Niagara Mohawk Power Corp. v. N.Y. State Dep't of Envtl. Conservation

• Decision Date: 11 June 2021
• Docket Number: 941,CA 19-01942
• Parties: In the Matter of NIAGARA MOHAWK POWER CORPORATION, Doing Business as National Grid, Petitioner-Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

195 A.D.3d 1468
150 N.Y.S.3d 197

In the Matter of NIAGARA MOHAWK POWER CORPORATION, Doing Business as National Grid, Petitioner-Appellant,
v.
NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent-Respondent.

941
CA 19-01942

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: June 11, 2021

BOND, SCHOENECK & KING, PLLC, SYRACUSE (KEVIN M. BERNSTEIN OF COUNSEL), FOR PETITIONER-APPELLANT.

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JOSHUA M. TALLENT OF COUNSEL), FOR RESPONDENT-RESPONDENT.

PRESENT: CENTRA, J.P., NEMOYER, WINSLOW, AND BANNISTER, JJ.

MEMORANDUM AND ORDER

195 A.D.3d 1468

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by granting the petition insofar as it sought to annul those parts of the determinations imposing condition 6 of the Alabama-Telegraph permits and condition 7 of the Huntley-Lockport permits, and as modified the judgment is affirmed without costs.

Memorandum: This proceeding concerns three projects undertaken by petitioner to repair and upgrade its power equipment. The three projects are known as the Alabama-Telegraph project, the South Dow-Poland project, and the Huntley-Lockport project. For each project, petitioner applied to respondent for both a freshwater wetland permit under Environmental Conservation Law (ECL) article 24 and a corresponding water quality certification (WQC) under 33 USC § 1341 (collectively, permits).

Respondent granted the requested permits, but it conditioned them on petitioner's undertaking of a comprehensive post-construction

150 N.Y.S.3d 199

program to monitor and suppress the spread of multiple invasive plant species at the project sites. Insofar as relevant here, the Alabama-Telegraph and Huntley-Lockport permits provided that petitioner would be "compliant" with the invasive-species mitigation conditions only if there was no net increase in certain invasive plant species at the project sites after five growing seasons. In other words, the Alabama-Telegraph and Huntley-Lockport permits obligated petitioner to discover and eliminate any net increase in designated invasive plants at the project sites for five years after construction had ended, irrespective of whether that increase was in any way attributable to petitioner or its construction activities.

Petitioner then commenced this CPLR article 78 proceeding to, in effect, annul those parts of respondent's determinations imposing the invasive-species mitigation conditions. As relevant here, petitioner argued that respondent lacked authority to condition the permits on invasive-species mitigation of any kind. Even if respondent had such authority in the abstract,

195 A.D.3d 1469

petitioner continued, the specific invasive-species...