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New York City: The Next Frontier for Single-Use Plastic Bag Reduction Legislation lems like sea turtle mortality (the bags resemble the jellyfish turtles eat). Even more importantly, plastic bags are given away for free, thus consumers give little thought about whether such bags are truly needed or how to dispose of them.
By Jennie R. Romer, Esq. Single-use plastic bag reduction ordinances have become increasingly popular around the world. Soon New York City could join the other local New York jurisdictions that have adopted plastic bag reduction legislation: the Villages of East Hampton and Southampton, the City of Rye and the Village of Mamaroneck. The Clean Seas Coalition (CSC), a West Coast group that was the unifying force behind the push for plastic bag ordinances in California (including San Francisco’s newly expanded ordinance), recently formed an Atlantic division. CSC membership is made up of large national organizations, regional environmental groups, businesses, and private individuals.
Fortunately, plastic bag pollution is an issue that people can do something about, either by simply refusing a disposable bag at checkout (and perhaps bringing a reusable bag), or by working on a local legislative campaign. Plastic bag ordinances generally include a ban or charge for single-use plastic checkout bags provided at the register, and they are effective. For example, Los Angeles County’s 2010 ordinance included a ban on plastic bags and a ten-cent charge for paper bags. One year after the ordinance went into effect covered stores reported a 95 percent reduction in single-use bag consumption (a total ban on in plastic bags and a 30 percent reduction in paper bags). Unfortunately, the plastics industry has fought hard against these ordinances, with multi-million dollar public relations cam-
Plastic bags are increasingly regulated because they have become an icon of waste, and for good reason. Plastic bags are so lightweight that even if they are properly disposed of they often end up as windblown litter, contributing to urban blight. Plastic bags are also uniquely responsible for a variety of problems including flooded storm drains, clogged municipal recycling facilities, and a host of environmental prob-
(See Plastic Bag Legislation on page 14)
Energy Efficiency In New York City:
Volume 7 / Number 18
I N S I D E
Antibiotic Use in Animal Agriculture ........................11 Environmental Impact of E-Filing ...............................7 Greener Buildings ..............2 Pesticide Regulation ........12 Reducing Environmental Impact.................................7
T A B L E O F C O N T E N T S Antibiotic Use in Animal Agriculture . . . . . . . . . . . . . . . . .11 Board Nominations . . . . . . . . . . .9 CLE Institute . . . . . . . . . . . . . . . .4 Digital Training Center CLEs . .10 Energy Efficiency . . . . . . . . . . . . .1 Environmental Impact of
Developments in the City’s Building Codes
E-Filing . . . . . . . . . . . . . . . . . . . .7 By Michael Panfil, Esq. Energy efficiency, until recently, has been little more than a buzzword for most. The term itself can refer to any number of meanings, but for general purposes, it means the process by which one creates a product, entity, or service that uses less energy than like alternatives. Take, for example, compact fluorescent lights (“CFLs”). By needing only a fraction of the electricity required by a standard incandescent light, CFLs are a similar product to standard offerings, differentiated by their comparatively efficient use of energy. Energy efficiency stands for more than new light bulbs, however. Creating such efficiency is likely to become greatly important in almost every industry in the near future. Appliances, with energy labeling, have become more energy efficient in recent years, meaning refrigerators, ovens, and dishwashers no longer consume the same amount of power as in years past. New buildings can be LEED certified, indicating the construction’s energy efficiency gains through window insulation, heat sensors, and thermal insulation. Existing homes and businesses can go through energy efficient retrofits, whereby less efficient technology – such as old
HVAC systems – can be exchanged for newer, more efficient ones. Vehicles can reach double the fuel efficiency seen in standard offerings, with technology on the horizon promising even greater energy efficiency. The Importance of Energy Efficiency The increased attention upon energy efficiency can, at first brush, seem puzzling. Unlike other environmental causes, both sides of the aisle can largely be seen espousing favorable views (albeit it often in only the most generalized tones). Businesses, including large corporations, are also often seen as at least marginally supportive and interested. Financial institutions are also increasingly aware of energy efficiency projects, with a growing curiosity in potential avenues of investment. One needs look no further than how energy efficiency necessarily works to understand why such interest exists. In essence, energy efficiency creates two aligned ‘goods’ through the diminished energy use. First, an environmental good is created. Because less power is required, less fuel—be it coal, gas, etc.—is necessary to power the product. Less fuel used trans-
lates into less air pollution, less greenhouse gases, and less waste. Second, a financial good is created. Because less power is required, the end user necessarily pays less. Remember, for example, the CFLs noted earlier, and imagine that they consume one-third as much power as a standard incandescent light. Once plugged in, a consumer would thus only pay onethird of what they would normally pay on an electricity bill for that light bulb. Cost savings can be enormous when applying this same transaction to larger buildings and products. Although upfront costs, including the purchase, planning, and installation of energy efficient products, can be hefty, a return on the initial investment in terms of total savings can be significant. The alignment of environmental and financial incentives thus underlies the importance of energy efficiency. Additional benefits—such as new job creation and energy sustainability—only further strengthen current interest. The resulting intersection between such varied groups, agendas, and stakeholders suggests it will likely be a crucial area of development in the near future. (See Energy Efficiency on page 15)
Ethics Hotline . . . . . . . . . . . . . . .15 Greener Buildings . . . . . . . . . . . .2 Library Notes . . . . . . . . . . . . . . .10 Meet the New Chairs . . . . . . . . . .2 Message from Barbara Moses, NYCLA Foundation President . . .6 Message from Stewart D. Aaron, NYCLA President . . . . . . . . . . . .3 Mobile Websites . . . . . . . . . . . . .11 Pesticide Regulation . . . . . . . . . .12 Plastic Bag Regulation . . . . . . . . .1 Protecting the Innocent . . . . . . . .6 Recent Event Photos . . . . . . . . . .8 Reducing Environmental Impact . .7 Social Disclosure . . . . . . . . . . . .13 Upcoming Events . . . . . . . . . . . . .9 What’s Tweeting . . . . . . . . . . . . . .9
December 2012 / The New York County Lawyer
New York City “Greener, Greater Buildings Plan” Takes Effect With Release Of Inaugural Local Law 84 Benchmarking Report By Samuel Blaustein, Esq. In August of 2012, New York City released its inaugural Local Law No. 84 Benchmarking Report.1 The Report represents the first tangible results following New York City’s adoption of four local laws2 comprising the “Greener, Greater Buildings Plan” in 2009.3 Amongst other things, the Report concludes that large buildings in New York City could realize a significant reduction in energy use and greenhouse gas emissions by making certain cost effective improvements.4 New York City Local Law No. 84 of 2009 amends Chapter 3 of title 28 of the New York City Administrative Code by adding new Article 309.5 Local Law No. 84 requires(i) city owned buildings and (ii) covered buildings to benchmark energy and water use.6 To “benchmark” within the meaning of Local Law 84 is to input the “total use of energy and water for a building for the previous calendar year and other descriptive information” into an online “benchmarking tool” developed by the United States Environmental Protection Agency and any other “complementary interface” designated by the New York City Department of Buildings. 7 Amidst the bright lights and skyscrapers that dominate the New York City skyline, it is easy to forget that New York State policy is to “encourage productive and enjoyable harmony between man and his environment.” N.Y. Envtl. Conserv. Law § 8-0101 et seq. (State Environmental Quality Review Act or SEQRA).The City of New York has effectively adopted local laws in
the interest of the public health.8 Similarly, the United States Supreme Court has determined that local laws designed to protect public health are entitled to deference.9 The foregoing notwithstanding, the existence of global warming and more specifically, the regulations aimed at curtailing it, have bet met with staunch resistance in many circumstances.10 Regardless of their causes, Super Storm Sandy and Hurricane Irene underscore the need for New York City to remain ever vigilant in its pursuit of public safety, including those threats presented by the environment.11 New York City has been proactive and should be commended for its efforts toward both seeking to prevent and mitigating environmental harm.12 The inaugural Local Law No. 84 Benchmarking Report makes clear that “relatively high participation” was achieved through “extensive outreach and education campaigns.”13 Perhaps public sentiment following the aforementioned events will compel further compliance with the benchmarking requirement and contribute toward the more efficient use of energy producing and water resources by New York City. While the existence of global warming may not yet be universally accepted, there can be no doubt that resource management is critical toward the continued success of the City of New York. The Greener, Greater Buildings Plan appears to be a proactive measure aimed at safeguarding all of the City’s residents and may serve as an example for other cities seeking to better utilize resources and protect against the uncertainties posed by
an ever-changing environment. Sam Blaustein, a NYCLA and Environmental Law and Federal Courts Committee member, is an associate at Dunnington, Bartholow & Miller, LLP, in Manhattan. He previously served as a clerk in the Southern District of New York and received the CALI Excellence for the Future Award in the Field of International Environmental Law as a law student at Brooklyn Law School. References: 1. http://www.nyc.gov/html/gbee/downloads/ pdf/nyc_ll84_benchmarking_report_2012.pdf 2 N.Y. Mun. Home Rule Law § 10 provides that municipalities are authorized to establish local laws to the extent they do not conflict with the New York State Constitution or State Law.See People v. Lewis, 295 N.Y. 42, 49, 64 N.E.2d 702 (1945)(“The Constitution of the State (art. IX, § 12), the City Home Rule Law (§ 11, subd. 2) and the New York City Charter (§ 27) have conferred upon the City Council broad legislative power to provide by local law for the preservation and promotion of the health, safety and general welfare of its inhabitants.”) 3 The Plan includes four primary requirements that certain “covered buildings,” including cityowned and large buildings annually benchmark their energy performance (Local Law 84); that a local energy code be adopted (Local Law 85); that every 10 years covered buildings conduct an energy audit and a retro-commissioning (Local Law 87); and that by 2025, the lighting in the non-residential space be upgraded to meet code and large commercial tenants be provided with sub-meters (Local Law 88). See http://www.nyc.gov/ html/gbee/html/plan/plan.shtml 4 See FN 1 at P. 5 5 See http://www.nyc.gov/html/planyc2030/ downloads/pdf/ll84of2009_benchmarking.pdf 6 § 28-309.1 7 § 28-309.2 8 McCallin v. Walsh, 64 A.D.2d 46, 51, 407 N.Y.S.2d 852, 854 (1st Dept. 1978) aff’d, 46 N.Y.2d 808, 386 N.E.2d 833 (1978) (upholding Local Law 5 of 1978 concerning inter alia the fire prevention code); New York Coal. of
Recycling Enterprises, Inc. v. City of New York, 158 Misc. 2d 1, 5, 598 N.Y.S.2d 649, 652 (Sup. Ct. N.Y. Co. 1992)(upholding Local Law 40 of 1990 concerning regulation of waste transfer stations.) 9 Midlantic Nat. Bank v. New Jersey Dept. of Envtl. Prot., 474 U.S. 494, 505, 106 S. Ct. 755, 761, 88 L. Ed. 2d 859 (1986) quoting Chemical Manufacturers Assn., Inc. v. Natural Resources Defense Council, Inc., 470 U.S. 116, 143, 105 S.Ct. 1102, 1117, 84 L.Ed.2d 90 (1985)(noting the “congressional emphasis on its ‘goal of protecting the environment against toxic pollution’” in determining that a bankruptcy trustee could not abandon property located in New York City that posed an environmental hazard.) 10 WildEarth Guardians v. Salazar, 859 F. Supp. 2d 83, 89 (D.D.C. 2012)(The court dismissed a challenge asserted against the Bureau of Land Management’s decision to recertify a coal producing region43 under C.F.R. § 3400.5 on standing grounds. The State of Wyoming, amongst others, intervened as a defendant). Comer v. Murphy Oil USA, Inc., 839 F. Supp. 2d 849, 862 (S.D. Miss. 2012)(Nuisance, trespass and negligence claims concerning oil by-products weredismissed on standing ground with the court suggesting that the plaintiff could not establish a causal relationship between greenhouse gas emissions and Hurricane Katrina). 11 Prevailing scientific opinion is that there is a discernible anthropogenic (i.e. human-induced) greenhouse effect. Moreover, in 1992, the first President George Bush signed the 1992 United Nations Framework Convention on Climate Change (UNFCC) concerning the reduction of greenhouse gases. The Convention, which was a non-binding resolution, was ratified unanimously by the Senate. Massachusetts v. E.P.A., 549 U.S. 497, 509, 127 S. Ct. 1438, 1448, 167 L. Ed. 2d 248 (2007) citing S. Treaty Doc. No. 102–38, Art. 2, p. 5, 1771 U.N.T.S. 107 (1992). 12 See FN 8. Not all of these efforts have been successful. Vango Media, Inc. v. City of New York, 829 F. Supp. 572, 583 (S.D.N.Y. 1993) aff’d, 34 F.3d 68 (2d Cir. 1994)(New York City Local Law compelling private parties to display one public health advertisement for every four tobacco related advertisement held to be expressly preempted by federal law) 13 See FN1 at PP. 3, 23.
