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Catskill Mountains Chapter of Trout Unlimited v. City of New York and Catskill Mountains Chapter of Trout Unlimited v. U.S. EPA (The Water Transfers cases)

            The full history of this matter is set forth below, but the Clinic has recently taken new action, which is summarized here.  As detailed below, the City of New York transfers water from a reservoir through the Shandaken tunnel and into the Esopus Creek as part of the New York City drinking water supply system.  The Clinic has successfully argued in the past that the outfall from the tunnel requires a permit, and that permit ultimately obtained by the City from DEC included “exceptions” to meeting water quality standards that needed to be treated as variances, with public notice and comment.  The Clinic won on these issues in New York Supreme Court and the Appellate Division.  Accordingly, in October 2010, the City applied for those variances, but, to date, DEC has not acted upon that application.  The Supreme Court had previously ruled the permit illegal, but allowed it to stay in place for a “reasonable amount of time” pending the variance application.  On December 5, 2016, the Clinic sent a letter to DEC demanding that it act on the application, arguing that six years under an illegal permit is not “reasonable.”


            As noted above, the Shandaken tunnel carries water from the Schoharie Reservoir to the Esopus Creek in the Catskills, which then flows into the Ashoken Reservoir.  New York City DEP operates this tunnel as part of its water supply system.  Esopus Creek is a renowned trout fishing stream.  Unfortunately, the water that is piped in from Schoharie Creek is of much lower quality than the natural flow in the Esopus, and contains high amounts of suspended solids, clouding the clear waters of the Esopus, and ruining the Esopus for trout fishing.  DEP has no Clean Water Act permit for this discharge of contaminated water into the Esopus Creek.

            Pace Environmental Litigation Clinic filed a notice of intent to sue DEP on behalf of Riverkeeper and several other Catskill sportsmen’s organizations.  The Clinic filed a complaint under the Clean Water Act on March 31, 2000.  The City moved to dismiss, claiming that discharge of already polluted water from one watershed into another could not be the “addition” of a pollutant in violation of the Clean Water Act.  The court granted the City’s motion to dismiss, and the Clinic appealed.  On October 23, 2001, the Second Circuit reversed the District Court’s dismissal and reinstated Trout Unlimited’s claims.  In June, 2002, the District Court granted plaintiffs’ motion for summary judgment declaring liability.

            The Clinic conducted the penalty and relief trial of this matter on January 8–16, 2003.  Clinic students presented opening statements and conducted witness examinations and cross examinations.  The trial resulted in a $5.7 million penalty being assessed against the City of New York, along with injunctive relief requiring New York City to obtain a permit for the discharge within 18 months.

            New York City filed an appeal from this judgment, which was adjourned pending the Supreme Court’s determination of South Florida Water Management District v. Miccosukee Tribe of Indians.  Following the Supreme Court’s decision in that case, the appeal was fully briefed during the Summer of 2004.  In June of 2006, the Second Circuit issues its opinion affirming the trial court’s liability determination and the penalties assessed (with a minor mathematical correction).  After unsuccessfully moving for reargument or rehearing en banc, in November 2006 the City filed a petition for certiorari to the Supreme Court.  Former Clinic student Sarah Olinger prepared plaintiffs’ opposition to the petition, and the petition was finally denied in February 2007. 

            The state permitting proceedings progressed on a parallel track, as scheduled.  Clinic student Craig Michaels conducted the administrative hearing on behalf of the Trout Unlimited parties.  Post hearing briefs were filed in January 2006, and in the Spring of 2006 we received Commissioner Sheehan’s decision allowing for the issuance of the draft permit as of July 1, 2006.  Because the permit allows for the violation of water quality standards in several circumstances (and without a variances ever having been applied for or granted), and also allows the City and DEC to select the appropriate technology to address turbidity problems in the Esopus without public input, the plaintiffs in the federal case filed an Article 78 proceeding in the Fall of 2006 challenging the Commissioner’s decision and the resulting permit.  The Article 78 proceeding was fully briefed by the parties and submitted in November 2007.  On May 8, 2008, the parties conducted oral argument of the causes of action in the petition telephonically.  Clinic Student John Vassallo participated in the oral argument on behalf of the petitioners.

