U.S. Energy Dev. Corp. v. N.Y. State Dep't of Envtl. Conservation

• Decision Date: 20 June 2014
• Citation: 2014 N.Y. Slip Op. 04591,118 A.D.3d 1381,988 N.Y.S.2d 731
• Parties: In the Matter of U.S. ENERGY DEVELOPMENT CORP., Petitioner–Plaintiff–Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Joseph Martens, In His Official Capacity as Commissioner of Department of Environmental Conservation, Maureen A. Brady, In Her Official Capacity as Regional Attorney for Department of Environmental Conservation, and Eric Schneiderman, In His Capacity as New York State Attorney General, Respondents–Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1381

988 N.Y.S.2d 731

2014 N.Y. Slip Op. 04591

In the Matter of U.S. ENERGY DEVELOPMENT CORP., Petitioner–Plaintiff–Appellant,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Joseph Martens, In His Official Capacity as Commissioner of Department of Environmental Conservation, Maureen A. Brady, In Her Official Capacity as Regional Attorney for Department of Environmental Conservation, and Eric Schneiderman, In His Capacity as New York State Attorney General, Respondents–Defendants–Respondents.

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

June 20, 2014.

Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of Counsel), for Petitioner–Plaintiff–Appellant.

Eric T. Schneiderman, Attorney General, Albany (Philip Bein of Counsel), for Respondents–Defendants–Respondents.

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, VALENTINO, and WHALEN, JJ.

MEMORANDUM:

In this combined CPLR article 78 proceeding in the nature of prohibition and action for a declaratory judgment (hereafter, proceeding), petitioner-plaintiff (petitioner) appeals from a judgment granting the motion of respondents-defendants (respondents) to dismiss the petition/complaint. As a preliminary matter, we note that petitioner on appeal has abandoned its action for a declaratory judgment ( see Katz 737 Corp. v. Cohen, 104 A.D.3d 144, 148, 957 N.Y.S.2d 295,lv. denied21 N.Y.3d 864, 2013 WL 4711225;Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745).

Petitioner, a New York corporation with its headquarters in Erie County, conducts oil and gas operations in Pennsylvania, in the Allegheny National Forest, near the border of New York State and New York's Allegany State Park, on land owned by the United States Government/Forest Service. Beginning in 2010, personnel of the New York State Office of Parks, Recreation, and Historic Preservation reported pollution, including turbidity, color change, and suspended sediment, in New York's Yeager Brook, downstream from and caused by petitioner's operations in Pennsylvania, in contravention of New York's water quality standards. Subsequently, the New York State Department of Environmental Conservation (DEC) entered into two consent orders with petitioner concerning the aforementioned pollution. Because of alleged continued and ongoing violations, the DEC commenced an administrative proceeding in New York seeking to enforce the consent orders and the penalties for the violations thereof. Petitioner commenced the instant proceeding contending, inter alia, that the DEC is acting in excess of its jurisdiction because the federal Clean Water Act ( [CWA] 33 USC § 1251 et seq.) preempts the application of an affected state's laws and regulations to an out-of-state point source ( see International Paper Co. v. Ouellette, 479 U.S. 481, 497, 107 S.Ct. 805, 93 L.Ed.2d 883).

As the party seeking a writ of prohibition, petitioner bears a “heavy burden” of establishing a “clear legal right to relief or that prohibition would provide a more complete and efficacious remedy than the administrative proceeding and resulting judicial review” (Matter of Chasm Hydro, Inc. v. New York State Dept. of Envtl. Conservation, 14 N.Y.3d 27, 31, 896 N.Y.S.2d 749, 923 N.E.2d 1137 [internal quotation marks omitted]; see Matter of City of Newburgh v. Public Empl. Relations Bd. of State of N.Y., 63 N.Y.2d 793, 795, 481 N.Y.S.2d 327, 471 N.E.2d 140;Matter of Doorley v. DeMarco, 106 A.D.3d 27, 34, 962 N.Y.S.2d 546). We conclude that respondents in support of their motion to dismiss established as a matter of law that petitioner could not meet that burden, and Supreme Court therefore properly granted the motion. The DEC had the statutory authority and jurisdiction to enter into the consent orders at issue and to commence the administrative proceeding to enforce those orders ( seeECL 17–0303[2], [4][a], [b]; [5] [a]; see alsoECL 17–0105[1]; ECL 17–0501). Petitioner has failed to...