Some overall observations about the 1996 New York State Environmental Bond Act and a closer look at Title 5 and its approach to the "brownfields" dilemma.

• Author: Markell, David L.

1. INTRODUCTION

   Touted by proponents as a "bold and fiscally responsible initiative designed to attack the pressing problems that threaten to foul New York State's water and dirty its air,"(1) the $1.75 billion environmental bond act (1996 Act) approved by the state's voters in November 1996 is certain to have a significant impact for years to come on the state's environment, and on the shape of New York's environmental protection efforts.(2) The General Counsel of the Conference of Mayors and Municipal Officials,(3) Donna M. C. Giliberto, has suggested that the 1996 Bond Act has the potential to be "heralded as the single most important environmental development in the State of New York since the 1965 Pure Waters Bond Act."(4) Larry Shapiro, a senior attorney with the New York Public Interest Research Group (NYPIRG), similarly characterized approval of the 1996 Bond Act as an "important moment in New York State's environmental history."(5)

   Perhaps not surprisingly, given the substantial stakes and sums of money involved,(6) the debate over the 1996 Bond Act spawned energetic, well-funded efforts pro and con.(7) Advocates of the 1996 Bond Act included a wide array of environmental groups.(8) In a contest which saw more than its share of unlikely alliances, many of the state's premier business organizations supported enactment as well, including the Business Council,(9) which has been referred to as "the state's most influential business lobbying organization."(10) Supporters sought to convince the voters of the importance of the 1996 Bond Act as an investment in the future. The following statement from the Governor's Office, contained in its memorandum in support of the 1996 Bond Act, captures many of the points made by the Act's advocates:

   The Clean Water/Clean Air Bond Act of 1996 is a bond act

   for our future. It will allow the state to make necessary

   commitments to undertake urgently needed environmental

   improvement projects that are vital to New York's future.

   This bond act is a necessary investment for solving pressing

   public health and environmental problems of growing concern

   to the people of the state. . . . The People of the State of New

   York understand the benefits that clean water and clean air

   provide and are committed to passing on to their children a

   cleaner and safer environment than the one they inherited.

   This bond act will help fulfill our responsibility to the future

   of our state's environment and the health of future

   generations.(11)

   "Strange bedfellows" also found themselves aligned as opponents of the 1996 Bond Act, seeking to ensure its defeat at the polls. Liberal Democrats joined forces with fiscal conservatives such as Change-NY to argue that New York, already the nation's most heavily indebted state, could ill afford to incur additional indebtedness.(12) Some of these opponents touted an alternative "pay-as-you-go" approach to funding the environmental projects contemplated under the 1996 Bond Act."(13) As Michael J. Bragman, the Democratic Majority Leader of the New York State Assembly, put it: "The bond act would . . . add billions to New York State's already staggering debt. Dollar for dollar, New York already has significantly more debt than any other state. . . . [T]he pay-as-you-go approach is not only preferable, it is actually quite feasible."(14) Further, opponents highlighted the concern that the 1996 Bond Act would "fund pork-barrel projects."(15)

   On November 6, 1996 New York voters approved the $1.75 billion Environmental Bond Act.(16) Roughly fifty-five percent of those voting "pull[ed] the `yes' lever" in favor of the 1996 Bond Act.(17) The 1996 Bond Act received a very different reception in various regions of the state. Perhaps the most vivid statistic was that seventy-seven percent of those voting in New York City voted in favor of the 1996 Bond Act, while a majority of voters in the rest of the state opposed it.(18)

   The remainder of this introduction offers some observations about the 1996 Bond Act in connection with the ongoing debate over "unfunded mandates."(19) The introduction also identifies the major components of the 1996 Bond Act. The heart of this Article, Section II, focuses on one title of the 1996 Bond Act, Title 5, which covers the remediation of what have come to be known in New York and nationally as "brownfields" sites -- that is, sites that are contaminated or suspected to be contaminated, and whose contamination is arguably deterring reuse or redevelopment.(20)

