What Does an Environmental Lawyer Do in New York?

Environmental lawyers in New York represent businesses, property owners, and developers in contamination liability, DEC permitting, spill response, brownfield redevelopment, and enforcement defense under the Environmental Conservation Law and federal statutes including CERCLA and RCRA. Abrams Fensterman advises regulated parties across five New York offices on compliance, transactional due diligence, and litigation.

Who Is Liable for Contamination on a New York Property?

Liability for contamination in New York frequently attaches to parties who did nothing to cause it. Under the federal Comprehensive Environmental Response, Compensation, and Liability Act, current owners and operators, past owners and operators at the time of disposal, generators, and transporters can all be responsible parties, and liability is strict, joint, and several. New York adds its own strict liability regime. Section 181 of the Navigation Law provides that any person who has discharged petroleum is strictly liable, without regard to fault, for all cleanup and removal costs and all direct damages. New York courts have applied that provision to landowners who did not themselves cause the release, while preserving the faultless owner’s ability to seek contribution from the party who did.

The practical consequence is that a purchaser can inherit a cleanup obligation at closing and a landlord can inherit one from a tenant. The defenses that exist, including the bona fide prospective purchaser and innocent landowner provisions under CERCLA, depend on diligence performed before acquisition, not after. That is why the diligence sequence described below matters more than any argument available later.

Where a dispute over responsibility becomes contested litigation, our team coordinates with the firm’s Business and Commercial Litigation group.

Which Authority Applies to Your Situation?

What Is the New York Brownfield Cleanup Program?

The Brownfield Cleanup Program, established under Article 27, Title 14 of the Environmental Conservation Law, allows a volunteer or a responsible party to remediate a contaminated site under DEC oversight in exchange for a Certificate of Completion, a liability release, and access to refundable state tax credits. It is the principal mechanism by which New York contamination becomes developable.

The program operates on fixed statutory deadlines. Under the 2022 amendments enacted in the state budget, sites may be accepted into the program through December 31, 2032, and a site accepted after July 1, 2015 must receive its Certificate of Completion by December 31, 2036. Credits are structured in two components, a site preparation and on-site groundwater remediation credit and a tangible property credit, with rate bonuses available for qualifying categories including affordable housing and projects in environmental zones and disadvantaged communities.

The program differs from the State Superfund under Title 13 in a way that matters at intake. State Superfund sites are classified and remediated because DEC has determined they present a significant threat, and entry is not voluntary. The Brownfield Cleanup Program is entered by application, on the applicant’s timetable, and is built around returning the parcel to productive use. Choosing the wrong track, or applying with an incomplete characterization, costs months.

Where the remediated parcel then moves into an entitlement process, that work is handled by the firm’s Land Use and Zoning practice.

DEC Permitting for Water, Air, and Wetlands

Most private projects in New York encounter DEC at the permit counter before they encounter it anywhere else.

State Pollutant Discharge Elimination System permits. Issued under Article 17 of the Environmental Conservation Law, SPDES permits govern discharges to surface water and groundwater and cover far more than industrial outfalls. Construction stormwater, dewatering, and certain process discharges all fall within the program.

Air permits. Article 19 governs air emissions, with permit tiers scaled to facility size and emission type. Registration, minor source, and Title V facility permits carry very different monitoring and reporting burdens.

Freshwater wetlands. This is where the regulatory landscape changed most sharply. New York’s Freshwater Wetlands Act, Article 24 of the Environmental Conservation Law, was amended in 2022, with the implementing revisions to 6 NYCRR Part 664 taking effect January 1, 2025. As of that date, the former state Freshwater Wetlands Maps no longer limit DEC jurisdiction; they are now informational and are referred to as Previously Mapped Freshwater Wetlands. A wetland is regulated if it is at least 12.4 acres or if it qualifies as a wetland of unusual importance under one of eleven statutory criteria, regardless of size. Beginning January 1, 2028, the default threshold drops to 7.4 acres. DEC has estimated that roughly one million acres of previously unregulated wetlands may now fall within its jurisdiction.

The operational effect is that a developer can no longer clear a parcel by checking the mapper. A jurisdictional determination from DEC is now the starting point for any site where wetlands are plausible, and that determination sits ahead of the approval calendar rather than beside it. Transitional relief exists for projects that had a permit, an accepted Final Environmental Impact Statement, a negative declaration on a Type I action, or written site plan approval in hand before January 1, 2025, but that relief is time limited and fact specific.