            In August 2008, we received a ruling from the court granting our petition on both causes of action and remanding the SPDES permit to DEC.  The City of New York appealed Justice O’Connor’s ruling in our Article 78 proceeding on the grounds that the new EPA rule (see below) has rendered the SPDES permit (and the need for a permit) null and void.  That appeal was fully briefed over the summer, and argued on November 16, 2009.  In January 2010 we received a decision from the Third Department affirming Justice O’Connor’s decision in our favor.  The City sought leave to appeal to the New York Court of Appeals, but their motion was denied.  In October 2010 the City filed an application with the DEC seeking variances from the WQBEL’s in the SPDES permit for the Shandaken Tunnel.  As discussed above, DEC has yet to act on this application.

            Meanwhile, in 2008, EPA finalized a rule that exempts from NPDES permitting requirements any transfers of water between distinct waters of the United States where such waters are not subject to intervening municipal or industrial uses.  The Clinic sued EPA on behalf of a dozen clients (including Trout Unlimited, National Wildlife Federation, Waterkeeper Alliance, Environment America and Riverkeeper), to challenge the water transfers rule as ultra vires and inconsistent with the plain requirements of the Clean Water Act.  Our challenge to the Rule involved a “dual filing” in the Court of Appeals and the Southern District of New York because of uncertainty over which court had original jurisdiction (it was our position that jurisdiction properly lies in the district court).  Our Second Circuit petition was consolidated with several others filed around the country and transferred by the Multi District Litigation panel to the 11th Circuit.  The EPA moved to stay or dismiss our district court case and Clinic students have twice appeared in Court on behalf of the plaintiffs on this motion.  In April 2009, Judge Karas decided to stay our case pending decisions from the 11th Circuit on jurisdiction and/or the merits.

            In 2010, the 11th Circuit decided the appeal of a related case styled Friends of the Evergaldes v. South Florida Water Management District.  The court, purporting to apply Chevron deference, held that the EPA Water Transfers Rule was a permissible exercise of the EPAs discretion.  In light of this decision, our clients voluntarily withdrew their petition from the 11th Circuit without prejudice, opting to place “all of their eggs” in the APA challenge to the Water Transfers Rule pending in the district court.

            In October 2012, we received welcome news from the 11th Circuit, as that court agreed with our position that it lacked original jurisdiction over the petitions for review under CWA § 509(b)(1). The Clinic immediately wrote to Judge Karas requesting that he reactivate the case, and Ben Lowenthal, one of our interns, appeared before Judge Karas to argue against the government’s position that the stay should continue. Judge Karas ultimately agreed with us and set a summary judgment briefing schedule.

            In early 2013, a plethora of western states and water management agencies filed motions to intervene in the case, which we opposed in an effort to limit the number of briefs and/or brief pages we would need to respond to.  Another of our legal interns, Braden Smith, addressed the court at this hearing and did a masterful job (Clinic professors received several private compliments from other counsel who were present in court concerning Braden’s performance).  An agreement was ultimately reached between the parties that allowed all movants to intervene with appropriate limits placed upon the number and length of briefs that could be filed.

            The Clinic filed a summary judgment motion on behalf of its twelve environmental and sporting NGO clients in March 2013.  This motion, and cross motions from EPA and several intervening defendants were fully briefed over the summer of 2013, and a four hour oral argument was conducted before Judge Karas on December 19, 2013.  Two of the Clinic’s legal interns—Edward Teyber and Conor Walline—did an admirable job addressing the Court on behalf of the Clinic’s clients.

            On March 28, 2014, Judge Karas issued an opinion and order granting the Clinic’s motion for summary judgment declaring that the Water Transfers Rule was arbitrarily and capriciously promulgated and that to the extent the rule was inconsistent with the Supreme Court’s limiting definition of “waters of the United States” set forth in Rapanos, it is “manifestly contrary to the statute.”  As such, the court vacated the rule, and remanded it to EPA for further consideration.

            All of the defendants appealed to the Second Circuit, and the appeals were fully briefed as of January 2015. The Second Circuit held oral argument on the appeals on December 1, 2015, which we believe went very well for our side. The argument was handled by Prof. Estrin on behalf of the Clinic’s twelve clients, and Barbara Underwood, the New York State Solicitor General, also argued on our side in support of the state appellees. No decision has been forthcoming from the Second Circuit.  This case appears to be a strong candidate for potential review by the SCOTUS.

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Constitution Pipeline

            In the Fall of 2012, the Clinic began representing Stop the Pipeline (“STP”), a citizens group that has formed to oppose the licensing and construction of the Constitution Pipeline, a new natural gas pipeline proposed to run from Susquehanna County, Pennsylvania to Schoharie County, New York. Because the pipeline would be interstate, the Federal Energy Regulatory Commission (“FERC”) has jurisdiction over its licensing.  The Clinic submitted two sets of NEPA scoping comments on behalf of STP.

