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Municipalities in the lower Hudson Valley are joining a small but growing trend in trying to combat global warming by requiring that new building projects and some renovations receive LEED, green building certification.

Earlier this week the County Executive of Rockland County signed a local law which requires that for building projects owned or operated by the County, which cost in excess of one million dollars, there be a “good faith effort” to receive the LEED silver certification. The city of Yonkers is now considering a local law that would require any building receiving a zone change, variance, subsidy or tax break to obtain LEED silver certification. The law is proposed for major renovations or construction of at least 4,000 square feet, with less stringent standard applying to smaller projects.

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In a challenge to attempts by several north Texas cities to address climate change issues, cement manufacturer Ash Grove LLP has brought an action in the U.S. District Court for the Northern District of Texas. The lawsuit, which was filed on November 26, 2008, alleges that the local resolutions, favoring purchasing cement which is produced through a process which releases less pollution, violates both Texas contract bidding requirements and the constitutional rights of Ash Grove LLP.

According to the Dallas Morning News, Ash Grove is the only one of several cement manufacturers in the area which does not operate any “dry process kiln” for the manufacturing of cement, which is claimed to release less pollution. The attorneys for Ash Grove maintain that the resolutions adopted by Dallas, Plano, Arlington and Fort Worth “stifled competition.”

The potential impact of this suit on attempts by local governments to regulate purchasing in a manner which considers the effects of manufacturing processes on global warming are not yet clear.

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The United Nations Climate Change conference has begun with reports of criticism of the failure of industrialized nations to agree to meaningful targets for emission controls and financial and technical support to developing nations. A substantial amount of the criticism by environmentalists has reportedly been directed at the Bush Administration. Apparently to underscore this criticism, the chief of the U.S. delegation has purportedly indicated that there will not be agreement on specific emissions goals for 2020.

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The New York State Department of Environmental Conservation (DEC) has created an Office of Climate Change which has as its purpose developing “responses needed for significant emissions reductions.” In addition to working on the Regional Greenhouse Gas Initiative (RGGHI) a ten state cap and trade program to reduce CO2 emissions, the office is developing regulatory programs including integrating a climate change element into government decision making.

Silverberg Zalantis LLC has recently contributed to this discussion in an article published in the New York Law Journal. The article entitled “Ultimate Challenge to SEQRA” discusses the use of New York’s SEQRA regulations to address climate change issues during the environmental review process for new projects. In addition, it is our understanding that the Office of Climate Change is looking at possible modifications to the SEQRA regulations in order to implement a more standardized review of GHGs and related issues during the review process.

The Office of Climate Change is also reviewing a wide range of related topics including the need for adaptation techniques and new technologies such as biofuels and carbon capture and storage. No doubt this office will be an important resource to the State of New York in addressing climate change issues going forward.

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Earlier this year the New York City Department of Environmental Protection (DEP) issued a “Climate Change Program Assessment and Action Plan“. The DEP provides management of the drinking water, drainage and waste water for the City of New York. The DEP describes the Plan in a report which “summarizes this substantial process of analysis and action and outlines a comprehensive adaptation strategy for DEP as it prepares for a warmer and more volatile future.”

The report notes an expected increase in average annual temperature in New York City and its watershed area of 7.5% to 10% and an increase in sea level of 15.7 to 17.7 inches by the 2080s with increased frequency of extreme weather events. The Plan addresses action to be taken to protect the City’s drinking water and waste water systems. In addition, to various activities to monitor and prepare for the effects of storms and sea level changes the Plan proposes certain proactive activities. The DEP will be leading the City’s actions to reduce the production of greenhouse gases (GHGs) by the City government with an announced goal of a reduction to 30% below 2006 emission levels by 2017.

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One of the interesting aspects of the movement to address greenhouse gas (GHG) emissions is the many layers of government that are getting involved in how to curb global warming and confront the problems of climate change. In October, 2008 Sonoma County California issued its Community Climate Action Plan. The detailed and ambitious plan notes: “(e)very historic change is preceded by a massive collection of individual actions. Because we cannot foresee how change will occur, each action is critical.”

The multi-faceted plan seeks to achieve the previously announced goal of the county and all of the nine cities in the county to reduce GHG emissions to 25 percent below 1990 levels by 2015. The four categories of action include: (1) investment in energy and water efficiency to reduce demand, (2) smart transit and land use by shifting to electric vehicles, walking and bicycling from fossil fuel vehicles, (3) invest in renewable energy resources and jobs and (4) protect forests and farmland and convert waste into energy in order to “conserve and capture.”

Some of the details of the plan demonstrate the need for an extraordinary level of legislative and financial commitment, which if successful may serve as a model for many communities. Among the proposals are to retrofit 80 percent of the buildings in the county to make them more energy efficient, strengthening land use regulations to encourage transit oriented mixed use development and creating incentives for small scale solar, wind and hydro power installations.

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The attorneys at Silverberg Zalantis LLC believe that global warming and the resulting climate change will be one of, if not the most, important issue to confront us all for the balance of the 21st century. Climate change has and will continue to have social and economic impacts that will determine where we live, how we live and the conditions of everyday life. The laws, regulations and treaties that are implemented, or that we fail to implement, to address climate change issues over the next two decades will chart the political and economic course of this country and the rest of the world for the balance of the century.

As attorneys involved in environmental law and real estate development we know that laws and lawyers can play an important role in the events that shape our collective response to climate change. It is our goal to use this Blog to provide information to other lawyers and the general public about the legislative and regulatory responses to climate change issues developed throughout the country. The more information we have and can share, the more likely it is that we can collectively develop a response to the causes and effects of global warming that is timely and effective. We do not intend to Blog on any set schedule but rather to provide information as it becomes available.

We sincerely hope that the information we provide on this Blog will be useful to those who take the time to read it. If you become aware of any new initiatives that may be of interest to our readers please send an e-mail to silverberg@szlawfirm.net.

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