Peconic Baykeeper brought several proceedings in the New York State Supreme Court under Article 78 of the C.P.L.R. based upon the County's failure to conduct adequate environmental review of the Division of Vector Control's mosquito control activities as required by the State Environmental Quality Review Act (SEQRA). After bringing the first proceeding in 2002, Suffolk County agreed that it needed to prepare an Environmental Impact Statement (EIS) to study and develop its multi-year mosquito control plan. Thereafter, Suffolk County proceeded with "annual plans" that Peconic Baykeeper challenged on various SEQRA grounds. The gist of these proceedings was that Suffolk County cannot continue its wetlands ditching and unrestricted pesticide applications until the EIS is complete and unbiased science provides a rational basis to balance the public interest in view of the efficacy and adverse environmental impacts of such activities. We also challenged a tidal wetlands permit issued to the County by DEC that allowed "reconstruction" of old ditches. Though deeply flawed, a final Generic EIS was adopted in November 2006. See Mosquito Control for further information about the program and our continuing efforts to improve it.
In May 2002, Peconic Baykeeper brought its first proceeding against Suffolk County for the County's negative determination of significance (or "neg dec") of the 2002 Vector Control plan of work, determining that this work "will not have a significant adverse impact" on the environment. The petition was dismissed as moot after the close of the year 2002.
In April 2003, Peconic Baykeeper brought a second suit against Suffolk County for the extension of the 2002 plan of work into 2003. The County designated this extension as a Type II action which would not require SEQRA review. Peconic Baykeeper challenged the County on charges this was not a Type II action and that a multi-year plan of work was being segmented into annual work plans so as to avoid review of the whole impact. Peconic Baykeeper also brought a motion to supplement the record to include the extension of the 2002 plan of work into 2004.
In April 2004, Peconic Baykeeper won this case. Describing the Type II designation as "arbitrary and capricious and an abuse of discretion," Justice Paul J. Baisley, Jr. annulled the SEQRA determination, determined the action to be Type I, and called for an immediate halt to the County's work under the 2004 mosquito management plan. On appeal, the Appellate Division decided that the court below should not have considered the extension of the 2002 plan into 2004 in this proceeding, and should have dismissed the petition as moot.
In April 2004, under similar circumstances as the bringing of the PECONIC II suit, PECONIC III was filed for the extension of the 2002 plan of work into 2004 on the same premises as the previous suit. While Baykeeper had asked, by motion, the court to consider this same issue in Peconic II, the court had not yet made its decision, so this proceeding was brought because the statute of limitations was about to expire.A victorious decision was issued for Peconic Baykeeper in October 2004 based upon the same, if more obvious, reasons as the verdict in PECONIC II. The Appellate Division dismissed Suffolk County's appeal as moot. Suffolk County had argued that the case was not moot since the precedent was injurious, but the Appellate Division declined to disturb it.
PECONIC BAYKEEPER v. DEC and SUFFOLK COUNTY:
In August 2004, Peconic Baykeeper initiated a separate suit based on the issuance by the Department of Environmental Conservation (DEC) of a tidal wetlands permit for Vector Control's water management activities including the reconstruction and expansion of 75 miles of ditches. After receiving the assurance that DEC would not, and could not as a matter of law, renew the permit past 2004, the Court dismissed the proceeding as moot after the permit expired. While technically not a victory, we obtained what we were seeking: no work was done and the permit expired without a renewal. The DEC refused to consider the issuance of another general wetlands permit until Suffolk County completed its EIS.In related litigation, the Town of Southampton Board of Trustees brought its own proceeding against the County and DEC on the same basic premise as Peconic Baykeeper. In addition, the Trustees also alleged that such illegal activities adversely and unconstitutionally affected lands owned by the Trustees. This proceeding was settled.
In January 2005, Peconic
Baykeeper challenged the County's approval of the 2005 Vector Control Plan of
Work and joined DEC as a respondent to prevent DEC's issuance of tidal wetlands
permits to undertake the plan. The 2005
Plan was materially identical to the plans previously annulled by the court. While in Peconic II and III we challenged
the failure to review the environmental impacts at all, in this proceeding the
County did look at the impacts but determined that there would be no
significant adverse impacts requiring preparation of an EIS. We argued that the annual plan was illegally
segmented from the multi-year mosquito control plan and, that even on its own,
it merited a positive determination of significance and could not move forward
without until completion of the EIS.
Objections to the County's approval of this plan were submitted to the
Suffolk County Council on Environmental Quality by the Town of East Hampton,
the Southampton and Southold Board's of Trustees, and the Conservation Advisory
Committee of the Town of Brookhaven.
The County, however, declined to change any part of its plan. In a scathing opinion, the court found the
2005 Plan wholly illegal. See Memorandum Decision Index No. 05-00262, August 9, 2005.