[DOWNLOAD] "Matter Environmental Defense Fund v. Robert F. Flacke" by Supreme Court of New York * Book PDF Kindle ePub Free
eBook details
- Title: Matter Environmental Defense Fund v. Robert F. Flacke
- Author : Supreme Court of New York
- Release Date : January 08, 1983
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 73 KB
Description
Proceeding pursuant to CPLR article 78, to review a determination of the Commissioner of the New York State Department of Environmental Conservation, dated April 13, 1982, which, after a public hearing, approved the reconversion of units Nos. 4 and 5 of the Lovett Generating Plant to the burning of coal. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Late in 1980 and early in 1981, Orange and Rockland Utilities, Inc. (hereinafter ORU), applied to the Department of Environmental Conservation (hereinafter DEC) for the permits needed to reconvert units Nos. 4 and 5 of its Lovett Generating Plant from oil- to coal-fired generation. ORU filed a draft environmental impact statement (hereinafter (DEIS) which was reviewed in public hearings. At the conclusion of these hearings, the administrative law judge compiled a hearing report, which, together with the DEIS, became the final environmental impact statement (hereinafter FEIS). In this proceeding, the Environmental Defense Fund (hereinafter EDF) contends that the FEIS does not comply with the mandates of the State Environmental Quality Review Act (ECL 8-0101 et seq., hereinafter SEQRA) in a number of respects. In reviewing agency determinations on environmental matters, this court has held that the familiar standard of review for proceedings pursuant to CPLR article 78 is applicable. Thus, the court may only annul a determination if it is not rational, i.e., arbitrary and capricious, or unsupported by substantial evidence (Town of Hempstead v Flacke, 82 A.D.2d 183; see Matter of Pell v Board of Educ., 34 N.Y.2d 222). While we cannot substitute our judgment for that of the commissioner (Town of Hempstead v Flacke, supra), we must determine whether the entities involved have complied with the procedural requirements of SEQRA (see Matter of Cohalan v Carey, 88 A.D.2d 77). This court has noted that SEQRA requires literal compliance with its terms and substantial compliance will not suffice (Matter of Rye Town/King Civic Assn. v Town of Rye, 82 A.D.2d 474, apps dsmd 55 N.Y.2d 747, mot for lv to app dsmd 56 N.Y.2d 985). "Literal compliance is required because the Legislature has directed that the policies of the State and its political subdivisions shall be administered to the fullest extent possible in accordance with SEQRA (ECL 8-0103, subd 6)" (Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, 88 A.D.2d 484, 490-491; Matter of Rye Town/King Civic Assn. v Town of Rye, supra,). "The test of SEQRA compliance is whether the approving agency has taken a hard look at the relevant areas of environmental concern" (Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, supra, p 492; Matter of Schenectady Chems. v Flacke, 83 A.D.2d 460). We find that this test has been met in this matter. EDFs first challenge to the sufficiency of the FEIS is that it fails to consider the impact of increased sulfur dioxide emissions and acid deposition in the sensitive Hudson Highlands region. We note, however, that the FEIS contains a detailed analysis of this problem. By way of background, it should be noted that the witnesses for both EDF and ORU were in agreement that the deposition of sulfur compounds can occur through two mechanisms: (1) wet deposition, predominantly in the form of sulfate, in which sulfur is carried to the surface by precipitation (popularly known as acid rain) and (2) dry deposition, mostly in the form of sulfur dioxide (SO2), which occurs through direct contact of gases and particles with the ground or vegetation. The DEIS [96 A.D.2d 862 Page 863]