Town of Southold v. Wheeler
| Decision Date | 02 September 2022 |
| Docket Number | s. 20-3188,20-3189,August Term 2021 |
| Citation | 48 F.4th 67 |
| Parties | TOWN OF SOUTHOLD, Plaintiff-Intervenor-Appellant, Rossana Rosado, in her official capacity as New York State Secretary of State, Basil Seggos, in his official capacity as Commissioner of the New York State Department of Environmental Conservation, State of New York, Plaintiffs-Appellants, County of Suffolk, Plaintiff-Intervenor, v. Andrew WHEELER, in his official capacity as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency, Dennis Deziel, in his official capacity as Regional Administrator of United States Environmental Protection Agency Region 1, Defendants-Appellees, Connecticut Department of Energy and Environmental Protection, Defendant-Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
48 F.4th 67
TOWN OF SOUTHOLD, Plaintiff-Intervenor-Appellant,
Rossana Rosado, in her official capacity as New York State Secretary of State, Basil Seggos, in his official capacity as Commissioner of the New York State Department of Environmental Conservation, State of New York, Plaintiffs-Appellants,
County of Suffolk, Plaintiff-Intervenor,
v.
Andrew WHEELER, in his official capacity as Administrator of the United States Environmental Protection Agency, United States Environmental Protection Agency, Dennis Deziel, in his official capacity as Regional Administrator of United States Environmental Protection Agency Region 1, Defendants-Appellees,
Connecticut Department of Energy and Environmental Protection, Defendant-Intervenor-Appellee.1
Nos. 20-3188
20-3189
August Term 2021
United States Court of Appeals, Second Circuit.
Argued: Friday, December 10, 2021
Decided: September 2, 2022
For Plaintiff-Intervenor-Appellant: Scott Kreppein, Devitt Spellman Barrett, LLP, Smithtown, NY.
For Plaintiffs-Appellants: Eric Del Pozo, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, and Anisha S. Dasgupta, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY.
For Defendants-Appellees: Sean P. Greene-Delgado, Assistant United States Attorney (Varuni Nelson and Matthew Silverman, Assistant United States Attorneys, on the brief), for Mark J. Lesko, Acting United States Attorney for the Eastern District of New York, New York, NY.
For Defendant-Intervenor-Appellee: Robert D. Snook, Assistant Attorney General (Clare Kindall, Solicitor General, on the brief), for William Tong, Attorney General of the State of Connecticut, Hartford, CT.
For Amici Curiae: Linda L. Morkan, Robinson & Cole LLP, Hartford, CT, for The Connecticut Port Authority, Connecticut Marine Trades Association, Connecticut Maritime Coalition, Cross Sound Ferry Services, Inc., Electric Boat Corporation, Lower Connecticut River Valley Council of Governments, Connecticut Metropolitan Council of Governments, New Haven Port Authority, Southeastern Connecticut Council of Governments, South Central Regional Council of Governments, Western Connecticut Council of Governments, as amici curiae in support of Defendants-Appellees.
Before: Livingston, Chief Judge, and Carney and Bianco, Circuit Judges.
Debra Ann Livingston, Chief Judge:
Along the northern edge of "that slender riotous island which extends itself due east of New York," the aptly named Long Island, lies "the most domesticated body of salt water in the Western hemisphere, the great wet barnyard of Long Island Sound." F. SCOTT FITZGERALD , THE GREAT GATSBY 4–5 (Scribner 2004) (1925). This appeal concerns the efforts of the federal Environmental Protection Agency ("EPA") to designate a new waste disposal site in the Sound—a site for the byproducts of dredging activities undertaken to maintain and improve the Sound's shipping channels and ports, as well as support coastal businesses and other private parties.
The Coastal Zone Management Act ("CZMA") encourages states to develop programs to manage their coastal areas and requires federal activities that affect these areas to be "consistent to the maximum extent practicable with the enforceable policies" of each state's program. 16 U.S.C. § 1456(c)(1)(A). Regulations implementing
the CZMA, in turn, have interpreted that phrase to require "full[ ] consisten[cy]" with state programs. 15 C.F.R. § 930.32(a)(1). Under these provisions, New York State formally objected to the EPA's proposed activity, asserting that the designation of the new dredging site would not be fully consistent with its coastal management program and an analogous program developed by the Town of Southold, New York ("Southold," and together with New York, the "Plaintiffs-Appellants"). Responding to the objections, the EPA reiterated its conclusion that the designation would, in fact, be fully consistent with Plaintiffs-Appellants’ coastal management programs. After a lengthy dialogue in which New York refused to withdraw its objections, the EPA opted to proceed with the new site designation without New York's assent.
