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March 24, 1982

LONG ISLAND LIGHTING COMPANY, Robert Flacke, as commissioner of the Department of Environmental Conservation of the State of New York, and Anne Gorsuch, as administrator of the United States Environmental Protection Agency, Defendants

The opinion of the court was delivered by: PRATT


In 1972, pursuant to § 110 of the Clean Air Act, 42 U.S.C. § 7410, New York State submitted an implementation plan for air quality to the United States Environmental Protection Agency (EPA). This state implementation plan (SIP), which was approved by the EPA, prohibits the sale, purchase or use of fuel containing more than 1% sulphur in power generating plants in Suffolk County, New York. On August 23, 1977, the EPA approved a revision to the SIP, permitting the defendant Long Island Lighting Company (Lilco) to burn fuel oil with a maximum sulphur content of 2.8% at its Northport and Port Jefferson generating facilities. This revision, technically a "special limitation": but also called a "variance", remained effective until May 31, 1980. 40 CFR 52.1670(33).

 Before that expiration date, Lilco sought and received from the New York State Department of Environmental Conservation (DEC) an extension of its variance authorizing continued use of the 2.8% sulphur content fuel oil. However, the EPA, which must review and approve all such SIP revisions, 42 U.S.C. § 7410, did not approve and promulgate the revision until September 24, 1981. 46 FR 47069 (Sept. 24, 1981). Effective that date, the EPA approval extended Lilco's variance to burn the higher sulphur content fuel oil until September 24, 1984. However, during the 16 month period from June 1, 1980, when EPA approval of the old variance expired, until September 24, 1981, the effective date of the new variance, Lilco continued to burn 2.8% fuel, rather than the 1% fuel required by the underlying SIP.

 In April, 1981, the State of Connecticut filed this action pursuant to 42 U.S.C. § 7604 naming Lilco, the acting administrator of EPA, and the commissioner of DEC as defendants. The complaint alleged that Lilco had failed to comply with the New York SIP, which limited the use of fuel oil to 1% sulphur content, that the commissioner of DEC had taken no action against Lilco, and that the acting administrator of EPA had failed to investigate and make findings pursuant to his non-discretionary duty under 42 U.S.C. § 7413(a) (1). Connecticut demanded that the court enjoin Lilco's use of greater than 1% sulphur content fuel oil at its Port Jefferson and Northport generating facilities, and order EPA and DEC to enforce the New York SIP.

 The parties stipulated to extend defendants' time to answer, and after answering the complaint, defendants moved to stay all proceedings pending EPA's decision on the proposed variance to the SIP, which was at that time under review by EPA. The plaintiff opposed the stay, and, after considering the papers and hearing oral argument, the court denied defendants' motion. On August 20, 1981, Connecticut filed a motion for summary judgment, requesting that the court grant injunctive relief enforcing the 1% sulphur content fuel oil limitation.

 Plaintiff's motion was returnable on September 16, 1981. Defendant Lilco requested an adjournment because counsel for EPA assured Lilco and the court that a final rule would be enacted approving Lilco's burning of 2.8% sulphur fuel before the end of September, 1981. Since EPA approval of the variance for 2.8% content fuel oil would render Connecticut's motion for summary judgment moot, the court granted Lilco's request and adjourned the motion until October 7, 1981.

 After the court granted the adjournment, but before EPA's approval of the variance the Connecticut Fund for the Environment, Inc. (CFE), John Walton, Norman Pratt, Dorothy Noyes Kane, and Charlotte Kitowski moved to intervene as plaintiffs in this action. Their proposed complaint alleged that as citizens of Connecticut they were all injured by Lilco's burning of the 2.8% fuel, and requested both the injunctive relief sought by the State of Connecticut and damages for their injuries under a theory that Lilco's actions constituted a common law nuisance.

 After EPA approved Lilco's use of the 2.8% fuel, all defendants moved to dismiss Connecticut's complaint as moot, and filed briefs in opposition to the motion to intervene. Connecticut and the intervenors filed memoranda opposing the motions to dismiss, arguing that the complaint was not moot in that they were requesting relief for the period of time between the variances when Lilco's use of 2.8% fuel violated the New York SIP.

 Before the court at this time, in the order in which they were filed, are (1) Connecticut's motion for summary judgment, (2) the intervenor-plaintiffs' motion to intervene, and (3) defendants' motion to dismiss. All parties, including the proposed intervenors, have submitted numerous memoranda on these motions, and appeared before the court for oral argument on November 4, 1981. Although the court recognizes that the issues which are dispositive of each motion are interrelated, the court will discuss each motion separately.

 Plaintiff's Motion for Summary Judgment.

 The State of Connecticut filed this suit pursuant to 42 U.S.C. § 7604, the "Citizen Suit" provision, which gives the district court jurisdiction to enforce an emission standard or limitation or to order the administrator of the EPA to perform a non-discretionary act or duty that is in question. The statute provides that

(a) * * * any person may commence a civil action on his own behalf-
(1) against any person * * * who is alleged to be in violation of (A) any emission standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation,
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not ...

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