Meet the New Chairs NYCLA introduces members recently appointed to head-up Committees Admiralty and Maritime Law Committee David Y. Loh, who has been practicing for over 20 years, represents various marine insurer and transportation interests involving the movement and storage of people, places, and things within the U.S. and overseas. Sometimes he is called to respond to emergent casualties and in other instances he will be asked to analyze transportation or insurance documentation. Although he practices here in Manhattan, he is often instructed to handle disputes that arise anywhere in the country. Because many of his assignments involve admiralty and maritime jurisdiction, he usually practices in federal court. In addition to law, Loh had a brief career with the United States Navy during which he qualified as a Surface Warfare Officer and retired with the rank of Lieutenant Commander. He has been an active member of the Federal Courts Committee and looks forward to working with Jim Rodgers on the Admiralty & Maritime Law Committee to invite federal judges to speak before the Committee and continue to offer CLE seminars and workshops to the Association. Appellate Courts Committee Michael H. Zhu graduated cum laude from New York Law School in 1994, and was an editor of the International and Comparative Law Journal. He has been a member of Michael H. Zhu, Esq. PC since 2006, a boutique law firm that focuses on and spe-
cializes in assisting trial counsel and individuals in preparing substantive summary judgment motions, post-trial motions and appeals. In the 17 years that he has been in practice, he has briefed and/or argued over 300 appeals in the Supreme Court, Appellate Division, New York Court of Appeals and the United States Court of Appeals for the Second Circuit. His areas of practice include appeals relating to labor law/construction accidents, premises liability, municipal liability, sexual assault/battery and nursing home liability, primary and excess insurance coverage and subrogation, and professional malpractice (legal, medical, architectural, engineering, broker malfeasance), and other forms of complex civil litigation. He is excited to be a Co-Chair of the Appellate Courts Committee, along with David M. Cohn. He says, “Based on my training and experience, I believe that I can offer the committee, the Association and its members, a unique perspective on appellate practice.” Bankruptcy Law Committee James P. Pagano specializes in matters of bankruptcy and creditor’s rights, both individual and corporate. After graduation from New York Law School in 1975, he became an Assistant Attorney General in the office of the Honorable Louis J. Lefkowitz. Thereafter, he was an associate at Fogelson, Fogelson & Collins, where he worked under Professor Nathan B. Fogelson of New York Law School and Barst, Mukamal & Barst, where he worked under the Hon. Roy Babitt, the former Chief Judge of the United States
Bankruptcy Court, Southern District of New York. He started his own law office in 1984. Besides being admitted to practice before the Courts of the State of New York, the U.S. District Courts for the Southern and Eastern Districts of New York, he was recently admitted to practice before the United States Supreme Court. David Wiltenburg is a partner at Hughes Hubbard & Reed, LLP, where he is a member of the Corporate Reorganization and Litigation departments. He graduated from Fordham Law School, where he served as a member of the Editorial Board of the Fordham Law Review. Civil Court Practice Section Rachel Siskind is an associate at Silversmith & Associates Law Firm, PLLC. Siskind’s practice focuses on real estate litigation with an emphasis on landlord-tenant litigation. She regularly handles administrative proceedings before various City and State agencies including the New York City Environmental Control Board and the New York State DHCR, and represents building owners in criminal matters pending in the Summons Part of the NYC Criminal Courts. Siskind is also experienced in cooperative and condominium litigation. Prior to joining Silversmith & Associates Law Firm, PLLC, Siskind was a staff attorney at the Legal Aid Society of Nassau County, New York. She has extensive experience defending clients in
criminal matters, and specialized in drug related matters pending in Treatment Court. Siskind graduated from Tulane University in 1999 with a B.A. in Literature. She received her J.D. from Tulane Law School in 2002, where she practiced as a student attorney in the Tulane Civil Litigation Clinic. She is admitted to practice law in New York State, and is also admitted to the United States District Court, Southern District of New York. She previously served as Secretary of the Civil Court Practice Section and now serves as Co-Chair of the Section along with Mitchell Nisonoff. Mitchell (“Mitch”) Nisonoff is an attorney admitted to the New York state bar over 30 years ago. He holds a B.S. from Columbia University’s School of Engineering and a J.D. from Columbia University’s Law School — both issued in 1981 under an interdisciplinary legal education program. In private practice, he worked as a commercial litigation attorney. For the last nine years, Mitch was an Administrative Law Judge at the NYC Department of Consumer Affairs tribunal; he now serves as the Department’s Assistant General Counsel. He serves on the Steering Committee of the New York Democratic Lawyers Council (NYDCL) and is the Chair of its CLE Committee. He was an author of legal articles over the years and the course-book author for the recent New York State Bar Association program, “Representing the Political Candidate in New York,” offered in six statewide locations.
(See Meet the Chairs on page 3)
December 2012 / The New York County Lawyer
MESSAGE FROM STEWART D. A ARON PRESIDENT OF THE NEW YORK COUNT Y L AW YER’S ASSOCIATION Dear Readers: As the new year approaches, consider making a resolution to positively impact the community and the legal profession. We have devoted this issue of the New York County Lawyer to social responsibility to encourage discussions about how the legal profession can help make society a better place for ourselves and others to work and live. Get inspired with a special lineup of articles within this issue by fellow attorneys who have devoted much of their careers to helping improve the earth and society. On the cover, gain insight into how to help make a positive change with less garbage from Jennie Romer’s article about plastic bag laws. She is a thoughtleader, pro bono consultant to cities and states looking to adopt plastic bag laws, and founder of plasticbaglaws.org, a resource for legislative bodies considering laws limiting the use of plastic bags. Meanwhile, what can we do to protect the environment as we deal with the data
MeettheNewChairs (Continued from page 2)
Civil Rights and Liberties Committee Samuel B. Cohen is a partner at Stecklow Cohen & Thompson, a boutique litigation firm with a specialization in civil rights practice. Following police policy studies at Brooklyn Law School, he joined the Law Offices of Wylie M. Stecklow as an associate, and became a partner in early 2012. Samuel received citations for extraordinary citizenship from the New York State Assembly and New York City Council in 2011, as well as a certificate of special Congressional recognition for outstanding and invaluable service to the community. He says, “as Co-Chair of the Civil Rights and Liberties Committee, I’m excited to continue the Committee’s work providing programming and events that will educate attorneys on critical civil rights issues here in New York City, and give them the tools to engage and make a difference in underserved communities.” Corporation Law Committee Vladimir R. Rossman is a legal consultant and former partner at McDermott Will & Emery LLP, McKee Nelson LLP, and Shearman & Sterling LLP. He has expertise in bank finance, securitization, restructurings and workouts, with emphasis on the financing and refinancing of buyouts, divestitures and recapitalizations, and on debt and asset restructurings, in domestic and cross border transactions. Rossman is the General Editor of Commercial Contracts: Strategies for Drafting and Negotiating (second edition, Wolters Kluwer); Faculty, Working Group on Legal
Stewart D. Aaron President, New York County Lawyers’ Association
explosion we all are experiencing in our everyday lives and in our legal practices? The scope of e-discovery is ever increasing, along with the capacities of our servers and computers. This inevitably can lead to data often being printed out on thousands and thousands of pieces of paper — with the attendant waste of natural resources. Many of us have already gone paperless, but there is still much room for improvement both in the court systems, as well as in our law offices. As
Opinions. He is a former Assistant Professor at Columbia University (Dept. of French & Romance Philology). Rossman received a J.D. from Columbia U. Law School; a Certificate in Foreign Law from Parker School of Foreign and Comparative Law; a Ph.D. & M.A. from Columbia University Graduate School of Arts & Sciences; a B.A. from Columbia College; and a Diploma from the Juilliard School. As Chair of the Corporation Law Committee, he would like to focus on various topics of corporate practice in big law firms and envisions a series of discussions led by practitioners from such firms who are prominent in their fields. Criminal Justice Section Geoffrey Bickford is presently the Court Attorney to the Honorable Robert M. Mandelbaum of the New York City Criminal Court. Before his current position, he was a Staff Attorney with the Legal Aid Society’s Criminal Defense Division in Manhattan. He is a 2008 graduate of the CUNY School of Law and a 2003 graduate of Wheaton College, in Norton, MA. After being a litigator in Criminal Court, and now working behind the scenes, Bickford looks forward to addressing some of the many systemic deficiencies in the criminal justice system he has observed first-hand. Discovery reform, the evolution and use of DNA law, and the science behind false confessions, and false identifications are all areas being addressed by the legal community at large. It is his hope that the CJS and NYCLA can continue to be at the forefront of these conversations, but also focus on how they directly impact the hundreds of thousands of criminal cases prosecuted in New York City courts every year. Education Law Committee Nelson Mar is a senior staff attorney and education law spe-
global citizens, it is incumbent upon us to reduce the paper documents and the copies that we make every day. Next time before you hit “print,” consider whether you really need a hard copy of that document, or whether you just as easily can read it on your computer screen or other mobile device. Ask the judge in your document-intensive case whether you can submit voluminous exhibits on a CD or DVD, instead of in hard copy form. Flip to page 7 to read about the environmental impact of e-filing and waste reduction. As you read through this issue, consider what you can do to preserve the planet and its resources for our children and grandchildren. Tweet me @NYCLAPres and share how you are making efforts to be more socially responsible. Best wishes for a happy holiday season and a successful year ahead.
Stewart D. Aaron President New York County Lawyers’ Association
cialist at Legal Services NYC Bronx. His practice includes both Education Law and Social Security Disability Law with prior experience in labor/employment and community economic development. Recently Mar was named the acting coordinator for the Legal Services NYC’s citywide Education Law Task Force. Over the last 13 years Mar has provided representation to hundreds of Bronx families. His education law practice involves advocating on behalf of clients before the Department of Education on matters such as special education, bullying, Section 504 services, student suspensions, and safety transfers. He has also worked with numerous parent groups including local Community Education Councils (CECs) to improve school governance and accountability. Mar’s current policy initiatives are focused on improving disciplinary practices in the New York City public schools to curtail the Schools to Prison Pipeline. He appears mainly in administrative proceedings before the Social Security Administration and the New York City Department of Education. He received a dual degree J.D. & M.S.W. from the University at Buffalo and his B.A. from Binghamton University. In addition, Mar has been active in the Chinese immigrant community over the last 18 years on issues of worker rights and displacement. He looks forward to growing the membership of the Education Committee and collaborating with other NYCLA committees to highlight trends in education law and legal issues affecting young people. Elder Law Ezra Huber is a principal in the firm of Ezra Huber & Associates, P.C., where he has practiced in Elder Law and its related
fields for 30 years. He is the author or co-author of five books, among them the Advisor’s Guide to Counseling Aging Clients and their Families, and the Advisor’s Guide to Tax, Health Care and Legal Issues for Aging Clients, and a former editor of the McGraw-Hill newsletter ElderCare Law. He has lectured extensively on Medicaid and related topics for, among other groups, the National Academy of Elder Law Attorneys and the New York State and other local bar associations, as well as before many professional and charitable organizations such as the Federation of Jewish Philanthropies, Foundation for Accounting Education, AMI/LAMP and local chapters of AARP. He is a graduate of Brooklyn Law School and member of the New York and California bars. His plans for the Elder Law Committee include putting on seminars to educate section members on the various practical and highly technical aspects of the practice. He also plans to invite guest speakers from government agencies to provide insight gained from working within their own respective businesses. Environmental Law Kerri Stelcen is an associate in the environmental practice group in the New York office of Arnold & Porter LLP. Her practice focuses primarily on regulatory compliance, environmental litigation, and transactional matters. Stelcen’s recent compliance experience has included advising several FORTUNE 500 companies regarding financial assurance requirements under RCRA, CERCLA, and the Safe Drinking Water Act. She currently represents potentially responsible parties at numerous sites undergoing remediation under a variety of federal and state programs, including former industrial facili(See Meet the Chairs on page 5)
COUNTY LAWYER Stewart D. Aaron President
Sophia J Gianacoplos Executive Director
Toni Valenti Director of Marketing and Membership Development
Ariella Greenbaum Editor Senior Communications and Social Media Manager
New York County Lawyer is published by Long Islander Newspapers under the auspices of the New York County Lawyers’ Association. For advertising information, call 631-427-7000. Mailing address: 149 Main Street, Huntington, NY 11743. Copyright © 2012 New York County Lawyers’ Association. All rights reserved. New York County Lawyers’ Association grants permission for articles and other material herein or portions thereof to be reproduced and distributed for educational or professional use through direct contact with clients, prospective clients, professional colleagues and students provided that such use shall not involve any matter for which payment (other than legal fees or tuition) is made and provided further that all reproductions include the name of the author of the article, the copyright notice(s) included in the original publication, and a notice indicating the name and date of the Association publication from which the reprint is made. Subscription rate: $10.00 per year for non-members New York County Lawyer is published monthly (except January and August) for $10 per year by New York County Lawyers’ Association, 14 Vesey Street, New York, NY 10007. Periodicals postage paid is mailed at New York, NY and additional mailing offices. POSTMASTER: Send address changes to: New York County Lawyer, 14 Vesey Street, New York, NY 10007-2992. USPS #022-995 ISSN: 1558-5786 $10.00 of membership dues is deducted for a one-year subscription to the New York County Lawyer.
Photo Credits Ariella Greenbaum
December 2012 / The New York County Lawyer
Bridge the Gap and Ethics Programs this December Bridge the Gap 2, a Program for Newly Admitted Attorneys, will be held on Friday, December 14 and Thursday, December 20. Not only will this program satisfy the first or second year MCLE requirements for newly admitted attorneys, but experienced attorneys seeking MCLE credits before the end of 2012, or seeking a refresher on diverse areas of the law, may also attend. Need Ethics Credits Before the End of the Year: The CLE Institute is offering numerous options for attorneys who need to satisfy their Ethics requirements before the end of the year. • December 7: Business and Trust Accounting • December 14: Twittering Jurors and the NY Rules of Professional Conduct • December 20: Legal Malpractice and How to Avoid It. Be sure to check our website at www.nycla.org for exact times for the ethics sessions. In addition, experienced attorneys can attend the Video Replay: Breakfast With NYCLA—Ethical Issues in Intellectual Property on Tuesday, December 18 to earn 3 MCLE credits in Ethics.
Jeffrey Toobin Speaking About His New Book “The Oath” Rescheduled to January 9 The Author Event featuring Jeffrey Toobin, New Yorker staff writer, attorney, CNN analyst and author, speaking about his new book, The Oath: The Obama White House and the Supreme Court which was cancelled due to Hurricane Sandy is rescheduled for January 9, 2013. All paid attendees will receive a copy of the publication. Special thanks to NYCLA’s Law and Literature Committee for co-sponsoring this event. Check our website for updates about rescheduling of classes cancelled due to the Hurricane.
