Petition for Writ of Certiorari — Town of Southold, New York, Petitioner v. Rossana Rosado, New York State Secretary of State, et al.

Supreme Court briefFeb 15, 2023

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Case No.:_______

In The

Supreme Court of the United States

TOWN OF SOUTHOLD,

Petitioner,

against

ROSSANA ROSADO, in her official capacity as New York State

Secretary of State, BASIL SEGGOS, in his official capacity as

Commissioner of the New York State Department of Environmental

Conservation and STATE OF NEW YORK,

Respondents,

(See inside cover for continuation of caption)

______________________

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

SCOTT J. KREPPEIN

Counsel of Record

DEVITT SPELLMAN BARRETT, LLP

Attorneys for Petitioner

50 Route 111, Suite 314

Smithtown, New York 11787

(631) 724-8833

s.kreppein@devittspellmanlaw.com

APPELLATE INNOVATIONS

(914) 948-2240

Printed on Recycled Paper

19005

_________________________

– and –

COUNTY OF SUFFOLK, ANDREW WHEELER, in his official

capacity as Administrator of the United States Environmental

Protection Agency, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY and DENNIS DEZIEL, in his official

capacity as Regional Administrator of United States Environmental

Protection Agency Region 1, CONNECTICUT DEPARTMENT OF

ENERGY AND ENVIRONMENTAL PROTECTION,

_________________________

Respondents.

QUESTIONS PRESENTED FOR REVIEW

The Environmental Protection Agency (“EPA”)

designated a permanent dredge spoil disposal site at

the edge of the Town of Southold’s border, known as

the Eastern Long Island Sound Disposal Site

(“ELDS”), where the coastline most effected by the

plumes of disposed material from disposal operations

will be one of the Town’s most sensitive and highlyprotected habitats. The questions presented are:

Whether the EPA’s designation of a

permanent dredge spoil disposal site that

flows into one or more protect habitats in the

Town of Southold was “consistent to the

maximum extent practicable with” the

Town of Southold’s “enforceable policies”

that are part of New York’s “approved State

management programs” under the Coastal

Zone Management Act (“CZMA”), 16 U.S.C.

§ 1456(c)(1)(A).

II.

Whether, and to what extent, in judicial

review as to the EPA’s compliance with its

consistency obligation under the CZMA, 16

U.S.C. § 1456(c)(1)(b) via the Administrative

Procedures Act (“APA”), 5 U.S.C. § 701, the

EPA’s determination as to its own

compliance, interpretation of the scope of its

own authority, and interpretation of what

its obligations under the Town’s enforceable

policies should consist of, were entitled to

deference, and whether those issues present

questions of law to be determined “in

accordance with the law,” or factual

findings subject to the more deferential

“arbitrary and capricious” standard.

III.

Whether the burden was on the Town to

prove inconsistency as part of the notice and

comment process, or if the EPA had an

affirmative obligation to be consistent with

the Town’s federally-approved coastal

management policies to the maximum

extent practicable pursuant to the CZMA;

IV.

Whether the EPA satisfied the procedural

safeguards

under

the

National

Environmental Policy Act, 42 U.S.C. § 4332,

and more specifically under the Town’s

federally-approved coastal management

policies, and developed a sufficient basis for

its environmental analysis, where, rather

than specifically considering the Town’s

coastal and marine habitats, the EPA

limited its geographic inquiry to the

immediate disposal site just beyond the

Town’s borders, and otherwise deferring to

the general sediment suitability criteria

that would be used for future case-by-case

permit applications.

iii

PARTIES TO THE PROCEEDINGS

The Petitioner is the Town of Southold, a local

government and municipal corporation of the State of

New York with jurisdiction over the majority of what

is commonly referred to as the North Fork of Long

Island, including most of the Eastern Long Island

Sound and the archipelago that partially encloses that

waterbody and extends to the maritime border of New

York, Connecticut, and Rhode Island. The Town of

Southold was an intervenor-plaintiff before the

District Court, and appellant before the Court of

Appeals.

The State of New York was the plaintiff and

plaintiff-appellant before the lower courts. New

York’s former Secretary of State, Rossana Rosado, was

a plaintiff-appellant in her official capacity, and that

position is currently held by Robert J. Rodrigues. The

Commissioner of the New York State Department of

Environmental Conservation, Basil Seggos, was also

a plaintiff-appellant in his official capacity.

The County of Suffolk, a local government of the

State of New York within which the Town of Southold

is located, was a plaintiff before the district court, but

did not join in the prior appeal.

The defendant-appellees before the Court of

appeals were: the United States Environmental

Protection Agency; Andrew Wheeler, in his official

capacity as Administrator of the United States

Environmental Protection Agency, a position that is

now held by Michael S. Regan; and Dennis Deziel, in

his official capacity as Regional Administrator of

United States Environmental Protection Agency

Region 1.

