Norse Energy Article 78 Lawsuit Against Gov. Cuomo, DEC Com. Martens, and DOH Com. Shah
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Norse Energy Article 78 Lawsuit Against Gov. Cuomo, DEC Com. Martens, and DOH Com. Shah

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Paperwork filed with a lower court (called Supreme Court in NY) by Norse Energy lawyer Tom West against Gov. Andrew Cuomo, DEC Commissioner Joe Martens and State Health Commissioner Nirav Shah,......

Paperwork filed with a lower court (called Supreme Court in NY) by Norse Energy lawyer Tom West against Gov. Andrew Cuomo, DEC Commissioner Joe Martens and State Health Commissioner Nirav Shah, accusing them of willful political delay in releasing fracking regulations (now 5 1/2 years delayed). An Article 78 lawsuit requests the court to force the release--that is, force these three recalitrant people to do their jobs. It is a complete humiliation of the shameful Andrew Cuomo--a stain on his record as governor--to have to be forced to do his job, kicking and screaming, by the courts.

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  • 1. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY MARK S. WALLACH, as the Bankruptcy Trustee of Norse Energy Corp. USA, and JAMES LOBDELL, Petitioners-Plaintiffs, For a Judgment pursuant to Article78 and Section 3001 of the Civil Practice Law and Rules, -againstTHE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, JOSEPH J. MARTENS, in his official capacity as Commissioner of the New York State Department of Environmental Conservation, THE NEW YORK STATE DEPARTMENT OF HEALTH, DR. NIRAV R. SHAH, in his official capacity as Commissioner of the New York State Department of Health, and ANDREW M. CUOMO, in his official capacity as Governor of the State of New York, Index No.: Respondents-Defendants. MEMORANDUM OF LAW IN SUPPORT OF PETITIONERS-PLAINTIFFS MARK S. WALLACH AS THE BANKRUPTCY TRUSTEE OF NORSE ENERGY CORP. USA and JAMES LOBDELL’S VERIFIED PETITION AND COMPLAINT THE WEST FIRM, PLLC Thomas S. West, Esq. Attorneys for Petitioners-Plaintiffs Mark S. Wallach as Bankruptcy Trustee of Norse Energy Corp. USA and James Lobdell 677 Broadway, 8th Floor Albany, New York 12207 (518) 641-0500 (518) 615-1500 December 17, 2013
  • 2. TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................. ii PRELIMINARY STATEMENT .........................................................................................1 STATEMENT OF FACTS ..................................................................................................4 ARGUMENT...........................................................................................................7 POINT I: MANDAMUS RELIEF IS WARRANTED, ORDERING COMPLETION OF THE SEQRA PROCESS ..................................................................................7 A. The Standard For Mandamus To Compel ...................................................7 B. The Failure To Complete The SGEIS Process After More Than Five Years of Exhaustive Review Warrants Mandamus Relief .....................................9 1. Statutory requirements of SEQRA provide a clear legal right to mandamus relief.............................................................................10 2. Statutory requirements of the Energy Law and ECL Article 23 provide a clear legal right to mandamus relief ..............................17 3. Under Common Law principles, mandamus is the proper remedy............................................................................................18 C. If There Is Any Genuine Issue of Fact As To Why Additional Time Is Needed To Complete The SGEIS Process, A Jury Trial Is Warranted Forthwith....................................................................................................21 POINT II: THE DEC’S LATE REFERRAL TO THE DOH FOR THE HEALTH REVIEW IS ARBITRARY, AN ABUSE OF DISCRETION, AND AN IMPROPER DELEGATION OF LEAD AGENCY RESPONSIBILITIES .........23 POINT III: GOVERNOR CUOMO’S INTERVENTION IN THE SGEIS PROCESS AND HIS ORCHESTRATION OF THE RESULTING DELAY MERIT PROHIBITION RELIEF AND OPENING HIS RECORDS TO PUBLIC SCRUTINY............................................................................................................28 CONCLUSION..................................................................................................................29 i
  • 3. TABLE OF AUTHORITIES Aldrich v. Pattison, 107 A.D.2d 258 (2d Dep’t 1985) ...........................................................................15 Board of Educ. of N. Colonie Schools, Newtonsville v. Levitt, 42 A.D.2d 372 (3d Dep’t 1973) ...............................................................................8 Carrera v. Reilly, N.Y.L.J., Dec. 24, 2002 (Sup. Ct. Suffolk Cnty. 2002)...................................14, 16 Daniel v. N.Y.S. Div. of Housing & Community Renewal, 179 Misc. 2d 452 (Sup. Ct. N.Y. Cnty. 1998) .............................................9, 10, 19 Matter of Arnold v. Dumpson, 78 Misc. 2d 703 (Sup. Ct. N.Y. Cnty. 1974) .........................................................22 Matter of Brodsky v. N.Y.S. Dep’t of Envtl. Conservation, 1 Misc. 3d 690 (Sup. Ct. Albany Cnty. 2003) ............................................... 8-9, 19 Matter of Brusco v. Braun, 84 N.Y.2d 674 (1994) ..............................................................................................7 Matter of Coca-Cola Bottling Co. of N.Y., Inc. v. Bd. of Estimate of City of N.Y. 72 N.Y.2d 674 (1988) ............................................................................................25 Matter of Costco Wholesale Corp. v. Town Bd. of Town of Oyster Bay, 90 A.D.3d 657 (2d Dep’t 2011) ............................................................8, 10, 11, 15 Matter of Concern, Inc. v. Pataki, 7 Misc.3d 1030(A), 2005 WL 1310478 (Sup. Ct. Erie Cnty. May 25, 2005) .......29 Matter of Fehlhaber Corp. v. O’Hara, 53 A.D.2d 746 (3d Dep’t 1976) ...............................................................................8 Matter of Gabriel v. Turner, 50 A.D.2d 889 (2d Dep’t 1975) .................................................................22, 23, 29 Matter of Green v. Commissioner of Envtl. Conservation, 94 A.D.2d 872 (3d Dep’t 1983) .............................................................................20 Matter of Lowe’s Home Ctrs., Inc. v. Venditto, 15 Misc. 3d 1108(A), 2007 WL 852057, (Sup. Ct. Nassau Cnty. March 19, 2007) .........................................................11, 15 ii
  • 4. Matter of Mamaroneck Beach & Yacht Club, Inc. v. Fraioli, 24 A.D.3d 669 (2d Dep’t 2005) ......................................................................10, 11 Matter of Penfield Panorama Area Community v. Town of Penfield Pl. Bd 253 A.D.2d 342 (4th Dep’t 1999)..........................................................................26 Matter of Preddicev. Callanan, 96 A.D.2d 613 (3d Dep’t 1983) .............................................................................22 Matter of Pyramid Co. of Watertown v. Pl. Bd. of Town of Watertown, 24 A.D.3d 1312 (4th Dep’t 2005)................................................................... 25, 27 Matter of Riverkeeper, Inc. v. Pl. Bd. of Town of Southeast, 9 N.Y.3d 219 (2007) ............................................................................14, 23, 25, 26 Matter of Schapira v. Grunberg (unreported) 12 Misc. 3d 1195(A), 2006 WL 2353194, (Sup. Ct. Bronx Cnty. Feb. 27, 2006) ....................................................................22 Matter of Signature Health Ctr., LLC v. N.Y.S. Dep’t of Health, 29 Misc. 3d 769 (Sup. Ct. Nassau Cnty. 2010)......................................................19 Matter of Small v. Moss, 277 N.Y. 501 (1938) ................................................................................................8 Matter of Spitzer v. Farrell, 100 N.Y.2d 186 (2003) ..........................................................................................14 Matter of Utica Cheese v. Barber, 49 N.Y.2d 1028 (1980) ................................................................................8, 19, 21 Matter of 383 Madison Assocs v. N.Y.C. Pl. Comm’n., Index No. 2501-88 (Sup. Ct. Westchester Cnty. May 25, 1988) (Gammerman, J.)............................................................................................24, 27 Matter of 2433 Knapp St. Rest. Bar v. Dep’t of Consumer Affairs of City of N.Y., 150 A.D.2d 464 (2d Dep’t 1989) .....................................................................9, 19 Pilot Corp.v. Planning Bd. of Town of Newburgh, N.Y.L.J., July 18, 2001, (Sup. Ct. Orange Cnty. 2001).............................15, 16, 25 Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991) ............................................................................................16 Twin Lake Farms Assocs. v. Town Clerk of Town of Bedford, Index No. 7579/92 (Sup. Ct. Westchester Cnty. April 12, 1993) ..........................16 iii