December Programs New Jersey Bridge the Gap: A Program for Newly Admitted Attorneys Consecutive Fridays, November 30 and December 7, 2012; 9 a.m.-5 p.m. 16 NJ MCLE Credits in 5 of 9 specified practice areas; (also NY; 3 Ethics; 6 Skills; 7 PP/LPM); transitional and nontransitional
1031 Tax Free Exchanges Monday, December 3, 2012, 6-9 p.m. 3 MCLE Credits (Breakdown tbd); Transitional and nontransitional Certified Guardian, Court Evaluator and Counsel for AIP Training: Certification Program Approved by Office of Court Administration Tuesday, December 4, 2012; 9 a.m.-5 p.m. 7 MCLE Credits: 1 Ethics; 2 Skills; 4 Professional Practice; Transitional and Non-transitional Persuasive Speech: Incorporating the Techniques of a Broadway Actor into the Way You Practice Law Wednesday, December 5, 2012; 6-7:45 p.m. 2 MCLE Credits; 2 Skills; Transitional and Non-transitional (also NJ) The LIBOR Scandal—What It Means For The Legal Community, Investors, Traders and Borrowers Thursday, December 6, 2012; 6-8:05 p.m. 2.5 MCLE Credits: 2 PP; 0.5 Ethics; Transitional and Non-transitional (also NJ) Bridge the Gap 2: A Program for Newly Admitted Attorneys Fridays, December 14 and Thursday, December 20, 2012; 9 a.m.-5 p.m. 16 MCLE Credits: 3 Ethics; 6 Skills;
7PP/LPM; Transitional and Non-transitional. Video Replay: Breakfast with NYCLA: Ethical Issues in Intellectual Property Tuesday, December 18, 2012; 8:30-11:30 a.m. 3 MCLE Credits: 3 Ethics NYCLA’s CLE Institute now an Accredited Provider in New Jersey New York County Lawyers’ Association’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the State New Jersey. Courses qualifying for CLE credit in New Jersey will be so designated on the NYCLA website. Be sure to consult www.nycla.org for program details and program locations. Please note that Tuition Assistance is available for qualified attorneys for live programs offered by the CLE Institute. Check our website at www.nycla.org for more information and how to apply for Tuition Assistance. Check our website for course details, faculty, complete program descriptions and pricing. Be sure to check our website for a complete listing of programs.
December 2012 / The New York County Lawyer
MeettheNewChairs (Continued from page 3)
ties in New York and New Jersey. She has handled a number of lawsuits involving contaminated properties in Louisiana, New Jersey, and Rhode Island. In August 2012, Stelcen co-authored the second edition of The Clean Water Act: Basic Practice Series, published by the American Bar Association. She looks forward to working with the members of the Committee to identify new and interesting ways to engage on emerging issues in environmental law, including through CLE events and other presentations. Federal Courts Committee Vincent Chang served as the Federal Courts Committee vice chair for three years and became its chair this year. He serves on the Executive Committee and the Board of Directors of NYCLA and is the Chair of the NYCLA Foundation. Chang serves as one of NYCLA’s representatives on the New York State Bar Association Nominating Committee and serves on the Legal Services NYC Board of Directors and the New York City Bar Association Judiciary Committee. Chang is a partner at Wollmuth Maher & Deutsch and works on complex commercial litigation. He is a graduate of Harvard College and Harvard Law School and has been listed as Superlawyer in Business Litigation. As Committee Chair, Chang hopes to propose initiatives to provide support for the New York federal courts in their efforts to achieve an increased budget allocation; publish writing on procedural and other issues of significance to the federal courts; publish a retrospective with highlights of the last decade of opinions issued by the Eastern District of New York; and increase Committee use of Linked in and other social media.
in designing compliance programs to address FCPA and global anti-corruption issues. She has designed FCPA compliance programs for companies in industries as diverse as those in media, pharmaceuticals, sports, green technology and telecommunications. Wolff is regularly sought out by business publications and CLE sponsors to speak on FCPA, criminal immigration and FDCA issues. She has written extensively on various criminal defense topics and, in particular, FCPA compliance. She looks forward to working with other attorneys on the Committee who are involved in completely different aspects of International Law—maritime, commercial and criminal, including FCPA and anticorruption—and finding common threads upon which the Committee can opine in terms of current laws and policies. Judicial Section Hon. Joan Madden is a Justice of the New York State Supreme Court and presently assigned to an IAS Part in New York County where she presides over cases from inception to disposition. In addition to handling complex asbestos litigation, Judge Madden also assigned to cases involving contracts, employment discrimination, legal malpractice, labor law, tort, environmental law and Article 75 proceedings. First elected to the bench in 1992, she served as a judge in Criminal Court for two years where she presided at arraignments, hearings and trials. In 1994 Judge Madden was assigned to Civil Court and since 1997, has been assigned to the Civil Term of Supreme Court. This coming year the Judicial Section will continue to discuss and explore issues which impact on the administration of justice in our courts including the continuing effects of budgetary constraints, and issues involving sex trafficking and the law of search and seizure. Insurance Law
Foreign and International Law Committee Jay G. Safer is a partner in the New York City office of the international law firm of Locke Lord LLP and handles complex litigation and arbitration in the United States and abroad. He represents clients in matters concerning contracts, antitrust, securities, RICO, qui tam, international litigation and arbitration, including application of the New York Convention and enforcement of foreign judgments and arbitration awards, insurance, construction, real estate, employment, media, product liability, health care, professional ethics, financial, constitutional and regulatory issues. He also counsels clients on commercial matters, including protection and preventive measures, creation of risk litigation plans, e-discovery, e-signature, and ereadiness, and pre-litigation analysis. Safer has litigated numerous cases involving these subjects. As Co-Chair, Safer is excited about working with Committee members on a number of topics on which they have expressed interest including international human rights as well as litigation, arbitration, commercial, financial, and governmental regulatory subjects. Jacqueline Wolff has spent over 20 years defending companies and individuals accused of a wide array of white collar crimes. A former Chief of the Environmental Crimes Unit and Assistant United States Attorney for the District of New Jersey, Wolff focuses her practice on violations of the Foreign Corrupt Practices Act (FCPA), healthcare fraud, securities fraud, Food, Drug & Cosmetic Act (FDCA) violations, tax crimes, corporate immigration crimes, and other regulatory-based violations. Wolff’s experience as both a prosecutor and defense lawyer has provided her with the depth and understanding to assist companies
Norma Levy, a partner at Nelson Levine de Luca & Hamilton, defends insurance carriers in major class action litigation. A graduate of Yale Law School and former chair of the New York State Bar Association’s Antitrust Section, Levy is an experienced litigator who has represented clients in antitrust, trade regulation and unfair competition matters. As lead counsel in the investigation of potential bank fraud for the Federal Deposit Insurance Corporation, she investigated major bank fraud concerns and led the team that brought suit against failed bank officers and directors for that fraud. Her experience extends to significant insurance coverage litigation on issues related to environmental coverage, professional liability, fidelity bond, title, and other substantive areas that give rise to insurance disputes, including securities, futures and derivatives, intellectual property, construction, civil rights, discrimination, real property and contract disputes. LGBT Issues Matthew Raso, a native New Yorker, graduated from New York Law School in 2008. Upon graduation, he was immediately invited to join Codispoti & Associates, P.C. At Codispoti & Associates, Raso’s practice focused on civil litigation and transactional work related to business law, intellectual property, debtor’s rights, landlord/tenant disputes, and real estate transactions. In 2011, he joined The Law Offices of Iannuzzi and Iannuzzi where his practice expanded to included criminal defense and personal injury lawsuits. In his free time, Raso works with numerous organizations that seek to expand and protect civil rights of members of minority communities, including the LGBT community. In 2008 he joined NYCLA and became a member of NYCLA’s LGBT Issues Committee. In 2010
he became vice-chair of that Committee and was recently elevated to the position of cochair. As co-chair, he is looking forward to working with the Committee to generate awareness of anti-bullying legislation in New York. He is also working to create opportunities for LGBT Issue Committee members to participate in community outreach programs with local schools to discuss relevant issues concerning the LGBT community. Matrimonial Committee Dror Bikel is a trial lawyer and litigator specializing in the area of family law and questions related to custody, equitable distribution, child and spousal support, and paternity. Bikel is a founding partner of the Manhattan based firm, Bikel & Mandarano, LLP. He lectures to lawyers and mental health professionals in the area of trial practice and family law. As winner of the New York Super Lawyers award, Bikel has been voted by his peers and legal journalists as one of the top 5 percent family law attorneys in New York State. Bikel graduated from the Benjamin N. Cardozo School of Law where he currently serves as a member of Family Law Advisory Board. Bikel is excited about in new position as Co-Chair, and hopes to help the Matrimonial Section become a meaningful teaching and information sharing platform to practitioners in this area. He also is excited to work closely with the Supreme Court Judges and Committee members on issues important to the matrimonial bar. Multilingual Lawyering Dawn Maruna is a fourthyear associate with Mound Cotton Wollan & Greengrass, where her practice focuses on complex commercial, insurance, and reinsurance litigation and arbitration. She graduated from the College of the Holy Cross in 2002 with a B.A., cum laude, in English and Spanish and received her J.D. from St. John’s University School of Law in 2009, receiving the Silver Pro Bono Service Award at graduation for her work as founder and co-chair of the Multilingual Legal Advocates student group. Since its formation in early 2007, the group has helped multilingual law students identify pro bono and paid work opportunities with private and public interest entities in need of interpretation and translation assistance and organized panel discussions and classes concerning professional development opportunities for multilingual law students and attorneys. Last year, she founded NYCLA’s Multilingual Lawyering Committee, which fosters the professional development interests of NYCLA’s multilingual lawyers and law students and helps them, as well as the rest of NYCLA’s legal community, address the needs of New York City’s linguistically-diverse legal clientele. Real Property Section David A. Goldstein, the managing member of Goldstein Hall PLLC, has over 20 years of experience in the legal field, with expertise in affordable housing development, real estate finance, government affairs, general corporate/business law, and litigation. In particular, Goldstein has extensive experience in negotiating joint ventures between not-for-profits and for-profit developers, as well as structuring complex affordable housing transactions. Many of these affordable housing transactions involve financing by federal, state, and local agencies through the issuance of tax-exempt bonds and low-income housing tax credits. Additionally, Goldstein has experience representing limited equity cooperatives, HDFC co-ops and tenant associations in litigation and general corporate issues. As co-chair, Goldstein is interested in providing practical as well as topical programming dealing with issues concerning real estate development.
Solo and Small Firm Practice Committee Tsui Yee is a founding partner of the immigration law firm of Guerrero Yee LLP. She has over 13 years of experience practicing immigration law, and handles a wide variety of immigration matters. Her accomplishments for clients include obtaining various work visas on behalf of foreign nationals so that they can work in the United States; securing lawful permanent residence based on employment and family sponsorship; and defending clients in removal (deportation) proceedings. Yee frequently organizes and presents at continuing legal educations seminars regarding immigration and nationality law, professional development, and topics of interest to solo and small firm practitioners. She holds a J.D.from the University of California at Los Angeles School of Law and a Bachelor of Arts degree in Political Science from Tufts University. She is admitted to practice law in the State of New York; the Second Circuit Court of Appeals; and the U.S. District Courts for the Southern and Eastern Districts of New York. As a new chair, Yee has some very interesting speakers lined up for our monthly meetings, who will be discussing topics of interest to committee members, such as marketing, ethics for solo and small firm practitioners, iPad applications for attorneys; etc. Supreme Court Committee Pamela Gallagher is pleased to serve as Co-Chair of the Supreme Court Committee after a serving as the Committee’s Secretary for the 2011-2012 term. As an associate at the firm Gallet Dreyer &Berkey, LLP, she litigates contractual and real estate disputes in Supreme Court and the Appellate Division, the City’s landlord and tenant courts, and the Southern and Eastern Districts of New York. Gallagher is a graduate of the Benjamin N. Cardozo School of Law. Prior to becoming a New Yorker, Pamela was a non-partisan assistant research analyst for the Arizona State Senate. Brian D. Graifman, Counsel at Gusrae Kaplan Nusbaum PLLC.,joins Gallagher as Supreme Court Committee CoChair. For nearly 25 years, he has represented a wide spectrum of clients in complex litigation, with cases often at the intersection, and defining the scope, of arbitration, securities and regulatory disciplinary defense, litigation and jurisdiction between state and federal courts. Graifman has been active for many years also on the Federal Courts Committee and the Appellate Courts Committee. Through NYCLA, he has coauthored and/or co-chaired various committee and association reports, served on panels, and assisted in revamping court rules and forms. Graifman clerked for the late Judge Roger J. Miner at the U.S. Court of Appeals for the Second Circuit and graduated from New York Law School in 1988. According to Gallagher and Graifman, the Supreme Court Committee covers all aspects of state Supreme Court practice and initiatives, and has had tangible impact on court administration. The monthly meetings are some of the most spirited at NYCLA, with presentations by leaders of the bench, bar and court system, and a committee membership to match. Committee meetings are very informative, even for experienced practitioners. The committee adds to the vibrancy of NYCLA each year by producing the Attorneys’ Guide to Civil Practice in New York County Supreme Court, and sponsoring the reception for newly elected, appointed, and re-appointed judges; the popular Law Day Luncheon; and the Summer Minority Judicial Internship Program. Gallagher and Graifman welcome NYCLA members to join Committee meetings and become involved.