            In February 2014, FERC issued its DEIS, and the Clinic submitted extensive comments on April 7, 2014.  In October 2014, FERC issued its FEIS, and on December 2, 2014, it issued its order granting the company a certificate of public convenience and necessity (“CPCN”).  The CPNC conditionally approved the project, subject to the company obtaining all necessary federal and state permits and licenses, including a Section 401 Water Quality Certification from New York State.  As required by the Natural Gas Act, on January 2, 2015, we filed a request for FERC to rehear the matter. Notwithstanding this request, the Company has been relying on the CPCN to condemn STP members’ property, so in 2015 we filed a petition for writ of mandamus in the Second Circuit to try to force FERC to rule on our request for rehearing (the NGA allows FERC only 30 days to rule on such requests).  The Court promptly denied our petition. 

            In January 2016, the Company sought to begin tree felling in New York and Pennsylvania, despite not having obtained the necessary Water Quality Certification from New York State.  We objected to this, as did the New York Attorney General’s Office and multiple individuals.  FERC ultimately permitted tree felling in Pennsylvania, but not New York.

            In March 2016, FERC denied our petition for rehearing, and we promptly filed a notice of appeal, which was prepared by our intern Andrea Rodricks.  That appeal has been fully briefed, and is awaiting argument and decision in the Second Circuit. 

            While that appeal was being briefed, in April 2016, NYSDEC denied the company’s application for a section 401 Water Quality Certification, which would end the pipeline project if the company is unable to reverse that decision, likely by appealing to the Second Circuit.  We jointly requested a stay of our briefing schedule in the Second Circuit to see whether the Company appeals DEC’s determination. 

            The company filed an appeal of the DEC denial in the Second Circuit, and the Clinic successfully moved for Stop the Pipeline to intervene in that proceeding.  The appeal was fully briefed, and intern Kara Paulsen appeared in the Second Circuit on behalf of STP on November 19, 2016.  We are now awaiting a decision from the court on the appeal, which could narrow the issues in the pending appeal on FERC’s decision to issue the CPCN.

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Crude oil transport/oil trains/oil barges/Global Companies

            Since late 2013, the Clinic has been advising Riverkeeper and other NGOs concerning legal strategy with respect to recent efforts to convert the Hudson Valley into a “virtual pipeline” for transport by train, tanker and barge of crude oil from the Bakken oil fields in North Dakota and Canadian tar sands.

            In June 2014, the Clinic (with co-counsel EarthJustice) filed a lawsuit challenging a November 2013 decision by the New York State Department of Environmental Conservation [“DEC”] not to require an environmental impact statement [“EIS”] for a proposed expansion of operations at an Albany, New York crude oil terminal owned by Global Companies, LLC.

            The lawsuit filed in Albany County Supreme Court challenges Global’s plan to receive, store, heat and ship heavy crude oil, including tar sands oil, at its oil terminal on the Hudson River. The suit was filed on behalf of the Ezra Prentice Homes Tenants Association, Riverkeeper, Sierra Club Atlantic Chapter, Center for Biological Diversity, and Waterkeeper Alliance.

            The court challenge claims that an EIS is mandated by state law due to the proposal’s significant potential environmental and public safety impacts. These impacts include increased emissions of air pollutants, environmental justice impacts to residents of public housing directly adjoining Global’s facility, the significant potential for a crude oil spill into the Hudson that could cause catastrophic ecological damage, and an increased risk of fire and explosion that threatens homes, businesses and schools in downtown Albany. The suit also claims that DEC failed to follow its Environmental Justice Policy, which requires that nearby communities be consulted and informed about proposals that may affect them.

            Although the state has taken some additional steps to analyze the risk of crude oil shipping in New York, it has so far declined to rescind its prior decision to forgo an EIS for Global’s proposed expansion of crude oil operations. In May 2015, DEC issued a notice of intent to rescind its negative declaration, but has not yet followed through with a formal rescission. If the negative declaration is finally rescinded, this would have the effect of mooting our lawsuit challenging that illegal negative declaration.

            In the fall of 2015, Global filed its own Article 78 and declaratory judgment action seeking to stop DEC from rescinding the negative declaration and to force DEC to take final action on its permit application. The Clinic has filed a motion to intervene in that proceeding and to consolidate it with our pending proceeding.