  • 5. United Water New Rochelle, Inc. v. Planning Bd. of Town of Eastchester, N.Y.L.J., Dec. 3, 2001 (Sup. Ct. Westchester Cnty. 2001) .............................16, 17 STATUTES CPLR § 410 .......................................................................................................................22 CPLR § 2301 .....................................................................................................................22 CPLR § 2302 .....................................................................................................................22 CPLR § 7803(2) ................................................................................................................28 CPLR § 7804......................................................................................................................22 CPLR § 7804(h) ................................................................................................................22 Energy Law § 3-101(1)......................................................................................................17 Energy Law § 3-101(5)................................................................................................10, 17 Energy Law§ 3-103......................................................................................................10, 17 Environmental Conservation Law § 8-0103(7) ...........................................................14, 16 Environmental Conservation Law § 8-0107 ..........................................................10, 14, 16 Environmental Conservation Law article 23 ...............................................................10, 18 Environmental Conservation Law article 23, title 21 ........................................................18 Environmental Conservation Law § 23-0301 ....................................................................18 Environmental Conservation Law § 23-0501(3) .........................................................10, 18 Environmental Conservation Law § 23-2101 articles II-VI ..............................................18 Environmental Conservation Law § 23-2101(2) ...............................................................17 iv
  • 6. REGULATIONS 6 NYCRR § 617.1(d) .........................................................................................................16 6 NYCRR § 617.2(c) .........................................................................................................29 6 NYCRR § 617.2(s)....................................................................................................23, 29 6 NYCRR § 617.2(t) ..............................................................................................24, 25, 27 6 NYCRR § 617.2(u) ...................................................................................................26, 29 6 NYCRR § 617.3(h) .......................................................................................10, 14, 16, 23 6 NYCRR § 617.6(b) .........................................................................................................10 6 NYCRR § 617.8..............................................................................................................24 6 NYCRR 617.9(a)(2)........................................................................................................11 6 NYCRR § 617.9(a)(5)............................................................................................. passim 6 NYRCC § 617.9(a)(5)(ii)..........................................................................................12, 14 6 NYRCC § 617.9(a)(5)(ii)(a) ...........................................................................................12 6 NYRCC § 617.9(a)(5)(ii)(b) ...........................................................................................12 6 NYCRR § 617.11........................................................................................................2, 10 OTHER AUTHORITIES 6 N.Y. Jur. 2d Article 78 § 81..............................................................................................7 6 N.Y. Jur. 2d Article 78 § 82..............................................................................................9 6 N.Y. Jur. 2d Article 78 § 85......................................................................................7, 8, 9 D. Siegel, N.Y. Practice (2d ed., West publ. Co., 1991), § 569 at 895..............................22 v
  • 7. PRELIMINARY STATEMENT Petitioners-Plaintiffs Mark S. Wallach (“Trustee”), as Bankruptcy Trustee of Norse Energy Corp. USA (“Norse”), and James Lobdell (collectively, “Petitioners”) respectfully submit this Memorandum of Law and accompanying submissions in support of the Verified Petition and Complaint, dated December 17, 2013 (“Petition”), seeking, inter alia, mandamus relief against the Respondents-Defendants, New York State Department of Environmental Conservation (“DEC”), DEC Commissioner Joseph J. Martens (“Commissioner Martens”), New York State Department of Health (“DOH”), DOH Commissioner Dr. Nirav R. Shah (“Commissioner Shah”), and Governor Andrew M. Cuomo (“Governor Cuomo”) (collectively, the “Respondents”). Petitioners seek to end the now egregiously long 5 ½-year-long supplemental review of high-volume hydraulic fracturing (“HVHF”) that has been ongoing in New York since 2008, and which has been plagued by persistent, protracted bureaucratic delay and the Respondents’ refusal to complete this process. In engaging in dilatory, obstructionist tactics, the Respondents have violated multiple express statutory and regulatory timing directives in the State Environmental Quality Review Act (“SEQRA”) and the Energy Law, as well as any and all rule of reason. In short, completing the SEQRA process is not discretionary; thus, as lead agency, Commissioner Martens and the DEC have failed to perform duties enjoined upon them by law. Accordingly, Petitioners (and the people of this state) have a clear legal right to have this process brought to conclusion and, therefore, mandamus relief is warranted. Thus, Petitioners respectfully ask this Court to compel Commissioner Martens and the DEC, to, on a date certain, (1) issue the final supplemental generic 1
  • 8. environmental impact statement (“Final SGEIS”) relative to HVHF; (2) issue the related Findings Statement in accordance with the timelines in 6 NYCRR § 617.11; and (3) render a final decision as to whether and under what circumstances HVHF will be permitted in this state (collectively, the “SGEIS Process”). In addition, Petitioners seek a declaration that the late-in-the-game referral by Commissioner Martens to Commissioner Shah and the DOH in September of 2012 for another study of purported health impacts (the “Health Review”) was arbitrary and capricious, an abuse of discretion, and an illegal delegation of Commissioner Martens’ and the DEC’s lead agency responsibilities. Although never identified as an “involved agency,” the DOH has been intimately involved, on a consulting basis, in the SGEIS Process since its inception. This is demonstrated by express articulations in the Draft SGEIS (published on September 30, 2009), the First Revised Draft SGEIS (released on July 8, 2011), and the Second Revised Draft SGEIS (issued on September 7, 2011). Notwithstanding DOH’s full involvement throughout the more than 3 years preceding issuance of the Second Revised Draft SGEIS, and notwithstanding numerous public statements by Commissioner Martens in early 2012 that the Final SGEIS was imminent and that the DEC had concluded potential health risks were preventable and HVHF could be performed safely with proper regulatory controls, instead, in late September of 2012, Commissioner Martens made another referral to Commissioner Shah and the DOH for the additional Health Review. This after-the-fact referral was made more than an entire year after issuance of the Second Revised Draft SGEIS, more than 4 years into the SGEIS Process, and, curiously, just prior to the November 2012 elections. 2
