Long Island Lighting Co. v. Suffolk County

• Decision Date: 22 August 1986
• Citation: 119 A.D.2d 128,505 N.Y.S.2d 956
• Parties: LONG ISLAND LIGHTING COMPANY, Respondent, v. The COUNTY OF SUFFOLK, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 956

505 N.Y.S.2d 956

119 A.D.2d 128

LONG ISLAND LIGHTING COMPANY, Respondent, v. The COUNTY OF SUFFOLK, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

Aug. 22, 1986.

Skadden, Arps, Slate, Meagher & Flom, New York City (Jonathan J. Lerner, of counsel), and Paul Sabatino II, Hauppauge, for appellants.

Shea & Gould, New York City (Michael Lesch, John G. Nicolich and Barry V. Sautman, of counsel), and Anthony F. Earley, Jr., Hicksville (Susan E. Silverman, of counsel), for respondent.

Sive, Paget & Riesel, New York City (David Sive, Eric Bregman and Lawrence A. Goldberg, of counsel), for Citizens' Committee For A Long Island Power Authority, amicus curiae.

MOLLEN, P.J., and MANGANO, BROWN, RUBIN and KOOPER, JJ.

PER CURIAM.

On July 28, 1986, the Suffolk County Legislature enacted Resolution No. 850 of 1986, authorizing the formation of a local development corporation pursuant to Not-For-Profit Corporation Law §§ 402 and 1411. The local development corporation, to be known as the Consumer Electric Corporation of Long Island (hereinafter the CEC), was incorporated for the purpose of, inter alia, acquiring the stock and/or assets of the Long Island Lighting Company (hereinafter LILCO) and to provide for the management and operation of LILCO subsequent to its acquisition. Pursuant to the county resolution, the CEC is empowered to issue negotiable bonds and other obligations in order to finance the acquisition of LILCO. Moreover, the CEC is to exercise its discretion in determining whether the acquisition of LILCO will result in lower rates and to withhold its authorization of any acquisition if such lower rates cannot be attained. Finally, under the county resolution, in the event of an acquisition of LILCO, the CEC is mandated to "forthwith close and decommission the Shoreham [Nuclear Power] plant" and take "any and all actions to terminate, discontinue and preclude all pending, current or future licensing proceedings before the Nuclear Regulatory Commission (NRC) for the Shoreham Nuclear [Power] Plant".

On July 24, 1986, four days prior to the adoption of the Suffolk County resolution, Governor Cuomo signed into law legislation adding a Title 1-A to Public Authorities Law article 5 (L.1986, ch. 517) which authorized the acquisition of LILCO by an entity to be known as the Long Island Power Authority (hereinafter LIPA) (see, Public Authorities Law § 1020-c). The "legislative findings and declarations" set forth in Public Authorities Law § 1020-a state that "[t]here is a lack of confidence that the needs of the residents and of commerce and industry in [LILCO's] service area for electricity can be supplied in a reliable, efficient and economic manner by [LILCO]". Public Authorities Law § 1020-a further states that "excessive costs and lack of confidence have deterred commerce and industry from locating in the service area" and that "[t]he investment of LILCO in [the] Shoreham Nuclear Power Plant has created significant rate increases, straining the economic capabilities of ratepayers in the service area". The legislative determination declares that "[f]or all the above reasons, a situation threatening the economy, health and safety exists in the service area". Public Authorities Law § 1020-a concludes that "[s]uch matters of state concern best can be dealt with by replacing such investor owned utility with a publicly owned power authority".

To effectuate this objective, Public Authorities Law § 1020-c creates LIPA, defined as "a body corporate and politic and a political subdivision of the state, exercising essential governmental and public powers". Public Authorities Law § 1020-h(1)(a) specifically empowers LIPA to acquire LILCO. Pursuant to Public Authorities Law § 1020-h(1)(b), LIPA must, prior to acquisition, enter into negotiations with LILCO for the purpose of acquiring the utility on terms which would result in rates equal to or less than rates which would result if LILCO were to continue in operation. Public Authorities Law § 1020-h(2) provides that as a prerequisite to the acquisition of LILCO's stock and/or assets, LIPA must determine, "in its sole discretion", based upon engineering, financial and legal data, studies and opinions, that the rates projected to be charged after the acquisition will not be higher than the rates projected by LILCO if the acquisition does not take place. Significantly, Public Authorities Law article 5, title 1-A, also provides for the decommissioning of the Shoreham Nuclear Power Plant (see, Public Authorities Law § 1020-h[9] ). Pursuant to Laws of 1986, chapter 517, § 11, however, the substantive provisions of Public Authorities Law article 5, title 1-A, do not become effective until January 15, 1987.

