United States District Court, S.D. New York
For Association of Home Appliance Manufacturers, Plaintiff: Charles A. Samuels, Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York, NY; Dominic Joseph Picca, Kelly Ryan Graf, Kevin N. Ainsworth, Mintz Levin Cohn Ferris Glovsky & Popeo, P.C.(NYC), New York, NY.
For The City of New York, Defendant: Christopher Gene King, LEAD ATTORNEY, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY; Kathleen C Schmid, New York City Law Department, New York, NY.
OPINION AND ORDER
Lorna G. Schofield, United States District Judge.
In August 2013, the City adopted Local Law 69, which makes manufacturers responsible for recovering refrigerants from their residential appliances that are discarded in New York City. Plaintiff Association of Home Appliance Manufacturers (" AHAM" ) brings this declaratory judgment action against Defendant City of New York (the " City" ) to challenge the validity of Local Law 69 under New York and federal law. Plaintiff moves for judgment on the pleadings with respect to its claims that Local Law 69 is ultra vires (i.e, beyond the City's legislative power) and is preempted by the New York Environmental Conservation Law (" NYECL" ).
The Court finds that the City's effort to promote the safe disposal within its borders
of potentially harmful refrigerants is a reasonable exercise of the City's police powers, at least for purposes of this motion. Those powers entitle the City to enact laws that protect the safety, health and well-being of the community, which Local Law 69 does. However, the NYECL, which is a state law, contains a provision that broadly preempts city laws governing the " sale, use, reuse, reclamation, or disposal of chlorofluorocarbon compounds." N.Y. Envtl. Conserv. Law § 38-0107(3). Absent an amendment of that provision by the New York legislature, Local Law 69 is unenforceable with respect to those chlorofluorocarbon (" CFC" ) compounds covered by Article 38 of the NYECL. Local Law 69 shall continue to be valid and enforceable insofar as it governs refrigerants that do not use the CFC compounds specified in Article 38 of the NYECL. For these reasons, as further discussed below, Plaintiff's motion is granted in part and denied in part.
The following facts are based on Defendant's Answer to the extent that it admits allegations in the Complaint, uncontested documents attached to or incorporated by reference in the pleadings, and documents of which the Court takes judicial notice.
I. History of Refrigerant Regulation
Certain appliances, including refrigerators, freezers, air conditioners and dehumidifiers, use refrigerants in the CFC, hydrochlorofluorocarbon (" HCFC" ) or hydrofluorocarbon (" HFC" ) chemical families to perform their cooling functions. Following the discovery that CFCs are ozone-depleting substances, CFCs and HCFCs became subjects of regulation under the Montré al Protocol on Substances that Deplete the Ozone Layer, ratified by the United States in 1988, and the federal Clean Air Act. Under the Clean Air Act, the production and consumption of CFCs have been banned since 2000, 42 U.S.C. § 7671c(b)-(c), and the production and consumption of HCFCs will be completely phased out by 2030, 42 U.S.C. § 7671d(b)-(c). CFCs and HCFCs commonly have been substituted by HFCs, which do not deplete the ozone layer.
For a period in the 1990s, the City of New York vented refrigerants into the atmosphere when picking up discarded residential appliances as part of its appliance recycling program. In 2000, the U.S. Environmental Protection Agency (" EPA" ) and the City entered into a consent decree providing in relevant part that the " [t]he City shall comply at all times with Section 608 of the Clean Air Act, and the regulations set forth at 40 C.F.R. Part 82, Subpart F . . . ." Thereafter, the City instituted a system in which it instructs residents to place appliances to be discarded at the curb before collection day, and sends separate fleets of trucks and employees to recover the refrigerants and the appliances respectively. The City generates revenue from this program through an agreement with a recycling contractor.
II. Local Law 69
In August 2013, Mayor Bloomberg signed the bill that became Local Law 69, amending Title 16 of the Administrative Code of the City of New York by adding § § 16-480 through 16-486. Local Law 69 (the " Law" ) makes manufacturers responsible for recovering refrigerants from their residential appliances that are discarded in New York City. N.Y.C. Admin. Code § 16-481(a). Manufacturers may develop their own recovery programs, whether by themselves or in conjunction with one another, or pay the City a fee when the Department of Sanitation (" DSNY" ) makes the collection. Id. § § 16-481(b), -482(c). A manufacturer's own program may not include
the curbside pickup of appliances. Id § 16-482(c).
The Law applies to manufacturers " (1) . . . whose brand name appears on an appliance sold, offered for sale or distributed in the city or (2) . . . who manufacture or has manufactured an appliance sold, offered for sale or distributed in the city." Id. § 16-480. Under the Law, " refrigerants"
means any substances consisting in whole or in part of a class I or class II ozone-depleting substance, which are used for heat transfer purposes and provide a cooling effect, including, but not limited, to chlorofluorocarbons, hydrochlorofluorocarbons, or any other substitute substance as may be defined by the United States environmental protection agency. A class I or class II ozone-depleting substance shall be those substances as defined by the United States environmental protection agency in section 602 of the United States clean air act. A " substitute substance" shall be any ...