Nyc Coalition to End Lead Poisoning v. Vallone
| Decision Date | 26 March 2002 |
| Docket Number | 1,5336 |
| Parties | In re Application of New York City Coalition to End Lead Poisoning, Inc., et al., Petitioners/Plaintiffs-Respondents, v Peter Vallone, etc., et al, Respondents/Defendants-Appellants. The Rent Stabilization Association of NYC, Inc., The Community Housing Improvement Program, Inc., The Real Estate Board of New York, The Associated Builders and Owners of Greater New York, State of New York, Cathy Falvo, M.D., Nick Farr, Esq., H. Jack Geiger, M.D., M.Sci.Hyg., Charles Gilbert, Ph.D., Lynn R. Goldman, M.D., Philip Landrigan, M.D., Bruce Lanphear, M.D., Michael McCalley, M.D., Ph.D., Evelyn Mauss, Sc.D., Irving H. Mauss, M.D., Herbert Needleman, M.D., David Newman, M.A., M.S., Edward Olmsted, C.I.H., Leo Orris, M.D., Sergio Piomelli, M.D., John Rosen, M.D., Martin Rutstein, Ph.D., Don Ryan, M.U.R.P., Monroe Schneider, M.D., Joel Shufro, Ph.D., Victor W. Sidel, M.D., Irwin Solomon, M.D., Rebecca G. Solomon, M.D. and Bailus Walker, Jr., Ph.D., M.P.H., Amici Curiae. 5336-5337 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
Respondents appeal from an order and order and judgment (one paper), entered November 9, 2000 and February 22, 2001, respectively, which, inter alia, granted the article 78 petition, declared respondents' negative declaration null and void and declared New York City Local Law 38 of 1999 null and void.
Matthew J. Chachere, of counsel (Kenneth Rosenfeld, Theodora Galacatos and James M. Baker, on the brief, Northern Manhattan Improvement Corp. Legal Services, attorneys) for petitioners/plaintiffs-respondents,
Andrew Goldberg, attorney for petitioner/plaintiff-respondent New York Public Interest Research Group, Inc.,
George Gutwirth, of counsel (Francis F. Caputo and Mark W. Muschenheim, on the brief, Michael D. Hess, Corporation Counsel of the City of New York, attorney) for respondents/defendants-appellants,
Charles N. Rock, of counsel (Victoria Reilly Lehning, on the brief, Rock & Rosmarin, L.L.P., attorneys) on behalf of The Rent Stabilization Association of N.Y.C., Inc., The Community Housing Improvement Program, Inc., The Real Estate Board of New York and The Associated Builders and Owners of Greater New York, as Amici Curiae,
Simon Wynn, of counsel (Peter Lehner and Gordon Johnson, on the brief, Eliot Spitzer, Attorney General of the State of New York, attorney) on behalf of The State of New York, as Amicus Curiae,
Foster Maer, of counsel (Sara Rios, on the brief, Puerto Rican Legal Defense and Education Fund, Inc., attorneys) on behalf of Cathy Falvo, M.D., Nick Farr, Esq., H. Jack Geiger, M.D., M.Sci.Hyg., Charles Gilbert, Ph.D., Lynn R. Goldman, M.D., Philip Landrigan, M.D., Bruce Lanphear, M.D., Michael McCalley, M.D., Ph.D., Evelyn Mauss, Sc.D., Irving H. Mauss, M.D., Herbert Needleman, M.D., David Newman, M.A., M.S., Edward Olmsted, C.I.H., Leo Orris, M.D., Sergio Piomelli, M.D., John Rosen, M.D., Martin Rutstein, Ph.D., Don Ryan, M.U.R.P., Monroe Schneider, M.D., Joel Shufro, Ph.D., Victor W. Sidel, M.D., Irwin Solomon, M.D., Rebecca G. Solomon, M.D. and Bailus Walker, Jr., Ph.D., M.P.H., as Amici Curiae.
For a Judgment, etc.,
Peter Tom, J.P.
Richard T. Andrias
David B. Saxe
John T. Buckley
The issue here is whether the procedures the Council used to adopt Local Law 38 comply with the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR). Since we find that the record amply demonstrates respondents' compliance with the applicable environmental laws, we reverse and dismiss the petition.
This litigation is but the latest chapter in a decades-old conflict over what should be the policy of the City of New York regarding the public health threat posed by the lead content of paint. Here, however, it is undisputed that the policy should be containment rather than removal of lead paint because removal poses a greater threat than containment. This is the central premises of Local Law 38. Thus, the present dispute involves, not the content of that policy, but rather how municipal policy can be changed.