On the same day that the county resolution was approved, LILCO commenced the instant action seeking, inter alia, to declare the resolution invalid and to enjoin its implementation. By order to show cause dated July 30, 1986, LILCO moved for a preliminary injunction. Thereafter, by notice of motion dated August 4, 1986, the appellants sought dismissal of the LILCO complaint. By order dated August 8, 1986, the Supreme Court, Suffolk County, granted the plaintiff's motion for a preliminary injunction upon the ground that the county resolution had been pre-empted by the State's enactment of Public Authorities Law article 5, title 1-A. After comparing the Suffolk County resolution and Public Authorities Law article 5, title 1-A, the court, in its memorandum decision, concluded that "[t]here is no doubt, from the language employed by the authors of Title 1-A, that the State intended to acquire LILCO by itself". The court further observed that "[t]he fact that the timetable and the method is slower than the plan invented by the Suffolk County Legislature is no reason to disregard the State's pre-emption in this area". On August 11, 1986, this court modified the preliminary injunction so as to allow the appellants to continue with certain internal preparatory steps for the proposed bond sale by the CEC and directed that the instant appeal be heard on an expedited basis. The principal issue now before us is whether the Supreme Court was correct in enjoining implementation of the Suffolk County resolution. We conclude that it was, and accordingly we affirm.

We begin by rejecting the appellants' argument that we must remain indifferent to the objectives of, and the legislative intent disclosed by, the enactment of Laws of 1986, chapter 517, adding title 1-A to article 5 of the Public Authorities Law, solely because the framers of that legislation thought it provident to delay the implementation thereof until January 1987. To circumscribe our substantive inquiry in such a fashion would be to adopt a myopic and unacceptably narrow impediment to the ascertainment of legislative intent. Nor do we subscribe to the appellants' contention that, as a matter of law, the substantive implications and objectives of Public Authorities Law article 5, title 1-A, cannot be assessed in terms of their potentially pre-emptive scope until after the effective date of the Laws of 1986, chapter 517. Suffice it to say that, where an intent to pre-empt is discernible, the adoption of such a contention could, conceivably, frustrate legislative discretion in gauging the most efficacious juncture at which statutorily mandated acts should be performed. In short, we conclude that the Legislature's decision to delay implementation of Public Authorities Law article 5, title 1-A, does not preclude our inquiry into the question of whether the county's resolution has been pre-empted.

Turning to the substantive pre-emption issue, it is well settled that although "[m]unicipalities have broad powers to enact local legislation concerning the health, safety, welfare and morals of residents" they nevertheless are limited in their enactments by "the preclusion against the adoption of local laws which are preempted by State legislation" (Dougal v. County of Suffolk, 102 A.D.2d 531, 532, 477 N.Y.S.2d 381, affd. 65 N.Y.2d 668, 491 N.Y.S.2d 622, 481 N.E.2d 254). Moreover, "[w]here a State law indicates a purpose to occupy an entire field of regulation, local regulations are pre-empted regardless of whether their terms conflict with provisions of the State statute or only duplicate them" (Matter of Ames v. Smoot, 98 A.D.2d 216, 218, 471 N.Y.S.2d 128). It is also settled that, "[t]he intent to pre-empt need not be express. It is enough that the Legislature has impliedly evinced its desire to do so" (Consolidated Edison Co. of N.Y. v. Town of Red Hook, 60 N.Y.2d 99, 105, 468 N.Y.S.2d 596, 456 N.E.2d 487). As further stated by the Court of Appeals, "[a] desire to pre-empt may be implied from a declaration of State policy by the Legislature * * * or from the fact that the Legislature has enacted a comprehensive and detailed regulatory scheme in a particular area" (Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra, 60 N.Y.2d at p. 105, 468 N.Y.S.2d 596, 456 N.E.2d 487). Indeed, this court has noted that "[c]omprehensiveness and detail are important in determining the existence of an intent to pre-empt" (Matter of Ames v. Smoot, supra, 98 A.D.2d at p. 220, 471 N.Y.S.2d 128). Moreover, even where the Legislature has not pre-empted the field, Suffolk County's "authority to enact local laws under the Constitution or the Municipal Home Rule Law is conditioned on the exercise of such authority not being inconsistent with any State enactment" (Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra, 60 N.Y.2d at p. 107, 468 N.Y.S.2d 596, 456 N.E.2d 487). "While [the] two infirmities [of pre-emption and inconsistency] are often interrelated, each is in itself a sufficient basis for invalidating a local law" (Consolidated Edison Co. of N.Y. v. Town of Red Hook, supra, 60 N.Y.2d at p. 105, 468 N.Y.S.2d 596, 456 N.E.2d 487).

Our review of the record discloses that Public...