰⁾

2. L. 1892, c.707. The state now owns approximately 2.6 million acres of land in the Adirondack Park. See Nelson A. Rockefeller Institute of Government, The Department of Environmental Conservation: A 25^th Anniversary Review. Albany, New York 1996. Page 55. For a good description of how the park has changed over time, see The Adirondack Park in the 21^st Century: Technical Report Volume 1. The Commission on the Adirondacks in the Twenty-First Century. April 1990. Page 24-29.

3. Ibid, Rockefeller Institute, 25^th Anniversary Review.

4. For a good historical analysis, see Congressional Quarterly Weekly, EPA States Differ in Views of Environmental Federalism. November 27, 1982. Also, Ibid, Rockefeller Institute, 25^th Anniversary Review.

5. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review.

6. Ibid, Rockefeller Institute, 25^th Anniversary Review. Earlier versions existed of some of these laws.

7. U.S. General Accounting Office. EPA and the States: Environmental Challenges Require A Better Working Relationship, April 1995. (GAO/T-RCED-95-95-64). See also: Congressional Budget Office. Environmental Federalism: Allocating Responsibilities for Environmental Protection. Staff Working Paper, September 1988. See also Hahn Robert, United States Environmental Policy: Past, Present, and Future. Natural Resources Journal, Vol 34, Spring 1994. Also Lester, James P. The New Federalism and the Emerging Role of the States in Environmental Policy. September, 1996. Also The Department of Environmental Conservation: A 25th Anniversary Review. Nelson A. Rockefeller Institute of Government, February 1996.

8. See Vig, Norman J. and Kraft, Michael E. Environmental Policy in the 1980s: Reagan's New Agenda. Congressional Quarterly Press, Washington D.C. 1984. Also, Bowman, Ann O'M and Kearney, Richard C. The Resurgence of the States. Prentice-Hall, New Jersey, 1986. Also, Lester, James P. The New Federalism and the Emerging Role of the States in Environmental Protection. 1996.

9. Congressional Quarterly Weekly, November 27, 1982. Also National Journal, Reagan's Environmental Federalism - Are States Up to the Challenge? 1/30/82.

10. Congressional Quarterly Weekly, November 27, 1982. Also National Journal, Reagan's Environmental Federalism - Are States Up to the Challenge? 1/30/82.

11. Congressional Quarterly Weekly, November 27, 1982.

12. Data compiled by the Rockefeller Institute using information provided by the EPA Budget, Planning and Regional Operations Branch, Budget Division.

13. Congressional Budget Office. Environmental Federalism: Allocating Responsibilities for Environmental Protection. Staff Working Paper, September 1988. In the early 1980s and today, air, water, and solid and hazardous waste programs accounted for the bulk of state environmental protection activities.

14. Survey Data Collected by the Council of State Governments and provided to the Rockefeller Institute.

15. Hahn Robert, United States Environmental Policy: Past, Present, and Future. Natural Resources Journal, Vol 34, Spring 1994. Also, Ladd, Everett Carl and Bowman Karlyn H. Attitudes Toward the Environment: Twenty-five Years After Earth Day. American Enterprise Institute Press, Washington D.C. 1995.

16. Hahn Robert, United States Environmental Policy: Past, Present, and Future. Natural Resources Journal, Vol 34, Spring 1994. Also, Ladd, Everett Carl and Bowman Karlyn H. Attitudes Toward the Environment: Twenty-five Years After Earth Day. American Enterprise Institute Press, Washington D.C. 1995.

17. Legislation introduced to "flesh out" the Contract With America included riders to spending bills that, according to many critics, would have dismantled much of the health, safety and public-lands safeguards erected during the past 30 years. See New York Times. Is Reality Dawning. 7/31/96. Also H.R. 9 included provisions for property rights, risk assessment and cost/benefit analysis. Congressional Quarterly Weekly. The 104th and the Environment: 1995. 10/12/96.

