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Gail Suchman

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Gail Suchman is a partner in the Real Estate, Energy, Land Use & Environmental Practice Group and a member of the Energy, Infrastructure and Project Finance Team in the firm's New York office.

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Last week’s unexpected opinion of the U.S. Court of Appeals for the D.C. Circuit (“DC Circuit”) holding that the Council for Environmental Quality (“CEQ”) lacks authority to promulgate regulations implementing the National Environmental Policy Act (“NEPA”) leaves federal agencies and private projects facing tremendous uncertainty and likely delays in completing environmental reviews. In Marin Audubon Society v. Federal Aviation Administration, No. 23-1067 (D.C. Cir. Nov. 12, 2024), a divided panel ruled, nearly five decades after CEQ first adopted regulations directing federal agencies’ compliance with NEPA, that the CEQ’s rules are ultra vires because Congress has never given CEQ such rulemaking authority. With many agencies explicitly incorporating the CEQ rules into their own NEPA regulations, the opinion not only calls into question the proper methods for NEPA analysis, but also casts doubt on hundreds of completed and pending environmental reviews that have relied on the CEQ regulations.Continue Reading DC Circuit Rejection of CEQ Authority Leaves NEPA Review in Limbo

Over a year ago, New York City Mayor Eric Adams announced the “City of Yes”, a plan to update the City’s zoning tools to support small businesses, create affordable housing, and promote sustainability. On December 6, 2023, the first of this trio, known as the “City of Yes for Carbon Neutrality” zoning text amendments (“COYCN”) was officially approved by the City Council. The passage of COYCN marks a huge victory in the City Administration’s efforts to decarbonize the City’s energy grid, building stock, vehicles, and waste streams. Continue Reading NYC’s Zoning for Carbon Neutrality is Here to Stay

Last week, a trio of bills related to last-mile warehouses were introduced by Council Member Alexa Avilés, and co-sponsored by Council Members Jennifer Gutiérrez (District 34, Williamsburg), Sandy Nurse (District 37, Bushwick), Selvena Brooks-Powers (District 31, Far Rockaway), Julie Won (District 26, Astoria) Shahana Hanif (District 39, Gowanus/Park Slope); and Lincoln Restler (District 33, Downtown Brooklyn), Public Advocate Jumaane Williams, and Brooklyn BP Antonio Reynoso. At the press conference, it was expressed that these bills were introduced in order to combat the proliferation of last-mile warehouses in low-income communities of color who are subject to more air and noise pollution as a result of the truck traffic. Continue Reading Last Mile Warehouse Bills and Proposed Special Permit

In the latest effort by the Biden administration to promote consideration of climate and environmental justice impacts in federal decision-making, the White House Council on Environmental Quality (CEQ) recently issued interim guidance for federal agencies analyzing greenhouse gas emissions (GHG) and climate change under the National Environmental Policy Act (NEPA).[1] Under the new guidance, which is similar to previous guidance that had been withdrawn under the Trump administration, NEPA review documents generally will be expected to quantify GHG emissions caused by federal actions, discuss the resulting climate impacts, and incorporate environmental justice considerations. While the guidance recommends methods for conducting the necessary technical analysis, it sidesteps key legal issues surrounding climate change analysis under NEPA, leaving federal agencies—and project proponents seeking federal approvals or funding—with difficult questions to resolve.Continue Reading Updated CEQ Guidance for Analysis of GHG Emissions Sidesteps Key Legal Issues

The City and State of New York have made a handful of announcements regarding plans to roll out imminent changes to the real estate development process to help encourage development and tackle the City’s affordable housing crisis. Given the current obstacles facing development, this change warrants quoting Lizzo: “It’s about damn time.”Continue Reading It’s About Damn Time

After unexpected controversy earlier in the year, on December 15, 2022 the U.S. Environmental Protection Agency (EPA) issued a Final Rule unambiguously recognizing the ASTM International Standard E1527-21 for Phase I Environmental Site Assessments (ESAs), with an effective date of February 13, 2023.[1] EPA’s express endorsement of the standard as meeting the requirements of the All Appropriate Inquiry (AAI) Rule[2] is essential to ensuring that the Phase I ESA fulfills its fundamental purpose: protection for prospective purchasers (and lessees) of property from liability for pre-existing contamination by petroleum products or hazardous substances regulated under the Comprehensive Environmental Response and Cleanup Liability Act (CERCLA).[3]Continue Reading EPA Endorses New Standard for Phase I Environmental Site Assessments

On December 30, 2020, New York State’s Department of Environmental Conservation (the “Department”) promulgated statewide ambient limits on greenhouse gas (“GHG”) emissions for the years 2030 and 2050 (the “Regulations”).[1]  The GHGs covered by the Regulations include carbon dioxide, methane, nitrous oxide and chlorofluorocarbons.[2]  The final Regulations constitute a critical step in the implementation of New York State’s climate strategy set out in the Climate Leadership and Community Protection Act (“CLCPA”).
Continue Reading New York Moves Further Toward Implementation of Climate Leadership and Community Protection Act with Final Statewide Greenhouse Gas Emission Limits for 2030 and 2050

On January 23, 2020, the United States Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers issued the Navigable Waters Protection Rule (the “2020 Rule”), which includes a revised definition of the “waters of the United States” subject to federal regulation under the Clean Water Act.[1] The revisions in the 2020 Rule come after a line of U.S. Supreme Court (“Supreme Court”) cases ending with Rapanos v. United States,[2] as well as an Obama-era administrative rule addressing the waterbodies under federal jurisdiction (the “2015 Rule”).[3] Rapanos was the last time the Supreme Court interpreted the term “waters of the United States,” with the intent of curtailing the substantial litigation concerning the meaning of the phrase and defining what “waters of the United States” should be included under federal jurisdiction. The 2015 Rule intended to clarify the definition further and codify the Supreme Court decisions. When effective, the newly issued Navigable Waters Protection Rule will limit the 2015 Rule, attempting again to define what are and what are not “waters of the United States.”
Continue Reading Navigable Waters Protection Rule: How are the “Waters of the United States” Being Defined?