In the Matter of NRG ENERGY, INC., et al., Respondents, v ERIN M. CROTTY, as Commissioner of Environmental Conservation, et al., Appellants. (Proceeding No. 1.) In the Matter of MULTIPLE INTERVENORS et al., Respondents-Appellants, v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Appellant-Respondent. (Proceeding No. 2.) (And Another Related Proceeding.)
Supreme Court, Appellate Division, Third Department, New York
June 16, 2005
18 AD3d 916 | 795 NYS2d 129
In the Matter of NRG ENERGY, INC., et al., Respondents, v ERIN M. CROTTY, as Commissioner of Environmentаl Conservation, et al., Appellants. (Proceeding No. 1.) In the Matter of MULTIPLE INTERVENORS et al., Respondents-Appellants, v NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Appellant-Respondent. (Proceeding No. 2.) (And Another Related Proceеding.) [795 NYS2d 129]—
Mercure, J.P. (1) Appeal in proceeding No. 1 and cross appeals in proceeding No. 2 from a judgment of the Supreme Court (Stein, J.), entered June 3, 2004 in Albany County, which, inter alia, partially granted petitioners’ applications, in two proceedings pursuant to
These consolidated appeals involve challenges to reрealed and emergency versions of Acid Deposition Reduction Program (hereinafter ADRP) regulations promulgated by respondent Department of Environmental Conservation (hereinаfter DEC; see
Following Supreme Court’s decision and judgment, DEC promulgated emergency ADRP regulations that expressly repealed the original regulations, and which became effective the day after the appeals from Supreme Court’s judgment were perfected. The emergency regulations reрlaced the initial regulations and added, among other things, new provisions that were apparently intended to address some of the defects found by Supreme Court (see
In March 2005, several months after the promulgation of the emergency regulations and while the appeals in all three proceedings remained pending in this Court, DEC approved and adopted final revised ADRP regulations. Respondents now argue that petitioners’ challenges in all three proceedings have been rendered moоt by the implementation of the final ADRP regulations. Petitioners dispute this contention, arguing that all three controversies are justiciable or, in the alternative, fall within the exception to thе mootness doctrine because they present substantial, novel and recurring issues.
We conclude that DEC’s implementation of the final revised ADRP regulations has rendered all three proceedings moot. It is well settled that a court’s jurisdiction extends only to live controversies and, thus, “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540 US 1017 [2003]). Petitioners’ claims addressed to the original regulations have been rendered moot not only by the implementation of the emergency regulations, which specifically
Moreover, the appeals are moot for two additional reasons. First, challenges to the procedure by which DEC promulgated the original and emergency regulations are no longer viable because DEC’s implementation of the final regulations required independent compliance with regulation promulgation procedures (see
Multiple Intervenors’ reliance on federаl case law in arguing that the cases remain justiciable is inapt, because there is no indication that, having implemented the final regulations, DEC has any desire to reinstate the original or emergency ADRP regulations (see Cornelius v NAACP Legal Defense & Ed. Fund, Inc., 473 US 788, 791 n 1 [1985]; Maher v Roe, 432 US 464, 468-469 n 4 [1977]). Moreover, controlling New York authority does not recognize this “desire to reinstate” as an exception to
Further, we conclude that these cаses do not fall within the recognized exception to the mootness doctrine (id.). While, as petitioners assert, many of the issues raised are novel, substantial and likely to recur, we cannot say that those issues will typically evade review. Indeed, a new proceeding challenging DEC’s authority to promulgate the final regulations may now be commenced (cf. Community Hous. Improvеment Program v New York State Div. of Hous. & Community Renewal, 175 AD2d 905, 907 [1991]). Should appellate review of such a proceeding be similarly frustrated by new promulgations, we might then conclude that the issue of DEC’s authority will evade review, but at this time, we are constrained to dismiss all three petitions as moot.
Finally, we decline to vacate Supreme Court’s judgment invalidating the original ADRP regulations, as DEC urges us to do. First, DEC has not made a persuasive showing that Supreme Court’s judgment will engender adverse legal consequences. Second, the actions of DEC in adopting superceding emergency and final regulations have prevented our review of the judgment that they request us to vacate. To summarize the events and their effect on justiciability, the adoption of emergency regulations following Suprеme Court’s decision dealt a fatal blow to the live controversy that was presented in proceeding Nos. 1 and 2. The malleability of the emergency regulations, as evidenced by DEC’s revisiоn thereof several times during the pendency of these appeals, raised substantial questions about the ripeness of proceeding No. 3. Specifically, the claims addressed to whether DEC’s promulgation of the emergency regulations was ultra vires or violative of the separation of powers doctrine could not be addressed because there could be no certainty as to the final form of the emergency regulations and thus, the appropriate context for an evaluation of DEC’s authority was lacking. And as we now conclude, DEC’s implementation of final ADRP regulations while the appeals were pending superceded the initial and emergency regulations and rendered all of the pending appeals moot. While we attribute no malintent to DEC in undertaking this course of conduct, we nevertheless conclude that vacatur is not appropriate here (see Matter of Sarbro IX v McGowan, 271 AD2d 829, 830 [2000]; cf. Matter of Finkelstein v New York State Bd. of Law Examiners, 241 AD2d 728, 729-730 [1997]).
Spain, Carpinello and Kane, JJ., concur. Ordered that the appeals in proceeding Nos. 1 and 3 and cross appeals in proceeding No. 2 are dismissed, as moot, without costs.