18. For example, Public Law 104-4, the Unfunded Mandates Reform Act of 1995, March 22, 1995 and Public Law 104-182, the Safe Drinking Water Amendments of 1996.

19. See Christian Science Monitor. GOP Lawmakers' New Shade of Green. 10/20/96. Also, Congressional Quarterly Weekly Report. Pressure to Curtail EPA Boomeranged....But GOP Can Claim Some Influence. 9/7/96. Also, The Washington Post, Earth First at the Polls. November 11, 1996. Also, Congressional Quarterly Weekly Report. Hard Charging GOP Whip Seeks a softer Image. 4/13/96. Also, Ladd, Everett Carll and Bowman, Karlyn H. Attitudes Toward the Environment: Twenty-Five Years After Earth Day. American Enterprise Institute, Washington, D.C., 1995. Also, New York Times. Environment Gets a Push from Clinton. 7/5/95. Also Washington Post. GOP Is Warned of Backlash on Environment. 1/24/96. Also Christian Science Monitor. Voters Do Support the Environment. 11/27/95. Also, The Washington Post, How Three Ideas of Big Government from the '60s Helped Put the GOP's Juggernaut in the Shop. October 20, 1996. Also, Clarke David. "The Elusive Middle Ground in Environmental Policy." Issues in Science and Technology. Spring 1995. Congressional Quarterly Weekly, GOP Sets the 104th Congress on New Regulatory Course. June 17, 1995. Also, The Washington Post. Republicans Defect to Kill Curbs on EPA. 7/29/95. Also New York Times. Is Reality Dawning. 7/31/96.

20. See National Academy for Public Administration Report to Congress. Setting Priorities, Getting Results. Washington D.C., 1995. See also, Clarke, David. "The Elusive Middle Ground in Environmental Policy." In Issues in Science and Technology, Spring 1995. See also Bacot, A. Hunter, Dawes, Roy A, and Sawtelle, Ann. "A Preliminary Analysis of Environmental Management in the United States." In Public Administration Quarterly, Winter 1996.

21. A point source can be defined as "a stationery location or fixed facility from which pollutants are discharged or emitted. Also, any single identifiable source of pollution, e.g., a pipe, ditch, ship, ore pit, factory smokestack." See EPA web site http://www.epa.gov/watrhome/pubs/gloss2.html.

22. Nonpoint sources can be defined as pollution sources which are diffuse and do not have a single point of origin or are not introduced into a receiving stream from a specific outlet. The pollutants are generally carried off the land by stormwater runoff. The commonly used categories for non-point sources are: agriculture. forestry, urban, mining, construction, dams and channels, land disposal, and saltwater intrusion. See EPA web site http://www.epa.gov/watrhome/pubs/gloss2.html.

23. See Zimmerman, Joseph F. Federal Preemption: The Silent Revolution. Iowa State University Press, 1991. Also, U.S. General Accounting Office. EPA and the States: Environmental Challenges Require A Better Working Relationship, April 1995. (GAO/T-RCED-95-95-64). See also Hahn and Lester.

24. Lester, James P. The New Federalism and the Emerging Role of the States in Environmental Protection. 1996. Also, Bowman, Ann O'M and Kearney, Richard C. The Resurgence of the States. Prentice-Hall, New Jersey, 1986. Also, Congressional Quarterly Weekly. EPA States Differ in Views of Environmental Federalism, November 27, 1982.

25. Congressional Quarterly Weekly, November 27, 1982.

26. U.S. Department of Commerce, Social and Economic Statistics Administration, Bureau of the Census. Environmental Quality control Expenditures and Employment for Selected Large Government Units: Fiscal 1969-70. State and Local Government Special Studies no. 61, April 1972. According to Henry Wulf at the Census Bureau, this series was paid for by EPA. 1980 is the last year for which annual expenditure reports were produced because after that, funding for the analysis was eliminated.

