31 F. Supp. 3d 571
S.D.N.Y.2014Background
- NYC planned to rebuild a 91st Street Marine Transfer Station (MTS) as part of its 2006 Solid Waste Management Plan to containerize residential waste and ship by barge, replacing long-haul truck export.
- DSNY sought and obtained extensive local and state approvals (FEIS/SEQRA, ULURP, DEC permits) after multi-year public review; state courts repeatedly upheld those approvals.
- DSNY applied to the U.S. Army Corps of Engineers for a Clean Water Act §404 permit limited to in‑water work (dredging, fill, support piles); the Corps issued an EA/FONSI and the §404 permit in 2012 after consultation and public comment.
- Plaintiffs (community groups, elected officials, Asphalt Green) challenged the Corps’ permit and sought discovery and injunctive relief, asserting NEPA and CWA violations, inadequate alternatives and mitigation, failure to reassess after Superstorm Sandy, and various state-law and equal-protection claims.
- The Corps reviewed mitigation, consulted NOAA/NMFS, EPA, USFWS, and considered post‑Sandy FEMA advisory flood elevations; it issued supplemental memoranda addressing flooding and declined to prepare an EIS or reopen the permit.
- The District Court reviewed the administrative record, denied plaintiffs’ motions, granted defendants’ summary judgment and Rule 12(c) motions, and dismissed all claims with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of NEPA review | Corps should have reviewed whole project (operations, traffic, odors) because permit enables the MTS | Corps limited review to in‑water construction over which it has control; operations are regulated by state/local agencies | Corps’ scope determination was rational and entitled to deference; no NEPA violation |
| CWA §404 public‑interest & degradation analysis | Corps failed to consider operational impacts and cumulative effects; should have broader public‑interest review | Corps’ public‑interest analysis focused on jurisdictional impacts and considered numerous factors; operational concerns addressed by DEC | Corps adequately considered public‑interest factors; denial of plaintiffs’ challenge |
| Alternatives analysis under NEPA/CWA | Corps failed to consider reasonable practicable alternatives (e.g., trucking to Bronx or other sites) | Corps considered on‑site, off‑site, and no‑action alternatives consistent with applicant’s project purpose and regulatory standards | Corps examined a reasonable range of alternatives; its choice was not arbitrary or capricious |
| Mitigation & aquatic impacts | Mitigation plan lacked performance standards/monitoring; dredging harms fish habitat | Mitigation proposed open‑water gains elsewhere, special permit conditions, and agency consultations; monitoring/conditions adequate for open‑water mitigation | Mitigation and consultation record sufficient; Corps reasonably concluded no significant degradation |
| Superstorm Sandy / supplemental NEPA review | Sandy and revised FEMA ABFEs were new circumstances requiring a supplemental EIS and reexamination of permit | Corps and DSNY reevaluated flood risk, added design/floodproofing measures, and found prior analysis adequate | Corps’ decision not to supplement was reasonable; DSNY took a “hard look”; no supplemental EIS required |
| Equal protection and Asphalt Green property claims | DSNY irrationally exempted City facilities from its 400‑foot rule; Asphalt Green alleges contract, trespass, nuisance | State courts already held the 400‑foot rule inapplicable to City MTS; Asphalt Green is a licensee without requisite property interest | Equal‑protection claim fails; contract, trespass, nuisance claims dismissed (collateral estoppel / lack of property interest) |
Key Cases Cited
- Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) (APA governs judicial review of agency action)
- Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) (judicial review of agency administrative record and arbitrary‑and‑capricious standard)
- Dep’t of Transp. v. Public Citizen, 541 U.S. 752 (2004) (NEPA "but‑for" causation insufficient; scope limits on NEPA review)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (arbitrary‑and‑capricious standard for agency action)
- Ohio Valley Envtl. Coalition v. Aracoma Coal Co., 556 F.3d 177 (4th Cir. 2009) (Corps’ §404 jurisdiction limited to filling of waters; deference to Corps’ scope determination)
- Hoosier Envtl. Council v. U.S. Army Corps of Eng’rs, 722 F.3d 1053 (7th Cir. 2013) (Corps may rely on permittee’s responsible analysis and defer to state/local review)
- ACORN v. Bloomberg, 52 A.D.3d 426 (N.Y. App. Div.) (upholding DSNY’s SEQRA review and site selection for 91st Street MTS)
- Powell v. City of New York, 85 A.D.3d 429 (N.Y. App. Div.) (upholding ramp modification and finding Asphalt Green not to hold parkland or exclusive rights)