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Empire Gen Holdings, Inc. and Empire Generating Co., LLC v. the Governor of the State of New York

July 11, 2012

EMPIRE GEN HOLDINGS, INC. AND EMPIRE GENERATING CO., LLC, PLAINTIFFS,
v.
THE GOVERNOR OF THE STATE OF NEW YORK, IN HIS OFFICIAL CAPACITY, AND THE STATE OF NEW YORK, DEFENDANTS.



The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

In this action, plaintiffs seek money damages, a permanent injunction barring the enforcement of sections 33 and 34 of the New York State Tax Law, and judgment declaring sections 33 and 34 unconstitutional.*fn1 Defendants move (Dkt. No. 9) to dismiss the complaint for lack of subject matter jurisdiction, based on the Tax Injunction Act ("TIA"), 28 U.S.C. § 1341, and the principle of comity. The Court agrees and dismisses the action under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

FACTS

The facts, as set forth in the affidavit of Curtis A. Morgan, President and Chief Executive Officer of plaintiff Empire Generating Co., LLC ("EGC"), a wholly-owned subsidiary of plaintiff

Empire Gen Holdings, Inc. ("EGH"), are as follows:

2. EGC caused the construction of a 635 MW natural gas fired electric generating plant (the "Facility") on property located at 75 Riverside Ave. in Rensselaer, New York, which property is sometimes known as the "South 40" parcel (the "South 40" or the "Remediated Lands").

3. Prior to 2004, EGC, then known as Besicorp-Empire Power Company, LLC, entered into an agreement with BASF Corporation (the "BASF Agreement"), the owner of the South 40, the terms of which included an obligation on the part of BASF to:

(i) undertake the preliminary remediation of the South 40,

(ii) execute with EGC a long-term lease of the South 40 once a workplan approved by DEC had been completed, and

(iii) join with EGC in the execution of a Brownfield Cleanup Agreement with DEC calling for the remediation of the environmental contamination contained on the South 40, and providing an avenue for EGC to realize Brownfield credits following the remediation and redevelopment of the South 40.

4. In June 2004, Besicorp-Empire Power Co., LLC and BASF entered into a Brownfield Site Cleanup Agreement (Index # A -0507-0604).

5. Pursuant to the BASF agreement, EGC leased the South 40 pursuant to a long term ground lease executed on July 16, 2007.

6. In February 2008, the Brownfield Cleanup Agreement was amended when the name of Besicorp-Empire Power Co., LLC was changed to Empire Generating Co, LLC. Amendment No. 1 to the Brownfield Cleanup Agreement memorialized that an application notifying DEC of the name change had been submitted to the agency, the approval by DEC of the application, and the acknowledgment by DEC that EGC was eligible to participate in the Brownfield site cleanup program as a volunteer as defined in ECL [Environmental Conservation Law] 27-1405(1)(b).

7. Prior to the July 16, 2007 closing, and in furtherance of its obligations under the Brownfield Cleanup Agreement, EGC, through BASF, performed various remedial activities pursuant to work plans filed with and approved by DEC in furtherance of the goal of obtaining final approval from DEC for the reutilization of the remediated lands.

8. On or about February 2008, EGC filed a final engineering report of remedial actions undertaken on the remediated lands with DEC.

9. On March 10, 2008, DEC notified EGC and BASF that DEC had approved the final engineering report and, accordingly, DEC ...


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