            In April 2016, the Supreme Court granted our motion to intervene in the action filed by Global, granted the motion to join (but not consolidate) the two pending cases, and granted Global’s petition, in part.  The court ordered DEC to make a decision on Global’s petition within 60 days, but declined to tell DEC how it had to decide.  Although the decision is not entirely clear on the point, it arguably leaves the door open to DEC formally rescinding its negative declaration, and denying the permit on that basis.  All parties have filed notices of appeal, and the lower court’s decision is currently stayed as a result of the State’s appeal.

            In September 2016, DEC sent a letter to Global stating that it was going to treat the past application for renewal of its Clean Air Act permit as a new application and requested that Global include its “modification” request as part of that new application.  DEC also asked for additional information from Global on that application.  We understand that Global is seeking to comply with these requests.  We are working with Earth Justice to try to determine what, if any, steps we can take in light of the new letter.

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Danskammer Power Plant

            In 2014 and 2015, Riverkeeper challenged DEC’s approval new SPDES and Clean Air Act permits issues to the Danskammer power plant. Riverkeeper argued that the permits were issued in violation of SEQRA, the Clean water Act and the CAA.  In January 2016, the New York Supreme Court denied Riverkeeper’s petition, choosing to defer to DEC’s determinations on all relevant issues with very little analysis.  Riverkeeper asked that the Clinic evaluate the viability of an appeal, and in November 2016, the clinic filed the appeal on Riverkeeper’s behalf.  Although the underlying permit approvals raised very complex legal and factual issues, intern Sara O’Shea worked with Abigail Jones and Erin Doran to narrow the appeal to several key points in hopes that the Appellate Division would take the time to address these issues.  Opposition briefs are currently due on January 3, 2017.

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Hastings-on-Hudson - ARCO Site

          In 2003, Riverkeeper entered into a consent decree with ARCO concerning the investigation and remediation of this site which sits on the Hudson River and is heavily contaminated with PCBs.  After years of cleanup delays (resulting primarily from technical disagreements between ARCO and the DEC), we have recently begun considering  taking action to enforce the consent decree or to otherwise pressure the parties into moving forward with making remedial decisions and moving forward with the cleanup.  In connection with these efforts, we have been meeting over the past two years with representatives of the DEC, the village and ARCO, and we anticipate continuing to stay involved to ensure that this site will finally get the remediation equivalent to that which we bargained for in the 2003 consent decree.  In the Winter of 2012 we submitted comments on a Proposed Remedial Action Plan issued by NYSDEC for the site, and the Record on Decision was issued in the Spring of 2012. Over the past two years we have been involved in negotiations with BP-ARCO and the Village concerning modifications to the outdated federal consent decree. Negotiations are continuing, and we expect the modification of the consent decree to be finalized and approved by the court in early 2016. The Clinic has potential to recover tens of thousands of dollars in legal fees on this matter.

            Most recently the execution of the consent decree was slowed by some push back on several issued by the local community.  In particular, there was some dispute about the demolition of one of the remaining buildings, which certain community members wish to avoid.  Riverkeeper’s position was that the signing the decree and completing remediation is priority one, both of which would seem to require demolition of the building.  The parties ultimately agreed, and, as of December 4, 2016, the consent decree was fully executed.  The parties will now seek to file it with the Court.

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Kentucky Mountaintop Removal Mines

            In October 2010 the Clinic issued notices of intent to sue three companies (two ICG subsidiaries and one Trinity Coal subsidiary) operating in eastern Kentucky for fraudulent DMR reporting and other permit violations.  The notices were served on behalf of Waterkeeper Alliance, Kentucky Riverkeeper, Appalachian Voices and Kentuckians for the Commonwealth. Last week, two days before the notice period elapsed, the State announced that it had filed enforcement proceedings against all three companies and simultaneously submitted consent judgments for the court’s approval.

            The Clinic submitted intervention papers and a hearing was conducted before a Kentucky state court judge on December 14, 2010.  Clinic intern Peter Harrison participated in the argument at the hearing.  The state court ultimately granted our motion to intervene and then engaged in a contentious and difficult discovery period.  An evidentiary hearing was conducted in August 2011 for the purpose of testing whether the proposed consent judgments are “fair, reasonable and in the public interest,” and the Court has reserved decision on that issue.  Following the hearing the Court issued a mediation order requiring all parties to spend a day with a mediator in an effort to resolve the disputes.  The mediation was conducted in January 2012 and led to extensive settlement negotiations with the coal companies and the Cabinet.  The Clinic has been working with its clients and local counsel to support their settlement efforts.