December 2012 / The New York County Lawyer
B A R B A R A M O S E S , P R E S I D E N T O F T H E N YC L A FO U N D AT I O N
Dear Friends: As the holidays approach, the NYCLA Foundation encourages you to contribute to our Second Century Fund. A donation to the Foundation will help NYCLA protect access to justice for all New Yorkers, defend judicial independence, improve our court system, provide critical pro bono services to low-income New Yorkers and modernize our beautiful building, the Home of Law, where much of NYCLA’s work takes place. Contributions will also help NYCLA provide much-needed assistance to victims of Hurricane Sandy, including lawyers displaced from storm-damaged offices and New Yorkers who need help with insurance claims and related legal counseling in the wake of the hurricane.
is that relatively modest donations can make a big difference. For example: • $2,500 provides a fellowship for a young public interest lawyer struggling to pay his or her law school debt. • $1,000 underwrites the top award in our annual public high school essay contest. • $500 supports our Legal Counseling Project, providing pro bono advice to needy New Yorkers, including storm victims. Your dues do not cover all the costs of the programs and services that make us proud to be NYCLA members. We depend on your contributions to support the work that we do to benefit both the profession and the public. The good news
You can donate in these amounts—or in any amount you choose—simply by going to www.nycla.org and choosing “Giving to NYCLA.”You can also mail a check, payable to the NYCLA Foundation, to the NYCLA Foundation, 14 Vesey Street, NewYork, NY
10007. We are grateful for every contribution and are pleased to thank you with a selection of gifts described on our website. Because the NYCLA Foundation is recognized by the IRS as a 501 (c) (3) organization, gifts are deductible to the extent provided by law. NYCLA needs your support. Please join me in giving what you can. Sincerely,
Barbara Moses President of the NYCLA Foundation
Protecting the Innocent By Michael C. Pope, Esq. “What should New York do to prevent misidentification of a defendant from leading to a wrongful conviction?” Michael Mercer was walking in Harlem late one afternoon when a young woman approached him. The woman began shouting that Mr. Mercer was the man who had brutally raped her two months earlier. A crowd quickly circled and began beating him, believing the woman’s accusation. The police arrived and arrested Mr. Mercer. Based largely on the victim’s adamant eyewitness identification at trial, Mr. Mercer was convicted of first-degree rape, sodomy, and robbery. Michael Mercer became prisoner No. 92A7361. His pleas of innocence were finally realized ten years later. On May 19, 2003, based on reexamination of DNA evidence, and on motion by Manhattan District Attorney Robert M. Morgenthau, Mr. Mercer was released an innocent man. Returning home, Mr. Mercer was left to grapple with the psychological devastation and trauma from ten years of wrongful incarceration. Additionally, the victim was devastated by her mistaken identification, the true perpetrator evaded responsibility for over a decade, and society was left with a judicial system that failed to protect the innocent. Mr. Mercer is one of the 24 people in New York who have been exonerated through reexamination of DNA evidence. Yet this number is merely the tip of the iceberg. DNA evidence exists in only five to ten percent of cases, which conservatively leaves New York with hundreds of wrongly convicted citizens. Simply put, this is a catastrophic failure of the criminal justice system. New York places third highest in the United States for its number of wrongful convictions. Evidence suggests that the single leading factor of wrongful convictions is mistaken eyewitness identifications. As Justice Marshall noted in his dissent in Manson v. Brathwaite, there is an “unusual threat to the truth-seeking process posed by the frequent untrustworthiness of eyewitness identification testimony.” Eyewitness identifications are the leading cause of wrongful convictions for two reasons. First, eyewitness identifications are incredibly malleable. The procedures utilized during pretrial identifications can not only alter a witness’ perception toward believing an innocent individual is the perpetrator, but can actually artificially boost a witness’ confidence in their identification. The defense, left with legal protections such as cross-examination and eyewitness expert testimony, have little to guard against a witness who mistakenly believes they are making the correct identification.
Second, juries place an incredible amount of weight on in-court identifications with little meaningful thought on the factors that can lead to wrongful identification. For Mr. Mercer, when the victim took the stand, pointed at him and swore he brutally raped her, the jury quickly agreed. New York must reform pretrial identification procedures to make certain identifications themselves are as accurate as possible. Further, it is essential for New York to broaden in-court procedures to also protect the innocent when identifications occur without state involvement. Increase Eyewitness Accuracy The most important and meaningful advancement to reduce the number of wrongfully incarcerated individuals is to disseminate rules and implement practices that enhance accuracy of eyewitness identifications. New York must implement statewide mandatory witness identification procedures. Eyewitness identifications, similar to other forms of evidence, must be handled carefully to ensure the process for obtaining this evidence does not distort the already fragile evidence. A wealth of research in the past decade has focused on what protections can ensure identification evidence is as accurate as possible. Pulling from this research, New York must implement four separate mandatory witness identification procedures to help protect the innocent. New York must demand cautionary instructions be provided to all witnesses before conducting lineup identifications. Imagine yourself as a witness to robbery: frightened, anxious, and trusting a police officer’s guidance to help you navigate the system. In this environment, we must ensure witnesses have a clear understanding that the suspect may not be in the lineup and that the police will continue to investigate the crime regardless of whether the witness makes an identification at that time. Without these simple pre-identification advisories, a witness’ anxiety and desire to make the “right choice” may overshadow any doubt the witness may have. The identification order must be sequential. Thus, rather than the witness viewing all individuals at the same time, the police should allow each of the fillers, as well as the suspect, to be viewed individually. Evidence suggest that this helps ensure the witness is not using relative judgment and merely choosing the individual who looks closest to the perpetrator. An administrator that doesn’t know the identity of the suspect must conduct the witness identification procedure. This process, called double blind administration, makes certain that the police officer conducting the proce-
dure does not lead a witness to make an incorrect identification. It also ensures the witness’ confidence in their identification is not artificially inflated by feedback from the administrator. It is important to note that providing clues to a witness during the identification can occur either intentionally or unintentionally. Either way, an administrator who doesn’t know the suspect’s identity is incapable of inappropriately leading the witness in any direction. Finally, it is time for New York to require video recording and documentation of the entire identification procedure. Video recording, from the witness’ initial description of the suspect through the witness’ post identification statements, allows judges to review the process more accurately during a Wade hearing. Additionally, if the evidence is admitted, the jury can use video recordings to appropriately weigh the strength of the identification. Mandating eyewitness identification procedures will help reduce the number of wrongful identifications occurring and increase confidence when identifications are made within these protections. However, these procedures only impact stateorchestrated witness identifications. Many identifications, such as the one against Mr. Mercer, occur initially outside the presence of any state actor. Thus, it is essential to also broaden in-court protections. Broaden In-Court Protections Preventing misidentification of a defendant from leading to a wrongful conviction must also occur through increasing courtroom access to both factual specifics of identifications as well as broadening the knowledge available to all parties regarding the limitations of such evidence. New York, through the Court of Appeals decision in People v. Santiago, has taken a step in the right direction in holding that the exclusion of expert testimony on eyewitness identification is inappropriate when little corroborating evidence exists against a defendant beyond this eyewitness identification. However, New York should fully implement this rule by demanding expert testimony be allowed in all cases in which eyewitness evidence is presented to the jury. Whenever an identification is made, whether state orchestrated or not, a Witness Confidence Statement should be obtained from the witness. This statement must not only require the witness to independently rank their own level of confidence in the identification, but also ask open-ended questions about the basis of their level of confidence. Such information can have a number of legally significant impacts beyond use by defense council. The statement could assist police in determining if they should continue
to work a case. Prosecutors could also use it to help evaluate the case and determine whether to call a witness to testify. Finally, presenting the information would help assist juries in determining the significance of the eyewitness identification. Finally, New York must require timely jury instructions on every case where identification evidence is presented. While many states have made strides in developing jury instructions on the issues surrounding eyewitness identifications, psychological research continues to indicate that traditional instructions have virtually no impact on the jury’s actual evaluation of an identification. Due to the unique challenges and concerns surrounding eyewitness identifications, New York must strengthen these instructions by demanding that they are provided in every identification case. Further, instructions should be provided immediately before eyewitness testimony. Allowing timely instructions will strengthen the jury’s ability to understand the complexities of witness identifications and would assist them in evaluating the strength of the evidence as it is presented. More than any other issue, a wrongful conviction represents a catastrophic failure that all sides of our justice system can rally behind. State police chiefs, district attorneys, defense bars, and the judiciary have all proposed reforms. However, New York has taken little action. This failure most obviously impacts the individuals spending years incarcerated for crimes they did not commit. Additionally, a wrongful conviction destroys families, leaves witnesses to grapple with the tremendous guilt of sending an innocent person to prison, and keeps the actual perpetrators at-large. According to law enforcement data gathered by the Innocence Project, seven rapes, five murders, two assaults, and one robbery were committed in New York by the actual perpetrators of crimes while these 24 people were wrongfully incarcerated. It is time for New York to become leaders in protecting the innocent from wrongful convictions. Some say wrongful convictions are inevitable. While this may be true, we must at least be able to inform Michael Mercer, and the many others who have felt the worst of injustice, that our system has done everything reasonably possible to ensure the accuracy of convictions. Pope is a NYCLA member and Equal Justice Works Fellow at Youth Represent. His above essay was selected by NYCLA’s Criminal Justice Section as a winning essay in its 2012 Public Service Fellowship Essay Contest, open to newly admitted public sector attorneys working in the fields of criminal justice carrying more than $30,000 in educational debt.
December 2012 / The New York County Lawyer
The Environmental Impact of E-Filing By Genan F. Zilka, Esq. A few months ago I was working on a situation on which the statute of limitations was due to expire. I raced down to the clerk’s office at 4:30 p.m. to file a complaint, and was turned away. The court had switched to e-filing for contract cases weeks before. I was relieved, as this provided me with additional time to work on, and file my complaint, but it also got me thinking about the effect of e-filing on the environment. Lawyers use a lot of paper. In fact, the average lawyer uses between 20,000 to 100,000 sheets1 of copy paper per year. The production of this paper causes the release of 4.5 tons of carbon dioxide.2 Looking at my own office, I’ve realized that, in my day to day life, I go through reams of paper. A lot of lawyers, myself included, will print memoranda, pleadings and discovery requests and responses out when they receive them, or before sending them out. Personally, I find it easier to review them that way, catching mistakes before a documents goes out to a client, the court and opposing counsel.3
Bankruptcy courts began using e-filing in 2001, District courts in 2002, and appellate courts in 2005.4 E-filing in federal courts is now mandatory. New York State first authorized e-filing in 1999.5 Since February 27, 2012 in New York County all tort, commercial, and contract cases must be e-filed. The environmental benefits of e-filing have been cited as a reason for its implementation. In Green Justice, an “Environmental Action Plan For The New York Unified Court System” published in 2008, e-filing was put forth as a means of reducing paper, as well as impacting the environment in other ways. The report stated that the four million cases initiated in New York Courts resulted in filing of 100 million pieces of paper.6 This number does not include multiple copies that must be served on opposing parties. The environmental impact goes beyond the paper generated. Even going to the court to file these papers negatively affects the environment. The environmental effects of non e-filing are especially devastating and much of this paper eventually ends up in the trash.7
might be undermined by certain requirements by both judges and the federal court system. The Southern District still requires that cases are initiated and served “in the traditional manner on paper”8 meaning that all complaints have to be printed, and the actual paper copies need to be filed with the clerk’s office. In addition to this, many judges in both the federal and state court systems still require receipt of a paper copy of e-filed papers.9 Although it might be difficult to get lawyers and judges to change their ways in regards to paper usage, hopefully e-filing might make a dent in the amount of paper, and the environmental impact of manufacturing and delivering paper. Genan F Zilkha, Esq., a NYCLA, Art, Cyberspace, and Women’s Rights Committee, and Young Lawyers’ Section member, is an attorney practicing in New York. She focuses her practice on counseling individuals and small businesses in their legal needs. She is a graduate of Fordham Law and was previously associated with Lawrence W. Rader, Esq.
The environmental impact of e-filing
References: 1. LATTE (Lawyers Accountable To The Earth), http://www.abajournal.com/news/article/one_pap er_pushing_lawyer_tons_of_greenhouse_gases/ 2. Id. 3. Jon Clyde, et al., “The Green Utah Pledge”, Utah State Bar, March 6, 2012, http://webster.utahbar.org/barjournal/2012/03/yo ung_lawyers_division.html 4. ABOUT CM/ECF http://www.uscourts.gov/Federalcourts/CMECF/ AboutCMECF.aspx 5. “eFiling in the New York State Courts”, Report of the Chief Administrative Judge, November 2011, http://www.courts.state.ny.us/whatsnew/pdf/eFili ng-Report_6-2011.pdf. 6. Green Justice An Environmental Action Plan For The New York State Court System, November 2008, http://www.courts.state.ny.us/whatsnew/pdf/NYC ourts-GreenJustice11.2008.pdf. 7. See “eFiling in the New York State Courts” Supra Note 6. 8. Electronic Case Filing Rules & Instructions, http://www.nysd.uscourts.gov/ecf/ rules_040411.pdf 9. “Report on the Progress Toward Implementing Statewide Electronic Filing in New York Courts”, New York State Bar Assocation, March 30, 2012, http://www.nysba.org/AM/Template.cfm?Section =Current_Releases&ContentID=74384&Templat e=/CM/ContentDisplay.cfm
The Three Rs: Reducing Your Environmental Impact understanding the benefits and results of their own program.
By Neil A. Feldscher, Esq. Corporate social responsibility. Sustainability. Carbon neutral. Environmental impact reduction. One need only walk into a coffee shop, browse the Internet to purchase goods, or review the tags at a clothing store to understand the prevalence of the environmental sustainability movement in today’s society. A larger segment of recent law school graduates have grown up with these new beliefs and will be leaving school with the expectations of environmental responsibility within their future employers. Perhaps most importantly, it is no longer only large European corporations that are ISO 14001 (i.e., environmental management system) certified or have corporate social responsibility (“CSR”)/sustainability programs and goals. Companies worldwide are now embracing and incorporating CSR and sustainability into their corporate values. Many of these companies, especially those that are ISO-certified, consider the environmental impact reduction programs of vendors at time of procurement. Even professional service procurement is no longer immune from this consideration. Well prepared firms should be prepared by having a CSR/sustainability program and
Even urban professional service type companies can have an environmental impact. For the typical New York City law firm, the largest potential means to reduce impact to the environment is through a program to reduce, reuse, and recycle (“RR&R”). While New York City requires that owners/operators of commercial multi-tenant buildings establish a recycling program, for office environments these requirements essentially only require the separation of many paper (and corrugated cardboard) products from the general waste stream (NOTE that for firms that operate a cafeteria there are additional requirements to separate both bulk metal and metal cans/aluminum foil products/glass bottles and jars/plastic bottles and jugs).Commingling of some of these waste streams is permissible in NYC. These city requirements represent a minimalistic type program that misses most of the opportunities for firms to have a measureable and meaningful impact. A well designed program that incorporates plans for reduction and reuse with recycling can provide marketing opportunities
for firms, is socially responsible, and can reduce a firm’s overhead costs. Reduce A more fundamental element than recycling of generated waste is to reduce the amount of waste generated, therefore eliminating or limiting the need for recycling. There are dual cost-savings from reduction; a decrease in the purchase of consumable products provides a cost savings and the subsequent reduction in waste reduces recycling/disposal costs.