27. Council of State Governments. 1993 Resource Guide to State Environmental Management, 3rd Ed. To be delegated a program, States must demonstrate to EPA that their regulatory requirements are at least as stringent as national standards.

28. U.S. General Accounting Office. EPA and the States: Environmental Challenges Require A Better Working Relationship, April 1995. (GAO/T-RCED-95-95-64).

29. Council of State Governments. ECOS: The Environmental Communique of the States. Volume III, No. 5. May/June 1996. 75 percent of the state operating funds for environmental protection programs are generated through own-source revenues according to data on state expenditures provided to the Rockefeller Institute by the Council of State Governments. State governments spend $5.5 billion annually on the operation of environmental protection programs and $14.5 billion on pollution abatement and control. This far exceeds the approximately $6.3 billion in annual outlays made by the EPA and the $1 billion annually spent on pollution abatement and control by the federal government. See the U.S. Department of Commerce, Bureau of the Census. Statistical Abstract of the United States 1996. Pages 239 and 334. Funds for the operation of environmental protection programs are also expended by the Department of the Interior, the Coast Guard, and the Department of Defense. The amounts could not be determined through this data source.

30. L.1868, c.285.

31. L.1880, c.322.

32. The Department of Environmental Conservation: A 25th Anniversary Review. Nelson A. Rockefeller Institute of Government, Albany, New York, February 1996.

33. L.1872, c.848.

34. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review.

35. Ginsberg William. The Environment in Decision 1997: Constitutional Change in New York. Benjamin Gerald and Dullea Henrik (ed.) The Rockefeller Institute Press, Albany, NY 1997. Page 317-327.

36. L. 1926, c. 619.

37. 49 Stat 932.

38. 1993 Annual Report: Interstate Sanitation Commission.

39. L.1964, c. 423

40. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review.

41. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review. Page 142.

42. L.1970, c.140.

43. For a thorough discussion of the reorganization that created the DEC, see The Department of Environmental Conservation: A 25th Anniversary Review.

44. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review.

45. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review. FY 1993-94 total disbursements for the divisions of air, solid waste, construction management, and water totaled approximately $310 million. Disbursements for the divisions of Fish and Wildlife and Lands and Forests totaled $6.4 million.

46. Readers interested in a more comprehensive discussion of State environmental laws and policies should review William Ginsberg & Philip Weinberg, Environmental Law and Regulation in New York (West Publishing 1996 and 1997 pocket part) and the New York State Bar Association's Treatise on New York Environmental Law (Nicholas Robinson ed. 1995). Other helpful sources include two 1996 reviews of the first 25 years of the State Department of Environmental Conservation (DEC), The Nelson A. Rockefeller Institute of Government, The Department of Environmental Conservation: A 25th Anniversary Review (1996) and Outlook on 25 Years of the DEC: Environmental Officials Remember the Past and Provide a Blueprint for the Future of Environmental Regulations, Albany Law Envtl. Outlook (Spring 1996).
 

Readers interested in monitoring State environmental activity on a "real-time" basis should consider subscribing to one or more of a variety of helpful resources, including the Environmental Notice Bulletin, published weekly (subscription information is available from Business Environment Publications, 518-383-1471); Environmental Law in New York (published monthly by Matthew Bender, 1-800-833-9844); and New York's Business Environment (information on subscriptions available from Business Environment Publications, 518-383-1471).

47. Constitution Art. 14, § 3(1). For a good discussion of the state constitution and the environment, see ibid, Ginsberg, The Environment in Decision 1997: Constitutional Change in New York.

48. Ginsberg and Weinberg, Environmental Law and Regulation in New York, ch. 1 (West 1995 and 1997 Update). This treatise provides a helpful overview of the relationship between common law and statutory law.