Petitioners have sought to nullify amendment of lead paint standards and adoption of abatement methods on the ground that the procedures used to adopt that local law failed to comply with State and municipal environmental protection laws, namely the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR).
Petitioners challenge New York City's amendment of its lead paint laws through adoption of Local Law 38 in the summer of 1999. Petitioners claim that respondents should have formulated an environmental impact statement ("EIS") prior to adoption of Local Law 38 and that the negative declaration, issued in lieu of an EIS, was defective under the relevant State and municipal laws (Environmental Conservation Law § 8-0101, et seq.; also known as "SEQRA"; 6 NYCRR Part 617; 43 RCNY § 6-01, et seq. and 62 RCNY § 5-01, et seq., "CEQR"). Insofar as relevant here, the claims and defenses made under CEQR are indistinguishable from those made under SEQRA. While Corporation Counsel for the City respondent has questioned whether these environmental review laws apply to Local Laws of general environmental impact, this issue was neither briefed nor argued before the IAS court and, in any event, was resolved years ago by regulatory definitions which expressly include Local Laws passed by governing authorities (6 NYCRR 617.2[b][3] and [v], and 62 RCNY §§ 5-03[d]; cf. Matter of Niagara Recycling, Inc. v Town Bd of Niagara, 83 A.D.2d 335, 338, fn. 4, affd 56 N.Y.2d 859; see also, Williamsburg Around The Bridge Block Assn v Giuliani, 223 A.D.2d 64, 72). Prior to evaluating the parties' conflicting claims regarding SEQRA compliance, it is necessary to understand prior litigation concerning lead-based paint and to compare Local Law 38 with the ordinance it amended.
Lead-based paint has long been identified as the source of serious health risks for very young children (Juarez v Wavecrest Management Team Ltd, 88 N.Y.2d 628, 640-641). The use of lead-based paint was first banned in New York City in 1960. In 1970 the City Department of Health was mandated by the Health Code to take certain actions when notified that lead poisoning had happened. The first systematic attempt at formulating municipal standards and methods of amelioration came in 1982 when New York City adopted Local Law 1 which, among other things, placed strict limits on the amount of lead that could be contained in the interior paint in any apartment with a child six years or younger. New York City's performance of its duties under Local Law 1 has been the subject of nearly two decades of litigation (Coalition to End Lead Poisoning v Koch, 138 Misc.2d 188, affd 139 A.D.2d 404 []; Coalition v Koch, 170 A.D.2d 419 []; Coalition v Koch, 216 A.D.2d 219 []; Coalition v Giuliani, 245 A.D.2d 49 []). Later the IAS court found that the City had violated both the statute and prior court decisions; the court thereupon enjoined certain Health Code amendments, held the City in contempt and imposed a fine which was to increase until the City was in compliance with earlier orders (Coalition v Giuliani, 173 Misc.2d 235, affd 248 A.D.2d 120). It was against this litigation backdrop that the City decided to reformulate lead paint standards and enforcement methodologies.
Throughout the consideration of various alternative regulations and ordinances between December 1998 and June 1999, the final imposition of contempt remedies was delayed several times by the parties. Adoption of Local Law 38 mooted out the former litigation. Nullification of Local Law 38 by the IAS court in this proceeding, if affirmed, would reinstate Local Law 1 and place the City of New York in immediate contempt of outstanding orders in the former litigation. New York City would be without any effective and safe methods of dealing with the persistent lead paint hazards. It is essential, then, to understand the relationship between Local Law 1 and Local Law 38 to appreciate the legislative process which resulted in amendment of the former by the latter.
Local Law 1 of 1982, codified in New York City Administrative Code § 27-2013(h), required the owner of a multiple dwelling occupied by a child under age seven to eliminate all lead paint on specified interior surfaces. Unlike previous laws, owners had to completely remove lead paint regardless of whether a City inspection or lead poisoning had happened. Owners had to completely abate whenever a child resided where lead paint existed (see, Juarez v Wavecrest Mgmt Team, 88 N.Y.2d 628; Valdez v Sherman Estates, Inc., 224 A.D.2d 240). In stark contrast with this total removal approach, Local Law 38 of 1999 reformulated municipal policy as one of containment: intact paint is to be left alone, peeling lead-based paint should be repaired rather than removed. Significantly, on this central premise of Local Law 38, petitioners and respondents agree, since experts on lead paint now concur that removal of intact lead-based paint poses a greater public health threat than containment. What separates petitioners and respondents is not the City's abandonment of a total abatement approach but, rather, the details of how to measure risks presented by lead-based paint and how to contain those risks to ensure the safety of small children. The salient, undisputed point here is that moving from abatement to containment reduces environmental threats to human health. There is disagreement on whether certain standards, rules or methodologies will result in greater or lesser reductions of...
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