  • 9. Under these facts, the Health Review referral must be seen for what it is – a stalling tactic that is arbitrary and an abuse of Commissioner Martens’ and the DEC’s discretion. Furthermore, to the extent that Commissioner Martens and the DEC persist in delaying completion of the SGEIS Process based on the still-pending Health Review, they have unlawfully abrogated their lead agency responsibilities. In short, after already concluding earlier that HVHF could be undertaken safely with no significant adverse health impacts, Commissioner Martens and the DEC have done an “about-face.” Rather than exercising their independent decision-making authority as lead agency and concluding the SGEIS Process, Commissioner Martens and the DEC have, instead, (1) granted Commissioner Shah and the DOH unfettered discretion regarding the timeline for completing the Health Review (and hence concluding the SGEIS Process), and (2) effectively asserted that the fate of HVHF in New York turns on Dr. Shah’s conclusions. This is a patent illegal delegation of Commissioner Martens’ and the DEC’s procedural and substantive responsibilities as lead agency under SEQRA and, therefore, cannot be a basis to continue to delay decision-making. Finally, since taking office in January of 2011, Governor Cuomo has directly controlled and delayed the SGEIS Process and precluded the DEC from finalizing the SGEIS and independently exercising its discretionary decision-making authority as lead agency. Governor Cuomo has done so, notwithstanding that he has no decision-making authority in this process whatsoever. Accordingly, Governor Cuomo has acted without or in excess of his jurisdiction in this matter, thus meriting an order of prohibition directing Governor Cuomo to cease and desist from any further interference in the SGEIS Process. In addition, by intervening in the SGEIS Process and causing the resulting delay, 3
  • 10. Governor Cuomo has acted as an interested agency. Therefore, all of his records relating to the SGEIS Process should be opened to public scrutiny. STATEMENT OF FACTS A full recitation of facts pertinent to this proceeding/action is set forth in (1) the Petition; (2) the Affidavit of Mark S. Wallach, sworn to December 16, 2013 (the “Wallach Aff.”); and (3) the Affidavit of James Lobdell, sworn to December 13, 2013 (the “Lobdell Aff.”). Petitioners respectfully refer the Court to those submissions for a complete and detailed history of the SGEIS Process to date. For the Court’s convenience, however, a synopsis of relevant facts, including timelines, is presented here. The SGEIS Process commenced in July of 2008, when then-Governor Paterson directed the DEC to engage in supplemental environmental review of horizontal drilling with HVHF (the “Directive”). Petition, ¶¶ 6, 7. After 6 public scoping meetings and thousands of written comments, the DEC, with full involvement from and consultation with the DOH, published the Draft SGEIS in September of 2009. Id., ¶¶ 56-59. After multiple public hearings, the submission of voluminous comments on the Draft SGEIS, the DEC reviewed comments for over a year purportedly to finalize the SGEIS. Id., ¶¶ 59-65. Under the regulations, the Final SGEIS was due within 45 days after the close of the public hearings, which at the latest was February 14, 2010 – i.e., 45 days after the close of the public comment period on December 31, 2009. Id., ¶ 139; see also 6 NYCRR § 617.9(a)(5). However, on December 13, 2010, then-Governor Paterson issued Executive Order No. 41, ordering further environmental review, including as to public health impacts; he also ordered release of a revised Draft SGEIS by June 1, 2011. Id., ¶ 65 & Exh. F. In 4
  • 11. January of 2011, Governor Cuomo issued Executive Order No. 2, which continued Executive Order No. 41. Id., ¶ 66 & Exh. G. The DEC did not meet the June 1, 2011 deadline, instead releasing the First Revised Draft SGEIS on July 8, 2011 (more than one month late). Id., ¶ 74. At this time, Commissioner Martens announced that the DEC had concluded that HVHF could be undertaken safely with the strong regulatory controls that had been built into the process and that the Final SGEIS would be released within several months. Id. ¶ 72 & Exh. J. This conclusion was reached after full consultation with and assistance by the DOH in the review process. Id. ¶¶ 60, 80, 83 & Exhs. L & M. Later in July of 2011, the DEC engaged consultants to perform additional review of socio-economic, community character, visual, noise and transportation impacts. Id. ¶ 76 & Exh. H. On September 7, 2011, the DEC issued the Second Revised Draft SGEIS, which contained new proposed mitigation measures relative to the afore-mentioned potential impacts. The September 7th release of the Second Revised Draft SGEIS occurred more than 3 months late relative to the June 1st deadline in Executive Order Nos. 41 and 2. Id., ¶ 77. Public hearings were conducted on the Second Revised Draft SGEIS concurrently with review of the DEC’s proposed regulations for HVHF. Id., ¶¶ 81-82. At a town meeting on October 10, 2011, Commissioner Martens again confirmed that the DEC had fully considered public health impacts and stated that regulatory controls would prevent contamination of natural resources and eliminate human exposure pathways. Id., ¶ 83 & Exh. M. And, the Second Revised Draft SGEIS expressly acknowledges that it was 5
  • 12. drafted after “extensive consultation with scientists in several bureaus within the New York State Department of Health.” Id., ¶ 80 & Exh. L. The last public hearing on the Second Revised Draft SGEIS was held on November 30, 2011. Id., ¶ 85. The public comment period closed on January 11, 2012. Pursuant to the regulations, the latest date for issuing the Final SGEIS was 45 days later, or February 25, 2012. See 6 NYCRR § 617.9(a)(5). It is now late December of 2013, almost two years later, and the Final SGEIS still has not been issued. Notwithstanding repeated statements in early 2012 by Commissioner Martens and the DEC that completion of the SGEIS Process was imminent, and by both Commissioner Martens and Commissioner Shah that potential health risks from HVHF were preventable, rather than issue the Final SGEIS, in September 2012, Commissioner Martens requested Commissioner Shah and the DOH to perform yet another assessment of purported health impacts from HVHF, this time in consultation with a panel of outside experts – i.e., the Health Review. Id., ¶ 97 & Exh. S. Despite repeated statements by Commissioner Shah and Commissioner Martens in early 2013 that the Health Review would be complete and the Final SGEIS issued within a few weeks, in mid-February 2013, Commissioner Shah requested more time, stating that a few more weeks were needed to complete the study. Id., ¶¶ 105-114 & Exhs. U-Y. On February 27, 2013, the proposed regulations for HVHF expired due to Commissioner Martens’ and the DEC’s failure to complete the SEQRA Process and meet the deadlines in the State Administrative Procedures Act (“SAPA”). Id., ¶ 116. Through May of 2013, all of the Respondents made public statements that completion of the SGEIS Process was imminent. 6 Id., ¶¶ 117-120 & Exhs. Z-BB.