New York then sued in the United States District Court for the Eastern District of New York under the Administrative Procedure Act ("APA"), alleging that the agency's designation violates the Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. § 1411, ("MPRSA") and the CZMA. Southold and the Connecticut Department of Energy and Environmental Protection ("Connecticut," and together with EPA, "Defendants-Appellees") intervened on behalf of New York and the EPA, respectively, and the parties cross-moved for summary judgment. The district court (Korman, J. ) granted Defendants-Appellees’ motions. See Rosado v. Wheeler , 473 F. Supp. 3d 115 (E.D.N.Y. 2020). These appeals followed.
New York principally argues that the district court erred in applying the APA's deferential arbitrary-and-capricious standard for judicial review to its CZMA claim.2 For the reasons set forth below, we reject that argument. And applying the arbitrary-and-capricious standard, we conclude that the district court properly granted Defendants-Appellees’ cross-motions for summary judgment on the CZMA claims because the EPA adequately justified its consistency determination. We also conclude that Southold waived its claim that the EPA's designation of the new site violates the National Environmental Protection Act ("NEPA"). We therefore affirm the judgment of the district court.
I. BACKGROUND
A. Legal Background
Congress enacted the CZMA in 1972 to further the "national interest in the effective management, beneficial use, protection, and development of the coastal zone." 16 U.S.C. § 1451(a). The coastal zone is defined as "the coastal waters (including the lands therein and thereunder) and the adjacent shorelands ... in proximity to the shorelines of the several coastal states."3 Id. § 1453(1). Recognizing that then-existing "state and local institutional arrangements for planning and regulating land and water uses" in the coastal zone were "inadequate," id. § 1451(h), the Act sought "to encourage the states to exercise their full authority over the lands and waters in the coastal zone," id. § 1451(i).
To advance this objective, the CZMA gives states a key role in environmental regulation by allowing them to develop their own coastal zone management programs, which are subject to federal approval
by the National Oceanic and Atmospheric Administration ("NOAA") in the Department of Commerce. See id. § 1455(d). Coastal zone management programs include "comprehensive statement[s] ... prepared and adopted by the state in accordance with the provisions of [the CZMA], setting forth objectives, policies, and standards to guide public and private uses of lands and waters in the coastal zone." Id. § 1453(12).
Once a state's program has been approved by NOAA, "[e]ach Federal agency activity ... that affects ... the coastal zone" is required to "be carried out in a manner which is consistent to the maximum extent practicable with the enforceable policies of approved State management programs." Id. § 1456(c)(1)(A); see also 15 C.F.R. § 930.36(e)(2). NOAA regulations define "consistent to the maximum extent practicable" to mean "fully consistent with the enforceable policies of management programs unless full consistency is prohibited by existing law applicable to the Federal agency." 15 C.F.R. § 930.32(a)(1). The policies enumerated in a state's coastal management program need not be particularly detailed. NOAA regulations explain:
An enforceable policy [in a State's coastal management program] shall contain standards of sufficient specificity to guide public and private uses. Enforceable policies need not establish detailed criteria such that a proponent of an activity could determine the consistency of an activity without interaction with the State agency. State agencies may identify management measures which are based on enforceable policies, and, if implemented, would allow the activity to be conducted consistent with the enforceable policies of the program.
Id. § 930.11(h).
A federal agency proposing to undertake an activity that affects a state's coastal zone must send the state a determination of whether the activity is consistent with the policies contained in the state's coastal management program "no ... later than 90 days before final approval of the Federal activity." 16 U.S.C. § 1456(c)(1)(C) ; see also 15 C.F.R. § 930.36(b)(1). The state may then concur with or object to the federal agency's consistency determination. 16 U.S.C. § 1456(c)(3)(A). Regulations issued by NOAA set forth a limited process for resolving a consistency dispute between a state and federal agency:
In the event of an objection [to the Federal agency's consistency determination by a State agency], Federal and State agencies should use the remaining portion of the 90-day notice period (see § 930.36(b) ) to attempt to resolve their differences. If resolution has not been reached at the end of the 90-day period, Federal agencies should consider using the dispute resolution mechanisms of this part and postponing final federal action until the problems have been resolved. At the end of the 90-day period the Federal agency shall not proceed with the activity over a State agency's objection unless:
(1) the Federal agency has concluded that under the "consistent to the maximum extent practicable" standard described in section 930.32 consistency with the enforceable policies of the management program is prohibited by existing law applicable to the Federal agency and the Federal agency has clearly described, in writing, to the State agency the legal impediments to full consistency (See §§ 930.32(a) and 930.39(a) ), or
(2) the Federal agency has concluded that its proposed action is fully consistent with the enforceable policies of
the management program, though...
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