49. Actionable means that the party injured can seek recourse in a court.

50. See e.g., Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970). In this landmark case, New York's highest court, the Court of Appeals, adjudicated a dispute between a "state-of-the-art" cement factory and nearby landowners concerning air emissions from the facility that were allegedly harming the landowners and determined that the existence of such harm, even at significant levels, did not necessarily require issuance of an injunction to require the facility to cease operations. Instead, a balancing of the equities was needed.

51. Percival, Miller, Schroeder, and Leape, Environmental Regulation: Law, Science, and Policy, preface, xxxi (2nd ed. 1996).

52. Some of the more significant statutory enactments intended to accomplish specific environmental public policy aims include laws mandating cleanup of toxic waste sites, and regulation of pollution of our water and air resources.

53. ECL § 1-0101.

54. One recent issue where this question is relevant is the implementation of the state's voluntary cleanup program. The DEC has signed and continues to sign agreements with parties to voluntarily clean up sites. However the DEC lacks specific legal authority to address all of these sites under the State's Superfund law because the sites do not have hazardous waste or because they don't present a significant threat. DEC's position is that it has authority to enter into these agreements under the general authorities given by the legislature, even though the legislature's specific enactment governing cleanups of contaminated parcels [Title 13] does not give DEC this authority. At the time of this writing there has not been a court challenge so the issue is unresolved.

55. See e.g., Boreali v. Axelrod, 71 N.Y.2d 1 (1987). In this case the New York Court of Appeals invalidated an agency's "second hand smoke" rules, holding that the agency's action was ultra vires its authority.

56. Borchers and Markell, New York State Administrative Procedure and Practice, ch. 8 (West Publishing 1995).

57. See William R. Ginsberg & Philip Weinberg, Environmental Law and Regulation in New York, ch. 3.7.3 (West 1995).

58. ECL § 3-0301(2)(z).

59. These Executive Orders are compiled in Volume 9 of the NYCRR.

60. 9 NYCRR § 5.20. For an in-depth discussion of Executive Order # 20, see Borchers and Markell, New York State Administrative Procedure and Practice (2nd ed.)(West Publishing 1998)(forthcoming). See also, the Governor's Office of Regulatory Reform web site (http://www.state.ny.us/gorr/office.html#MISSION). Order 20 established criteria for how rules are to be evaluated. Specifically, the office is empowered to review a proposed rule to ensure that "it does not exceed the authority delegated by law; is consistent with and necessary to achieve a specific legislative purpose; is clearly written so that its meaning will be easily understood by those persons affected by it; does not unnecessarily duplicate or exceed existing federal or state statutes or rules; is consistent with state statutes and rules; is consistent with state statutory requirements, will produce public benefits which will outweigh the costs, if any, imposed on affected parties; does not impose a mandate on local governments or school districts which is not fully funded, except as specifically required by state statute; prescribes methodologies or requirements that allow regulated parties flexibility and encourage innovation in meeting legislative or administrative requirements and objectives underlying the rule; is based on credible assessments, using recognized standards, of the degree and nature of the risks which may be regulated, including a comparison with everyday risks familiar to the public; gives preference to the least costly, least burdensome regulatory and paperwork requirements needed to accomplish legislative and administrative objectives; is based upon the best scientific, technical, and economic information that can be reasonably and affordably obtained; and if possible and practical, favors market-oriented solutions and performance standards over command and control regulation."
 

The office is also charged with ensuring that the agency has complied with the economic and flexibility requirements of the State Administrative Procedures Act and provided adequate information to evaluate the rule. The Director of Regulatory Reform, along with four other senior advisors, the Secretary to the Governor, the Counsel to the Governor, the Director of State Operations, and the Director of the Division of the Budget, monitor agency rule-making activity and assure that all new rules comply with the provisions of Executive Order No. 20. The senior advisors also make recommendations for regulatory reform to the Governor.