  • 13. However, in October of 2013, Commissioner Martens did another about-face, stating that completion of the SEQRA Process should not be expected any time soon and that there was no “great urgency” for completing SEQRA review after the already more than 5 years that the process had been ongoing. Id., ¶ 122 & Exh. CC. This unreasonably long, protracted process has precluded any and all natural gas development in New York State. Id., ¶¶ 7,8. In the process, the Petitioners have been severely harmed, as the value of their oil and gas investments and assets (totaling over $100 million) have been obliterated. Id., ¶¶ 11, 13, 18, 20-21, 28-35; see also Wallach Aff., ¶¶ 7-11; Lobdell Aff., ¶¶ 10-11. In an attempt to re-gain value to these assets, Petitioners seek, inter alia, to force the Respondents to perform a non-discretionary duty enjoined upon them by law – namely, complete the SEQRA Process. Petition, ¶ 14. On December 2, 2013, a Demand Letter was sent to the Respondents, and a response was not received. Id., ¶ 15 & Exh. B. Accordingly, Petitioners bring this proceeding/action for the relief requested herein and in the Petition. ARGUMENT POINT I MANDAMUS RELIEF IS WARRANTED, ORDERING COMPLETION OF THE SEQRA PROCESS A. The Standard For Mandamus To Compel The remedy of mandamus is available to compel a governmental officer or entity to perform a non-discretionary act where there is a clear legal right to the relief sought. Matter of Brusco v. Braun, 84 N.Y.2d 674, 679 (1994); see also 6 N.Y. Jur. 2d Article 78 §§ 81, 85. A clear legal right to relief may exist (1) where the act sought to be compelled is required by law (e.g., pursuant to statute), or (2) where a refusal to act is 7
  • 14. arbitrary or capricious. See Matter of Small v. Moss, 277 N.Y. 501, 507 (1938) (stating “[w]hether or not an applicant has a clear legal right to a license depends . . . upon . . . whether a refusal would be arbitrary or capricious, or whether a refusal would be justified by the existence of conditions which . . . might furnish reasonable ground for refusal”); Matter of Fehlhaber Corp. v. O’Hara, 53 A.D.2d 746, 746-47 (3d Dep’t 1976) (stating “[a]n article 78 proceeding in the nature of mandamus is an appropriate remedy to compel performance of a statutory duty that is ministerial in nature but not one in respect to which an officer may exercise judgment or discretion, . . . unless such judgment or discretion has been abused by arbitrary or illegal action” [internal quotation and citation omitted]); Board of Educ. of N. Colonie Schools, Newtonsville v. Levitt, 42 A.D.2d 372, 374 (3d Dep’t 1973) (same); see also 6 N.Y. Jur. 2d Article 78 § 85. Pursuant to Civil Practice Law and Rules (“CPLR”) § 7803(1), a proceeding in the nature of mandamus may be brought under Article 78 to compel the performance of a non-discretionary duty, such as acting upon an application or issuing a final decision. E.g., Matter of Utica Cheese v. Barber, 49 N.Y.2d 1028, 1030 (1980) (granting mandamus relief, ordering hearing and ultimate determination within 90 days relative to application for milk dealer license that had been pending for 16 months); Matter of Costco Wholesale Corp. v. Town Bd. of Town of Oyster Bay, 90 A.D.3d 657, 658-59 (2d Dep’t 2011) (affirming lower court’s holding that mandamus relief was warranted to compel town board to file a final environmental impact statement [“FEIS”] where statutory and regulatory timelines had been exceeded); Matter of Brodsky v. N.Y.S. Dep’t of Envtl. Conservation, 1 Misc. 3d 690, 695 (Sup. Ct. Albany Cnty. 2003) (holding that 8
  • 15. application for permit renewal that had been pending for 10 years stated claim for mandamus relief); see also 6 N.Y. Jur. 2d Article 78 §§ 81, 85. In such circumstances, mandamus to compel the act of decision-making is proper, even where the governmental entity may exercise its discretion in determining the ultimate result. Matter of 2433 Knapp St. Rest. Bar v. Dep’t of Consumer Affairs of City of N.Y., 150 A.D.2d 464, 465 (2d Dep’t 1989) (stating “[w]hat has been somewhat lost from view is [the] function of mandamus to compel acts that officials are duty-bound to perform, regardless of whether they may exercise their discretion in doing so;” holding mandamus relief “proper inasmuch as it requires the appellant Board . . . to decide the petitioner’s application, not to approve it” [internal citation and quotation omitted]); see also 6 N.Y. Jur. 2d Article 78 § 81. Thus, mandamus relief pursuant to CPLR § 7803(1) is proper to compel an administrative body to render a determination where, as here, the lead agency has unreasonably delayed its decision-making. See, e.g., Daniel v. N.Y.S. Div. of Housing & Community Renewal, 179 Misc. 2d 452, 458 (Sup. Ct. N.Y. Cnty. 1998) (granting mandamus to compel agency to issue decision on rent overcharge complaints; finding that the delay of over 5 years was “inherently unreasonable” and that “mandamus [was] appropriate to compel performance of the required duty even if the particular manner of that performance [could not] be compelled”); see also 6 N.Y. Jur. 2d Article 78 § 82. B. The Failure To Complete The SGEIS Process After More Than Five Years Of Exhaustive Review Warrants Mandamus Relief On multiple grounds, the Respondents’ failure to have completed supplemental SEQRA review of HVHF and issued the Final SGEIS and Findings Statement – for 5 ½ 9
  • 16. years since the inception of this process – merits mandamus relief. Whether viewed in light of (1) SEQRA’s express timing directives regarding issuance of an FEIS and Findings Statement (see 6 NYCRR §§ 617.9[a][5], 617.11), as well as its overarching mandate for prompt review (see ECL § 8-0107; 6 NYCRR § 617.3[h]); (2) the statutory directives in the Energy Law and ECL Article 23 requiring expeditious action on well drilling permit applications to provide for, inter alia, greater ultimate resource recovery (see ECL § 23-0501[3], Energy Law §§ 3-101[5], 3-103); or (3) general common law principles which impose reasonable time limits on agency decision-making where the underlying enabling statute lacks specific timelines, the result is the same. The Respondents’ failure to have completed this process for 5 ½ years is “inherently unreasonable” and warrants mandamus relief to bring this protracted process to conclusion. See Daniel, 179 Misc. 2d at 458. 1. Statutory requirements of SEQRA provide a clear legal right to mandamus relief Finalizing the SEQRA Process is not discretionary and, thus, is a proper subject of mandamus relief. Specifically, SEQRA has express timeframes governing the progression and completion of the environmental impact review process, and the courts have consistently granted mandamus relief compelling action by the lead agency in the face of untoward bureaucratic delay. E.g., Costco Wholesale Corp., 90 A.D.2d at 658-59 (granting mandamus relief, based on timelines in 6 NYCRR § 617.9[a][5], to compel completion of SEQRA review of and final decisions on applications for special use permit and site plan); Matter of Mamaroneck Beach & Yacht Club, Inc. v. Fraioli, 24 A.D.3d 669, 671 (2d Dep’t 2005) (granting mandamus relief, based on timelines in 6 NYCRR § 617.6[b], to compel planning board to commence SEQRA review of site plan 10
  • 17. application); Matter of Lowe’s Home Ctrs., Inc. v. Venditto (unreported), 15 Misc. 3d 1108(A), 2007 WL 852057, *4 (Sup. Ct. Nassau Cnty. March 19, 2007) (granting mandamus relief, based on timelines in 6 NYCRR 617.9[a][2], to compel determination on adequacy of draft environmental impact statement [“DEIS”]). Pertinent here is 6 NYCRR § 617.9(a)(5), directing that “the lead agency must prepare or cause to be prepared and must file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later.” Even ignoring the delays in the initial 3 years of the SGEIS Process and the various earlier iterations of the Draft SGEIS, the Second Revised Draft SGEIS was filed on September 7, 2011. Petition, ¶ 78. The last public hearing on that document was held on November 30, 2011, and the comment period closed on January 11, 2012. Id., ¶ 86. That was almost 2 years ago, and the Final SGEIS still has not been released. This far exceeds the 45- and 60-day timeframes set forth in 6 NYCRR § 617.9(a)(5), thus mandating mandamus relief to compel conclusion of the SGEIS Process. See Costco Wholesale Corp., 90 A.D.3d at 658-59 (relying on 6 NYCRR § 617.9[a][5] in affirming lower court’s grant of mandamus relief to compel town to file FEIS and make final decision on the project where 5 years had elapsed since the close of the public hearing and 2 ½ years had elapsed since applicant’s last of several submissions of FEIS). Although SEQRA admittedly allows for extension of the 45-day and 60-day timeframes if additional time is necessary to prepare the FEIS adequately or if problems are identified with the proposed action requiring material reconsideration or modification (see 6 NYRCC §§ 617.9[a][5][ii][(a)], [(b)]), this provision does not justify the 11
