42 Misc. 3d 896
N.Y. Sup. Ct.2013Background
- Entergy filed for a declaratory ruling that IP2 and IP3 are not subject to CZMA consistency review under New York's Coastal Management Program (CMP).
- DOS denied a declaratory ruling, deeming CMP not a ‘rule or statute enforceable by DOS,’ and issued an advisory that IP2/IP3 are subject to CMP review; petitioners challenged this hybrid CPLR 78/declaratory action.
- IP2/IP3 historically received AEC/NRC licensing and EIS processes; IP2 was built by ConEd (later purchased by Entergy in 2001) and IP3 by NYPA (Entergy purchased IP3 in 2000).
- The CMP and CZMA create a federal-state consistency regime; NYS must review consistency for federal licenses, with actions defined and narrowed by 15 CFR 930.57–93.63.
- CMP Part II § 9 sets two “grandfathered” criteria: (1) projects deemed approved under SEQRA during its phased implementation, and (2) projects with an EIS prepared before the Department of State Part 600 regulations.
- The court ultimately found DOS’s refusal to issue a declaratory ruling arbitrary and capricious, upheld deference to the agency’s interpretation where reasonable, and dismissed the petition while denying declaratory relief on the CMP issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DOS denial of a declaratory ruling was proper. | Entergy argues CMP/grandfather criteria exempt IP2/IP3 from review. | DOS asserts CMP is not enforceable by DOS and thus not suitable for declaratory ruling. | No; DOS’s denial was arbitrary and capricious. |
| Whether IP2/IP3 are grandfathered under CMP SEQRA criteria. | IP2/IP3 were grandfathered and exempt from CMP consistency review. | Neither IP2 nor IP3 was identified as a grandfathered project under SEQRA phase rules. | DOS's determination was not irrational; IP2/IP3 are not exempt under the first criterion. |
| Whether the second grandfather criterion (pre-600 EIS) applies to IP2/IP3 licensing. | EIS for IP2/IP3 preceded 600 regulations; should exempt renewals from CMP review. | Second criterion does not apply to license renewals pending before NRC. | Court deferred to DOS and held second criterion may not apply to ongoing renewals; not exempt. |
Key Cases Cited
- Dairy Barn Stores v. State Liq. Auth., 67 AD2d 692 (N.Y. 1979) (agency must issue declaratory ruling; failure arbitrariness)
- Matter of Power Auth. of State of N.Y. v New York State Dept. of Envtl. Conservation, 58 NY2d 427 (1975) (agency rulings subject to review; prospective changes)
- Cubas v Martínez, 8 NY3d 611 (N.Y. 2007) (definition of a rule under SAPA; interpretive statements differ)
- Matter of New York State Assn. of Life Underwriters v New York State Banking Dept., 83 NY2d 353 (N.Y. 1994) (deference to agency construction when reasonable)
- California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (U.S. 1987) (CZMA preemption limitations; state jurisdiction preserved)
- Compass Adjusters & Investigators v Commissioner of Taxation & Fin. of State of N.Y., 197 AD2d 38 (N.Y. App. Div. 1994) (deference to agency position in tax/administrative context)