Society of Plastics Industry, Inc. v. County of Suffolk

• Decision Date: 09 May 1991
• Citation: 570 N.Y.S.2d 778,77 N.Y.2d 761,573 N.E.2d 1034
• Parties: , 573 N.E.2d 1034, 21 Envtl. L. Rep. 21,413 The SOCIETY OF THE PLASTICS INDUSTRY, INC., et al., Respondents, v. COUNTY OF SUFFOLK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 778

570 N.Y.S.2d 778

77 N.Y.2d 761, 573 N.E.2d 1034, 21

Envtl. L. Rep. 21,413

The SOCIETY OF THE PLASTICS INDUSTRY, INC., et al., Respondents, v. COUNTY OF SUFFOLK et al., Appellants.

Court of Appeals of New York.

May 9, 1991.

[77 N.Y.2d 762] [573 N.E.2d 1035] E. Thomas Boyle, County Atty., Setauket (Caroline Levy, Commack, of counsel), for appellants.

[77 N.Y.2d 763] Bernard S. Meyer, Jeffrey G. Stark, Mineola, Jerome H. Heckman, John S. Eldred and Ralph A. Simmons, Washington, D.C., for respondents.

OPINION OF THE COURT

KAYE, Judge.

The Suffolk County Legislature, as part of an effort to protect the environment, in 1988 adopted the Plastics Law, banning the use of certain plastics products by retail food establishments. This is an action by representatives of the plastics industry--a nationwide trade organization and one local member--to overturn that law.

While plaintiffs advanced several alternative grounds for nullifying the law, only one remains: that the County Legislature, as lead agency, failed to conduct an adequate environmental review before passing the law. We conclude that these plaintiffs lack standing to use the State Environmental Quality Review Act (SEQRA; ECL art. 8) to that end.

I.

The Suffolk County Plastics Law is best understood by reference to certain background facts. As the State Legislature found in 1983, "the land burial and disposal of domestic, municipal and industrial solid waste poses a significant threat to the quality of groundwater and therefore the quality of drinking water in the counties of Nassau and Suffolk. This threat is particularly dangerous since the potable water supply for the counties is derived from a sole source aquifer." (L.1983, ch. 299.)

Codified as ECL 27-0704, the State law sought to prevent contamination of the aquifer by prohibiting new or expanded landfills in Nassau and Suffolk Counties, and by phasing out existing landfills, strictly limiting their operation after 1990. We sustained that law against constitutional challenge in Matter of Town of Islip v. Cuomo, 64 N.Y.2d 50, 484 N.Y.S.2d 528, 473 N.E.2d 756. Subsequently, the State Legislature has taken additional steps to safeguard the aquifer, noting that "the disposal of solid waste, both raw and treated, is a responsibility facing all towns and cities in the counties of Nassau and Suffolk." (L.1985, chs. 358, 359; see also, L.1986, ch. 840.)

In furtherance of its responsibility, the Suffolk County Legislature has enacted several measures. In 1985, for instance, the County added a new article to its Sanitary Code prohibiting the storage or discharge of toxic or hazardous materials into or over water supply sensitive areas. The County also acted to ensure selection of an environmentally suitable site for a regional ash disposal facility (Weinberg, 1985 Supplementary Practice Commentary, McKinney's Cons.Laws of N.Y., Book 17 1/2, ECL 27-0704, 1991 Cum.Ann. Pocket Part, at 154). Additionally, in March 1988, the County Legislature adopted Local Law No. 10-1988--known as the Plastics Law--prohibiting the use of certain plastics products by retail food establishments, in an effort to reduce nonbiodegradable materials in the solid waste stream and facilitate a comprehensive recycling program.

Where, as here, the County Legislature acts as the lead agency under SEQRA, the Suffolk County Code requires it to submit an environmental assessment form (EAF) for review to the Council on Environmental Quality (CEQ), which then must make a recommendation as to the need for an environmental impact statement (EIS). In October 1987, after receiving the EAF on the proposed Plastics Law, the CEQ recommended issuance of a negative declaration, finding that the action had no significant environmental impact.