  • 18. Respondents’ interminable and inherently unreasonable delay in bringing this process to conclusion. The facts bear out that from the inception of this process in 2008, the DEC missed every single timing deadline imposed by SEQRA (as well as the deadlines that it, itself, projected). Id. ¶¶ 17, 87-90, 105-120. The facts also bear out that the DOH was assisting the DEC from the beginning of the review process; that is, from the outset, the DEC proceeded with assistance from and full involvement by the DOH on a consulting basis and engaged in extensive, comprehensive review for years preceding issuance of the Second Revised Draft SGEIS (including review of purported health impacts). Id. ¶¶ 80, 83. Thus, the DEC had ample opportunity during that time to fully air all issues, thereby rendering Commissioner Martens’ late referral to Commissioner Shah and the DOH for an additional Health Review improper and the resulting delay inexcusable. See id., ¶¶ 1, 132, 154. More specifically, the DEC released the First Draft SGEIS on September 30, 2009, and held public hearings in October and November of 2009. Id., ¶¶ 59-63. This occurred after multiple public hearings throughout the State and extensive public involvement and commentary. Id. The DEC did not timely issue the final SGEIS after the conclusion of those hearings per the 45-day and 60-day timeframes in 6 NYCRR § 617.9(a)(5), but, instead, reviewed comments for over one year, not issuing the First Revised Draft SGEIS until July 8, 2011. Id. ¶ 74. At that point in time, the DEC still did not finalize the SGEIS per the regulatory timeframes, but, rather, called for additional review of, inter alia, community and socio-economic impacts. Id. ¶ 76. This took an additional two months, with the Second Revised Draft SGEIS being released on 12
  • 19. September 7, 2011, and, as noted, additional public hearings, with the comment period held open until January 11, 2012. Id., ¶ 77, 82. That was almost 2 years ago, and the process is still not complete, as it is awaiting yet another study – from the DOH – i.e., the Health Review. Interestingly, Commissioner Martens made this late-in-the-game referral to Commissioner Shah and the DOH for the Health Review on September 20, 2012 – (1) more than one year after the September 7, 2011, release of the Second Revised Draft SGEIS, and (2) as reflected in all the iterations of the Draft SGEIS, notwithstanding DOH’s full involvement in the review process since its inception in 2008. Id., ¶¶ 60, 77, 80, 83 & Exhs. M & L. Curiously as well, Commissioner Martens made this referral to the DOH immediately prior to the November 2012 elections, after it had earlier concluded (in consultation and agreement with the DOH) that HVHF could be undertaken safely with proper regulatory controls. Id., ¶¶ 69, 73, 75 & Exhs. H, I, K. Accordingly, the legitimacy of this referral is, at best, highly suspect and, in actuality, is nothing more than a stalling tactic. Id., ¶¶ 24, 28. Moreover, despite all internal reports that the Health Review has been complete for some time, the SGEIS Process still remains in limbo, with no report having yet been issued and no indication given by the Respondents as to the status of the process or the timeframe for completion. Id., ¶ 125. The delay continues with no end in sight: 15 months already have elapsed since Commissioner Martens’ referral to Commissioner Shah and the DOH for the Health Review, and this is in addition to the more than one year that it took the DEC to make this referral after it released the Second Revised Draft SGEIS. Further, more than 2 years have elapsed since the last public hearing on the Second Revised Draft SGEIS which was held on November 30, 2011. The facts thus 13
  • 20. speak for themselves. Were the Respondents to attempt, at this late point in the SGEIS Process, to seek refuge in 6 NYCRR § 617.9(a)(5)(ii), that ship has sailed; any such claim is simply not credible and cannot be a bona fide basis for denying mandamus relief. Further, beyond violating SEQRA’s express timing provisions, the Respondents’ refusal to complete the SGEIS Process also flies in the face of SEQRA’s overarching directive to expedite proceedings so as to perform prompt review and minimize administrative delay. See ECL § 8-0107; 6 NYCRR § 617.3(h). SEQRA is intended not to prevent development, but, rather, to inform agency decision-making by incorporating environmental factors into the process and ultimately striking a balance among environmental, social and economic considerations. See ECL §§ 8-0103(7), 8-0107; Matter of Spitzer v. Farrell, 100 N.Y.2d 186, 190 (2003). Toward that end, in addition to its explicit timeframes (e.g., 6 NYCRR § 617.9[a][5]), SERQA mandates generally that “[a]gencies must carry out the terms and requirements of [the statute] with minimum procedural and administrative delay . . . and must expedite all SEQR[A] proceedings in the interest of prompt review.” 6 NYCRR § 617.3(h); see also ECL § 8-0107. Moreover, where (as here) the SEQRA process has been ongoing for a long period of time and is in a late stage, “a lead agency’s discretion to [then] solicit comment . . . must be balanced against SEQRA’s mandate . . . [to] ‘minim[ize] procedural and administrative delay . . . in the interest of prompt review.’” See Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 235 (2007) (quoting 6 NYCRR § 617.3[h]); Carrera v. Reilly, N.Y.L.J., Dec. 24, 2002, p. 1, col. 1 (Sup. Ct. Suffolk Cnty. 2002) (granting mandamus and directing board to issue Findings Statement; stating “prompt review of SEQRA proceedings by administrative agencies is recognized by the 14
  • 21. courts”). Indeed, “the rule is one of reasonableness and balance.” Pilot Corp. v. Planning Bd. of Town of Newburgh, N.Y.L.J., July 18, 2001, p. 23, col. 4 (Sup. Ct. Orange Cnty. 2001) (citing Aldrich v. Pattison, 107 A.D.2d 258, 266 [2d Dep’t 1985]). The Respondents have violated any and every conceivable rule of reason here, as they have far exceeded any legitimate timetable for completing this process. More than 5 years have elapsed since the start of the SGEIS Process in the Fall of 2008. Petition, ¶¶ 10-11, 17. Three versions of an extensively comprehensive Draft SGEIS have resulted from the review process. Id., ¶¶ 56-85. Four years have already elapsed since the first set of public hearings and the close of that comment period. Id., ¶ 61. And almost 2 years have elapsed since the close of the comment period on the subsequent set of hearings on the Second Revised Draft SGEIS, notwithstanding repeated comments by the Respondents that conclusion of the process was imminent and that HVHF could be safely conducted with proper regulatory controls. Id., ¶¶ 84-85. As evidenced by decisions that have granted mandamus relief in the face of less egregious bureaucratic delay, the now 5 ½-year delay in concluding the SGEIS Process and reaching a final determination is inherently unreasonable and must come to an end. E.g., Costco Wholesale Corp., 90 A.D.3d at 658-59 (granting mandamus relief where 5 years had elapsed since close of public hearing); Lowe’s Home Ctrs., Inc., 2007 WL 852057, * 4 (granting mandamus relief where lead agency failed to offer any viable explanation for 9-month delay in deciding adequacy of DEIS that preceded the demand for mandamus to compel); Pilot Corp., N.Y.L.J., July 18, 2001, p. 23, col. 4 (Sup. Ct. Orange Cnty. 2001) (granting mandamus relief where 3 years had elapsed since close of the public hearing and lead agency’s refusal to accept fourth FEIS submitted by 15
