Nat'l Waste & Recycling Ass'n v. City of N.Y.
| Decision Date | 03 October 2019 |
| Docket Number | INDEX NO. 101686/2018 |
| Citation | 2019 NY Slip Op 32910 (U) |
| Parties | THE NATIONAL WASTE & RECYCLING ASSOCIATION, CITY RECYCLING CORP., EMPIRE RECYCLING SERVICES, LLC, HI-TECH RESOURCE RECOVERY, INC., METROPOLITAN TRANSFER STATION, INC., RAFAEL BATISTA, and WILLIAM MACKIE, Petitioners-Plaintiffs, v. THE CITY OF NEW YORK, BILL DE BLASIO IN HIS CAPACITY AS MAYOR OF THE CITY OF NEW YORK, THE CITY COUNCIL OF THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF SANITATION, and KATHERINE GARCIA IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE CITY OF NEW YORK DEPARTMENT OF SANITATION, Respondent-Defendants. |
| Court | New York Supreme Court |
MOTION SEQ. NO. 001 002 003
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 001) 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 90, 91, 92, 93, 94, 102, 103, 105 were read on this motion to/for ARTICLE 78.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 36, 37, 38, 39, 40, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 87, 88, 89 were read on this motion to/for DISMISS.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 82, 83, 84, 85, 86, 101 were read on this motion to/for LEAVE TO FILE AMICUS BRIEF.
Petitioners-plaintiffs (hereinafter "petitioners") commenced this action by complaint and petition, pursuant to Article 78 of the CPLR, challenging Local Law 152 arguing, in sum and substance, that Local Law 152 was adopted in violation of the New York State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review Act (CEQRA). Petitioners assert that respondent-defendants failed to assess the potential socioeconomic impacts to the transfer station industry, that Local Law 152 is unconstitutionally vague, violates due process under the Fourteenth Amendment, and is preempted by state law.1
Respondent-defendants, the City of New York, Bill de Blasio in his official capacity as Mayor of the City of New York, the City Council of the City of New York, New York City Department ofSanitation and Kathryn Garcia in her official capacity as Commissioner of the City of New York Department of Sanitation, (collectively "City") move to dismiss the verified petition and complaint pursuant to CPLR § 3211(a)(1) and (a)(7).
In an environmental review action, a court must determine whether the determination was made in violation of a lawful procedure, affected by an error or law, was arbitrary and capricious, or was an abuse of discretion. The court is not to substitute judgment or "weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA." (Jackson v NY State Urban Dev. Corp., 67 NY2d 400 [1986]). What the court may do is determine whether the procedure was lawful and whether the agency identified relevant areas of environmental concern, took a "hard look" at them, and made a reasoned elaboration of the basis of its determination. (Id, citing Aldrich v Pattison, 107 AD2d 258 [2d Dept 1985] and Coalition against Lincoln W., Inc. v New York, 94 AD2d 483 [1st Dept 1983]).
The New York City Council passed Local Law 152 on July 18, 2018. It was approved by the Mayor on August 16, 2018.2 Local Law 152 provides for a reduction in waste transfer station capacity in communities having the highest concentration of transfer stations.3 The law was born out of concerns regarding the heavy truck traffic at these transfer stations resulting in residents of the affected communities being at a higher risk of hazards, such as increased health risks from truck emissions.4 The City prepared an Environmental Assessment Statement (EAS), pursuant to SEQRA and CEQRA, to determine whether Local Law 152 would have an adverse effect on the environment. The EAS determined that there was ample capacity at other transfer stations throughout the City to receive displaced waste from the overburdened transfer stations at issue and that while there was a probability of job losses and closures, the overall impact on the industry and service of the four-districts involved would be insignificant.
Petitioners' assert in its first cause of action that the City failed to take a "hard look" at the potential impacts of Local Law 152 in violation of SEQRA and CEQRA. Specifically, petitioners claim that the City adopted an inaccurate analysis of the slack capacity of transfer stations in affected communities; that the City's EAS failed to identify the impact from the reduction of capacity at the transfer stations currently relied upon; that the City failed to identify adverse impacts such as air emission, noise, and increase in miles traveled related to transporting waste farther to unload at transfer stations in unaffected areas; and that the City erroneously concluded that adverse socioeconomic losses were not significant.
