A marine transfer station operated on the East River at 91st Street for nearly six decades, temporarily storing municipal waste along the East River before loading it onto barges for disposal outside of Manhattan. But in 2004, the New York City announced plans to build a newer, larger MTS on the site as part of a new City-wide Solid Waste Management Plan. The City wanted to move even farther away from its reliance on expensive and environmentally unfriendly truck-based disposal methods, but the proposal for East 91st Street quickly became embroiled in years of litigation.
However, a July 2014 federal court decision just may be the green light the City needs to proceed with the 91st Street MTS.
Following five unsuccessful legal challenges in state court between 2006 and 2013, and stringent opposition at many public hearings on the project, a coalition of opponents of the MTS filed this latest challenge in the United States District Court for the Southern District of New York. The coalition sought review of a U.S. Army Corps of Engineers decision to grant New York City a permit under Section 404 of the federal Clean Water Act. The Section 404 permit, also known as a “dredge and fill” permit, was required because the construction of a new pier for the MTS would disturb part of the aquatic environment in the East River.
Raising many “of the same arguments and refrains that were already heard, considered, and disposed of,” at the state level, the plaintiffs raised a wide variety of arguments, including that the Army Corps acted “arbitrarily and capriciously” in granting the Section 404 Permit. The “arbitrary and capricious” argument is a standard challenge to administrative action, but it is a high bar for plaintiffs to reach. Courts grant agencies significant deference, and an agency only has to show that it “considered the pertinent evidence, examined the relevant factors, and articulated a satisfactory explanation for its action.”
In the case of the 91st Street MTS, the Army Corps had held detailed public hearings, studied various alternatives to granting the permit, and still decided to grant the Section 404 permit. After reviewing the administrative record, the court concluded that the Army Corps had “articulated a satisfactory explanation for its action” and rejected the plaintiffs’ challenge on the grounds of arbitrary and capricious agency action. The plaintiffs were similarly unsuccessful on the various other arguments they raised in the case.
While the plaintiffs are entitled to appeal the court’s decision, it is unlikely that an appeal would be successful given the narrow scope of judicial review of agency action. If the plaintiffs choose not to appeal, the City may be free to proceed with the project.
For more information on the 91st Street MTS, contact one of the environmental attorneys at Periconi, LLC, or see the court’s decision at:
Residents for Sane Trash Solutions, Inc. v. United States Army Corps of Eng’rs, Case No. 12 Civ. 8456 (PAC) (S.D.N.Y. July 10, 2014).
