Opinion
2014-06-20
In the Matter of U.S. ENERGY DEVELOPMENT CORP., Petitioner–Plaintiff–Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Joseph Martens, In His Official Capacity as Commissioner of Department of Environmental Conservation, Maureen A. Brady, In Her Official Capacity as Regional Attorney for Department of Environmental Conservation, and Eric Schneiderman, In His Capacity as New York State Attorney General, Respondents–Defendants–Respondents.
Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of Counsel), for Petitioner–Plaintiff–Appellant. Eric T. Schneiderman, Attorney General, Albany (Philip Bein of Counsel), for Respondents–Defendants–Respondents.
Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of Counsel), for Petitioner–Plaintiff–Appellant.Eric T. Schneiderman, Attorney General, Albany (Philip Bein of Counsel), for Respondents–Defendants–Respondents.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.
MEMORANDUM:
In this combined CPLR article 78 proceeding in the nature of prohibition and action for a declaratory judgment (hereafter, proceeding), petitioner-plaintiff (petitioner) appeals from a judgment granting the motion of respondents-defendants (respondents) to dismiss the petition/complaint. As a preliminary matter, we note that petitioner on appeal has abandoned its action for a declaratory judgment ( see Katz 737 Corp. v. Cohen, 104 A.D.3d 144, 148, 957 N.Y.S.2d 295,lv. denied21 N.Y.3d 864, 2013 WL 4711225;Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).
Petitioner, a New York corporation with its headquarters in Erie County, conducts oil and gas operations in Pennsylvania, in the Allegheny National Forest, near the border of New York State and New York's Allegany State Park, on land owned by the United States Government/Forest Service. Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York's Yeager Brook, downstream from and caused by petitioner's operations in Pennsylvania, in contravention of New York's water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ( [CWA] 33 USC § 1251 et seq.) preempts the application of an affected state's laws and regulations to an out-of-state point source ( see International Paper Co. v. Ouellette, 479 U.S. 481, 497, 107 S.Ct. 805, 93 L.Ed.2d 883).
As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” (Matter of Chasm Hydro, Inc. v. New York State Dept. of Envtl. Conservation, 14 N.Y.3d 27, 31, 896 N.Y.S.2d 749, 923 N.E.2d 1137 [internal quotation marks omitted]; see Matter of City of Newburgh v. Public Empl. Relations Bd. of State of N.Y., 63 N.Y.2d 793, 795, 481 N.Y.S.2d 327, 471 N.E.2d 140;Matter of Doorley v. DeMarco, 106 A.D.3d 27, 34, 962 N.Y.S.2d 546). We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders ( seeECL 17–0303[2], [4][a], [b]; [5] [a]; see alsoECL 17–0105[1]; ECL 17–0501). Petitioner has failed to establish in this proceeding that the DEC's exercise of such authority and jurisdiction is clearly preempted by the CWA, inasmuch as it has not shown that enforcement of the consent orders would “stand[ ] as an obstacle to the full implementation of the CWA” ( International Paper Co., 479 U.S. at 494, 107 S.Ct. 805 [internal quotation marks omitted] ). Moreover, the preemptive effect of the CWA “should be determined, in the first instance, through the administrative process” ( Chasm Hydro, Inc., 14 N.Y.3d at 32, 896 N.Y.S.2d 749, 923 N.E.2d 1137). “[E]ven as to a clearly ultra vires act, prohibition does not lie against an administrative agency if another avenue of judicial review is available, absent a demonstration of irreparable injury to the applicant if [it] is relegated to such other course” ( City of Newburgh, 63 N.Y.2d at 795, 481 N.Y.S.2d 327, 471 N.E.2d 140;see Matter of Town of Huntington v. New York State Div. of Human Rights, 82 N.Y.2d 783, 786, 604 N.Y.S.2d 541, 624 N.E.2d 678). No such irreparable injury has been demonstrated here.
Finally, petitioner's contention that the DEC is proceeding in excess of its jurisdiction based on federalism principles is unpreserved for our review ( see generally Matter of Attorney Gen. of State of N.Y. v. Firetog, 94 N.Y.2d 477, 484, 706 N.Y.S.2d 666, 727 N.E.2d 1220;Cepeda v. Coughlin, 128 A.D.2d 995, 997, 513 N.Y.S.2d 528,lv. denied70 N.Y.2d 602, 518 N.Y.S.2d 1024, 512 N.E.2d 550), and we therefore do not address it ( see Mazurek v. Home Depot U.S.A, 303 A.D.2d 960, 961, 757 N.Y.S.2d 425).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.