61. For a discussion of the virtues of rule-making, see Davis, Administrative Law Text 142-143 (3rd ed. 1972).

62. SAPA 202-d(1).

63. SAPA § 202.

64. SAPA §§ 201-a(2)(c) and 202.

65. Borchers and Markell, New York State Administrative Procedure and Practice, ch. 4.12 (West Publishing 1995).

66. See generally Borchers and Markell, New York State Administrative Procedure and Practice, Ch. 9 (West Publishing 1995).

67. State of New York Office for Regulatory and Management Assistance, Rep. of Ann. Bus. Permit Issuing Activity by New York State Agencies for Fiscal Year 1992-1993 (1994).

68. 6 NYCRR § 621.14(a)(1)-(5).

69. 6 NYCRR § 617.1(c). The most comprehensive discussion of SEQRA is contained in a two-volume treatise, Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York (Matthew Bender 1997).

70. 6 NYCRR § 617.3(a).

71. 6 NYCRR § 617.9.

72. 6 NYCRR § 617.9.

73. 6 NYCRR § 617.9.

74. 6 NYCRR § 617.11.

75. ECL Article 70.

76. Philip Weinberg, Practice Commentary to N.Y. Environmental Conservation Law Article 70.

77. Philip Weinberg, Practice Commentary to N.Y. Environmental Conservation Law Article 70.

78. One major difference between state and federal enforcement authorities concerns the location of these enforcement authorities in the statutes. In New York, the legislature has adopted an article of the Environmental Conservation Law specifically for enforcement authorities. ECL Article 71 contains the vast majority of state enforcement authorities for violation of different state environmental laws. Federal environmental laws, on the other hand, are entirely self-contained. The Clean Water Act, for example, contains the provisions for enforcement of the Act. Recourse to a separate article or title of the law is not necessary.

79. See e.g., ECL § 71-2707 (creating a Class E felony for unlawful possession of hazardous waste under some circumstances).

80. One of the interesting and important differences between DEC administrative enforcement statutes and EPA administrative enforcement under the federal environmental laws is that DEC generally has the same enforcement sanctions available regardless of whether it files administratively or civilly. For example, the maximum penalty for violating DEC's requirements for controlling water pollution is $25,000 for each day a violation continues, regardless of the judicial forum which hears the case.⁽⁸¹⁾

81. ECL § 71-1929(1). §

82. Borchers and Markell, New York State Administrative Procedure and Practice, ch. 15 (West Publishing 1998)(forthcoming).

83. ECL Article 71-0301. Orders issued under this authority are known as summary abatement orders or SAOs.

84. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review.

85. See note #21.

86. See note #22.

87. Ibid, Department of Environmental Conservation: A 25th Anniversary Review (1996) and Outlook on 25 Years of the DEC: Environmental Officials Remember the Past and Provide a Blueprint for the Future of Environmental Regulations, Albany Law Envtl. Outlook (Spring 1996).

88. For more information, see The Council of State Governments, Ecosystem Connections: Results of CSG Ecosystem Protection Questionnaire, 1995. See also, David Markell, "Shifting From 'Mono-Media' to 'Multi-Media' Environmental Regulation in New York", in Environmental Law in New York 161 Vol. 5, No. 11, November 1994. See also EPA's The Common Sense Initiative Update at http://www.epa.gov/commonsense. The Common Sense Initiative is a cooperative approach to environmental protection and pollution prevention developed by the U.S. EPA. The Initiative addresses environmental management by industrial sector rather than by media (air, water, land). Six industries were targeted as a pilot in this program: Automobile Manufacturing, Computer and Electronics, Iron and Steel, Metal Finishing, Petroleum Refining, and Printing.

89. See National Academy for Public Administration Report to Congress. Setting Priorities, Getting Results. Washington D.C., 1995.

90. Ibid, The Department of Environmental Conservation: A 25th Anniversary Review.

91. The Catskill Watershed Corporation was established under the historic New York City Watershed Agreement signed in January 1997 to establish a better working partnership between the City of New York and the upstate Catskill communities.