Koch v. Dyson
| Decision Date | 23 March 1982 |
| Parties | Mayor Edward I. KOCH, et al., Petitioners, v. John S. DYSON as Chairman of The Power Authority of The State of New York, et al., respondents. In the Matter of Guy V. MOLINARI, petitioner, v. The POWER AUTHORITY of the State of New York, et al., respondents. In the Matter of Elizabeth CONNELLY, petitioner, v. The POWER AUTHORITY of the State of New York, et al., respondents. |
| Court | New York Supreme Court — Appellate Division |
Carolyn M. Halk, Staten Island (Karen F. McGee, New York City, Paul Hollender, Andrew B. McGee, Joel W. Pangborn and Catherine M. Paulo, Staten Island, of counsel), for petitioner Guy V. Molinari.
Frank V. Ponterio, Staten Island, for petitioner Connelly.
Thomas R. Frey, New York City (Gerald C. Goldstein, Reina Barcan, Wendy M. Lane, Karen A. Kimmel and Barry R. Fischer, New York City, of counsel), for respondent Power Authority of the State of N. Y.
David E. Blabey, New York City (Sam Laniado, Albany, of counsel), for respondent New York State Bd. on Elec. Generation Siting and the Environment.
Before MOLLEN, P. J., and TITONE, MANGANO, THOMPSON and BRACKEN, JJ.
In these original proceedings pursuant to section 148 of the Public Service Law, petitioners challenge a determination of the New York State Board on Electric Generation Siting and the Environment (Siting Board), which authorized the Power Authority of the State of New York (PASNY) to construct a 700 megawatt fossil fueled power plant at Arthur Kill near Travis, Staten Island. Prior to reaching that determination, the Siting Board, pursuant to section 146 of the Public Service Law, was mandated to consider, inter alia, the public need for the facility, compatibility with public health and safety, whether "the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder", whether "the facility is consistent with long-range planning objectives", and whether "the facility will serve the public interest, convenience and necessity". However, pursuant to section 146 (subd. 2, par. ), the Siting Board can "refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement which would be otherwise applicable if it finds that as applied to the proposed facility such is unreasonably restrictive". PASNY filed its application for authorization prior to July 1, 1978; therefore "a determination of necessity for facility made by the power authority of the state of New York pursuant to section ten hundred five of the public authorities law * * * conclusive on the board" (see Public Service Law, § 146, subd. 2, par. ).
On November 13, 1974, prior to filing its application with the Siting Board, PASNY adopted a resolution declaring that there was a public need for the facility. The Siting Board deemed this resolution conclusive on the question of public need and, after considering recommendations made by the State Energy Planning Board in March, 1980, concluded that the facility was also consistent with long-range planning objectives for electric power supply in the State. After considering the evidence presented at the hearing, the Siting Board concluded The primary issues before us are whether PASNY acted rationally when it determined that there is a public need for the facility, whether that determination was conclusive on the Siting Board, whether the Siting Board's conclusion that construction and operation of the facility would be compatible with public health and safety is supported by substantial evidence, and whether the Siting Board's analysis as to the application of local laws and regulations was proper. We conclude that PASNY's determination that there is a public need for the proposed facility is reasonable and that that determination was conclusive upon the Siting Board. Further, since the Siting Board's determination that the facility is compatible with public health and safety is rational and supported by substantial evidence, we will not substitute our judgment for the judgment of the Siting Board (see Public Service Law, § 148, subd. 2). However, we reject the Siting Board's conclusion that the City of New York bore the burden of proving that compliance with local laws and regulations should be imposed as a certificate condition. In our view, before issuing the certificate, the Siting Board is mandated, pursuant to section 146 (subd. 2, par. ) of the Public Service Law, to determine either that the facility is designed to operate in compliance with local laws and regulations or, in the alternative, that the local laws and regulations are unreasonably restrictive. Since the Siting Board must make this determination before issuing a certificate of environmental compatibility and public need, the applicant, in this case PASNY, must bear the burden of proof on the issue. Therefore, we must remit this matter to the Siting Board for further consideration of applicable local laws and regulations.
that the proposed facility's impact on public health and the environment would be "acceptable". With respect to local laws and regulations, the Siting Board concluded that PASNY, "as a state agency", is exempt therefrom by virtue of sovereign immunity and "shifted to the City the burden of explaining why specific provisions should be imposed as certificate conditions."
PASNY is a public authority, originally created in 1939 to develop hydroelectric power on the Niagara and St. Lawrence Rivers (see L.1939, ch. 870). In 1972, the Legislature determined that "there is a shortage of dependable power capacity in the southeastern part of the state and that the public interest requires that the authority assist in alleviating such shortage by providing such base load generating facilities as may be necessary or desirable to contribute to the maintenance of an adequate and dependable supply of electricity for the metropolitan transportation authority, its subsidiary corporations, and the New York city transit authority" (see L.1972, ch. 489, § 1; Public Authorities Law, § 1001). As a result, the Legislature authorized PASNY to "construct such base load generating facilities as it deems necessary or desirable to assist in maintaining an adequate and dependable supply of electricity" to these authorities (see L.1972, ch. 489, § 2). In May, 1974, the Legislature further extended PASNY's powers, authorizing it to construct, acquire and/or complete generating facilities to provide electrical power not only to the Metropolitan Transportation Authority and the New York City Transit Authority, but also to the Port Authority, the City of New York, the State of New York, the United States, and other public corporations and electric corporations within the metropolitan area of the City of New York (see L.1974, ch. 369, § 3). The Legislature also passed certain "emergency provisions" (see Public Authorities Law, § 1001-a):
"The legislature hereby finds and declares that extraordinary circumstances, including excessive costs, shortages of supply, and the inflated price of fuel threaten the capacity to provide utility service essential to the continued safety, health, prosperity and well-being of the people of the metropolitan area of the city of New York and, by reason of the interconnection and interdependence of electric facilities, the reliability of such "1. To preserve reliability of electric service in the metropolitan area of the city of New York and throughout the state and to assist in deterring further extraordinary increases in rates for electric service the authority should provide such supplemental electricity for such use in the metropolitan area of the city of New York as is consistent with continuing and maintaining the exemption of interest on authority bonds from the income tax imposed by the Internal Revenue Code of the United States and regulations and ruling thereunder.
service throughout the state and require emergency action by the state and its agencies. It is therefore declared that:
Consistent with this legislation, PASNY adopted a resolution on November 13, 1974, which determined:
"is a public need for the construction of base load generating facilities 'to assist in maintaining an adequate and dependable supply of electricity by supplying power and energy, for the metropolitan transportation authority, its subsidiary corporations, the New York city transit authority, the port authority of New York and New Jersey, the city of New York, the state of New York, the United States, other public corporations and electric corporations within the metropolitan area of the city of New York within the state of New York' consisting of a 700 MW fossil-fueled power plant designated Arthur Kill, on Staten Island in Richmond County, New York".
On December 26, 1974, PASNY applied to the Siting Board for a certificate of environmental compatibility and public need. The application designated Arthur Kill as the preferred site for the new power plant, and designated Hart Island in New York City, the Quarry site in Dutchess County and the Athens site in Greene County as alternative sites.
Owing to certain "informational deficiencies" in the application, PASNY was required to submit certain...
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