New York v. United States Environmental Protection Agency
| Decision Date | 11 March 2021 |
| Docket Number | 1:19-CV-1029 |
| Citation | 525 F.Supp.3d 340 |
| Parties | State of NEW YORK; the New York State Department of Environmental Conservation ; and Basil Seggos, as Commissioner of the New York State Department of Environmental Conservation, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY ; and Andrew R. Wheeler, as Administrator of the United States Environmental Protection Agency, Defendants, and General Electric Company, Intervenor, Defendant. |
| Court | U.S. District Court — Northern District of New York |
HON. LETITIA JAMES, OF COUNSEL: BRITTANY M. HANER, ESQ., Assistant Attorney General, JAMES C. WOODS, ESQ., Assistant Attorney General, Attorney General for the State of New York, Attorneys for Plaintiffs, The Capitol, Albany, New York 12224.
HON. ANTOINETTE T. BACON, OF COUNSEL: JOHN D. HOGGAN, JR., ESQ., Assistant United States Attorney, Acting United States Attorney for the Northern District of New York, Attorneys for Defendants the United States and Andrew R. Wheeler, 445 Broadway, Room 218, Albany, New York 12207.
OF COUNSEL: MEGHAN GREENFIELD, ESQ., U.S. DEPARTMENT OF JUSTICE ENRD/EES, Attorneys for Defendants the United States and Andrew R. Wheeler, P.O. Box 7611, Ben Franklin Station, Washington, DC 20044.
OF COUNSEL: SARAH A. BUCKLEY, ESQ., U.S. DEPARTMENT OF JUSTICE ENRD, Attorneys for Defendants the United States and Andrew R. Wheeler, 4 Constitution Square, 150 M Street Northeast, Washington, District of Columbia 20002.
OF COUNSEL: DEAN S. SOMMER, ESQ., KRISTIN CARTER ROWE, ESQ., YOUNG, SOMMER LAW FIRM, Attorneys for Intervenor Defendant General Electric Company, Executive Woods, Five Palisades Drive, Albany, New York 12205.
OF COUNSEL: SAMUEL GUTTER, ESQ., SAMUEL GUTTER, Attorneys for Intervenor Defendant General Electric Company, 10 Cape Codder Road, Apartment E, Falmouth, Massachusetts 02540.
OF COUNSEL: ERIC MERRIFIELD, ESQ., ERIC MERRIFIELD, Attorneys for Intervenor Defendant General Electric Company, P.O. Box 2049, Pulsbo, Washington 98370.
OF COUNSEL: JAMES R. BIEKE, ESQ., PETER D. KEISLER, ESQ., TIMOTHY K. WEBSTER, ESQ., SIDLEY, AUSTIN LAW FIRM – DC, Attorneys for Intervenor Defendant General Electric Company, 1501 K Street, Northwest, Washington, DC 20005.
It is difficult to overstate the importance of the Hudson River (the "Hudson" or the "river") to not only New York City, but to the entirety of New York State ("New York" or "the State").1 The Hudson is at once a narrative thread tying the history of the State into a cohesive whole and a geographical shorthand uniting its citizens in the present. Perhaps it is fitting that a state known so much for a single sprawling city owes so much to a natural feature at that metropolis's feet.
Unfortunately, mixing a mass of humanity with an element of nature all too often leads to the corruption of the latter for the former's sake. The Hudson has not been spared this fate. The parties agree that intervenor defendant General Electric Company ("GE") spent the back half of the twentieth century polluting the river with polychlorinated biphenyl ("PCB"), a dangerous chemical compound. The parties also agree that GE has spent the last few decades dredging the river to undo some measure of the damage it caused.
What is disputed is whether GE's cleanup efforts have progressed to the point where it is entitled to be insulated from suit for its role in polluting the Hudson in the first place. The United States Environmental Protection Agency ("the Government" and together with GE "defendants") and GE entered into a consent decree (the "consent decree") in 2006 to determine GE's penance for its contamination of the river. That consent decree authorized the Government to enter a covenant not to sue with GE if its cleanup efforts progressed far enough. The Government and—obviously—GE argue that the cleanup has reached that stage, and that GE is entitled to some protection from future suits.
Indeed, from defendants’ perspective, the consent decree commands that the Government make the covenant not to sue. But New York sees things differently. From the State's point of view, the covenant not to sue creates possibilities for GE to escape liability for its pollution before remedying the harm it has indisputably caused.
