The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PAMELA MAHONEY, et al.,
Plaintiffs,
MEMORANDUM AND ORDER
-against- Case No. 22-cv-01305-FB-ST
U.S. DEPARTMENT OF THE
INTERIOR, et al.,
Defendants.
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Appearances:
For the Plaintiffs: For Defendants:
ERIC GRANT VINCENT LIPARI
Hicks Thomas LLP United States Attorney’s Office
701 University Ave., Ste. 106 Eastern District of New York
Sacramento, CA 95825 610 Federal Plaza, 5th Floor
Central Islip, NY 11722
JOHN B. THOMAS
JUSTIN BRAGA For Intervenor Defendant:
CRYSTAL VICTORIA VENNING JANICE SCHNEIDER
Hicks Thomas LLP STACEY VANBELLEGHAM
700 Louisiana, Ste. 2300 Lathan & Watkins LLP
Houston, TX 77002 555 Eleventh St., N.W.
Ste. 1000
Washington, D.C. 20004
KEGAN ANDREW BROWN
Lathan & Watkins LLP
1271 Avenue of the Americas
New York, NY 10020
BLOCK, Senior District Judge:
Plaintiffs Pamela Mahoney, Michael Mahoney, Lisa Solomon, and Mitch
Solomon (“Plaintiffs”) are two married couples with residences in the Wainscott
hamlet of East Hampton, New York. They seek a preliminary injunction1 to halt
onshore trenching for the South Fork Wind Farm and South Fork Export Cable
Project (the “project”). Plaintiffs claim that the onshore digging will disrupt
perfluoroalkyl and polyfluoroalkyl substances (“PFAs”) present in the groundwater,
worsening the existing PFAS pollution in the wells on Plaintiffs’ properties.
Defendants U.S. Department of the Interior (“DOI”), Bureau of Ocean Energy
Management (“BOEM”), U.S. Department of the Army (“Army”), and U.S. Army
Corps of Engineers (“Army Corps”) (together, “Defendants”) are the federal
government agencies that issued the permits for the offshore portion of the project
and the final environmental impact statement (“FEIS”) required by law to grant those
permits. Defendant-Intervenor South Fork Wind, LLC (“SFW”) is the developer of
the project. For the following reasons, Plaintiff’s motion is denied.
1 The Court previously denied the Plaintiffs’ First and Second Motions for Order to
Show Cause insofar as they pertained to the temporary restraining order that
plaintiffs sought. Therefore, the Court only addresses the preliminary injunction in
this order.
I. FACTS
SFW is the developer of a commercial wind farm off the eastern shore of Long
Island. The wind farm is located in federal waters 35 miles east of Montauk Point,
Long Island. To export the energy from the windmills to an existing onshore electric
grid in East Hampton, trenches will be excavated to store underground cables which
will transfer the energy. The onshore route for the underground electric cables will
pass by properties owned by the Plaintiffs in Wainscott. Plaintiffs, whose
groundwater is presently contaminated by PFAS to the extent that they do not use
their onsite water wells for drinking water, allege that trenching will exacerbate
PFAS contamination of the water on their properties.
The permits to conduct the offshore portion of the project were issued by
Defendants. For the onshore portion of the project, and specifically the trenching
that Plaintiffs claim will lead to further contamination of their groundwater, the
permits were issued by the New York Public Service Commission (“NYPSC”). After
years of administrative proceedings, the NYPSC issued a Certificate of
Environmental Compatibility and Public Need under Article VII of the Public
Service Law allowing the project to move forward. These proceedings considered,
among other things, the potential of the project to exacerbate PFAS contamination.
The public was able to participate in the proceedings through hearings and the
submission of testimony or comments. Plaintiffs participated in this process. The
NYPSC found that the project would not exacerbate existing PFAS contamination,
in part because as proposed, the project provided for preventative measures to ensure
that groundwater flow was not materially altered. The NYPSC later denied a
rehearing of the issue, holding that petitioners had not submitted sufficient evidence
to demonstrate that the project’s provisions for dealing with PFAS were inadequate.
Subsequently, a non-profit organization called Citizens for the Preservation
of Wainscott, Inc. (“CPW”) appealed NYPSC’s decision to New York state court,
asking the court to enjoin SFW from onshore trenching. The state court denied the
appeal on January 26, 2022. Separately, CPW and the Plaintiffs in this action filed a
petition in New York state court challenging the easement that the town of East
Hampton had granted to SFW for the trenching in question. The state court denied
that petition on February 17, 2022. It held that any potential migration of PFAS as a
result of the project could not stem from the grant of the easement, but from the
manner in which the trenching is conducted. The court also found that challenges to
the manner of construction were properly considered by the NYPSC, and that any
further challenges to this should have been brought in the NYPSC’s proceedings,
not before the state court.