Spill Reporting Obligations and Emergency Response

New York’s reporting window is short and it is measured in hours. Under Article 12 of the Navigation Law and DEC’s implementing guidance, a party responsible for a petroleum discharge must notify DEC through the New York State Spill Hotline within two hours of the discharge. DEC’s own guidance frames the limited exemption narrowly: a release generally must be reported unless it is under five gallons, contained and under the spiller’s control, has not reached and will not reach land or water of the state, and is cleaned up within two hours of discovery.

Failing to report is a separate violation from the release itself. Section 192 of the Navigation Law exposes a person who discharges petroleum without a permit and fails to promptly clean up the discharge to a penalty of up to $25,000 per day, in addition to the cleanup and removal costs and direct and indirect damages recoverable under Section 181.

What happens in the first day shapes the entire matter. Counsel involved early can direct the notification, manage the contractor relationship, preserve the contribution claim against the party who actually caused the release, and keep the response record from becoming the state’s evidence.

Responding to a DEC Notice of Violation or Enforcement Action

A DEC notice of violation opens an administrative process, not a lawsuit, and the difference matters. Most enforcement resolves through a negotiated Order on Consent that fixes a penalty, a corrective schedule, and often a compliance program, without an adjudicatory hearing. The leverage in that negotiation comes from the compliance record, the speed of the corrective response, and a defensible technical position on what the standard actually required.

Where a matter escalates, or where a referral raises the possibility of criminal exposure under Article 71 of the Environmental Conservation Law, the analysis changes entirely and coordination with the firm’s White Collar Criminal Defense and Government Investigations team becomes appropriate.

Environmental Due Diligence in Property and Business Transactions

Environmental diligence protects the buyer twice, once commercially and once legally.

A Phase I Environmental Site Assessment is a records and reconnaissance review conducted to the ASTM standard. It examines historical use, regulatory databases, adjoining properties, and site conditions to identify recognized environmental conditions. It does not involve sampling. Performing one that satisfies the all appropriate inquiries standard before acquisition is the precondition for the CERCLA landowner defenses; performing one afterward preserves nothing.

A Phase II follows only when the Phase I identifies a condition worth testing, and it involves actual sampling of soil, groundwater, or building materials.

For an asset or entity acquisition, the diligence extends past the parcel to permits, historic enforcement, pending consent orders, closure obligations, and the allocation of known conditions through representations, indemnities, escrows, and where the exposure warrants it, environmental insurance. This work runs alongside the firm’s Real Estate Acquisitions and Sales and Mergers and Acquisitions practices.

The Green Amendment and Environmental Review

New York voters approved the Environmental Rights Amendment in November 2021, and it took effect as Article I, Section 19 of the State Constitution on January 1, 2022. It provides that each person shall have a right to clean air and water, and a healthful environment. Because it sits in the Bill of Rights, commentators have generally read it as constraining government action rather than creating a direct claim between private parties, and the courts are still defining its reach.

For a private applicant the practical significance is indirect but real: the amendment gives project opponents an additional argument against the agency approval a project depends on, which raises the value of a well-supported environmental record at the agency level. Where a project’s approval turns on review under the State Environmental Quality Review Act, that process is addressed on the firm’s Land Use and Zoning page, and the corresponding obligations of municipal lead agencies are addressed on the Municipal Law Practice page.

Working With Abrams Fensterman

Abrams Fensterman maintains an environmental, land use, and municipal bench across offices in Lake Success, Brooklyn, White Plains, Rochester, and Albany. Mary Desmond and Albert J. Pirro, Jr. leads the firm’s Environmental, Land Use and Zoning practice, and Robert A. Spolzino leads the Municipal Law practice. The firm’s municipal work has included defending the Westchester County Department of Health in a CERCLA matter and securing favorable results for New Rochelle, Mamaroneck, Larchmont, and Pelham Manor in a Clean Water Act citizen suit.

Being a full service firm matters in environmental work because environmental problems arrive attached to something else. A contamination finding is usually also a transaction problem, a lender problem, a litigation problem, or an entitlement problem at the same time.

Frequently Asked Questions