  • 22. applicant; citing Twin Lake Farms Assocs. v. Town Clerk of Town of Bedford [unreported], Index No. 7579/92, Sup. Ct. Westchester Cnty. April 12, 1993 [Cowhey, J.] for the proposition that “it is unlawful for [governmental] authorities to thwart an applicant by unreasonably dragging out SEQRA review . . .”). In short, the Respondents’ protracted delay and refusal to complete the SGEIS Process pervert the letter, spirit and intent of SEQRA and, thus, must end. Contrary to the Respondents’ misuse of the statute, SEQRA was never meant to obstruct projects, serve political ends, or pander to special interest groups. See generally, ECL §§ 80103(7), 8-0107; 6 NYCRR §§ 617.1(d), 617.3(h); see also Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 771, 774 (1991) (warning against the danger of allowing pressure groups motivated by self-interest to misuse SEQRA and “generate interminable delay and interference with crucial governmental projects”); Carrera, N.Y.L.J., Dec. 24, 2002, p. 1, col. 1 (Sup. Ct. Suffolk Cnty. 2002) (holding that “[t]he Planning Board c[ould ]not permanently freeze the development of the Property by its continued inaction and, [therefore,] under the circumstances, a mandamus order [wa]s appropriate”); Pilot Corp., N.Y.L.J., July 18, 2001, p. 23, col. 4 (Sup. Ct. Orange Cnty. 2001) (noting strenuous community opposition to the proposed travel center; granting mandamus relief, ordering agency to declare the FEIS complete, prepare the Findings Statement, and render its decision on the site plan application in light of the “voluminous [record which] show[ed] that petitioner ha[d] gone to extraordinary lengths to comply with the demands of an insatiable planning board”); United Water New Rochelle, Inc. v. Planning Bd. of Town of Eastchester, N.Y.L.J., Dec. 3, 2001, p. 17, col. 3 (Sup. Ct. Westchester Cnty. 2001) (noting the lengthy history of petitioner’s efforts to obtain site 16
  • 23. plan approval to construct a water treatment plant; denying respondents’ motion to dismiss where petition alleged that rescission of negative declaration was a “stratagem used by the Planning Board, in response to intense political pressure, to thwart petitioner’s project” and Planning Board’s action would send the project back “to square one”). Accordingly, pursuant to SERQA’s express provisions, the compelling circumstances here fully merit mandamus relief. 2. Statutory requirements of the Energy Law and ECL Article 23 provide a clear legal right to mandamus relief Energy Law § 3-101(5) declares it to be the energy policy of the State “to foster, encourage and promote the prudent development . . . of all indigenous state energy resources, including, but not limited to, . . . natural gas from Devonian shale formations” (which formations require horizontal drilling and HVHF for viable development). Energy Law § 3-103 further directs that “[e]very agency of the State shall conduct its affairs so as to conform to the state energy policy . . . .” Thus, the DEC and the DOH are duty-bound to conduct their activities in a manner that promotes prudent development of New York’s indigenous natural gas resources. The Respondents’ protracted delay in completing the SEQRA Process – which has precluded any and all development for 5 ½ years, with no end in sight – is patently at odds with these directives. In short, mandamus relief is appropriate to force the Respondents to reach an ultimate conclusion. If the ultimate decision is not to allow HVHF, then that determination should be litigated on the merits. This result is further underscored by ECL Article 23, which contains express directives governing the DEC’s regulation of oil and gas resources in New York State. 17
  • 24. Pursuant to ECL § 23-0301, the DEC must provide for the development of oil and gas properties in New York State in such a manner as prevents waste, allows for greater ultimate resource recovery, and protects the correlative rights of all mineral owners. These statutory mandates have their origins in the Interstate Oil and Gas Compact (the “Compact”), which is memorialized in ECL Article 23, title 21. See ECL § 23-2101(1), arts. II-VI. Although the Governor has the authority to withdraw from the Compact (see ECL § 23-2101[2]), he has not done so; New York thus remains a member of the Compact, meaning that its provisions are in full force and effect. In addition, the statutory framework in ECL Article 23 implementing these provisions mandates expeditious action by the DEC, including as to the processing of well permit applications. See ECL § 23-0501(3) (stating “[i]n furtherance of the policy objectives of this article, the department shall take all actions required by it under this title [well permits] and titles 7 [voluntary integration] and 9 [compulsory integration] of this article as expeditiously as possible”). Thus, Commissioner Martens’ and the DEC’s failure to complete the SGEIS Process in a timely manner not only violates SERQA, but contradicts these statutory mandates as well. Accordingly, mandamus relief is also warranted on this basis. 3. Under common law principles, mandamus is the proper remedy Even absent the aforementioned explicit statutory directives in SEQRA, the Energy Law and the ECL, mandamus to compel would be warranted nonetheless because the Respondents’ 5 ½-year delay – with no foreseeable end in sight – is inherently unreasonable. Where an agency’s enabling statute does not define a specific time for decision-making, the courts of this State have consistently imposed a reasonable timeframe and granted mandamus relief in the face of protracted delay. See, e.g., Utica 18
  • 25. Cheese, 49 N.Y.2d at 1030 (stating that “[f]airness to the applicant . . . require[s] . . . [that] . . . a determination [be] rendered promptly”); 2433 Knapp St. Rest. Bar, 150 A.D.2d at 465 (granting mandamus relief given agencies’ 2 ½-year delay in deciding petitioner’s pending application); Brodsky, 1 Misc. 3d at 695 (finding that even if statutory timelines were not applicable, “there is still a general requirement that applications for permits or licenses be acted upon within a reasonable time” [citation omitted]); see also Matter of Signature Health Ctr., LLC v. N.Y.S. Dep’t of Health, 29 Misc. 3d 769, 774 (Sup. Ct. Nassau Cnty. 2010) (holding that medical service provider’s allegations that DOH failed to process its Medicaid claims for more than 4 years was sufficient to state a claim for mandamus to compel the DOH to process the claims). Furthermore, mandamus relief is particularly appropriate where, as here, the agencies have engaged in protracted delay and refused to provide any indication as to decision-making status or the timeline for completion. See Petition, ¶¶ 124-129; Daniel, 179 Misc.2d at 458 (involving decision-making under Rent Stabilization Code; granting mandamus relief, stating that “[a] reasonable time to act will be presumed when no specific time is given . . . [A] delay of over five years is inherently unreasonable, particularly where [the agency] has not offered any indication as to what stage, if any, has been reached on these applications, or any approximate date for a determination” [citation omitted]). Notably, the Respondents’ persistence in refusing to provide any timeline for completion, or information regarding status, of the SGEIS Process was confirmed on December 16, 2013, when Governor Cuomo held a public Cabinet Meeting which included Commissioner Shah. Id., ¶¶ 124-127 & Exh. DD. Following the Cabinet 19
  • 26. Meeting, Commissioner Shah was extensively questioned by the press regarding the Health Review. Id., ¶¶ 124, 125 & Exh. DD. In response to reporters’ questions as to when the Health Review would be completed and available to the public, Commissioner Shah simply stated: “When I’m done.” Id., ¶ 125 & Exh. DD. When questioned why it is taking so long and why there has been no public information as to status, Commissioner Shah responded that (1) as science evolves, new data emerges, and until he is “comfortable with the state of the science, [he is] withholding his recommendations,” and (2) public transparency of the process “needs to be . . . at the end – not during.” Id. In essence, with the blessing of Governor Cuomo and Commissioner Martens, Commissioner Shah is withholding his recommendations – and thereby precluding completion of the SGEIS Process – for an unspecified period of time until the science evolves to the point that suits his comfort-level, and until that time, the public will have no information, and HVHF cannot be undertaken in New York. Id., ¶¶ 125-127 & Exh. DD. This is so, notwithstanding that sister states have been utilizing HVHF for decades and both the DEC and the DOH earlier concluded that HVHF could be undertaken safely with proper controls and public health impacts wholly avoided. Id., ¶¶ 7, 73, 75, 89, 91. Beyond being disingenuous, these recent articulations by Commissioner Shah are nothing short of arrogant, cannot be a basis for Commissioner Martens and the DEC to delay decision-making, and are a further ground highlighting why mandamus relief is fully warranted here. See Utica Cheese, 49 N.Y.2d at 1030 (holding that agency could no longer delay decision on application based on claim that its investigation concerned unusual matters requiring further information to aid in its decision-making, where agency 20
