71 N.Y.2d 91 | NY | 1987
OPINION OF THE COURT
Plaintiff, the manufacturer of a cesspool additive known as "Drainz,” a product which contains chlorinated hydrocarbons, commenced this action seeking a declaration that Suffolk County Local Law No. 12 of 1980 was invalid because it was superseded by ECL article 39. Local Law No. 12 prohibits the sale of cesspool additives, defined to include any organic chemical or compound used for cleaning or unclogging sewer
Six weeks later, on September 28, 1980, article 39 of the ECL, entitled "Sewage System Cleaners and Additives Used in Restricted Geographical Areas,” became law (L 1980, ch 732, § 5). The State law prohibits the sale and use of certain sewage system cleaning additives in Suffolk and Nassau Counties (ECL 39-0103, 39-0105) and empowers the State Commissioner of Environmental Conservation to promulgate regulations requiring manufacturers of these products to submit information regarding their chemical components and the nature and extent of research concerning their effects, if any, on groundwater (ECL 39-0107 [2]).
I
In 1980, plaintiff sought the approval of the State Commissioner of Environmental Conservation for the sale of its products, "Drainz” and "Super Drainz,” in Suffolk and Nassau
"Article 39 places the basic responsibility for determining whether sale of a sewage system cleaner or additive is or is not prohibited in Nassau or Suffolk County, on the manufacturer. Based on information you have supplied to this Department, and Nassau County Department of Health analysis of one can of your product, it would appear that your new formulations of Drainz and Super Drainz are not prohibited from sale under Article 39. However, these products have not yet been approved for sale in Suffolk County in accordance with Local Law 12-1980.
"You have indicated that the new formulations will be identified by a 'sunburst’ symbol on each can. Therefore, barring future Department findings to the contrary, the new formulations of Drainz and Super Drainz may be sold in Nassau County (and in Suffolk County, if and only if approved for sale by that County in the future), if the containers are identified by the 'sunburst’ symbol”. (Emphasis applied.)
In June 1981, seeking to enforce Local Law No. 12, Suffolk County prohibited the sale of both "Drainz” and "Super Drainz.” Plaintiff commenced an action in Federal District Court alleging that Local Law No. 12 deprived it of due process of law and that it conflicts with and was superseded by article 39 of the ECL and was therefore invalid. District court abstained from deciding plaintiff’s motion for summary judgment pending resolution in State court of the "preemption” issue raised in the Federal complaint (583 F Supp 1364). Plaintiff then commenced the present action
A divided Appellate Division reversed, granted plaintiffs motion for summary judgment, and remitted the matter to Supreme Court for entry of an appropriate judgment declaring Local Law No. 12 to be invalid. Stating that it did not reach the question of whether the local law had been preempted by article 39, the majority determined that although Local Law No. 12 "does not expressly conflict with the provisions of ECL article 39 * * * the local law is [nevertheless] inconsistent with its State counterpart and is, therefore, invalid.” (125 AD2d 641, 644.) The majority advanced two grounds in support of its determination: (1) "by permitting further limitations upon the use of sewage system cleaning products, [Local Law No. 12], in effect, create[s] 'a situation where what would be permissible under the State law becomes a violation of the local law’ ” (id., at 644, quoting Wholesale Laundry Bd. v City of New York, 12 NY2d 998, affg on opn at 17 AD2d 327); and (2) the local law imposed " 'prerequisite "additional restrictions” ’ ” upon the rights and obligations created by State law (125 AD2d, at 645, citing F. T. B. Realty Corp. v Goodman, 300 NY 140).
We granted defendant leave to appeal and now reverse the order of the Appellate Division.
Analysis starts with a recognition that although the constitutional home rule provision confers broad police powers upon local governments relating to the welfare of its citizens, local governments may not exercise their police power by adopting a law inconsistent with the Constitution or any general law of the State (NY Const, art IX, § 2 [c]; New York State Club Assn. v City of New York, 69 NY2d 211, 217, probable jurisdiction noted — US —, 108 S Ct 62; Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105; Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683; People v Cook, 34 NY2d 100, 105-106). A local law may be ruled invalid as inconsistent with State law not only where an express
In this case, plaintiff does not argue, nor could it, that the provisions of Local Law No. 12 expressly conflict with the provisions of article 39. No right or benefit is expressly given to a manufacturer of cesspool additives by the State law which has then been curtailed or taken away by the local law (see, e.g., Robin v Incorporated Vil. of Hempstead, supra, at 348-350; Matter of Kress & Co. v Department of Health, 283 NY 55, 58-60). Rather, the State law expressly imposes an obligation on manufacturers of cesspool additives • to provide information relating to the environmental impact of their products. The fact that both the State and local laws seek to regulate the same subject matter does not in and of itself give rise to an express conflict (see, Council for Owner Occupied Hous. v Koch, 119 Misc 2d 241, 244-245, affd for reasons stated below 61 NY2d 942; Sonmax, Inc. v City of New York, 43 NY2d 253, 257-258; Town of Clifton Park v C. P. Enters., 45 AD2d 96, 97-
Although the intent to preempt need not be express (Consolidated Edison Co. v Town of Red Hook, 60 NY2d 99, 105, supra), we are satisfied that the Legislature has not impliedly evinced its desire to preclude the possibility of local regulation of sewage system cleaners (see, id., at 105-107; People v New York Trap Rock Corp., 57 NY2d 371, 377-378, supra; People v De Jesus, supra). No preemptive intent is evident from either the Legislature’s declaration of State policy in ECL 39-0101 or the statutory scheme which has been enacted (see, e.g., Consolidated Edison Co. v Town of Red Hook, supra; People v De Jesus, supra; Robin v Incorporated Vil. of Hempstead, 30 NY2d 347, 350, supra; Dougal v County of Suffolk, 102 AD2d 531, 532-534, affd on opn below 65 NY2d 668).
