Residents for Sane Trash Solutions, Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 10 July 2014
• Docket Number: Nos. 12 Civ. 8456PAC,12 Civ. 8458PAC.,s. 12 Civ. 8456PAC
• Citation: 31 F.Supp.3d 571
• Parties: RESIDENTS FOR SANE TRASH SOLUTIONS, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants. New York State Assembly Member Micah Z. Kellner, et al., Plaintiffs, v. United States Army Corps of Engineers, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

31 F.Supp.3d 571

RESIDENTS FOR SANE TRASH SOLUTIONS, INC., et al., Plaintiffs

v.UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

New York State Assembly Member Micah Z. Kellner, et al., Plaintiffs

v.United States Army Corps of Engineers, et al., Defendants.

Nos. 12 Civ. 8456PAC

12 Civ. 8458PAC.

United States District Court, S.D. New York.

Signed July 10, 2014.

Charles C. Platt, Hanna A. Baek, Jennifer Rimm, Michael D. Gottesman, Wilmer Cutler Pickering Hale and Dorr, New York, NY, Scott Steven Bernstein, Wilmer, Cutler & Pickering Hale & Dorr LLP, Washington, DC, for Plaintiffs.

Christopher Kendrick Connolly, United States Attorney's Office, Carrie Elizabeth Noteboom, Christopher Gene King, New York City Law Department, Office of The Corporation Counsel, Robert William Yalen, New York, NY, for Defendants.

OPINION & ORDER

PAUL A. CROTTY, District Judge.

Most New Yorkers are agnostic about where their garbage goes, or how it gets there, so long as it goes away. But garbage disposal is both messy and expensive. At present, New York City garbage must be collected, transported, consolidated, transshipped, and ultimately disposed of by means of landfill dumping, composting, energy conversion, or some other mechanism.

For six decades beginning in the 1930s, there was a marine transfer station—a garbage-shipping plant used to dispose of the City's waste—at the intersection of 91st Street, the FDR Drive, and the East River. During that timeframe, the surrounding neighborhood became more residential and affluent. Asphalt Green was developed as a recreational facility. The East River Esplanade, a pedestrian walkway between the FDR Drive and the East River, was created and subsequently renamed the Bobby Wagner Walk. And all during this six decade period of residential and neighborhood development, garbage trucks were driving to York Avenue and 91st Street, transiting over an escalated ramp, crossing the FDR Drive, and arriving at the marine transfer station where the garbage was dumped out of the truck into barges.

The 91st Street marine transfer station ceased operating in 1999. But in 2004, the New York City Department of Sanitation (“DSNY”)¹ revealed plans to build a massive, 70,000 square foot, 10–story tall, Marine Transfer Station (“MTS”) at the 91st Street site. The MTS will receive thousands of tons of the City's garbage per day for containerization and transportation via barge to remote locations. The project requires multiple permits from New York State and New York City authorities, which are obtained only after numerous public hearings and exhaustive community and regulatory reviews.

Plaintiffs here, Residents for Sane Trash Solutions, Inc., et al., 12 Civ. 8456 (hereinafter the “Sane Trash Plaintiffs”) and Micah Z. Kellner, et al., 12 Civ. 8458 (hereinafter the “Kellner Plaintiffs”) (collectively, “Plaintiffs”), challenge the construction of the 91st Street MTS. Plaintiffs have previously initiated five New York state proceedings contesting all state and local actions related to the construction of the MTS, including the issuance of necessary permits and grants of certification. All of their challenges, however, have been rejected. In one final attempt to prevent the construction of the 91st Street MTS, Plaintiffs bring the present lawsuit, challenging a Clean Water Act (“CWA”) § 404 permit to construct the MTS issued by the United States Army Corps of Engineers (“Corps”). The Corps' issuance of the permit was based on its review of an extensive administrative record. Plaintiffs' action is therefore, in essence, an appeal of the Corps' decision to issue the permit.

Plaintiffs claim that the Corps' issuance of the CWA § 404 permit was arbitrary, capricious, and unlawful, and that the Corps failed to take a “hard look” at the transfer station's consequences and alternatives, as required by the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. § 4321, et seq. Specifically, Plaintiffs allege that the Corps:

(1) improperly limited the scope of its environmental review under NEPA (Sane Trash Am. Compl. ¶¶ 121–32, 157–60; Kellner Am. Compl. ¶¶ 104–21, 150–65);(2) circumscribed its analysis of the public interest under the CWA (Sane Trash Am. Compl. ¶¶ 157–60; Kellner Am. Compl. ¶¶ 104–21);

(3) failed to adequately consider alternatives to the 91st Street MTS (Sane Trash Am. Compl. ¶¶ 133–37, 161–64; Kellner Am. Compl. ¶¶ 122–31);

(4) failed to consider potential degradation of waters stemming from construction of the 91st Street MTS (Sane Trash Am. Compl. ¶¶ 138–42, 165–72; Kellner Am. Compl. ¶¶ 132–40); and

(5) failed to provide a sufficient mitigation plan (Sane Trash Am. Compl. ¶¶ 138–42; Kellner Am. Compl. ¶¶ 141–49).