Some of the most common avenues for reduction include: • Ensure that all printers are set by default to print on both sides. • Do not unnecessarily print emails or computer files. For firms document management software allows for the creation of an “electronic redweld file.” thereby eliminating the need to print for purposes of filing. • Consider the use of tablet and notebook computers for taking notes. Note-taking software provides the advantages of allowing for full text searching, keyword establishment, and for the automatic copying of notes between machines, locations, and persons.These notes can then be filed by the document management software in the same manner as emails or other computer files. • Where paper is utilized for note taking, both sides of the paper should be utilized or the pad should be reused in order to utilize the back side of the pages. • Firms that have their own cafeterias or pantries should consider the replacement of single-use condiments (e.g., sugar, milk, cream, etc.) with bulk products. (See Three Rs on page 15)
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December 2012 / The New York County Lawyer
RECENT EVENTS Federal Courts Committee Presents Weinfeld Award The NYCLA Edward Weinfeld Award for Distinguished Contributions to the Administration of Justice waspresented to Hon. Sidney H. Stein of the United States District Court for the Southern District of New York by Judge Ralph K. Winter, United States Court of Appeals for the Second Circuit at the Federal Courts Luncheon hosted by the Federal Courts Committee on October 24.
Judge Stein (center) is congratulated by Stewart Aaron (left), NYCLA President; Jai Chandrasekhar (second from left), luncheon chair; Judge Winter (second from right); and Vincent Chang (right), chair of the Committee. Attendees enjoy lunch at the Home of Law.
NYCLA Pro Bono Volunteers Honored at Reception On October 25, lawyers from New York City were honored at the Celebrate Pro Bono reception held by the New York State Courtâ€™s Access to Justice Program for their dedication to serving the New York community.
NYCLAâ€™s President, Stewart Aaron, presents awards to NYCLA pro bono volunteers.
Award recipients pictured back row, left to right:Tat Wong, Neely Moked, Locksley Wade, along with NYCLA Past Presidents Stewart Aaron, and Lois Davis, Director of NYCLA Pro Bono Programs. Front row: award recipient Daniel Migden.
Network of Bar Leaders Breakfast On October 26, at a Legislative Breakfast held at NYCLA, New York State Senator Diane J. Savino (left); New York City Council Member Daniel R. Garodnick (second from left); New York City Council Member Julissa Ferreras (second from right); and Assembly member Guillermo Linares (right), spoke about a wide range of topics, from the Occupy Wall Street movement, the controversial NYC soda ban, regulation of RX drugs, and legalization of marihuana, to food labeling and other issues that affect lawyers, their clients and NY businesses. The event was held by the Network of Bar Leaders, a coalition of 46 member bar associations, citywide and statewide specialty groups, specialty bar associations dedicated to every field of practice, and ethnic and religious bar associations.
December 2012 / The New York County Lawyer
Events Calendar All events, unless otherwise noted, will be held at NYCLA Home of Law, 14 Vesey Street. Visit the Association’s website, nycla.org for more details, schedule changes and additions, and to R.S.V.P. for events, which are subject to change.
December 98th Annual Dinner: Celebrating LGBT Equality Tuesday, December 11 - Reception-6:30 p.m.; Dinner-7:30 p.m.; Waldorf-Astoria Keynote speaker: Eric Schneiderman,
New York State Attorney General. Welcome Remarks: Christine C. Quinn, New York City Council Speaker. 2012 William Nelson Cromwell Award Honoree: Roberta A. Kaplan, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP. 2012 Boris Kostelanetz President’s Medal Honoree: Sue C. Jacobs Goodman & Jacobs LLP.
January Speednetworking Thursday, January 24 – 6:30 p.m.
Board Nominations The NYCLA Committee on Nominations is accepting nominations for the positions of Vice President, Treasurer and Secretary of the Association and for members of the Board of Directors. These terms would begin in May 2013. The Committee welcomes self nominations or nominations of those you think could play a leadership role at NYCLA. Please submit a letter stating your or the nominee’s reasons for wishing to serve as either an officer or director, along with a resume. Materials should be submitted to Marilyn J. Flood, Counsel to NYCLA, email email@example.com, by December 27, 2012.
Portrait Unveiling of a Former President, James B. Kobak Monday, January 28 – 6 p.m. Join us as we unveil a portrait of immediate past NYCLA President James B. Kobak. Reception to follow ceremony Mock Interview Program Wednesday, January 30 - 6-8 p.m. Sponsored by the Young Lawyers’ Section Experience a mock interview with an experienced legal professional and gain insight into how to prepare for interviews. Open to first-year New York Law School students who are NYCLA members.
Discussion Series: Advice from the Bench: Practice Tips for Young Lawyers Thursday, January 31 - 7 p.m. Sponsored by the Young Lawyers’ Section and the Federal Courts and Supreme Court Committees Confirmed Panelists: Hon. Eileen Nadelson (Ret.), New York Supreme Court; Hon. Richard B. Lowe III, Presiding Justice, Appellate Term, First Department; Hon. Frank Maas, U.S. Magistrate Judge, SDNY; Michael Battle, Former Family Court Judge, Former U.S Attorney, WDNY, and Senior Partner, Schlam Stone & Dolan LLP. Event Chair and Moderator: Adam Roth, Esq.
10 December 2012 / The New York County Lawyer
LIBRARY NOTES The NYCLA Library staff has great research and reference depth. That said, Environmental Law has not been a focus of collection development for the library for some time.
directly or through the Reference Staff, to the following secondary source materials: • Westlaw Secondary • Federal Environmental Regulation of Real Estate Law Digest (FEDENVDIG) • Law of Distressed Real Estate (LAWDRE) • Real Estate Law Digest, Fourth Edition (RELAWDIG) • Defense Environment Alert (DEFENVALT) • Federal Environmental Law-E.P.A. Decisions (FENV-EPA) • U.S. Environmental Protection Agency Title V Final Orders (FENVEPA-AIR) • Corporate Compliance Series: Environmental (CORPC-ENV) • Environmental Obligations in Bankruptcy (BKRENVOB) • Handling the Land Use Case Land Use Law, Practice & Forms (LAN DUSELAW) • Law of Water Rights and Resources (LWATRR) • Law of Wetlands Regulation (LWETR) • Legal Compliance Checkups: Business Clients (LCOMPLC) • Managing Environmental Risk: Real Estate & Business Transactions (MENVRISK) • McKinney’s Forms Multibase Environmental Law (MCF-ENV) • Nanotechnology Law (NANOTECH) • Connecticut Practice Series Environmental Law (CTPRAC-ENV) • New Jersey Practice Series Environmental Law (NJPRAC-ENV) • New York Construction Law Manual Environmental Law (NYCLM-ENV) • New York Practice Series Environment Law and Regulation in New York (NYPRAC-ENV)
Being somewhat unfamiliar with the subject I would first gather pathfinders or research guides prepared by other law libraries that have Environmental Law as an area of focus. These subject specific bibliographies save someone learning a new area of law a lot of time. A simple Google search turned up many resources including the following: International Environmental Law Pathfinder • http://www.law.georgetown.edu/librar y/research/guides/InternationalEnviro nmentalLaw.cfm US Environmental Law Pathfinders • http://lawlib.buffalo.libguides.com/con tent.php?pid=248668&sid=2054679 New York Environmental Research • http://libraryguides.law.pace.edu/ new_ york_environmental_law Specialized Environmental Research • http://libraryguides.law.pace.edu/hydr ofracking • http://libraryguides.law.pace.edu/green -building The NYCLA Library has a full complement of primary source materials in environmental law through our Westlaw subscription, for example: • Westlaw Primary • Federal Environmental Law Combined Materials (FENV-ALL) • Annotated Multistate Environmental, Health & Safety Statutes (MENV-ST) The NYCLA Library has access, either
In the NYCLA Lexis subscription
patrons have access to all Federal and State primary source items and the ability to browse numerous Matthew Bender secondary source titles, including:
• Legal Planet “Provides insight and analysis on energy and environmental law and policy. The blog draws upon the individual research strengths and vast expertise of the law schools’ legal scholars and think tanks. Our goal is to fill a unique space on the blogosphere, not only by bridging the worlds of law and policy, but also by translating the latest developments in a way that’s understandable to a mass audience. We write about U.S. Supreme Court decisions, regulatory actions, and state and national legislation that affects water resource management, toxic waste disposal, renewable energy, air quality, land use, and more. The global challenge of climate change is the driver behind our work.” • Switchboard, from NRDC > David Doniger’s Blog Federal and state global warming, clean air and clean car law. • Utica Marcellus Shale Monitor “Designed to provide the latest legal news and information regarding shale plays in the Utica and Marcellus regions.”
• Environmental Impact Review in New York • Environmental Law • Environmental Law in Real Estate and Business Transactions • Environmental Law Practice Guide • Environmental Litigation, Second Edition Environmental Law is very dynamic as statutory, judicial and administrative regulations and determinations are in constant flux. Blawgs are one way to keep informed about the cutting edge of this area of law. Found thru ABA Blog index (http://www.abajournal.com/blawgs/by_topic/) • Environmental Crimes Blog This blawg explores all aspects of environmental criminal law. • Environmental Law and Business “Tracks changes in environmental law and their impact on business.” • Environmental Law Prof Blog Posts cover policy, regulation and enforcement issues concerning environmental law, climate change, oil wells, Caribbean reefs and waste management • Environmental Legal Blogs “Developments in environmental law.” • Focus on Regulation “Hogan Lovells’ blog, Focus on Regulation, provides insights, analysis, and news about regulatory issues affecting a broad array of industries.” Also has firm news. • Hydraulic Fracking Blog Blog covers the latest news, decisions and rules in the area of hydraulic fracturing.
Other sources of current awareness, which can be set up as email alerts, include: • Westlaw Journal Environmental (WJENV) • Westlaw Journal Toxic Torts (WJTOX) • Westlaw Journal Asbestos (WJASB) • WESTLAW Topical Highlights Environmental Law (WTH-ENV) Recent book acquisitions: Goldberg, David, Transfer and Mortgage Recording Taxes in New York Title Closings. Lexis: New York, 2012.
Digital Training Center CLE Programs Unless otherwise noted, courses are free and open to the public. Register at nycla.org. Questions? Contact Irina Chopinova at firstname.lastname@example.org or 212-267-6646 x203.
December 5 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Statutes and Regulations December 18 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional U.S. Bankruptcy Court Electronic Case Filing System December 19 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Westlaw: Advanced December 4 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional Westlaw: Public Record Research December 4 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: I December 5 – 10:30 a.m. – 11:30 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Litigation December 5 – 12:00 – 1:00 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Expert Witness
Westlaw: Basic December 18 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
January Lexis: II January 9 – 10:30 – 11:30 a.m. 1 MCLE Credit: 1 Skills; Transitional
Lexis: Factual Discovery January 9 – 12-1 p.m. 1 MCLE Credit: 1 Skills; Transitional Lexis: Company and Financial Research January 9 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for Litigation January 24 - 10-10:50 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)
Westlaw: Basic January 10 – 10-11 a.m. 1 MCLE Credit: 1 Skills; Transitional
Using Bloomberglaw.com for a Corporate Transactional Practice January 24 - 11:05 - 11:55 a.m. 1 MCLE Credit: 1 Skills; Transitional (Also NJ)
Westlaw: Trusts and Estates January 10 - 11:30 a.m.-12:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
Westlaw: Intermediate January 29 - 1:30 - 2:30 p.m. 1 MCLE Credit: 1 Skills; Transitional
U.S. Bankruptcy Court Electronic Case Filing System January 23 – 10 a.m.-12:30 p.m. 2.5 MCLE Credits: 2.5 Skills; Transitional (Also NJ) Member: $65 Non-member: $85 Non-legal Staff: $35
Westlaw: New York Materials January 29 – 3 - 4 p.m. 1 MCLE Credit: 1 Skills; Transitional
December 2012 / The New York County Lawyer 11
What’s Really in Our Meat? By Jessica Zafonte, Esq. The discovery of the antibiotic penicillin in 1928 led to the lifesaving use of this drug and those similar to it. But as the use of antibiotics becomes more widespread, the number of antibiotic resistant, and thus incurable disease strains grow. Antibiotic resistant infections now cost the U.S. health care system $50 billion per year and infections once routinely treated with antibiotics are now requiring hospitalization and causing thousands of deaths annually. Particularly problematic is the use of antibiotics in animal agriculture, which comprises over 80 percent of the antibiotics used in this country.Yet this use in our food system is almost entirely unregulated. The use of antibiotics in food animals is usually nontherapeutic, with most antibiotics administered to food animals to prevent disease and increase weight gain, rather than to treat infections.1 With the shift to the factory farm model of food production, animals are kept in severely overcrowded and filthy living conditions, where the stress, unsanitary environment, and improper nutrition will inevitably cause them to grow sick and die were antibiotics not consistently put into their feed. Antibiotics also allow animals to be manipulated to gain weight rapidly and thus slaughtered earlier. Apart from the ethical issues this scenario raises is the human health concern that the overuse of these drugs in the food system will lead to a growth in antibiotic resistant bacteria strains that can be transferred to the human population via food and environmental routes.2 Yet despite these risks, there is very little regulation of antibiotic use in animal agriculture. The regulation falls under the fractured purview of several governmental entities. The U.S. Food and Drug Administration (FDA) is tasked with the
Dr. N.G. Berrill, Director responsibility of regulating the drugs themselves. The Agricultural Research Service of the U.S. Department of Agriculture (USDA) studies animal antibiotic use and publishes guidelines to reduce food-related health risks, while the Centers for Disease Control creates educational programs for antibiotic use in farm animals and funds state and local education programs on this topic.3 State departments of agriculture are tasked with monitoring antibiotic use in farm animals, but there is no requirement that this data be reported to the federal government and no specific standards by which the states must abide.4 According to a physician who formerly worked for the USDA, “[t]here’s nobody in charge … and when no one’s in charge, it doesn’t get done.”5 The agriculture industry is a powerful lobby, adamant on fighting regulation.6 Currently, the industry is not required to reveal how they use antibiotics in their animals or in what quantities, and many drugs are sold through feed suppliers with no regulation.7 When this data is disclosed, the industry underreports its antibiotic use by at least 40 percent, according to the Union of Concerned Scientists.8 This framework not only allows for the abuse and misuse of these drugs, it also hinders scientists from maintaining data that could be used to definitively prove harm to the (See What’s in Our Meat on page 14)
Is your firm’s website mobile-friendly? By Fred Cohen, J.D. If you walk into any coffee shop in New York City, you’ll undoubtedly encounter patrons using a wide variety of smartphones and tablets. If you take a closer look, you’ll find that some are surfing the web, others are doing work and some may even be video chatting—all from their mobile devices. Given this undeniable ubiquity of mobile technology, it’s no surprise that savvy businesses and law firms alike recognize that their online marketing efforts must also accommodate the smaller screens of Droids and iPhones. With your firm’s website serving as the focal point of your online marketing campaign, it’s essential that you assess just how effective your site is on a mobile device. Take a few minutes and try visiting your firm’s site from a smartphone. If you have access to both an Apple product like an iPhone (or even iPod touch) and another mobile platform like an Android, try them both. As you open your site, take note of just how long it takes to load. In many cases, sites have large graphics which may be quick to load on a PC with high-speed Internet access but can be problematic on a slower mobile network. Once the site opens, is the text easy to read? Do you have to scroll all over the place to try to find key components like contact information? If so, it’s probably time for you to develop a mobile site. When developing your mobile site, consider the following best practices: • Your mobile site should not contain the same graphics as your regular website. Instead the graphics should be created
The New York Center for Neuropsychology & Forensic Behavioral Science
specifically for your mobile site—they should be much smaller in size and free of Flash animation.
