Entergy Nuclear Indian Point 2, LLC v. N.Y. State Dep't of State

• Decision Date: 09 July 2015
• Docket Number: 519466
• Citation: 14 N.Y.S.3d 177,130 A.D.3d 1190,2015 N.Y. Slip Op. 05988
• Parties: In the Matter of ENTERGY NUCLEAR INDIAN POINT 2, LLC, et al., Appellants, v. NEW YORK STATE DEPARTMENT OF STATE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1190

14 N.Y.S.3d 177

2015 N.Y. Slip Op. 05988

In the Matter of ENTERGY NUCLEAR INDIAN POINT 2, LLC, et al., Appellants

v.NEW YORK STATE DEPARTMENT OF STATE et al., Respondents.

519466

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

July 9, 2015.

Nixon Peabody, LLP, Albany (Kevin P. Martin of Goodwin Procter, LLP, Boston, Massachusetts, admitted pro hac vice), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Lisa M. Burianek of counsel), for respondents.

Before: McCARTHY, J.P., EGAN JR., DEVINE and CLARK, JJ.

Opinion

CLARK, J.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered November 26, 2013 in Albany County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review respondents' modification to an existing designation of a certain stretch of the Hudson River as a statutorily protected environmental habitat.

Petitioners are the owners and operators of Indian Point Energy Center, a nuclear power facility. In July 2012, respondent Secretary of State, acting upon the recommendation of respondent Department of Environmental Conservation (hereinafter DEC), declared that the statutorily protected significant environmental habitat located at miles 45 through 56 of the Hudson River—a stretch of the river flowing through Dutchess, Orange, Putnam, Rockland and Westchester Counties—would be extended to include miles 40 through 60, resulting in a new statutory habitat known as “Hudson Highlands.” In 1987, the statutory habitat located at miles 45 through 56 was designated as a “significant coastal fish and wildlife habitat area” under 19 NYCRR 602.4 pursuant to the state's implementation (see Executive Law art 42; 19 NYCRR part 602) of a federal statutory scheme designed to encourage coastal states to implement long-term plans to protect coastal zones (see 16 U.S.C. § 1455 [b]–[e]; see generally Coastal Zone Management Act of 1972, 16 U.S.C. § 1451 et seq., as added by Pub. L. 92–583, 86 U.S. Stat. 1280). As a result of the habitat expansion,¹ the portion of the Hudson River adjacent to Indian Point—located at approximately mile 42 in the Village of Buchanan, Westchester County—now falls within the Hudson Highlands habitat.

In October 2012, petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking, among other forms of relief, annulment of the modification that resulted in the Hudson Highlands habitat. Respondents, in conjunction with their answer and certified return, submitted affidavits from scientists employed by DEC and respondent Department of State (hereinafter DOS). Petitioners then moved for leave to take discovery, asserting that the scientists' affidavits had substantively referenced documents outside of the record, and that Supreme Court should thus allow them to depose those scientists and grant them access to the previously undisclosed documents that the scientists had referenced in their affidavits. Supreme Court denied petitioners' discovery request in a May 2013 order. In November 2013, Supreme Court issued its judgment dismissing the petition. Petitioners now appeal from the November 2013 judgment,² and we affirm.

When an agency interprets a regulation that it promulgated, deference is afforded to that agency's interpretive approach unless it is “irrational or unreasonable” ( Matter of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 548–549, 664 N.Y.S.2d 249, 686 N.E.2d 1343 [1997] ; accord Matter of Gracie Point Community Council v. New York State Dept. of Envtl. Conservation, 92 A.D.3d 123, 128, 936 N.Y.S.2d 342 [2011], lv. denied 19 N.Y.3d 807, 2012 WL 2401398 [2012] ). To this end, the promulgating agency's interpretation may not be adjudged irrational simply because other rational constructions of the regulatory provision in question exist (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d 273, 280, 763 N.Y.S.2d 232, 794 N.E.2d 14 [2003] ; Matter of Neighborhood Cleaners Assn.-Intl. v. New York State Dept. of Envtl. Conservation, 299 A.D.2d 790, 792–793, 751 N.Y.S.2d 63 [2002] ), nor because the promulgating agency's reading of the relevant regulatory language either broadens its plain-language scope (see Matter of Kaufman v. Sarafan, 59 N.Y.2d 855, 857, 465 N.Y.S.2d 924, 452 N.E.2d 1252 [1983] ) or amounts to a “strict[ly] literal interpretation” (Eagles Landing, LLC v. New York City Dept. of Envtl. Protection, 75 A.D.3d 935, 938, 906 N.Y.S.2d 364 [2010], lv. denied 16 N.Y.3d 710, 2011 WL 1584718 [2011] ). Furthermore, “the determination of an agency acting pursuant to its authority and within its area of expertise is[, similarly,] entitled to judicial deference” (Matter of Riverkeeper, Inc. v. Johnson, 52 A.D.3d 1072, 1074, 861 N.Y.S.2d 155 [2008], lv. denied 11 N.Y.3d 716, 874 N.Y.S.2d 5, 902 N.E.2d 439 [2009] ). In contrast, an agency's interpretation of one of its own regulations is not entitled to deference if that interpretation contradicts the plain language of the regulation (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d at 280, 763 N.Y.S.2d 232, 794 N.E.2d 14 ), and an agency may be deemed to have acted irrationally if an interpretation of a regulation marks an unsubstantiated departure from the agency's previous position on a given subject (see Matter of Board of Educ. of the Kiryas Joel Vil. Union Free Sch. Dist. v. State of New York, 110 A.D.3d 1231, 1235, 972 N.Y.S.2d 723 [2013], lv. denied 22 N.Y.3d 861, 2014 WL 593184 [2014] ).

