MATTER OF NYPIRG v. DEC

• Decision Date: 22 May 2000
• Citation: 710 N.Y.S.2d 521,184 Misc.2d 564
• Parties: In the Matter of NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., et al., Petitioners,<BR>v.<BR>NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.
• Court: New York Supreme Court

184 Misc.2d 564
710 N.Y.S.2d 521

In the Matter of NEW YORK PUBLIC INTEREST RESEARCH GROUP, INC., et al., Petitioners,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.

May 22, 2000.

Keri Powell and Brian Flack for petitioners.

Eliot Spitzer, Attorney General (Joseph Koczaja of counsel), for respondents.

[184 Misc.2d 565]

OPINION OF THE COURT

DAN LAMONT, J.

Petitioners New York Public Interest Group, Inc. and Evelyn Silva bring this CPLR article 78 proceeding seeking a judgment declaring respondents to be acting in violation of the provisions of ECL 19-0311 (2) (b) and 6 NYCRR 201-6.2 (b) (6), establishing an enforceable schedule by which the Department of Environmental Conservation (DEC) will carry out the requirements of ECL 19-0311 (2) (b) and 6 NYCRR 201-6.2 (b) (6), and awarding the petitioners reasonable attorneys' fees and other expenses.

The respondents have submitted an answer asserting the following objection in point of law: mandamus is unwarranted in these circumstances. Respondents also request that if the court should impose a schedule upon them, that such schedule be reasonable.

BACKGROUND

In 1970 the United States Congress passed the Federal Clean Air Act "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population" (42 USC § 7401 [b] [1]). The Clean Air Act delegates primary responsibility for implementing air quality programs to the States (referred to as Title V programs). States cannot have weaker pollution controls than those required by the Federal Government but they are free to adopt more stringent controls.

The United States Congress amended the Clean Air Act in 1990. The amendment required each State to establish a new permit program for sources of air pollution such as factories and power plants. Each State has responsibility for administering its own permit program, provided that the State submits a proposed permit program to the United States Environmental Protection Agency (US EPA) Administrator for approval and the program is approved. Each facility covered by the program must apply for and obtain a permit that describes the air quality requirements which apply to the facility. The permit must require the facility to perform regular monitoring and public reporting to assure the public and the government that the facility is operating in compliance with the Clean Air Act. Pursuant to the Clean Air Act...