United States District Court, E.D. New York
ROSSANA ROSADO, in her official capacity as NEW YORK STATE SECRETARY OF STATE, BASIL SEGGOS, in his official capacity as COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and the STATE OF NEW YORK,, Plaintiffs,
E. SCOTT PRUITT, in his official capacity as Administrator of the United States Environmental Protection Agency, THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, and DEBORAH SZARO, in her official capacity as Acting Regional Administrator of EPA Region 1,, Defendants.
MEMORANDUM AND ORDER
L. MANN, CHIEF UNITED STATES MAGISTRATE JUDGE
November 30, 2017 and December 21, 2017, respectively, the
Connecticut Department of Energy and Environmental Protection
(the “DEEP”) and the Town of Southold, New York
(“Southold”) moved to intervene in this action,
brought by the New York Secretary of State, the Commissioner
of the New York State Department of Environmental
Conservation and the State of New York (collectively
“New York”), against the United States
Environmental Protection Agency (the “EPA”) and
its Region 1 Acting Administrator, for having allegedly acted
arbitrarily and capriciously in designating a disposal site
for dredged materials in eastern Long Island Sound (the
“Eastern Site”). See Motion to Intervene
(Nov. 30, 2017), Electronic Case Filing Docket Entry
(“DE”) #12; Motion to Intervene (Dec. 21, 2017),
DE #14. The original parties do not object to the motions to
intervene. For the reasons that follow, the motions to
intervene are granted.
considering a motion to intervene, the court must accept as
true non-conclusory allegations of the motion.” SEC
v. Callahan, 2 F.Supp.3d 427, 436 (E.D.N.Y. 2014).
August 17, 2017, New York filed the instant suit, alleging
that the EPA's designation of a disposal site for dredged
materials in eastern Long Island Sound was arbitrary and
capricious and in violation of the Administrative Procedure
Act (“APA”), 5 U.S.C. §§ 551-559,
701-706, the Ocean Dumping Act, 33 U.S.C. § 1401 et
seq., and the Coastal Zone Management Act, 16 U.S.C.
§ 1451 et seq. See Complaint (Aug. 17, 2017),
DE #1. New York filed an Amended Complaint on October 11,
2017. See Amended Complaint (Oct. 11, 2017)
(“Am. Compl.”), DE #9. On November 21, 2017, the
Honorable Edward R. Korman, the District Judge to whom this
case is assigned, approved the parties' proposed schedule
for briefing anticipated dispositive motions. See
Order (Nov. 21, 2017); Consent Motion (Oct. 25, 2017), DE
Ocean Dumping Act regulates the disposal of dredged materials
into ocean waters. See 33 U.S.C. § 1401(b). The
Act's protections extend to the Long Island Sound.
See Am. Compl. ¶ 4. Any federal projects
involving dredging or dumping into the Sound, and any private
entities seeking to dredge projects greater than 25, 000
cubic yards within the Sound, must comply with the Ocean
Dumping Act. See id. In order to manage the risks of
environmental harm, disposal subject to the Ocean Dumping Act
is allowed only by permit issued by the Army Corps of
Engineers. See id. ¶ 7. Open water disposal of
dredged material may be conducted at a permanent site
designated by the EPA or a short-term
“alternative” site selected by the Army Corps of
Engineers and approved by the EPA. See id.
final rule dated December 6, 2016, the EPA designated as a
permanent disposal site the Eastern Site, located south of
the mouth of the Thames River at New London, Connecticut,
with its boundary extending to within 0.2 nautical miles of
the New York boundary. See id. ¶ 10. New York
alleges that it will be harmed by the designation and use of
the Eastern Site. See id. ¶ 12. Contaminants
excavated primarily from tidal river areas and bays along
Connecticut's coast will be relocated to the Eastern
Site, located in a previously unused area of the Sound closer
to New York's boundary. See id. Mobilization
through dredging and placement of contaminants on the floor
of the Long Island Sound at the Eastern Site will create the
potential for the introduction of those contaminants into the
food chain and transfer them to New York waters. See
id. New York further alleges that use of the Eastern
Site creates the risk of interference with the safety,
logistics and flow of interstate ferry traffic between New
York and New England via the Cross Sound Ferry, which travels
between Orient Point, New York and New London, Connecticut,
and crosses the Eastern Site. Id.