On March 9, 2022, Plaintiffs brought the current action. They argue that
Defendants did not conduct an adequate review of the project’s effect on PFAS
contamination in the FEIS, and therefore violated the National Environmental Policy
Act (“NEPA”), the Clean Water Act (“CWA”), Outer Continental Shelf Lands Act
(“OCSLA”), and Administrative Procedure Act (“APA”). Plaintiffs seek
preliminary injunctive relief to halt construction of the onshore export cable.
II. PRELIMINARY INJUNCTION
“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction
is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555
U.S. 7, 20 (2008). If an injunction “disrupt[s] the status quo, a party seeking one
must meet a heightened legal standard by showing ‘a clear or substantial likelihood
of success on the merits.’” N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,
883 F.3d 32, 37 (2d Cir. 2018) (quoting N.Y. Civil Liberties Union v. N.Y.C. Transit
Auth., 684 F.3d 286, 294 (2nd Cir. 2012)).
“Perhaps the single most important prerequisite for the issuance of a
preliminary injunction is a demonstration that if it is not granted the applicant is
likely to suffer irreparable harm before a decision on the merits can be rendered.”
Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp., 719 F.2d 42, 45 (2d Cir.
1983). To establish irreparable harm, a movant “must demonstrate an injury that is
neither remote nor speculative, but actual and imminent and that cannot be remedied
by an award of monetary damages.” Shapiro v. Cadman Towers, Inc., 51 F.3d 328,
332 (2d Cir. 1995) (internal quotation omitted).
III. ANALYSIS
Plaintiffs argue that without a preliminary injunction they will be irreparably
harmed by the likely exacerbation of preexisting PFAs contamination of the
groundwater on their properties. To succeed on this prong, Plaintiffs must
demonstrate that irreparable harm is not just possible, but likely. See Winter v.
Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008). Plaintiffs have
failed to do so. They rely heavily on their expert John A. Conrad’s (“Conrad”)
declaration which concludes that “it is likely that the trench will become a
preferential pathway for PFAS movement, carrying PFAS contaminants to locations
that would otherwise not be impacted [...] and, more likely than not, will contaminate
or further impact the Mahoney’s water supply well located on their property.”
Declaration of John A. Conrad at ¶ 16-17. However, Conrad’s assertion is
conclusory. He does not provide support as to why this result is “likely,” nor does
he address the effect of the mitigation measures provided for in SFW’s plan, which
was approved by the NYPSC.
At oral argument, Plaintiffs’ counsel stated that “one problem with PFAS is
that it’s difficult to remediate.” Tr. at 9.2 However, it is possible to remediate PFAS
contamination. See Declaration of Kenneth Bowes at ¶ 29. Currently, the New York
State Department of Environmental Conservation is undertaking remedial measures
in East Hampton to address PFAS contamination in the area. See id. This likewise
undercuts the Plaintiffs’ claims of irreparable harm. Also, assuming that the project
risks spreading PFAS, counsel for the Defendants argues that “[t]here are measures
in place” to ensure that this does not occur. Tr. at 12. These measures were
conditions on the issuance of the project’s permits by the NYPSC and were later
incorporated by reference into the FEIS by the federal agencies. Tr. 12. In addition,
PFAS already exists on Plaintiffs’ properties. Finally, that Plaintiffs failed to seek
injunctive relief in this court until months after the FEIS was issued and until after
they received unfavorable decisions in state court further “undercuts the sense of
urgency that ordinarily accompanies a motion for preliminary relief and suggests
that there is, in fact, no irreparable injury.” Tough Traveler, Ltd. v. Outbound Prod.,
60 F.3d 964, 968 (2d Cir. 1995) (quoting Citibank, N.A. v. Citytrust, 756 F.2d 273,
277 (2nd Cir. 1985)).
2 The parties were heard at oral argument on April 6, 2022.
CONCLUSION
The Court finds that Plaintiff failed to establish irreparable harm—“the single
most important prerequisite for the issuance of a preliminary injunction,” Masel
Supply Co. Corp., 719 F.2d at 45—and so denies Plaintiff’s motion.
SO ORDERED.
_/S/ Frederic Block____________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
April 12, 2022