Additionally, Plaintiffs allege that the occurrence of Superstorm Sandy mandated that the Corps, the City of New York, and DSNY supplement their environmental analysis and reconsider the permit. (Sane Trash Am. Compl. ¶¶ 143–49; Kellner Am. Compl. ¶¶ 212–30.)

Plaintiffs also claim that the City and DSNY denied them equal protection of the law in violation of the Fourteenth Amendment and the New York State Constitution. (Kellner Am. Compl. ¶¶ 166–80, 181–183; Sane Trash Am. Compl. ¶ ¶ 173–78.) The Sane Trash Plaintiffs also allege that the Corps was “complicit” in the City's violation of their constitutional right to equal protection. (Sane Trash Am. Compl. ¶ 178.) Finally, one of the Kellner Plaintiffs, Asphalt Green Inc., brings claims against the City for breach of contract, trespass, and private nuisance based on the City's intrusion on the Asphalt Green campus for the purpose of constructing the 91st Street MTS. (Kellner Am. Compl. ¶¶ 184–201.)

As with Plaintiffs' prior state court challenges to the 91st Street MTS, their claims in this federal action lack merit. Accordingly, the Court denies Plaintiffs' summary judgment motions, and grants Defendants' summary judgment and Rule 12(c) motions in their entirety.

BACKGROUND²

A. The Parties

(1) Residents for Sane Trash Solutions, Inc. (“Sane Trash”) is a not-for-profit membership corporation whose purpose is to:

(a) oppose construction and operation of the 91st Street MTS;

(b) advocate for alternative solutions to disposing trash at the 91st Street MTS; and

(c) protect the residential character of the adjoining Upper East Side neighborhood.

Sane Trash is joined as Plaintiff by an elected official, as well as neighborhood and community leaders.

(2) Micah Z. Kellner is a New York State Assemblyman. He is joined as Plaintiff by Gracie Point, Asphalt Green Inc., and another elected official, as well as community leaders. Gracie Point is an unincorporated association dedicated to preservation and betterment of the Gracie Point neighborhood. Asphalt Green Inc. is a not-for-profit corporation which provides a community recreational facility. It has a 20–year license on a City-owned 5–acre parcel of land bounded by 90th street to the south, 92nd Street to the north, York Avenue to the west, and FDR Drive to the east. The Asphalt Green Inc. facility is bisected by a ramp which starts at 91st Street and York and rises as it crosses the FDR Drive to connect with the MTS. The ramp divides the outdoor play facility to the south from the indoor swimming pool and related facilities to the north.

(3) The United States Army Corps of Engineers is a federal agency responsible for considering and issuing or denying CWA Section 404 permits. 33 U.S.C. § 1344. Permits may be issued “after notice and opportunity for public hearing for the discharge of dredged or fill material into the navigable waters” of the United States. 33 U.S.C. § 1344(a). The permit at issue was granted by the Corps' New York District Office.

(4) The New York City Department of Sanitation and Department of Design and Construction are agencies of the City of New York. DSNY applied for and received the Section 404 permit at issue here. Since DSNY is the lead agency, it encompasses all City entities, unless otherwise indicated.

B. New York City's Waste Management Methods

The City generates 50,000 tons of garbage every day. Approximately 25% of this waste, or 12,000 tons, is generated by City residents and not-for-profit institutions.³ This waste is handled by DSNY, one of the world's largest departments of sanitation. DSNY has nearly 10,000 workers and 5,700 vehicles, and a capital and expense budget of nearly $3 billion.

Over the past half century, the City has utilized many methods to collect, consolidate, transport, and dispose of its garbage. These methods have included using the waste to add to the City's landmass (e.g., Governors Island; Battery Park City; and Willets Point, a former dumping ground for ash and waste which eventually became the grounds of the 1939 World's Fair). Other common methods have included incineration and ocean dumping, but those methods are now banned for environmental reasons (among others). No method of collection and disposal is without objection, and there are no popular methods of disposal. Some attempts at disposal have been comical. Who can forget the barge to nowhere: the Flying Dutchman of garbage disposal?⁴ The barge left New York and ended up in the Gulf of Mexico, where it was chased away by the Mexican navy. The barge was eventually returned to New York.

During the last two or three decades of the 20th century, the City's preferred method of garbage disposal was using landfills. But as landfills reached capacity, they were shut down, until finally only one was left: the Fresh Kills Landfill in Staten Island, which was closed in 2001. Until then, garbage trucks would collect residential garbage and transport it to DSNY's eleven existing MTSs, which were scattered throughout the City's waterways. One was located on 91st Street, the site of the current dispute. The garbage trucks would unload at the MTS, by open dumping of the garbage into barges tied up at the transfer stations. The barges would then be towed to Staten Island where the garbage would be dumped into the...