  • 27. provided no timeline for obtaining outstanding information, thus indefinitely extending the time for a determination; granting mandamus relief, stating “the commissioner is unable to provide a better estimate of when, if ever, he will be able to ascertain the relevance and availability of the further information he seeks other than that it will be at some unknown time in the future. Fairness to the applicant . . . requires that a hearing be held and a determination rendered promptly”). Accordingly, Petitioners respectfully request that mandamus relief be granted compelling the Respondents to complete the SGEIS Process in accordance with the specific relief requested in the Petition. C. If There Is Any Genuine Issue Of Fact As To Why Additional Time Is Needed To Complete The SGEIS Process, A Jury Trial Is Warranted Forthwith For the reasons set forth above, Petitioners respectfully maintain that the governing statutes and the facts of this case fully justify granting mandamus relief, ordering Commissioner Martens and the DEC to issue the Final SGEIS and comply with SEQRA’s timing provisions relative to issuing a Findings Statement and completing the SGEIS Process. However, in the event this Court finds that there are any bona fide issues of fact regarding any claim that the Respondents need more time to adequately complete this process, Petitioners request that a jury trial be held forthwith in accordance with CPLR §§ 7804(h) and 410 to resolve those issues. See Matter of Preddice v. Callanan, 96 A.D.2d 613, 614 (3d Dep’t 1983) (holding that “a petitioner seeking CPLR article 78 relief in the nature of mandamus to review is entitled to a trial by jury” [citation omitted]); Matter of Green v. Commissioner of Envtl. Conservation, 94 A.D.2d 872, 872- 21
  • 28. 73 (3d Dep’t 1983) (quoting predecessor to CPLR § 7804 that if a triable issue of fact is raised, “where the proceeding is to review a determination or to compel performance of a duty specifically enjoined by law . . . [it shall be tried] before a court and a jury” [citation and quotation omitted]; finding that this historical right to trial by jury was maintained in CPLR § 7804); see also D. Siegel, N.Y. Practice (2d ed., West Publ. Co., 1991), § 569, at 895 (stating “[i]f the Article 78 proceeding is in the nature of mandamus, there is apparently a right to trial by jury of issues of fact, and a constitutional one at that”); Matter of Arnold v. Dumpson, 78 Misc. 2d 703, 708 (Sup. Ct. N.Y. Cnty. 1974); Matter of Schapira v. Grunberg (unreported), 12 Misc. 3d 1195(A), 2006 WL 2353194, *3 (Sup. Ct. Bronx Cnty. Feb. 27, 2006). In that event, in accord with Petitioners’ request for a subpoena ad testificandum and subpoena duces tecum (see Petition ¶ 168), (1) Commissioner Martens and Commissioner Shah must be compelled to testify to explain where things stand in the process and why additional time is necessary to complete this review; and (2) all records pertinent to this process must be produced from both agencies, including all communications between and among the DEC, the DOH, and the Executive Chamber. See CPLR §§ 2301, 2302; Matter of Gabriel v. Turner, 50 A.D.2d 889, 889-90 (2d Dep’t 1975) (holding that teachers were entitled to inspect official minutes of school board’s meeting pertaining to elimination of their positions and the board’s answer which failed to controvert teachers’ evidence of bad faith raised a fact issue requiring trial). POINT II THE DEC’S LATE REFERRAL TO THE DOH FOR THE HEALTH REVIEW IS ARBITRARY, AN ABUSE OF DISCRETION, AND AN IMPROPER DELEGATION OF LEAD AGENCY RESPONSIBILITIES 22
  • 29. Commissioner Martens and the DEC acted arbitrarily, abused their discretion, and unlawfully abrogated their lead agency responsibilities when, so very late in the SGEIS Process, they made another referral to Commissioner Shah and the DOH for a further evaluation of putative public health impacts associated with HVHF (i.e., the Health Review) and, in effect, gave Commissioner Shah and the DOH unfettered discretion over the timing of the SGEIS Process and the ultimate result. In the first instance, “[a] lead agency’s discretion to solicit comments at [a late] stage in the SEQRA process must be balanced against SEQRA’s mandate that the regulations be implemented ‘with minimum procedural and administrative delay . . . [and] in the interest of prompt review.’” Riverkeeper, Inc., 9 N.Y.3d at 235 (quoting 6 NYCRR § 617.3[h]). Here, Commissioner Martens’ and the DEC’s failure to issue the Final SGEIS and, instead, make a second referral to Commissioner Shah and the DOH, abused that discretion. At the outset, the DOH is not even an “involved agency” in the SGEIS Process. See 6 NYCRR § 617.2(s) (defining “involved agency” to mean “an agency that has jurisdiction by law to fund, approve or directly undertake an action”). At most, the DOH might qualify as an “interested agency” (albeit that it has not been identified as such in this process); and, even were DOH an interested agency, it has no approval authority whatsoever and no more rights than the general public. See 6 NYCRR § 617.2(t) (defining “interested agency” to mean “an agency that lacks the jurisdiction to fund, approve or directly undertake an action but wishes to participate in the review process because of its specific expertise or concern about the proposed action. An ‘interested agency’ has the same ability to participate in the review process as a member of the public”). Accordingly, particularly given the DOH’s full involvement in the 23
  • 30. SGEIS Process from the outset, Commissioner Shah’s and the DOH’s delay in completing the second Health Review is not a proper basis for Commissioner Martens and the DEC to continue to delay decision-making. See Petition, ¶¶ 1, 24. More specifically, indisputably, the DOH has been involved extensively in the SGEIS Process since its inception and participated in the preparation of the 2009 Draft SGEIS and the First and Second Revised Draft SGEISs, in which public health impacts were fully evaluated. Id., ¶¶ 60, 80, 83, 97. Accordingly, Commissioner Martens’ afterthe-fact referral to Commissioner Shah and the DOH on September 20, 2012 – (1) just weeks prior to the November 2012 election, (2) long after an extensively comprehensive multi-year-long review by the DOH had already been conducted (with both the DOH and the DEC concluding that HVHF could be undertaken safely with proper regulatory controls), and (3) more than an entire year following the release of the Second Revised Draft SGEIS – is patently arbitrary and capricious and an abuse of discretion. See Matter of 383 Madison Assocs v. N.Y.C. Planning Comm’n. (unreported), Index No. 2501-88 (Sup. Ct. Westchester Cnty. May 25, 1988) (Gammerman, J.) (granting mandamus relief, based on timelines in 6 NYCRR § 617.8, and directing agencies to issue notice of acceptance of preliminary DEIS; finding agencies’ determination that petitioners’ DEIS submissions were incomplete to be arbitrary and capricious and an abuse of discretion; rejecting agencies’ argument that it was within their sole and exclusive province to determine adequacy of draft DEIS, since that “would, in effect, make them the sole judge of the reasonableness of their own actions and . . . would insulate their actions from any meaningful judicial review. . . ”); see also Pilot Corp., N.Y.L.J., July 18, 2001, p. 23, col. 24
