Last week, Supreme Court Westchester County (the nisi prius level of the New York court system) threw out the NYS Department of Environmental Conservation’s general permit for municipal stormwater systems. A copy of the opinion can be downloaded here.
NRDC and several Waterkeeper environmental groups challenged the general permits on the grounds that they essentially allowed municipal operators of stormwater pollution discharges to “self regulate” without any oversight by DEC or public notice and comment. The general permit allowed municipalities to obtain immediate authorization to discharge based on a certification that they would prepare a Stormwater Management Plan (appropriately acronymed as a “SWMP”) in the future and submit it to DEC for review at that time.
Justice Lefkowitz threw out the general permit scheme, finding that the “permit now, come up with a plan later” approach failed to implement maximum practicable pollutant reductions as required by both Clean Water Act Section 402(p) and the New York Environmental Conservation Law. In addiiton, Justice Lefkowitz found that DEC’s failure to provide public notice and review of notices of intent to be covered by the MS4 general permit violated the Clean Water Act and NY Environmnental Conservation Law requirements for public participation in the establishment of effluent limitations.
Environmental organizations often have some trepidation about taking federal Clean Water Act issues into the state court system, as many state Supreme Court justices are unfamiliar with federal environmental law. Westchester County’s Environmental Claims Part of the State Supreme Court is a successful example of a specialized environmental court. Created in 2001, the Environmental Claims part (unique in the New York State Unified Court system) hears environmental and land use claims. Justice Lefkowitz was able to draw on the court’s experience with other environmental cases in identifying the deficiencies in DEC’s MS4 permit — her opinion noted that in 2004, the Court dealt with a case in which the City of Yonkers relied on its submission of an MS4 permit Notice of Intent to invoke the permit shield against enforcement for the discharge of raw sewage!
Pace, of course, held a symposium last year on the experience with specialized environmental courts worldwide.
Full disclosure: my Environmental Litigation Clinic clients include several of the plaintiffs in the NRDC v DEC cases, and I serve as chair of the board of Waterkeeper Alliance, also a plaintiff.
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