[ Over 25 Years \ Providing Consultation to Attorneys & the Courts on Psycho-legal Matters • Criminal Cases: Competency Issues, Criminal Responsibility, Extreme Emotional Disturbance, Risk Assessment, Sex Offender Workups & Dispositional Planning
• Matrimonial & Family Court Cases: Custody/Visitation, Neglect/Abuse, Termination, Delinquency, Family Violence, & Adoptions
• Civil Cases: Competency Issues, Head Trauma, Sexual Harassment, Discrimination, Immigration, & Post-Traumatic Stress Disorders
• Create a navigation menu and page structure that visitors can easily see without zooming in and out. • Whenever possible, you should have one-touch buttons which allow for easy navigation or action. These might include a click-to-dial button, share button (allowing visitors to easily email your site’s link or post to social media platforms) and a home button so they can easily get back to the starting point. • When a user types in your domain name on a smartphone or tablet, he or she should automatically be taken to your mobile site. The user should not have to first arrive at your main site and then click a link to be taken to your mobile-friendly site. There are many developers who will create a mobile site for your firm based on your main site. For the most part, their services are reasonably priced but often, since they are on a different platform from your main site, you may have to maintain two sets of content; one for your standard site and one for your mobile site. If the web developer who created your main site is available, try first consulting them concerning a mobile site. Fred J. Cohen, J.D., is the founder and President of Amicus Creative Media, an attorney web design and marketing company (amicuscreative.com), and a NYCLA member benefit partner. He can be contacted at 877-269-0076.
Comprehensive Diagnostic & Treatment Services
MAIN OFFICE 26 Court Street, Suite 1711, Brooklyn, NY 11242 718-237-2127 LONG ISLAND OFFICE 45 North Station Plaza, Suite 404, Great Neck, NY 11021 516-504-0018 MANHATTAN 139 Manhattan Avenue, New York, NY 10025 212-280-3706
12 December 2012 / The New York County Lawyer
Involving the Public in Pesticide Regulation By Phillip Azachi The United States Environmental Protection Agency (EPA) reached a milestone in pesticide regulations this year, but its recent victory was only made possible through the long term process of overhauling registration and the tolerance system. Now, the EPA is utilizing public participation in its continued regulation of pesticides. Scotts Miracle-Gro Company, a producer of pesticides for commercial and consumer lawn and garden uses, illegally applied insecticides to bird food products that are toxic to birds.1 Scotts distributed unregistered pesticides, falsified pesticide registration documents, distributed the products with misleading and unapproved labels in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). It was sentenced to pay a $4 million dollar fine for 11 criminal violations of FIFRA, the largest criminal penalty under the act to date. Scotts further agreed to pay more than $6 million in civil penalties and spend $2 million on environmental projects to resolve additional civil pesticide violations, the largest civil settlement under FIFRA to date. The EPA regulates the pesticide industry according to the mandates of three major federal laws. FIFRA requires EPA to review and register pesticides for specified uses. The Federal Food, Drug, and Cosmetic Act (FFDCA) mandates the EPA to set maximum residue levels, or tolerances, for pesticides used in or on foods or animal feed. The Food Quality Protection Act of 1996 (FQPA) amended FIFRA and FFDCA setting tougher safety standards for new and old pesticides and creating a uniform requirement regarding processed and unprocessed foods. A person or company must register with the EPA before selling or distributing a pesticide in the United States. In assessing the applica-
tion, the EPA must ensure that the pesticide can be used with a reasonable certainty of no harm to human health and without posing unreasonable risks to the environment based on the instruction label. To make such determinations, EPA requires more than 100 different scientific studies and tests from applicants. Rigorous scientific studies are also necessary for setting tolerances for the amount of the pesticide that can legally remain in or on foods. The EPA must constantly update the registration system and tolerances levels in light of new data. And Congress has imposed stringent time frames for completing such reviews. The 1988 amendments to FIFRA authorized the EPA to conduct the pesticide re-registration program, a comprehensive review of the human health and ecological effects of pesticides first registered before November 1, 1984. Approximately 1,150 pesticide active ingredients organized into 613 “cases” or related groups were subject to reregistration. FQPA requires the EPA to reassess within 10 years the 9,721 existing tolerances and tolerance exemptions to ensure that they met the new “reasonable certainty of no harm” safety standard. FQPA further requires the EPA to periodically review every pesticide registration every 15 years. So far, the EPA has had major breakthroughs in its projects, albeit with some delays. In September 2008, the EPA completed the last of 384 Re-registration Eligibility Decisions (REDs).2 On August 3, 2006, the EPA completed over 99 percent of the tolerance reassessment decisions.3 The remaining 84 tolerance reassessment decisions for five pesticides were completed in September 2007.4 The EPA commenced their first 15 year review in 2006.
NYCLA In The News New York Law Journal Attorneys Battered by Sandy Find Temporary Ports After the Storm November 16, 2012 An article on lawyers finding temporary offices space post-hurricane Sandy mentions that, “The New York County Lawyers’ Association has heard from more than 20 lawyers or law firms seeking temporary space, ranging from solos to firms with staffs close to 30,” quoting NYCLA’s Executive Director Sophia Gianacoplos. It goes on to say that, “NYCLA is trying to match displaced lawyers with law firms that have extra space. Several firms have offered to help” and that “NYCLA is also offering its own conference rooms, library space and computers to displaced members. More than 50 have taken the association up on its offer.” New York Law Journal Legal Community Offers More Help for Sandy Victims November 8, 2012 In this article about the legal community’s efforts to help storm victims, the expansion of NYCLA’s legal counseling project is mentioned. It notes that, “until now, the project has advised on consumer bankruptcy, landlord-tenant issues, employment and family law” and mentions that the group is seeking volunteer attorneys experienced in insurance law. The article also notes that NYCLA is also matching lawyers displaced from their offices with firms that have extra space, and provides information on how firms can help and can get help. It also mentions that NYCLA’s Young Lawyers Section is collecting water, blankets, non-perishable food,
and other items as part of a hurricane relief drive, and that donations may be dropped off at the bar group’s headquarters at 14 Vesey St. Metrocorpcounsel.com New York County Lawyers’ Association Provides Hurricane Assistance To Legal And Greater Community November 7, 2012 This article focuses on several initiatives NYCLA has organized to aid members of the community left devastated in the wake of Hurricane Sandy. Westside Spirit and Our Town At a Standstill October 25, 2012 This article talks about how budget cuts have brought New York’s courts to a crawl and efforts being done to increase funding to the courts. It discusses work done by NYCLA including the report published by its task force on judicial budget buts, to find out the impact of the 2011-2012 fiscal year cuts. It notes that the report surveyed 759 people, including private practice attorneys, court system employees, government attorneys and judges and that over 80 percent of respondents reported that they strongly agreed or agreed that the court’s efficiency has been compromised and that the budget cuts have had a negative effect of the administration of justice. NYCLA’s President, Stewart Aaron, is quoted saying, “You will start a hearing and continue it weeks later. There are these long delays in getting resolutions with matters that are important to the litigants, leaving people and issues in complete limbo. Obviously that’s not the way to administer justice.”
As the agency turns intention to completing the first 15 year review, the EPA pesticide program has been expanding public participation. In October of 2009, the agency began implementing a public participation process for certain registration actions in response to President Obama’s directive on transparency and open government. The public participation process provided options for conducting a six-phase process, modified four-phase process, or streamlined low-risk process depending on the initial risk assessments and complexity of issues. The sixphase process generally arises in more complicated cases than the four-phase process and the streamlined process. In either process, the EPA considers public comment on risk assessments, risk characterization, and preliminary risk reductions measures. The success of public participation in pesticide regulation turns on the availability of information. The EPA publishes a Federal Register (FR) notice announcing the availability of the risk assessments and related documents from the public docket and EPA’s website before opening the comment periods. The public is also informed through searchable databases of chemicals, registrations forms, tolerances, and health and safety precautions on the EPA website. The increased access to information and public participation is a major step forward as pesticide usage continues to be play important role in agricultural practices and urban living. According to Crop Life America, the primary trade association of the pesticide industry, the world wide pesticide market was estimated at $38.5 billion in 2011 with the U.S. representing 32 percent of the market.5 U.S. manufacturers produce well over 1.2 billion pounds of synthetic organic pesticides annually, of which 857 million pounds are sold in the United States alone.6 Pesticides have been used for protecting public health and food production. The farming industry must control insects and mites that damage crops, weeds that compete with field crops for nutrients and moisture, aquatic plants that clog irrigation and drainage ditches, and pathogens occurring in soil. Urbanites must control filthy and disease-transmitting flies, mosquitoes, cockroaches and rodents; beetles that feed on leather goods, insects feeding on lawns; termites that destroy wooden buildings, and bed bugs that terrorize our
bodies. Managing this variety of pests requires a multitude of pesticides. But exercising discretion is necessary to avoid environmental spillovers and the public health disasters of last century. Prior to the 1970s, Federal pesticide laws lacked practical standards for setting tolerance levels and properly accounting for environmental risks. Early legislation supported manufacturer and user objectives. It was not until the environmental movement and Rachel Carson’s condemnation of the use of pesticides in Silent Spring that Congress began the slow process of overhauling the system. Principally, President Nixon shifted authority to regulate pesticides from the United States Department of Agriculture (USDA) to the EPA. The Federal Environmental Pesticide Act of 1972 directed the Administrator of the EPA to set new registration procedure, made it a crime to “use any registered pesticide in a manner inconsistent with its labeling,” and made clear the role of state agencies in the regulation of pesticides. The process has since turned on re-registration and setting appropriate tolerances under the new pesticide regulatory system. The FQPA was the culmination of those efforts as it imposed more stringent timetables, set standards for reviewing specific subcategories of pesticides, and resolved the conundrum of the Delaney clause. Now that regulatory system has been modernized, the American public can start the long process of maintaining it through active participation. Phillip Azachi, a NYCLA and Environmental Committee Member, is a recent graduate of CUNY School of Law, and is interested in environmental and real estate issues. References 1. http://www.epa.gov/compliance/re-source s/cases/civil/fifra/scottsmiraclegro.html 2. http://www.epa.gov/pesticides/reregistration/ product-reregistration.htm 3. http://www.epa.gov/pesticides/tolerance/ reassessment.htm 4. http://www.epa.gov/pesticides/tolerance/ reassessment.htm 5. http://www.croplifeamerica.org/news/ annualreports 6. A. Grube, D. Donaldson, T. Kiely, L. Wu, Pesticide Industry Sales and Usage, 2006 and 2007 Market Estimates, February 2011, Table 3.4, available at http://www.epa.gov/opp00001/ pestsales/07pestsale/market_estimates2007.pdf.
The Value of Membership: 10 Ways to Take Advantage of Your Membership in 2013 You go through your mail and find an invoice from NYCLA. Then you check your email and there’s another. No, we’re not stalking you; we just want to keep you engaged as a NYCLA member for another year—to help you keep learning, stay competitive, expand your professional network, and demonstrate and elevate your professional value and credibility. Think about what you want to get out of your NYCLA membership in 2013—here are our suggestions. 10. Take advantage of discounted CLEs to help expand your skill set, develop professionally, and learn about today’s hot topics 9. Attend a networking program or special event where you can meet industry leaders and professionals inside and outside your practice area 8. Go online through NYCLA’s Library to access electronic research for quick access to the materials you need to most effectively do your work 7. Go shopping or book a trip, and take advantage of our discounts at clothing and electronic stores and car
rental companies 6. Join a local gym such as Equinox Fitness Clubs, New York Sports Clubs, or Crunch using your NYCLA member discount and get a few workouts in 5. Give back to the community by participating in members only pro bono projects. 4. Solve professional ethical dilemmas with our ethics resources and hotline. 3. Join a Committee in your personal practice area to become more of an expert 2. Join a Committee outside of your personal practice area to build your sphere of knowledge 1. Meet other lawyers, law students, and judges and build relationships to help enhance and shape your career You can’t beat that value! We want to hear from you—let us know what other member benefits you would like to see. Contact Diana Kosanovich at (212) 2676646 x213 or email@example.com.