  • 31. 4 (Sup. Ct. Orange Cnty. 2001) (granting mandamus relief, ordering agency to declare FEIS complete and issue Findings Statement). Moreover, by all reports, the supplemental review occasioned by the September 2012 referral to Commissioner Shah and the DOH has been complete for some time. Petition, ¶ 107. Yet, inexplicably, the Health Review still has not been released to the public, and the Final SGEIS still has not been issued. This further underscores the arbitrariness and unlawfulness of the Respondents’ failure to complete the SGEIS Process. Furthermore, Commissioner Martens’ absolute deferral to the DOH regarding purported health impacts and refusal to finalize the SGEIS until Commissioner Shah makes the ultimate determination on public safety is unlawful for the additional reason that it amounts to an improper delegation of Commissioner Martens’ and the DEC’s lead agency responsibilities. See Matter of Coca-Cola Bottling Co. of N.Y., Inc. v. Bd. of Estimate of City of N.Y., 72 N.Y.2d 674, 681-83 (1988); Matter of Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown, 24 A.D.3d 1312, 1313 (4th Dep’t 2005). “A lead agency improperly defers its duties when it abdicates its SEQRA responsibility to another agency or insulates itself from environmental decisionmaking.” Riverkeeper, 9 N.Y.3d at 234 (citation omitted). While a lead agency may consider the opinions of experts and other agencies, “it must exercise its own judgment in determining whether a particular circumstance adversely impacts the environment,” and “the lead agency need not await another agency’s permitting decision before exercising its independent judgment on that issue.” Riverkeeper, 9 N.Y.3d at 234. Accordingly, the 25
  • 32. critical point is that the lead agency must exercise its independent judgment on all relevant issues discussed in the DEIS. See id.; Matter of Penfield Panorama Area Community v. Town of Penfield Planning Bd., 253 A.D.2d 342, 350 (4th Dep’t 1999) (stating that the lead agency “must exercise its critical judgment on all of the issues presented in the DEIS”); see also 6 NYCRR § 617.2(u) (stating that the lead agency is responsible “for the preparation and filing of the [EIS]”). Here, Commissioner Martens and the DEC abdicated their SEQRA responsibility as to public health impacts on dual grounds – i.e., procedural and substantive. In short, Commissioner Martens turned the reigns over to Commissioner Shah in toto, affording him unfettered discretion as to when and how to decide the matter, thereby giving him full control over the timing for completion of the SGEIS Process and the ultimate result. This is evidenced by, among other things, Commissioner Martens’ assertions that (1) it is up to Commissioner Shah and the DOH to determine if “the SGEIS has adequately addressed health concerns” to allow HVHF permits to be issued; and (2) until the Health Review is complete, there will be no final decision on whether HVHF will be permitted in New York. See Petition, ¶¶ 99, 114 & Exhs. F & Y. This abdication of Commissioner Martens’ and the DEC’s lead agency responsibilities was just recently confirmed on December 16, 2013. See id., ¶¶ 124-126 & Exh. DD. When questioned by reporters, Commissioner Shah asserted that (1) the Health Review will be completed and made public “[w]hen [he’s] done” and not before, and (2) his recommendations would be withheld until he is able to see “science evolve” to the point where he feels “comfortable with the state of the science.” Id., ¶ 125 & Exh. DD. And, Governor Cuomo likewise confirmed that the timeline for completion of the 26
  • 33. SGEIS Process is in Commissioner Shah’s hands, stating that the “timeline is whatever Commissioner Shah needs to do it right and feels comfortable . . . .” Id., ¶ 126. Accordingly, there could not be a clearer example of an improper delegation of lead agency responsibilities. Ironically, Commissioner Martens abrogated the DEC’s lead agency authority to an entity (DOH) that is not even an involved agency in the SGIES Process and, therefore, has no decision-making authority whatsoever and no more rights than the general public. See 6 NYCRR § 617.2(t). Further, this abdication of decision-making responsibility by Commissioner Martens occurred after the DEC had already determined (in consultation and agreement with the DOH) that HVHF could be utilized safely with proper regulatory controls. See Petition, ¶¶ 69, 73, 75 & Exhs. H, I, K. Accordingly, Commissioner Martens and the DEC have acted unlawfully in delegating their decision-making authority to Commissioner Shah and the DOH and cannot delay completion of the SEQRA Process on this basis. See Pyramid Co. of Watertown, 24 A.D.3d at 1313; 383 Madison Assocs. (unreported), Index No. 2501-88 (Sup. Ct. Westchester Cnty. May 25, 1988), supra. 27
  • 34. POINT III GOVERNOR CUOMO’S INTERVENTION IN THE SGEIS PROCESS AND HIS ORCHESTRATION OF THE RESULTING DELAY MERIT PROHIBITION RELIEF AND OPENING HIS RECORDS TO PUBLIC SCRUTINY Since taking office in January of 2011, Governor Cuomo has directly controlled the SGEIS Process and precluded the DEC from finalizing the SGEIS. Petition, ¶¶ 25, 96-118. The Governor’s overriding control of the SGEIS Process is the direct cause for the delay persisting since January of 2011, including Commissioner Shah’s and the DOH’s failure to issue the Health Review and Commissioner Martens’ and the DEC’s failure to release the Final SGEIS and complete the SGEIS Process. Id., ¶¶ 130-149. Indeed, Governor Cuomo has interfered with and precluded Commissioner Martens and the DEC from independently exercising their discretionary decision-making authority as lead agency in the SGEIS Process. Id., ¶ 25. Governor Cuomo has so acted, notwithstanding that he lacks any decision-making authority in the SGEIS Process – that is, Governor Cuomo has no jurisdiction under law or authority to render decisions on well permit applications seeking to utilize HVHF or determine if and under what conditions HVHF should be allowed in New York. Id., ¶ 152. By controlling the SGEIS Process, however, and precluding Commissioner Martens and the DEC from exercising their independent decision-making authority, and by orchestrating further delay relative to the Health Report, Governor Cuomo acted unlawfully and in excess of or without jurisdiction. Thus, a declaration to this effect is warranted, together with an order prohibiting the Governor from any further interference with issuance of the Final SGEIS and completion of the SEQRA Process. See CPLR § 7803(2). 28
  • 35. In addition, given that Governor Cuomo elected to interject himself into the SEQRA Process and directly orchestrate the delay in its completion, he should be declared to be an interested agency, and all his records pertaining to the SGEIS Process should be opened to public scrutiny. See 6 NYCRR § 617.2(t) (defining “interested agency” to mean “an agency that lacks the jurisdiction to fund, approve or directly undertake an action but wishes to participate in the review process because of its specific . . . concern . . .”); Matter of Concern, Inc. v. Pataki (unreported), 7 Misc.3d 1030(A), 2005 WL 1310478, *21-*23 (Sup. Ct. Erie Cnty. May 25, 2005) (holding that Governor’s execution of Native American Compact and agreement to Seneca Nation’s choice of casino in Erie County triggered application of SEQRA); Gabriel, 50 A.D.2d at 890 (ordering full production of school board’s records to determine justification for board’s abolition of petitioners’ positions). CONCLUSION In sum, the Respondents’ protracted delay and refusal to complete the SGEIS Process must come to an end. Commissioner Martens and the DEC must comply with the statutory mandates in ECL Articles 8 and 23 and the Energy Law and can no longer be permitted to delay decision on the right of New Yorkers to have their indigenous oil and gas resources developed for the collective benefit of landowners, operators, and the people of New York State. Because the DEC is duty-bound to promote the development of indigenous oil and gas resources and to complete environmental reviews in a prompt manner, mandamus relief to compel completion of the SGEIS Process is fully warranted. To the extent Commissioner Martens and the DEC persist in delay based on the late-inthe-game referral to Commissioner Shah and the DOH, their actions should be declared 29
  • 36. arbitrary, an abuse of discretion, and an improper delegation of their lead agency responsibilities. And, given Governor Cuomo’s intervention in the SGEIS Process and orchestration of the persisting delay notwithstanding his lack of any decision-making authority, Governor Cuomo should be ordered to cease and desist from any further interference and all pertinent records should be opened to public scrutiny. Dated: December 17, 2013 Albany, New York THE WEST FIRM, PLLC By: Thomas S. West Attorneys for Petitioners-Plaintiffs Mark S. Wallach, as the Bankruptcy Trustee of Norse Energy Corp. USA, and James Lobdell 677 Broadway – 8th Floor Albany, New York 12207 Tel.: (518) 641-0500 twest@westfirmlaw.com 30