On August 21, 2019, New York filed a complaint in this district to settle that issue. The complaint alleges two causes of action under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2), both challenging the Government's decision to issue the covenant not to sue. The state claims that issuing the covenant was both: (I) ultra vires in violation of 5 U.S.C. § 706(2)(C) ; and (II) arbitrary and capricious in violation of 5 U.S.C. § 706(A). Both counts seek declaratory relief in the form of a Court determination that the Government acted impermissibly.
The Government and GE have moved to dismiss the complaint under Federal Rule of Civil Procedure ("Rule") 12(b)(6). New York has opposed the motion and cross-moved for summary judgment under Rule 56. The Government and GE have opposed the State's cross motion, and the government has also cross-moved for summary judgment under Rule 56. Those motions, having been fully briefed, will now be decided on the basis of the parties’ submissions without oral argument.
Beginning around 1947, GE produced PCBs as a byproduct of its manufacturing enterprises.2 Dkt. 1 ("Compl."), ¶ 15. Because two of GE's manufacturing facilities sat along the Hudson, the river became a natural dumping site for those chemicals. Id. According to New York, the intervening decades have seen large amounts of PCB contamination migrate downstream, contaminating the river and its fish from Hudson Falls, New York, all the way down to the Battery in Lower Manhattan. Id. ¶¶ 15, 17.
As might be expected, New York had concerns about the spread of PCBs in the Hudson, given the broad range of known health issues these chemicals cause in humans. In addition to being carcinogenic, PCBs have been found to have a deleterious effect on the immune, reproductive, nervous, and endocrine systems. Compl. ¶ 16.
In 2002, the Government issued a Record of Decision ("ROD") under the authority vested in it by the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") to compel GE to begin to clean the Hudson. Compl. ¶ 19; Dkt. 55-18, New York's Statement of Material Facts ("NYSMF") ¶ 1. That ROD tasked GE with targeted dredging and removal of highly-contaminated sediments to reduce the river's PCB levels. Compl. ¶ 19; NYSMF ¶ 2. In addition, the Government imposed fish advisories and fishing restrictions to limit public consumption of contaminated river fish. Compl. ¶ 19; NYSMF ¶ 2. Finally, the ROD required GE to monitor the natural attenuation of PCBs in the river over time. Compl. ¶ 19; NYSMF ¶ 2.
Among the ROD's objectives was achieving PCB levels among the sediment and fish in the Hudson that would be safe for human consumption and the environment. Compl. ¶ 20; NYSMF ¶ 3. The ROD estimates that a safe level of PCBs in fish would be 0.2 milligrams per kilogram for anglers who eat one half-pound of fish from the river per month, or 0.4 milligrams per kilogram for the average angler, who only eats one half-pound of fish every other month. Dkt. 55-2 ("ROD"), p. 66.3
To help bring about the ROD's objectives, the Government filed a complaint against GE on October 6, 2005. NYSMF ¶ 5; United States v. Gen. Elec. , 460 F. Supp. 2d 395, 400 (N.D.N.Y. 2006).4 The resulting lawsuit culminated in the Government and GE entering into the consent decree in 2006. Compl. ¶ 22; NYSMF ¶¶ 5-6. The Consent Decree was made available for public comment for a thirty-day period, as required by CERCLA. NYSMF ¶ 6. New York submitted comments to the consent decree but did not contest its terms. Id. ¶ 7. In the absence of a dissenting voice from the State, the Court adopted the consent decree on November 2, 2006. Id. ¶¶ 6-7; see Compl. ¶ 22.
The consent decree tasked GE with performing the work selected by the ROD to resolve the PCB contamination in the Hudson. See generally Dkt. 55-3 ("Consent Decree"), pp. 16-27.5 Primarily, that work involved dredging the river to mitigate the ongoing contamination. See id. at 9 ().
If the Government's looming lawsuit served as a stick motivating GE to complete the burdensome work of dredging and removal, the consent decree offered GE a carrot in the form of a covenant not to sue. Consent Decree ¶ 98. But that covenant only takes effect "upon [the Government's] Certification of Completion of the Remedial Action ("Certification of Completion" or "Certification") ...." Id. ¶ 99(b). The consent decree lays out the following procedure for awarding a Certification:
Three points about the consent decree's covenant not to sue still bear mentioning. First, the Government's issuance of a Certification of Completion "shall not affect [GE]’s remaining obligations" under the consent decree. Consent Decree ¶ 57(d). In other words, the Certification of Completion is not the finish line for GE's responsibility. It is only a milestone. See id.
Second, knowing what a Certification of Completion accomplishes for GE does not answer what must happen to result in the issuance of a...
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