Beginning September 1987, and continuing for a period of six months, the County Legislature conducted eight public hearings concerning the proposed law; the Environment and Energy Committee additionally met twice to consider it. Witnesses observed that these public discussions were larger and better attended than ever before. Among the more than 70 witnesses who testified, the several environmental groups that appeared before the Legislature uniformly supported the law. Plaintiff Society of the Plastics Industry, Inc. (SPI) and others voiced their opposition to it. SPI, in particular, urged that the Plastics Law should be defeated because fast-food packaging was a miniscule portion of solid waste and the bill would therefore effect no significant benefit to the environment; it further urged that paper food wrappers themselves posed dangers to the environment. Fear was expressed by a representative of the poly bag industry that bills such as the Plastics Law could proliferate nationwide.

On March 29, 1988, the County Legislature adopted the law, including a determination that it would not have a significant adverse impact on the environment and directing the Council on Environmental Quality to circulate a SEQRA notice of determination of nonsignificance; thus, no EIS was necessary. The bill was signed into law on April 29, 1988.

Substance of the Plastics Law

Section 1 of the Plastics Law restates the County Legislature's findings that discarded packaging constituted the largest single category of waste within the County, and that discarded nonbiodegradable packaging and plastics (particularly polystyrene and polyvinyl chloride) were a fundamental cause of municipal waste disposal problems, rapidly filling landfill space and introducing toxic byproducts if incinerated. The Legislature also found that plastic bags used by retail establishments selling food constituted the largest single retail source of plastic bags in the waste stream, and were an impediment to recycling because they are neither recyclable nor compostable. Section 1 further recites the finding that there were readily available plastic or paper product substitutes for most of the polystyrene and polyvinyl chloride retail food packaging in use in the County.

The heart of the Plastics Law is section 3, prohibiting retail food establishments in Suffolk County from selling or conveying food "directly to ultimate consumers within the County of Suffolk unless such food is placed, wrapped, or packed in biodegradable packaging at the conclusion of a sales transaction for the purchase of such food, which takes place on the premises of such a retail food establishment at or near a sales counter or equivalent customer purchasing station but prior to removal of such food from the premises of such retail food establishment." The law further prohibits retail food establishments within the County from providing customers with utensils or containers composed of polystyrene or polyvinyl chloride.

Section 8 of the Plastics Law embodies the Legislature's determination that the law would not have a significant adverse impact on the environment within the meaning of ECL 8-0109(2). Instead, the section sets forth anticipated beneficial environmental impacts--that the law would encourage recycling of solid waste products provide enhanced protection of groundwater quality, slow down rapid filling of landfill space, simplify the chemical composition of solid waste and thereby reduce the environmental hazards and toxicity associated with solid waste incineration, and reduce the cumulative impact of litter.

Plaintiffs' Challenge

In July 1988, several representatives of the plastics industry commenced this action in Supreme Court to invalidate the Plastics Law on five separate grounds: noncompliance with various SEQRA and comparable Suffolk County environmental law requirements; preemption of the local law by State law; violation of the Equal Protection and Due Process Clauses of the State and Federal Constitutions; and undue burden on interstate commerce. Plaintiffs' standing to challenge the Plastics Law on all grounds other than SEQRA is unquestioned.

The essence of plaintiffs' SEQRA challenge is that the County Legislature, as lead agency, failed in its administrative responsibility to address the areas of environmental concern that had been identified and prepare an EIS, or at least provide a reasoned elaboration for its determination that the law posed no significant environmental impacts. The record reveals no challenge to the County's environmental review process other than plaintiffs' complaint.

Plaintiff SPI is a nationwide nonprofit trade organization of more than 2,000 members, with offices in Washington, D.C., representing all segments of the plastics industry; at least eight unspecified member companies are in Suffolk County. The only Suffolk County member identified in the complaint is plaintiff Lawrence Wittman & Co., Inc. Wittman produces a variety of plastic products, none directly affected by the Plastics Law. Two other trade organizations and two out-of-State plastics manufacturers selling products in Suffolk County were also named plaintiffs. Only SPI and Wittman, in a joint submission, have participated in the litigation.

Both sides sought summary judgment. In support of standing, plaintiff SPI submitted the affidavit of its president, expressing the industry's concern about the potential adverse environmental consequences of the Plastics Law. As he stated, SPI "is dedicated to the protection of the environmental interests of its members, and the collective membership of SPI has a strong commitment to the manufacture and sale of plastics products in an environmentally sound manner." He identified as potential adverse consequences of the Plastics Law that, because of the increased weight and bulk of paper substitutes, SPI's member companies in Suffolk County would suffer an increase in the difficulty and cost of waste disposal; more trucking traffic, causing damage to Suffolk County roads and additional air and noise pollution; groundwater contamination affecting water used for drinking and manufacturing processes; and...