            We received excellent news last Spring (2012) that buttressed our negotiating leverage.  The Kentucky Supreme Court issued an opinion in which it rejected applications by the coal companies and the Cabinet for extraordinary relief in the form of a writ of prohibition.  The coal companies sought a ruling that Judge Shepherd was acting outside of his jurisdiction when he allowed our limited intervention, but the Kentucky Supreme Court roundly rejected all of their arguments.  See Comm’r of the Energy & Environmental Cabinet v. Shepherd, 2012 WL 1454163 (April 26, 2012 Ky.)

            This Fall (2012) we reached agreement with ICG that resulted in a court-approved settlement of that case. The settlement requires, inter alia, that ICG (1) pay approximately double the amount it had originally agreed to pay in its proposed consent judgment with the Cabinet; (2) pay for plaintiffs to independently monitor effluent parameters through a split-sampling regime; (3) pay for an independent consultant to regularly audit ICG’s DMRs; and (4) pay plaintiffs’ legal fees.

            Our litigation in Kentucky against Frasure Creek Mining continues.

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Spring Creek Composting Facility

                       New York City Department of Sanitation has fenced off more than 20 acres of a public park in the New Lots/East New York section of Brooklyn in order to operate a composting facility for yard waste from all over the City, including private yard waste.  The City failed to seek the proper legislative approval for converting public trust parkland into non-park use, and further illegally constructed the solid waste facility without the required Part 360 DEC permit.  Upon discovery, DEC declined to initiate enforcement proceedings and instead “encouraged” the Department of Sanitation to apply for a permit.

            The Clinic intervened on behalf of NY/NJ Baykeeper to oppose the City’s application for a DEC solid waste management permit for the facility, and also investigated other ways to challenge the City’s improper use of public trust land.  We receive a recommended decision from the ALJ that recommended that the Commissioner deny the permit application.  Unfortunately, the Commissioner rejected the ALJ’s recommendation and determined to issue the permit.  In November 2012, we filed an Article 78 against DEC challenging two of the Commissioner’s determinations.  This part of the litigation has been rendered moot by the fact that the City has now determined that it will no longer seek to operate the composting facility.

            Meanwhile, as mentioned above, Executive Deputy Commissioner Stark reversed ALJ DuBois’s finding that alienation of parkland was an adjudicable issue and held that an aggrieved citizen complaining of alienation must take his complaint to the courts, not to DEC in a permit challenge.  We followed EDC Stark’s “advice,” and filed a declaratory judgment action in Supreme Court, Kings County, seeking (1) a declaration that the City has illegally alienated public trust parkland and (2) an injunction requiring the City to either obtain State legislative approval with a reasonable period of time or return the parkland to the public for proper park use.

            In the public trust case, the Clinic filed a motion for summary judgment and a permanent injunction in the Spring of 2013, which the Court granted in January 2014.

            Under the injunction granted by the Court in the public trust case, the City is now enjoined from utilizing the Facility for solid waste management activities. The City has not appealed, and has now removed all Department of Sanitation equipment from the site. The City has further informed us that it intends to renew the site to open it up for passive recreation, including planting native vegetation and creating nature trails for the public to use and enjoy. However, that project is not expected to start until funding is received from the U.S. Army Corps of engineers, and we continue to pressure the City to reopen the site to public access in the meantime. 

            Most recently, in March of 2016, the City informed us that it would not open the park due to “safety concerns” and a lack of a budget to remedy those concerns. We believe this to be primarily a pretext and clinic interns drafted papers seeking to renew our request for injunctive relief that the Court denied in deciding the Summary Judgment motion.  The Court expressly invited us to renew our motion for injunctive relief should the City not obtain the necessary state approval to operate the composting facility, which it did not.  The City has taken the position that it is not required to make the park available to the public, and is awaiting a revitalization of the park planned by the Army Corps of Engineers.  Unfortunately, that plan has been delayed many times and the Corps has still yet to publish its feasibility study.

            Clinic intern Rosemarie Hebner appeared on the motion to renew in September 2016, and the Court seemed inclined to force the City to open the park.  That said, the Court invited us to meet with the City to attempt to resolve the issues, and a new appearance was scheduled for December 5, 2016, which will occur after the drafting of this document.

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