Port of Oswego Auth. v. Grannis

• Decision Date: 04 February 2010
• Citation: 70 A.D.3d 1101,897 N.Y.S.2d 736
• Parties: In the Matter of PORT OF OSWEGO AUTHORITY et al., Appellants, v. Pete GRANNIS, as Commissioner of Environmental Conservation, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

897 N.Y.S.2d 736
70 A.D.3d 1101

In the Matter of PORT OF OSWEGO AUTHORITY et al., Appellants,
v.
Pete GRANNIS, as Commissioner of Environmental Conservation, et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 4, 2010.

897 N.Y.S.2d 737

Carter, Ledyard & Milburn, L.L.P., New York City (Christine A. Fazio of counsel), for Port of Oswego Authority and others, appellants.

K & L Gates, L.L.P., New York City (Eli R. Mattioli of counsel), for Lake Carriers' Association, appellant.

Andrew M. Cuomo, Attorney General, Buffalo (Timothy Hoffman of counsel), for Commissioner of Environmental Conservation and another, respondents.

Marc S. Gerstman, Albany and Thomas Cmar, Natural Resources Defense Council, Chicago, Illinois, for Natural Resources Defense Council and another, respondents.

Sher & Blackwell, L.L.P., Washington, D.C. (Robert Magovern of counsel), for The World Shipping Council, amicus curiae.

Lombardi, Walsh, Wakeman, Harrison, Amodeo & Davenport, P.C., Albany (Paul E. Davenport of counsel), for Seafarers International Union, amicus curiae.

Before: CARDONA, P.J., ROSE, MALONE JR., STEIN and GARRY, JJ.

MALONE JR., J.

70 A.D.3d 1101

Appeal from a judgment of the Supreme Court (Sackett, J.), entered June 1, 2009 in Albany County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment, to review certain conditions of the water quality certification issued by respondent Department of Environmental Conservation.

In 2008, as a result of litigation in federal court, the United States Environmental Protection Agency issued a proposed Vessel General Permit for Discharges Incidental to the Normal Operation of Commercial Vessels and Large Recreational Vessels (hereinafter VGP) to regulate the discharge of ballast water from certain vessels operating in the waters of the United States

70 A.D.3d 1102

( see Northwest Envtl. Advocates v. United States Envtl. Protection Agency, 537 F.3d 1006 [9th Cir.2008]; see also 33 USC § 1311 [a]; § 1342; § 1362[14] ).¹ Respondent Department of Environmental Conservation (hereinafter DEC) then issued a certification of the VGP pursuant to Clean Water Act § 401, which contained various conditions that it deemed necessary to further protect the state's waters against the introduction of invasive aquatic

897 N.Y.S.2d 738

species through ballast water ( see 33 USC § 1341; 6 NYCRR part 701; 703.2). Petitioners-a coalition of public corporations, shipping companies and other entities with interests in maritime trade through the waters and ports of New York-commenced this combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment challenging the certification on numerous grounds. Among other things, petitioners alleged that the first three conditions of the certification are arbitrary, capricious and not legally permissible, that DEC violated the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ) by failing to consider the full range of environmental impacts of those conditions and that those conditions violate the U.S. Constitution.² Deferring to DEC's interpretation of the ECL and the related regulatory authority, Supreme Court determined that the certification conditions were procedurally and substantively proper. Accordingly, the court dismissed the petition. Petitioners appeal.

The first challenged condition requires, in pertinent part, that certain vessels conducting coastal voyages within the exclusive economic zone ³ perform a ballast water exchange or a saltwater flush at least 50 nautical miles from shore in water at

70 A.D.3d 1103

least 200 meters deep.⁴ The second condition sets forth numeric standards for invasive species discharges and requires existing vessels to install ballast water treatment systems to comply with those standards before January 1, 2012. The...