December 2012 / The New York County Lawyer 13
Why Social Disclosure? By Tom Chernaik Social disclosures are used to include or append legal information, disclosures or disclaimers to individual social media communications. Marketing and advertising communications often require that additional legal information or context are included with traditional print, broadcast and digital communications. When those messages are shared in social channels, however, lack of characters in short-form messages is no excuse for not including this information to consumers. The Federal Trade Commission (FTC) updated its guidelines for Testimonials and Endorsements in late 2009, expanding them to include social and digital channels and the commission is currently reviewing their Dot-Com Disclosures that were last updated in 2000. In addition, state attorney generals are watching social contests and promotions closely, ensuring that rules and terms are shared clearly within marketer programs. Within regulated industries, the Securities and Exchange Commission (SEC) and Financial Industry Regulatory Authority (FINRA) have both issued guidance for the financial services industry although their counterparts in the pharmaceutical and medical devices industries have been waiting for the Food and Drug Administration (FDA) to issue updated guidance. Regardless of your industry focus, if you are engaging in business activities on social media channels you want to be aware of legal requirements and liabilities. With new social channels, apps and tools being developed on a daily (if not hourly) basis, you need to consider the implications of proposed programs holistically, so that you are prepared for the inevitable change that takes place. Do you see a lot of lawyers interested in social media disclosure? Should they be more concerned? What are the emerging regulatory issues or challenges? We see increasing discourse on social media disclosure in legal communities. As mentioned above, concern has led some to overly restrict the social media activities of the companies with which or in which they work. Still others are unaware of, or do not fully understand these issues. The good news is that the regulatory issues are becoming clearer. In early June, the FTC held a day-long workshop on the topic and is expected to issue additional guidance for Dot-Com Disclosures later this year. That document was last updated in 2000, when Mark Zuckerberg was a sophomore in high school and before Facebook, Twitter or Pinterestwere even an idea. In advance of the FTC guidance, the Word of Mouth Marketing Association (WOMMA) issued an updated draft of their Social Media Disclosure Guidelines this Summer. (Disclosure: I am Co-Chair of the Members Ethics Advisory Panel of WOMMA.) The previous version is referenced throughout the FTC’s 2009 update and in the social media policies of countless organizations. The WOMMA guidelines address the concerns of both the compliance and marketing stakeholders at companies to help them move forward with effective and responsible social media marketing programs. What are the challenges of social disclosure?
The obvious challenge is the limitation of space in sort messaging platforms that most social and mobile platforms are based upon. Both from the perspective of communicating a disclosure and to ensure that consumers can understand the context of disclosure information, it can be difficult to make meaningful disclosures in 140, or fewer, characters. Furthermore, social communications are often syndicated between platforms (Twitter -> Facebook or Pinterest -> Twitter/Facebook). The WOMMA Guide is meant to discuss and address many issues as they relate to Social Media Disclosures. Who should be concerned? Without minimizing the distress of regulated industries as they struggle to develop compliant social media programs, let’s focus on consumer brands whose social media presence is most visible to consumers. The unprecedented growth of social media has motivated brands to leverage the power of Facebook, Twitter, Pinterest and other networks in order to listen to and engage consumers, gain insights about their products and services, and ultimately drive traffic and revenue. Increasingly, sponsored content and marketing messages are more seamlessly integrated with advocate pages and profiles, videos, Tweets, blog posts and other content on the social web. What are the risks? Regulators are serious about ensuring that advertising is not deceptive and that sponsorship or other relationships between brands and their advocates are clearly disclosed. To date, the FTC has weighed in on these issues with regard to marketing campaigns including Ann Taylor Loft, Reverb Communications, Legacy Learning Systems and Hyundai. Most recently, on June 20, the Advertising Standards Authority (ASA) in the UK ruled against Nike and banned a campaign it was running leading up to the Olympics due to Tweets from sponsored athletes about the brand because they lacked the required disclosures. The ASA followed that decision with another action banning Toni & Guy, a chain of UK hair salons, concerning two from Gemma Collins, one of the stars of a popular UK reality series. Your reputation is probably the most important reason to properly disclose. There is a growing sense of mistrust by consumers of digital and social content. Being transparent can go a long way to establishing yourself as credible. You can earn more trust with your customers and brand advocates by being transparent. What are the common headaches around this sort of regulatory compliance? There are three sources of headaches: understanding of the appropriate regulations and guidelines; developing a social media policy aligned with business objectives; and assuring adherence to that policy. Depending on industry sector, US companies may need to address the requirements of the Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC), the Financial Industries Regulatory Authority (FINRA) and/or the Food and
Drug Administration (FDA). While the policies of each agency continue to evolve, sufficient guidance has been provided for companies to develop compliant processes for social media communications. Many companies see the regulations as reasons to significantly limit their social media activities. While marketers are beginning to realize social media as an effective means to build customer relationships, increase awareness for their brands and boost sales, a lack of clarity on how to implement compliant social media programs often holds companies back or exposes them to unnecessary risk or liability. The companies that don’t resolve these conflicts are facing competitive disadvantages that will become more significant in the near future. Monitoring and enforcement of social media compliance policies can be seen as a significant administrative burden. Adhoc solutions, manual review and human resources are not scalable and become unmanageable in programs of even modest sizes. Integration into existing workflow processes is becoming easier with the availability of purpose-built disclosure and compliance tools. Relief from the headaches of conducting compliant social media programs is within the means of those companies that choose to apply them. More significantly, the benefits of addressing compliance needs appropriately far outweigh the alternatives and companies can reap the full benefits of transparent social media marketing, keeping the trust of their customers and
better monitoring, optimizing and measuring the performance of their social efforts. Where do I get more information? •FTC Endorsement Guides – http://www.ftc.gov/opa/2009/10/endortest .shtm • FTC Dot-Com Disclosures (currently updating) – http://business.ftc.gov/documents/bus41dot-com-disclosures-information-aboutonline-advertising • WOMMA – Ethics http://womma.org/ethics/code/ – Disclosure http://womma.org/ethics/disclosure/ • OFT – http://www.oft.gov.uk/news-andupdates/press/2010/134-10 – http://www.oft.gov.uk/OFTwork/consumerenforcement/consumer-enforcement-completed/handpicked_media/q-and-a/ • ASA http://www.asa.org.uk/RegulationExplained/Online-remit.aspx • CMP.LY http://cmp.ly www.twitter.com/cmply Tom Chernaik is CEO of CMP.LY. The company’s unique disclosure, social media monitoring and measurement solutions are built on a foundation of Tom’s experience and insights in marketing, law, social media and entrepreneurship. Tom is Co-Chair of the Members Ethics Advisory Panel of the Word of Mouth Marketing Association (WOMMA) and is a frequent speaker at events on social media ethics and disclosure.
14 December 2012 / The New York County Lawyer
What’sinourMeat? (Continued from page 11) public health. Access to records from farms and feed mills are not easily accessible by regulators and there is currently no real protocol for their review.9 While governmental entities do have authority to inspect these records, they cannot collect or publish any of the data.10 Ultimately, the only way for regulators to check compliance with the few rules in place is to look for residues of drugs in samples of meat, as opposed to monitoring the direct use of antibiotics on the farms themselves.11
It is the role of the FDA to evaluate applications for proposed drugs and determineboth the effectiveness of the medicine andany risk it poses to consumers of animal products.12 It can then impose rules on how the medicine must be used to ensure safety.13 Once the approval is granted, however, the animal agriculture industry essentially has free reign to use the drugs how it wants. Additional oversight and guidance by the FDA has been entirely unsuccessful. In 1977, the FDA publically announced its intent to withdraw approval of various uses of penicillin and tetracycline in food animals, but abandoned this after meeting opposition from Congresswhen the appropriations committees passed resolutions against any such bans, indisputably as a result of pressure from the agriculture lobby.14 By 2003, the FDA publically acknowledged that there was some degree of risk with the use of antibiotics in food animals and stated it could not conclude that the continued use of penicillin and tetracycline in animals used for food was safe.15 The FDA then issued its Guidance for Industry #152, which set forth a recommended approach for assessing the safety of new animal antibiotics with regard to their microbiological effects on bacteria of human health concern.16 It established an assessment process for evaluating new animal antibiotic drug applications that required consideration of the importance of the drug for human health, how the drug will be used in agriculture, and the degree of veterinarian
Plastic Bag Legislation (Continued From Page 1)
paigns, political donations, and intense courtroom battles. Although plastic bags comprise only a small percentage of the plastics industry’s product line, the symbolic weight of these bags is much heftier. What’s really at stake for these industry groups is other single-use plastics, because bag ban legislation is seen as a gateway to consumer sustainability: once people start paying more attention to plastic bags they may start questioning the need for other disposable items. Accordingly, the intersection of plastic bags and the law has become a contentious area with a robust amount of case law. The biggest battleground in the legal fight over plastic bags has been in California. In 2007, plastics industry groups successfully lobbied for a statewide bill mandating preemption of local fees on plastic bags, which strategically frustrated San Francisco’s attempt to adopt such a fee. San Francisco opted instead to adopt a ban, and several other California cities followed suit. The plastics industry reacted by filing a series of lawsuits to stop the adoption of these ordinances. Many of the lawsuits were filed by a manufacturing group appropriately named Save the Plastic Bag Coalition (SPBC) and called for a complete Environmental Impact Report (EIR) under the California Environmental Quality Act (CEQA), premised on the argument that paper bags might possibly cause more harm to the environment than plastic. The CEQA cases, including a California Supreme Court decision in SPBC v. City of
involvement in the drug’s use.17 In June 2010, the FDA released a draft guidance that added the concept of “judicious use,” defined as the avoidance of any uses not necessary or appropriate and thus recommending that antibiotics not be used for growth promotion and other production purposes.18 The FDA was recently accepting public comments on a proposal to phase out the use of certain antibiotics to stimulate animal growth and create requirements for obtaining prescriptions for specific antibiotics.19 However, the FDA stated that it is pursuing a “voluntary approach” as it cannot afford formal proceedings and wants pharmaceutical companies to designate 200 antibiotics that will be for human use only.20 Ultimately, nothing came of the FDA’s recommendations, despite urging by theWorld Health Organization that a prescription be required for allantibiotics given to food animals and that countries begin phasing out the use of antibiotics to promote growth if these antibiotics are also used for human treatment.21 The FDA’s lack of effective action in this arena has not gone without criticism. In June,the Southern District of New York issued an order in a suit brought against the FDA by the Natural Resources Defense Council that requires the FDA to reissue a notice of withdrawal of approval for the non-therapeutic use of penicillin and tetracycline in animals raised for food.22 The opinion criticized the FDA, stating “[f]or over thirty years, the Agency has been confronted with evidence of the human health risks associated with the widespread subtherapeutic use of antibiotics in food-producing animals, and, despite a statutory mandate to ensure the safety of animal drugs, the Agency has done shockingly little to address these risks.”23 Unlike the U.S., many other countries have established strong regulations for antibiotic use in food animals. Denmark banned the use of antibiotics as growth promoters in 1999, with the EU following suit in 2009 and South Korea in 2011.24 Due to the current regulatory framework in the U.S., it Manhattan Beach, resulted in cities spending years in court. The plastics industry has not won any substantive claims, but has succeeded in intimidating some cities from moving forward with ordinances. Many lessons have emerged from these cases, such as: it’s best to avoid engaging in fights that involve life cycle analyses (LCAs); and ban/fee ordinances should address ALL bags provided at checkout, not just plastic bags. First, industry groups have funded several LCAs and as the court in Manhattan Beach put it, “the product “life cycle” must be kept in proper perspective and not allowed to swamp the evaluation of actual impacts attributable to the project at hand.” Second, CEQA challenges are often based upon claims that if plastic bags are no longer available, people will just switch to whatever bag is available rather than reducing overall use. However, by placing restrictions on ALL types of bags, this legal argument can be avoided. Consequently, in California, most cities are moving forward with “second generation” plastic bag ordinances that include a ban on plastic bags as well as a ten-cent charge for paper bags. Other claims used in California lawsuits include constitutional claims regarding taxation, field preemption regarding the state plastic bag recycling law, and violations of the state Health & Safety Code for bans affecting restaurants. All of these claims have been rejected by the state superior court, but some claims are up on appeal. The most important of these cases is Schmeer v. Los Angeles County. In 2010, several industry groups (including plastics)