   One commentator has suggested that in recent years the issue of "unfunded governmental mandates" has been "`the number one intergovernmental issue in the United States due to the cumulative impact of state and federal mandates.'"(21) Environmental requirements contained in federal and state law are prominent among these mandates.(22) In the words of a resolution adopted by one local government, unfunded mandates represent a "`breach [of] the underlying principles of federalism which assume[] a working partnership and shared responsibilities between [sic] federal, state and local governments.'"(23) A 1993 report by the Environmental Protection Agency (EPA) expressed the sentiment that local concerns had reached a crisis stage: "We are going to see a revolution by local governments. They will say, `EPA, if you want it done then do it yourself.'"(24)

   The federal government responded to this locally-led insurrection by enacting, inter alia, the Unfunded Mandates Reform Act of 1995.(25) As its title suggests, this federal legislation is intended to limit the imposition of unfunded federal mandates on state and local governments.(26) It does not bar unfunded mandates altogether. Instead, it imposes various requirements on a federal entity considering imposing a mandate.(27)

   The 1996 Bond Act represents a response by the State of New York to this concern on the part of local governments that they are being saddled with environmental obligations without being provided adequate support to implement them. The 1996 Bond Act will funnel significant sums of money to local governments for purposes of developing or upgrading environmental infrastructure.(28) Conference of Mayors General Counsel Donna M.C. Giliberto indicated, in a recent article, that "cities and villages around New York State breathed a collective sigh of relief" when the voters approved the 1996 Bond Act.(29) After summarizing the frustration local government officials in New York have felt in recent years when responding to environmental mandates,(30) she stated that local government officials "view[] [the] Bond Act as a significant step toward ... protecting local governments from burdensome unfunded environmental mandates."(31)

   Elaborating on the financial relief she expects the 1996 Bond Act will provide local governments, Giliberto states:

   Once implemented, [the 1996 Bond Act] would provide local

   real property tax relief by targeting existing environmental

   mandates such as safe drinking water, sewage treatment

   plant upgrades, recycling centers, and landfill closures.

   Without the resources of the Bond Act, local governments

   would be required to comply with these federal and state

   mandates by continuing to rely on the local real property

   tax.(32)

   Ms. Giliberto observes that "the majority of the programs funded with Bond Act proceeds are existing federal and state mandates."(33) She continues:

   The bottom line is, with or without the proceeds of the Bond

   Act, local governments are required to comply with these

   mandates. Without the Bond Act, communities would be

   forced to "go it alone," but by providing significant state

   resources to assist local government environmental

   compliance, the State of New York has eased the financial

   burden associated with these unfunded mandates and has

   taken an important step toward reestablishing its partnership

   with local governments.(34)

   The 1996 Bond Act contains five main titles: (1) "Title 2 -- Safe Drinking Water Act Projects" ($355 million);(35) (2) "Title 3 -- Clean Water Projects" ($690 million);(36) (3) "Title 4 -- Solid Waste Projects" ($175 million);(37) (4) "Title 5 -- Environmental Restoration Projects" ($200 million);(38) and (5) "Title 6 -- Air Quality Projects" ($230 million).(39) The remainder of this Article focuses on Title 5, which provides funding to municipalities for remediation of "brownfields" sites.

2. Title 5 of the 1996 New York State Clean Water/Clean Air Act: Environmental Restoration Projects

   Despite its title, the reach of the $1.75 billion 1996 Bond Act extends beyond providing state funds to protect the state's water and air quality.(40) Title 5 of the 1996 Bond Act allocates a total of $200 million for "environmental restoration projects,"(41) which will result in the remediation of contaminated sites.(42) In the words of the memorandum submitted by the Governor's office in support of the 1996 Bond Act, Title 5 is "for clean-up of abandoned industrial sites. These `brownfield' sites will then be used for open space or returned to productive use."(43)

   The notion that a concerted effort is needed to remediate abandoned or underutilized industrial sites, more commonly known as brownfields sites, has become increasingly popular in recent years.(44) Last fall, President Clinton, for example, is said to have characterized brownfields redevelopment as one of his priorities.(45) Among many initiatives at the federal level, one recently proposed bill would provide $2 billion in tax incentives for cleaning up these sites.(46) The scope of the problem is thought to be quite significant. A January 1996 study from The United States Conference of Mayors reports that, based on the Conference's survey, 39 cities that reported the presence of brownfields in their communities "identified more than 20,000 such properties or sites of multiple properties."(47) The report continues: "While these results do not allow for projections of total brownfields in the nation, the high...