DEEP supports the EPA's designation and seeks to
intervene as a defendant, asserting that hundreds of marine
and water-dependent businesses in Connecticut rely on
periodic dredging. See Affidavit Brian P. Thompson
(Aug. 30, 2017) ¶ 8, DE #12-2. For example, submarine
manufacturer Electric Boat, the U.S. Navy Submarine Base and
numerous marinas and commercial fishing businesses depend
upon access to navigational channels that must be maintained
by dredging. See id. ¶ 9. As a result, the
availability of economical, environmentally sounds methods of
disposing of dredged material is necessary to support
Connecticut's water-dependent businesses and uses.
See id. A reduction of disposal sites for dredged
material in Connecticut's coastal waters would create
significant adverse impacts on Connecticut's economy and
would not significantly reduce adverse environmental impacts.
See id. ¶ 10.
a town on the eastern end of Long Island that is surrounded
by the marine waters of the Long Island Sound, opposes the
EPA's designation and seeks to intervene as a plaintiff.
See Affidavit of Mark Terry (Dec. 21, 2017)
¶¶ 6, 8, 9, DE #14-4. Five islands are located
within the municipal jurisdiction of Southold, four of which
are located within the Long Island Sound, and one of which,
Fishers Island, is 1.4 nautical miles from the Eastern Site.
See id. ¶¶ 10, 13, 18. The Southold Town
Code regulates and limits dredging and the disposal of
dredged material within the coastal areas of the Town.
See id. ¶¶ 41, 44, 51. Since 2004,
Southold has never granted a dredging permit allowing an
applicant to deposit dredged material in New York State
waters within the boundaries of Long Island Sound. See
id. ¶ 71. According to Southold, the Eastern Site
is subject to Southold's local waterfront revitalization
program, which is inconsistent with the EPA's designation
of the Eastern Site. See id. ¶¶ 137-139.
Southold contends that use of the Eastern Site will cause
ecological and economic harm from the dumping of dredge
spoils in the area. See id. ¶ 18.
DEEP and Southold seek to intervene as of right or by
permission - DEEP as a defendant and Southold as a plaintiff.
order to be granted intervention as of right, a proposed
intervenor must: “(1) file a timely motion; (2) show an
interest in the litigation; (3) show that its interest may be
impaired by the disposition of the action; and (4) show that
its interest is not adequately protected by the parties to
the action.” In re Holocaust Victim Assets
Litig., 225 F.3d 191, 197 (2d Cir. 2000) (citing
Catanzano v. Wing, 103 F.3d 223, 232 (2d Cir.
1996)); see Fed.R.Civ.P. 24(a)(2). The burden on
proposed intervenors in showing inadequate representation is
“minimal, ” requiring only that they demonstrate
“that representation of their interests ‘may
be' inadequate[.]” Trbovich v. United Mine
Workers of Am., 404 U.S. 528, 538 n.10 (1972).
“Failure to satisfy any one of these
requirements is a sufficient ground to deny the
application.” Farmland Dairies v. Comm'r of
N.Y. State Dep't of Agric. & Mkts., 847 F.2d
1038, 1043 (2d Cir. 1988) (emphasis in original) (citing
United States v. New York, 820 F.2d 554, 556 (2d
Cir. 1987)); accord In re Holocaust Victim, 225 F.3d
intervention is wholly discretionary with the trial court[,
]” USPS v. Brennan, 579 F.2d 188, 191 (2d Cir.
1978), whose discretion is so very broad that reversal of a
district court's “denial of permissive intervention
is a very rare bird indeed, ” United States v. Pitney
Bowes, 25 F.3d 66, 73 (2d Cir. 1994); see Washington
Elec. Co-op, Inc. v. Massachusetts Mun. Wholesale Elec.
Co., 922 F.2d 92, 98 (2d Cir. 1990); Brennan,
579 F.2d at 192. Permissive intervention may be granted only
“if the application is timely and if the
‘applicant's claim or defense and the main action
have a question of law or fact in common.'” In
re Holocaust Victim, 225 F.3d at 202 (quoting
Fed.R.Civ.P. 24(b)(2)). “The principal guide in
deciding whether to grant permissive intervention is
‘whether the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties.'” Pitney Bowes, 25 F.3d at 73
(quoting Fed.R.Civ.P. 24(b)(2)); see In re Holocaust
Victim, 225 F.3d at 202; Brennan, 579 F.2d at
Connecticut and Southold likely satisfy the requirements for
intervention as of right, the Court need not address the
relevant factors because it is appropriate to grant their
requests for permissive intervention. Both motions were filed
before the EPA responded to the amended complaint, and only a
couple of months after plaintiffs filed their amended
pleading. To date, no conferences have been held in the case.
Thus, the parties will not be prejudiced by ...