In the declaration accompanying article 39, the Legislature stated that "the public policy of this state [is] to prevent the pollution of water resources in restricted geographical areas through the use of sewage system cleaners and additives by establishing a regulatory program restricting the use of such products” (ECL 39-0101). The legislative findings state that certain halogenated and aromatic hydrocarbon chemicals "used as sewage system cleaners are a significant and unnecessary source of groundwater contamination * * * When used by homeowners to unblock or deodorize sewage systems they are introduced into the groundwater where they have adverse effects on the health and environment of residents of restricted geographical areas. This act [L 1980, ch 732] serves to eliminate the introduction of these toxic chemicals into Long Island groundwaters” (L 1980, ch 732, § 1). Although at first glance these statements would appear to be quite expansive, entirely absent is any desire for across-the-board uniformity for the protection of the Long Island water supply (see, e.g., Consolidated Edison Co. v Town of Red Hook, supra, at 105-106; People v De Jesus, 54 NY2d 465, 468-470, supra). More
Similarly, the statutory scheme enacted by the Legislature is not so broad in scope or so detailed as to require a determination that article 39 has superseded all existing and future local regulation. Although section 39-0107 of the ECL empowers the Commissioner of the DEC to prohibit or restrict other chemical materials not expressly identified in ECL 39-0103 (4), the Commissioner has not been vested expressly or implicitly with exclusive jurisdiction over these matters, nor does the structure of article 39 impose its own direct controls at the local level by, for example, creating local environmental boards with the power to prohibit or restrict other potentially toxic materials (see, People v De Jesus, 54 NY2d 465, 469, supra), or issuing detailed instructions to localities concerning procedures to be employed in fostering compliance with the provisions of article 39 (see, Dougal v County of Suffolk 102 AD2d 531, 533, supra), either of which would indicate that the State regulatory scheme was to take precedence over and supplant any local regulatory scheme.
Although an express statement of preemption is not required, it is significant that no such statement appears in the statute, considering that article 39 was enacted shortly after the enactment of Local Law No. 12. Moreover, because no express superseder clause is found anywhere in article 39, it is significant that the Department of Environmental Conservation believed that the statute was not intended to preempt local legislation (cf., Matter of Northeast Mines v State of New York Dept. of Envtl. Conservation, 113 AD2d 62, 64, Iv denied 68 NY2d 612 [State statute contains an express superseder clause]). Contrary to plaintiff’s contentions, that the two laws share the same goal, that the local law does not address a
Having determined that article 39 has not preempted Local Law No. 12, plaintiff’s argument that local law prohibits what State law would allow and is therefore invalid is meritless for as we stated most recently in New York State Club Assn. v City of New York (69 NY2d 211, 221-222, supra, quoting People v Cook, 34 NY2d 100, 109, supra): " 'This statement of the law is much too broad. If this were the rule, the power of local governments to regulate would be illusory’. Rather, the general principle set forth in Wholesale Laundry [supra] applies only when the Legislature has 'evidenced a desire that its regulations should pre-empt the possibility of varying local regulations’ [People v Cook, supra; see also, Consolidated Edison Co. v Town of Red Hook, supra, at 107-108] or when the State specifically permits the conduct prohibited at the local level (see, Matter of Kress & Co. v Department of Health, 283 NY 55, 59 [supra] [other citation omitted]).” (See also, Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679, 683, supra; Niagara Recycling v Town of Niagara, 83 AD2d 316, 330.)
We have considered plaintiff’s remaining arguments and find them to be without merit. Accordingly, the order of the Appellate Division should be reversed, with costs, plaintiff’s motion for summary judgment denied, defendant’s cross motion for summary judgment granted and judgment entered in defendant’s favor declaring Suffolk County Local Law No. 12 of 1980 to be valid.
Chief Judge Wachtler and Judges Kaye, Alexander, Ti-tone, Hancock, Jr., and Bellacos a concur.
Order reversed, etc.
. Apparently, no regulations have as yet been promulgated.
. Plaintiffs Federal due process challenge to the local law is not before this court and we express no view as to the merits of that challenge.