The City argues for dismissal asserting that petitioners' challenge of the City's assessment of potential socioeconomic, transportation, air quality, and noise impacts to the transfer station industryis conclusory and unsupported by verifiable data. The City further argues that its assessment did, in fact, acknowledge potential job loss. However, petitioners' individual economic circumstances were not the focal point of the analysis as SEQRA and CEQRA require an analysis and "hard look" at the entire industry. As such, the City contends that it followed the established methodologies of the CEQRA Technical Manual and after assessing the relevant areas of environmental concern, found that Local Law 152 would not have a significant impact on the environment.
SEQRA and CEQRA both require agencies to "determine whether the actions they directly undertake, fund, or approve may have a significant impact on the environment, and, if it is determined that the action may have a significant adverse impact, prepare or request an environmental impact statement." (See 6 NYCRR § 617.1.) If the agency determines that the environmental impact is not significant, it issues a 'negative declaration." These regulations further state that the intention is for a suitable balance of social, economic, and environmental factors to be incorporated into the planning and decision-making processes of state, regional, and local agencies and not for environmental factors be the sole consideration in decision-making. Id. Compliance with SEQRA/CEQRA requires agencies to take a "hard look" at environmental consequences and that information be considered which would lend itself to a reasoned conclusion. However, agencies are not required to consider every possible alternative. (See Coalition Against Lincoln W., Inc. v New York, 94 AD2d 483 [1st Dept 1983]).
Here, petitioners' assertion that the City's EAS is incomplete and based upon erroneous data is wholly conclusory and unsupported by evidence. A review of the EAS shows that the City analyzed areas affecting the public, such as potential impacts to transportation, noise, air quality, and socioeconomic conditions. As to petitioners' assertions that the City failed to assess its economic losses, this contention is not accurate as the EAS clearly indicates that an assessment of potential economic loss was included in its assessment of the entire industry. Further, the Court of Appeals has held that in order to have standing to challenge an environmental review a party must demonstrate environmental injuries not solely economic injuries. (See Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428 [1990].) Consequently, the City was not required to assess the economic impact specific to petitioners as it was charged with assessing environmental impacts on the industry and communities affected as a whole. Accordingly, this cause of action is without merit.
Petitioners in its second cause of action assert that the City impermissibly segmented its environmental review of Local Law 152 from its development of Commercial Waste Zones in violation of SEQRA. Petitioners assert that as Local Law 152 is part of "Commercial Waste Zones," a City plan to create zones for waste hauling companies where hauling companies bid to offer services within designated zones, Local Law 152 should not have been assessed and/or reviewed individually.
The City argues that distinct from Commercial Waste Zones, the intent of Local Law 152 is to reduce transfer station capacity in specific overburdened communities in order to reduce exposure to residents impacted by the high concentration of transfer stations near their homes. The City contends that Local Law 152 and Commercial Waste Zones are not dependent on each other nor part of the same plan, and the implementation of one will not impact the result of the other.
As to this cause of action, the Court finds that Local Law 152 was drafted in response to specific health and hazard concerns of overburdened communities housing more than their fair shareof New York City's garbage by way of transfer stations and thus, not connected to the Commercial Waste Zone plan which addressed issues within the private carting/hauling industry outside of the health concerns of the community. Accordingly, this cause of action is likewise without merit.
For its third cause of action, petitioners claim that the adoption of Local Law 152 failed to abide by the Solid Waste Management Plan (SWMP) and is in direct conflict with it as SWMP contemplates a reduction of transfer capacity of up to 6,000 tons per day whereas Local Law 152 requires reductions of approximately 10,500 tons per day. Petitioners assert that a modification of SWMP was required prior to the Council's enactment of Local Law 152.
The City avers that pursuant to 6 NYCRR 306-15.11(b)(1), a SWMP modification is only required when there is a "significant change in the method of...
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