As relevant here, the Secretary has the authority to promulgate regulations in furtherance of this state's legislatively codified goal of “conserv[ing] and protect[ing] fish and wildlife habitats identified by [DEC] as critical to the maintenance or re- establishment of species of fish or wildlife” (Executive Law § 912[3] ; see Executive Law §§ 913[6] ; 914 [2] ). Two regulations promulgated by DOS pursuant to this statutory authority are directly relevant here; 19 NYCRR 602.5(a)(1) lists the “characteristics” that an area must exhibit in order to be designated as a “[s]ignificant coastal fish and wildlife habitat,” while 19 NYCRR 602.4(f) empowers the Secretary to modify the boundaries of an existing statutory habitat if, after consulting with DEC and engaging in a notice and comment process, he or she has concluded that “modification is justified by changes to the characteristics of the area which were the basis for the original or subsequent designation.”³

The parties' fundamental disagreement here centers on the question of whether newly discovered scientific data can support a modification pursuant to 19 NYCRR 602.4(f). Petitioners contend that, because respondents relied on scientific data discovered after the original 1987 designation of the habitat that now comprises part of Hudson Highlands, there was no conclusive proof of “change to the characteristics” of the relevant section of the Hudson River, as required by 19 NYCRR 602.4(f), and also that there was no baseline by which to measure change. According to petitioners, respondents demonstrated, at most, a change to the agencies' subjective understanding of those characteristics. In response, respondents argue that petitioners' reading of 19 NYCRR 602.4(f) is contrary to the intent, implementation and broader context of the regulation.

In our view, the information contained in the certified return,⁴ along with the scientists' affidavits, establishes that respondents had a rational, scientific basis for their conclusions so as to support the July 2012 modification.⁵ Specifically, the Secretary's “Findings, Rating Forms and Habitat Narrative”—a technical memorandum—sets forth the agencies' explanation for the designation of the Hudson Highlands habitat. The certified return also contained a number of scholarly articles, written after 1987, that set forth data regarding the viability of the Hudson River's water-based fauna populations, with one of those articles having been directly prompted by concerns about Indian Point's impact on both the Hudson River and the Atlantic Coast as a whole.

Furthermore, the modification that gave rise to the Hudson Highlands habitat was declared by the Secretary pursuant to DOS's interpretation of a regulatory area in which DOS has expertise (see Matter of Riverkeeper, Inc. v. Johnson, 52 A.D.3d at 1074, 861 N.Y.S.2d 155 ). In addition, because the Secretary is authorized by statute to “amend [the boundaries of the areas subject to state environmental regulation so as] to correct errors or make changes that are in furtherance of the policies and purposes of” Executive Law article 42 (Executive Law § 914[2] ), it cannot be said that the Secretary's reading of 19 NYCRR 602.4(f) is irrational or unreasonable (see e.g. Matter of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d at 548–549, 664 N.Y.S.2d 249, 686 N.E.2d 1343 ; Matter of ELG Utica Alloys, Inc. v. Department of Envtl. Conservation, 116 A.D.3d 1200, 1202, 983 N.Y.S.2d 668 [2014], appeal dismissed 24 N.Y.3d 929, 993 N.Y.S.2d 540, 17 N.E.3d 1136 [2014] ). Finally, there has been no suggestion here that DOS's instant construction of 19 NYCRR 602.4(f) contradicts a prior interpretation (see Matter of Board of Educ. of the Kiryas Joel Vil. Union Free Sch. Dist. v. State of New York, 110 A.D.3d at 1235, 972 N.Y.S.2d 723 ), or amounts to an outright refutation of the plain language of 19 NYCRR 602.4(f) (see Matter of Elcor Health Servs. v. Novello, 100 N.Y.2d at 280, 763 N.Y.S.2d 232, 794 N.E.2d 14 ). Accordingly, we defer to DOS's interpretation of 19 NYCRR 602.4(f) and find that the designation was rational and supported by the record.

Petitioners further argue that the habitat boundaries' modification that gave rise to the Hudson Highlands habitat constituted “formal” rulemaking such as would be subject to the relatively stringent procedural requirements codified at...