Women's Voices for Earth, Inc. v. Procter & Gamble Co.

• Decision Date: 30 July 2010
• Parties: WOMEN'S VOICES FOR the EARTH, INC.; American Lung Association in New York, Inc.; Riverkeeper, Inc.; Environmental Advocates of New York, Inc.; New York Public Interest Research Group, Inc.; and Sierra Club, Inc., Petitioners, v. The PROCTER & GAMBLE COMPANY; Procter & Gamble Manufacturing Company; Procter & Gamble Distributing Company; Church & Dwight Co., Inc.; Reckitt Benckiser, Inc.; and Colgate-Palmolive Inc., Respondents.
• Court: New York Supreme Court

906 N.Y.S.2d 721
29 Misc.3d 358

WOMEN'S VOICES FOR the EARTH, INC.; American Lung Association in New York, Inc.; Riverkeeper, Inc.; Environmental Advocates of New York, Inc.; New York Public Interest Research Group, Inc.; and Sierra Club, Inc., Petitioners,
v.
The PROCTER & GAMBLE COMPANY; Procter & Gamble Manufacturing Company; Procter & Gamble Distributing Company; Church & Dwight Co., Inc.; Reckitt Benckiser, Inc.; and Colgate-Palmolive Inc., Respondents.

Supreme Court, New York County, New York.

July 30, 2010.

906 N.Y.S.2d 722

Keri N. Powell, Esq., EarthJustice, Inc., Cold Spring, and Deborah Goldberg, Esq., EarthJustice, Inc., New York, for Petitioners.

Weil, Gotshal & Manges LLP, by Theodore E. Tsekerides, Esq., New York, for Respondents, The Procter & Gamble Company, The Procter & Gamble Manufacturing Company, and The Procter & Gamble Distributing LLC.

Proskauer Rose LLP, by Richard M. Goldstein, Esq., and Kevin J. Perra, New York, for Respondent, Church & Dwight Co., Inc.

Harris Beach PLLC, by Joseph D. Picciotti, Esq., Pittsford, for Respondent, Reckitt Benckiser Inc.

Sidley Austin LLP, by John J. Kuster, Esq., New York, for Respondent, Colgate-Palmolive Company.

RICHARD F. BRAUN, J.

29 Misc.3d 359

This is a special proceeding seeking a declaratory judgment and an injunction in mandamus to compel respondents to comply with New York State Department of Environmental Conservation (DEC) regulations that require respondents to file reports of ingredients used in their household cleaning products. Environmental Conservation Law § 35-0107 authorizes promulgation of the subject regulations, and DEC's regulation (6 NYCRR 659.6[a] ) provides for the subject ingredient reports. Respondents move, pursuant to

906 N.Y.S.2d 723

CPLR 3211(a)(3) and (7), to dismiss the amended petition or alternatively to stay the proceeding pending the joinder of the DEC. Respondents contend that there is no private right of action, that petitioners did not exhaust their administrative remedies, that they lack standing as they suffered no harm different from the general public, that the subject regulations are discretionary making mandamus unavailable, and that the DEC is a necessary party. Petitioners counter that the regulations are mandatory on their face, that CPLR article 78 and the common law give petitioners a right to proceed on their cause of action in mandamus, that they have standing because petitioners' members use the products and need the information, and that DEC is not a necessary party as DEC's actions are not being challenged.

Where respondents to an article 78 proceeding move to dismiss under CPLR 7804(f), objections in point of law are "limited to threshold objections of the kind listed in CPLR 3211(a) which are capable of disposing of the case without reaching the merits (citation omitted)." ( Hull-Hazard, Inc. v. Roberts, 129 A.D.2d 348, 350, 517 N.Y.S.2d 824 [3rd Dept....