seems that consumers ultimately have the most power in changing these farming practices. As consumer awareness grows, demand for antibiotic-free meat has increased by 25 percent in the past three years, totaling $175 million in sales.25 If demand for antibiotic-free animal products continues to increase, it will ideally force factory farms to improve the deplorable conditions that created this dangerous need in the first place. Jessica Zafonte, Esq., a NYCLA Animal Law Committee member, is an associate with Goodwin Procter LLP where she practices patent and commercial litigation. She is a graduate of Brooklyn Law School and can be reached at Jessica.Zafonte@gmail.com. References: 1. An Institute of Medicine report estimated that in 1998, up to 80% of farm antibiotic usage was nontherapeutic. Tiffany Mason, Antibiotic Overuse in Food Production Animals, Yale Journal of Medicine and Law, February 24, 2010 http://www.yalemedlaw.com/2010/02/antibioticoveruse-in-food-production-animals/ 2. Daniel Imhoff, CAFO: The Tragedy of Industrial Animal Factories, San Rafael: Earth Aware, 2010, 251. 3. Get Smart: Know When Antibiotics Work on the Farm, The Centers for Disease Control, May 17, 2011 http://www.cdc.gov/narms/get_smart.htm 4. The Levin Institute, Regulating Antibiotics in Animals, Globalization 101, September 13, 2012 http://www.globalization101.org/regulating-antibiotics-in-animals/ 5. Sabrina Tavernise, Farm Use of Antibiotics Defies Scrutiny, The New York Times, September 3, 2012 http://www.nytimes.com/2012/09/04/health/use-ofantibiotics-in-animals-raised-for-food-defies-scrutiny.html?pagewanted=all 6. The National Pork Producers Council argued in July that they should not have to report on antibiotic prescriptions for their animals.Id. 7. Id. 8. Jonathan SafronFoer, Eating Animals, New York:Little, Brown and Company, 2009, 135. 9. Sabrina Tavernise, Farm Use of Antibiotics Defies Scrutiny, The New York Times, September 3, 2012 http://www.nytimes.com/2012/09/04/health/use-ofantibiotics-in-animals-raised-for-food-defies-scrutiny.html?pagewanted=all 10. Id. 11. Id. 12. Questions and Answers; Animal Antibiotics, Antimicrobial Resistance and Impact, Food Insight, July 18, 2012 http://www.foodinsight.org/Resources/Detail.aspx?t
got a proposition on the California ballot that would change the state constitution to include certain regulatory fees within the definition of taxes, thereby requiring that such fees obtain a two-thirds majority vote on a local ballot before adoption of local ordinances. Proposition 26 passed, and LA County’s pending bag ban ordinance was amended so that the mandatory 10-cent paper bag charge was kept by the retailer, so that the government had no part in collection of the funds generated. Nearly a year later, Hilex Poly, a major plastic bag manufacturer, along with several individuals including Schmeer (a Hilex Poly employee), filed the lawsuit against LA County claiming that the ordinance nonetheless violated Prop 26. The lower court found that the ten-cent paper bag charge imposed by Los Angeles County’s bag ordinance is not an unconstitutional tax. The case is currently on appeal. The next venue for plastic bag litigation appears to be Toronto, Canada. The Toronto City Council adopted a five-cent plastic bag charge in 2008, which was effective in reducing plastic bag use by 50 percent and increasing reusable bag use. In May 2012, the City Council adopted a plastic bag ban seemingly in response to Toronto Mayor Rob Ford’s call to abolish the five-cent charge. This adoption was done quickly, but relied on the voluminous study behind the original adoption of the 2008 charge. The Ontario Convenience Stores Association filed suit against the Toronto City Council claiming that the Council overstepped its authority and did not conduct an appropriate study before adopting the ban. A week later, the Canada Plastic Bag Association (a group specifically formed like the SPBC in
opic=Questions_and_Answers_Animal_Antibiotics _Antimicrobial_Resistance_and_Impact_on_Food_ Safety_1 13. Id. 14. Margaret Riley, The Regulation of Antibiotic Use in Animal Agriculture, JURIST - Forum, May 26, 2012, http://jurist.org/forum/2012/05/margaretriley-antibiotics-fda.php 15. Id. 16. Evaluating the Safety of Antimicrobial New Animal Drugs with Regard to Their Microbiological Effects on Bacteria of Human Health Concern, Guidance for Industry #152, U.S. Department of Health and Human Services Food and Drug Administration Center for Veterinary Medicine, October 23, 2003 http://www.fda.gov/downloads/AnimalVeterinary/G uidanceComplianceEnforcement/GuidanceforIndus try/ucm052519.pdf 17. Margaret Riley, The Regulation of Antibiotic Use in Animal Agriculture, JURIST - Forum, May 26, 2012, http://jurist.org/forum/2012/05/margaretriley-antibiotics-fda.php 18. The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals, DGFI 2010, U.S. Department of Health and Human Services Food and Drug Administration Center for Veterinary Medicine, April 13, 2012 http://www.fda.gov/downloads/animalveterinary/gu idancecomplianceenforcement/guidanceforindustry/ucm216936.pdf 19. The Levin Institute, Regulating Antibiotics in Animals, Globalization 101, September 13, 2012 http://www.globalization101.org/regulating-antibiotics-in-animals/ 20. Ezra Klein, Wonkbook: Why You should Care that 70% of Antibiotics go into Animal Feed, The Washington Post, April 12, 2012 http://www.washingtonpost.com/blogs/ezra-klein/post/wonkbookwhy-you-should-care-about-antibiotics-in-animalfeed/2012/04/12/gIQAOEfZCT_blog.html. 21. The Levin Institute, Regulating Antibiotics in Animals, Globalization 101, September 13, 2012 http://www.globalization101.org/regulating-antibiotics-in-animals/ 22. NRDC, Inc. v. United States FDA, No. 11 Civ. 3562, 2012 U.S. Dist. LEXIS 77384 (S.D.N.Y. 2012). 23. Id. at *66-67. 24. Daniel Imhoff, CAFO: The Tragedy of Industrial Animal Factories, San Rafael: Earth Aware, 2010, 251; Sybille De La Hamaide, Antibiotics for Livestock Vital to Feed World, Reuters, January 11, 2012 http://www.reuters.com/article/2012/01/11/usantibiotics-livestock-idUSTRE80A1JF20120111; Dan Flynn, South Korea Bans Antibiotics in Animal Feed, Food Safety News, June 7, 2011 http://www.foodsafetynews.com/2011/06/southkorea-bans-antibiotics-in-animal-feed/ 25. Mathew Perrone, Does Giving Antibiotics to Animals Hurt Humans, USA Today, April 20, 2012 http://usatoday30.usatoday.com/news/health/story/2 012-04-20/antibiotics-animals-humanmeat/54434860/1.
California) also filed a lawsuit. Such lawsuits show that the legal battle regarding plastic bag ordinances is far from over. As East Coast cities, including NYC, adopt plastic bag ordinances, the plastics industry will likely challenge many of these ordinances. However, just as plastics industry groups have learned from previous litigation, so have CSC members, and these lessons will help guide the discussion of future of plastic bag legislation. What you can do to get involved with this issue: • Limit your own plastic bag consumption by being mindful of your own plastic bag consumption by using no bag, or a reusable bag. • See www.plasticbaglaws.org for more information about plastic bag ordinances, internships, and pro bono assistance opportunities. • Sign up to receive updates from Surfrider NYC’s single-use bag campaign at www.bagitnyc.org. • Contact CSC Atlantic to find out how you or your group can become a coalition member. Jennie R. Romer, Esq. is the founder of plasticbaglaws.org and is the Atlantic region director of the Clean Seas Coalition. She is an attorney and sustainability consultant in New York City. Further information can be found at www.plasticbaglaws.org.
December 2012 / The New York County Lawyer 15
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Energy Efficiency (Continued From Page 1)
Energy Efficiency in New York City Buildings New York City promotes and regulates energy efficiency projects through a number of laws and incentives. Most important is the Greater Greener Buildings Plan (GGBP). As the name suggests, New York City has primarily focused its energy efficiency efforts in the building sector. This focus is not by accident – New York City has almost a million buildings, with translates into an enormous energy demand. Though the energy efficiency created by the GGBP, greenhouse gas emissions will reduce by roughly five percent, with an estimated $7 billion dollars saved in energy costs. The GGBP is made up of four laws: LL84 (Benchmarking), LL85 (NYC Energy Conservation Code), LL87 (Energy Audits and Retro-commissioning), and LL88 (Lighting Upgrades and Sub-metering). LL84 (Benchmarking) marking tool (which is free online, known as ‘portfolio manager’). LL88’s mandate is thus two fold: first, it standardizes how energy consumption is compared; and second, it increases owner understanding of how their buildings use energy. LL85 (NYC Energy Conservation Code) LL85 updates New York City’s Energy Conservation Code by requiring any building undergoing a renovation to conform to the most current version of the city’s energy code. This law’s primary function is to close a loophole, as previous to it’s adoption reno-
The Three R’s (Continued From Page 7)
• Consider the replacement of paper towels in the restrooms with high efficiency blade-type hand dryers. • Provide chilled and/or filtered NYC tap water for drinking rather than disposable bottles. This can include retrofitting water fountains to include water bottle filling taps. Reuse After reduction of waste generation, reuse ensures that where possible reusable materials are utilized rather than disposables, materials are fully utilized prior to disposal/recycling, and that recycled materials are purchased and used rather than virgin materials. Reuse can be achieved through: • Use of recycled paper, toner, towels, or other materials. • Consider the donation or sale of office furniture or equipment that is no longer need-
vations impacting less than half of a building were not required to conform to the current code. Crucially, almost all New York City renovations affect less than half of the building, making this update a significant reform.
energy efficiency in this area is, in many ways, low hanging fruit. This local law requires buildings to install upgraded lighting (to meet the New York City Energy Conservation Code Section 805) by 2025.
LL87 (Energy Audits and Retro-commissioning) LL87 mandates energy audits and energy ‘retrocommissioning’every 10 years for large buildings (defined as buildings 50,000 gross square feet or larger). Energy auditing required under this law is a relatively thorough process – building systems, including HVAC systems, electric systems, lighting systems – must be audited. The auditing process in turn identifies measures and suggested improvements that would create energy efficiency capable of providing the environmental and financial benefits described above. Next, Retro-commissioning requires a specialized agent to complete an analysis of base systems, which determines where building energy inefficiencies may be occurring. Issues such as operating calibrations, cleaning and repairs, training, and documentation are investigated. Using this information, the agent then completes a building ‘tune up’to create energy efficiencies. Of the GGBP local laws, LL87 may be the most complex. However, City government provides detailed information, available at: http://www.nyc. gov/html/gbee/html/ plan/ll87.shtml.
Second, LL88 requires building owners to install sub-metering in large non-residential buildings by 2025. Currently, many buildings use a single meter to determine electricity consumption. A large office building on a single meter thus currently receives one electricity bill from the utility company, and divides, on a pro rata share, the cost amongst building tenants. One tenant, using a large amount of energy would be billed at the same rate as another tenant using very little. Such a system creates, in effect, a tragedy of the commons, with little incentive for individual tenants to try to use energy efficiently. A submeter resolves this problem by tailoring energy bills to their own energy consumption. Rather than receiving a single energy bill for all tenants, sub-metering allows for individualized energy bills for each tenant. In turn, tenants can adjust energy consumption by using energy more efficiently, with resulting energy reductions reducing electricity bills.
LL88 (Lighting Upgrades and Sub-metering) Lastly, LL88 creates two requirements, one for lighting upgrades and another for a process called ‘sub-metering’. In regards to lighting upgrade requirements, the underlying rationale is relatively straightforward, as lighting in non-residential spaces consume roughly 18 percent of all energy used by City buildings. As lighting technology has advanced extraordinarily in recent years, ed but still has remaining life. Note that NYC WasteMatch is a citywide reusable materials exchange program which helps match products that have remaining life with users in need of similar products. • Provide mugs, glasses, water bottles and coasters to be used in place of disposable products. Firms should consider the use of logo’d products to enhance their image, especially for mugs and glasses used in conference rooms and water bottles that are often carried everywhere. • Consider promotions with local food establishments for the purchase and use of reusable food containers. For example, restaurants local to your firm that are frequented by your staff may provide discounts or other perks for the use of reusable food containers in place of their disposable styrofoam/plastic containers. • Provide employees the ability to clean and dry reusable beverage or food containers in pantries. Alternatively, provide cleaning or other staff that is responsible for daily cleaning of these reusable products.
New York City, through the GGBP and other efforts, is exhibiting an increased focus in energy efficiency, particularly in respect to buildings. For more information, visit the government’s GGBP and PlaNYC websites. Michael Panfil is a legal fellow at the Environmental Defense Fund, where he works primarily on energy and natural resource issues. Mr. Panfil graduated from Columbia Law School in 2011 and lives in New York City. He can be reached at firstname.lastname@example.org.
Recycle Despite a firm’s best effort at reducing and reusing, some waste will still be generated. While New York City may have only certain requirements for recycling, firms can discuss with their building management the option of increasing the types of waste streams collected for recycling. Firms without cafeterias can still implement recycling of metal cans, aluminum foil products, and glass and plastic containers. Another area in which firms have impact is the promotion of recycling. One way to increase personnel recycling is to provide separate containers for collection at each employee’s workstation. Where centralized collection of recycling is utilized instead of local workstation collection, employees should be provided a tray or other means of collecting their recycling and transporting to a central location. Centralized locations should be of adequate frequency and location so as to allow for easy disposal.
Ethics Hotline The Committee on Professional Ethics accepts both written and telephone inquiries on ethics matters and provides advisory opinions. For additional information, call the members listed below. December 1-15 Sarah D. McShea 212-679-9090 December 16-31 Jim Kobak 212-837-6757 January 1-15 David Wiltenberg 212-837-6880 January 16-31 Phil Schaeffer 212-819-8740 Please Note: Assignments are subject to change. Questions to the Hotline are limited to an inquiring attorney’s prospective conduct. The Hotline does not answer questions regarding past conduct, the conduct of other attorneys, questions that are being litigated or before a disciplinary committee or ethics committee, or questions of law. This notation shall not be construed to contain all Hotline guidelines. For a full discussion of Ethics Hotline guidelines, please see the article below, “Guidelines on NYCLA’s Ethics Hotline,” published in the September 2006 issue of New York County Lawyer.
Every business, even office type environments such as law firms, has the potential to impact the environment. Reduction of these impacts is an important element of corporate social responsibility but may also be considered by clients in the selection of professional services. While some recycling is required by regulation, a more significant impact, including the potential for cost savings, can be obtained by including waste reduction and reuse with the recycling program. Every firm, regardless of their size, can easily reduce their environmental impact. Neil A. Feldscher, Esq., a NYCLA and Environmental Law Committee member, is an Environmental, Health & Safety Chief at the Department of Environmental Protection. He is Chair of the Legal Branch of the American Society of Safety Engineers and can be reached at email@example.com. (The opinions expressed in this article are his own and do not reflect that of his employer)
16 December 2012 / The New York County Lawyer