The Connecticut Department of Energy and

Environmental Protection (“CT DEEP”) was also a

party to the action as a defendant-intervenorappellee.

RELATED PROCEEDINGS

There are no directly related proceedings

pending before this Court or any state or federal trial

or appellate court. Prior proceedings, other than this

action, that are potentially directly related are:

Nat. Res. Def. Council, Inc. v. Callaway, 389 F.

Supp. 1263, 1293 n. 66-67 (D. Conn.

1974), rev'd in part, 524 F.2d 79 (2d Cir.

1975)(dispute over initial temporary disposal

site designation of adjacent location)

Fishers Island Cons., et al v. U.S. Army Corps

Eng., E.D.N.Y. Docket No. 95-cv-04374 (dispute

over interim temporary site designation of

adjacent location)

Rosado v. Raimondo, E.D.N.Y. Docket No. 22cv-00788 (dispute, following permanent site

designation at issue in this case, over

exemption from application-specific consistency

review in the interests of national security)

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW..........................i

PARTIES TO THE PROCEEDINGS ................................. iii

RELATED PROCEEDINGS ............................................ iv

TABLE OF CONTENTS .................................................. v

TABLE OF AUTHORITIES ........................................... xii

PETITION FOR A WRIT OF CERTIORARI ........................ 1

OPINIONS BELOW ....................................................... 1

JURISDICTIONAL STATEMENT ..................................... 2

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ......................... 2

STATEMENT OF THE CASE ........................................... 3

SUMMARY ...................................................... 3

THE AFFECTED AREA .................................... 9

HISTORICAL

BACKGROUND,

1955-1999................................................... 10

1999 FORWARD – THE EPA

BEGINS

CONSIDERING

PERMANENT

SITE

DESIGNATION,

SOUTHOLD

OBTAINS FEDERAL APPROVAL

FOR POLICIES DESIGNED TO

ADDRESS ITS CONCERNS, AND

EPA IGNORES THOSE

POLICIES ..................................................... 12

THE

REASONS FOR GRANTING CERTIORARI ...................... 15

THIS CASE PRESENTS AN

OPPORTUNITY TO FURTHER

ADDRESS THE EPA’S ROLE IN

DEFINING THE SCOPE OF ITS

OWN AUTHORITY ......................................... 15

II.

THIS COURT’S GUIDANCE IS

NECESSARY

AVOID

INCONSISTENCY WITH THIS

COURT’S

DECISIONS

AND

DISAGREEMENT OR CONFUSION

AMONG THE LOWER COURTS AS

TO THE STANDARDS APPLICABLE

TO JUDICIAL REVIEW OF CZMA

CONSISTENCY

DETERMINATIONS ....................................... 23

III.

THIS

MATTER

INVOLVES

QUESTIONS OF EXCEPTIONAL

IMPORTANCE AND NATIONAL

SIGNIFICANCE ............................................. 28

CONCLUSION ............................................................ 30

vii

APPENDIX

Appendix A  Mandate Judgment with Order

of the United States Court of Appeals for the

Second Circuit, dated November 28, 2022 ........... A-1

Appendix B  Memorandum and Order of the

Honorable Edward R. Korman,

dated July 17, 2020 ......................................... B-1

Appendix C  Order of the United States

Court of Appeals for the Second Circuit

Denying Petition for Rehearing,

dated November 17, 2022................................ C-1

Appendix D  Pertinent Statutes and

Regulations:

§ 930.1 OVERALL OBJECTIVES.,

15 C.F.R. § 930.1 ................................................... D-1

§ 930.4 CONDITIONAL CONCURRENCES.,

15 C.F.R. § 930.4 ................................................... D-4

§ 930.5 STATE ENFORCEMENT ACTION.,

15 C.F.R. § 930.5 ................................................... D-7

§ 930.6 STATE AGENCY RESPONSIBILITY.,

15 C.F.R. § 930.6 ................................................... D-9

§ 930.30 OBJECTIVES., 15 C.F.R. § 930.30...... D-12

§ 930.31 FEDERAL AGENCY ACTIVITY.,

15 C.F.R. § 930.31 ............................................... D-14

viii

§ 930.32 CONSISTENT TO THE MAXIMUM

EXTENT PRACTICABLE., 15 C.F.R. § 930.32 . D-17

§ 930.33 IDENTIFYING FEDERAL AGENCY

ACTIVITIES AFFECTING ANY...,

15 C.F.R. § 930.33 ............................................... D-22

§ 930.34 FEDERAL AND STATE AGENCY

COORDINATION., 15 C.F.R. § 930.34 .............. D-26

§ 930.35 NEGATIVE DETERMINATIONS

FOR PROPOSED ACTIVITIES.,

15 C.F.R. § 930.35 ............................................... D-30

§ 930.36 CONSISTENCY DETERMINATIONS

FOR PROPOSED ACTIVITIES.,

15 C.F.R. § 930.36 ............................................... D-34

§ 930.37 CONSISTENCY DETERMINATIONS

AND NATIONAL ENVIRONMENTAL...,

15 C.F.R. § 930.37 ............................................... D-39

§ 930.38 CONSISTENCY DETERMINATIONS

FOR ACTIVITIES INITIATED PRIOR...,

15 C.F.R. § 930.38 ............................................... D-41

§ 930.39 CONTENT OF A CONSISTENCY

DETERMINATION., 15 C.F.R. § 930.39 ........... D-43

§ 930.40 MULTIPLE FEDERAL AGENCY

PARTICIPATION., 15 C.F.R. § 930.40 .............. D-46

§ 930.41 STATE AGENCY RESPONSE.,

15 C.F.R. § 930.41Q ............................................ D-48

§ 930.42 PUBLIC PARTICIPATION.,

15 C.F.R. § 930.42 ............................................... D-52

§ 930.43 STATE AGENCY OBJECTION.,

15 C.F.R. § 930.43 ............................................... D-55

§ 930.44 AVAILABILITY OF MEDIATION

FOR DISPUTES CONCERNING...,

15 C.F.R. § 930.44 ............................................... D-58

§ 930.45 AVAILABILITY OF MEDIATION

FOR PREVIOUSLY REVIEWED

ACTIVITIES., 15 C.F.R. § 930.45 ...................... D-60

§ 930.150 OBJECTIVES., 15 C.F.R. § 930.150.. D-63

§ 930.151 INTERSTATE COASTAL

EFFECT., 15 C.F.R. § 930.151 ........................... D-65

§ 930.152 APPLICATION.,

15 C.F.R. § 930.152 ............................................. D-67

§ 930.153 COORDINATION BETWEEN

STATES IN DEVELOPING COASTAL...,

15 C.F.R. § 930.153 ............................................. D-69

§ 930.155 FEDERAL AND STATE AGENCY

COORDINATION., 15 C.F.R. § 930.155 ............ D-71

§ 930.156 CONTENT OF A CONSISTENCY

DETERMINATION OR., 15 C.F.R. § 930.156 ... D-74

§ 930.157 MEDIATION AND INFORMAL

NEGOTIATIONS., 15 C.F.R. § 930.157 ............. D-76

§ 706. SCOPE OF REVIEW, 5 USCA § 706 ...... D-78

§ 1401. CONGRESSIONAL FINDING, POLICY,

AND DECLARATION OF PURPOSE,

33 USCA § 1401 .................................................. D-80

§ 1411. PROHIBITED ACTS, 33 USCA § 1411 . D-82

§ 1412. DUMPING PERMIT PROGRAM,

33 USCA § 1412 .................................................. D-84

§ 1413. DUMPING PERMIT PROGRAM FOR

DREDGED MATERIAL, 33 USCA § 1413 ........ D-92

§ 1451. CONGRESSIONAL FINDINGS,

16 USCA § 1451 .................................................. D-97

§ 1452. CONGRESSIONAL DECLARATION

OF POLICY, 16 USCA § 1452 .......................... D-101

§ 1453. DEFINITIONS, 16 USCA § 1453 ........ D-105

§ 1454. SUBMITTAL OF STATE PROGRAM

FOR APPROVAL, 16 USCA § 1454 ................. D-112

§ 1456. COORDINATION AND

COOPERATION, 16 USCA § 1456 .................. D-113

§ 4332. COOPERATION OF AGENCIES;

REPORTS; AVAILABILITY OF...,

42 USCA § 4332 ................................................ D-122

OCEAN DISPOSAL; DESIGNATION OF A

DREDGED MATERIAL DISPOSAL SITE...,

81 FR 87820-01 ................................................. D-127

TOWN OF SOUTHOLD LOCAL WATERFRONT

REVITALIZATION PROGRAM ................. D-234

xii

TABLE OF AUTHORITIES

Cases

AES Sparrows Point LNG, LLC v. Smith

527 F.3d 120 (4th Cir. 2008) ................................ 20

Bond v. United States,

572 U.S. 844 (2014) .............................................. 17

California Coastal Comm'n v. Granite Rock Co.,

480 U.S. 572 (1987) .............................................. 24

California Coastal Comm'n v. United States,

5 F. Supp. 2d 1106 (S.D. Cal. 1998) ..................... 25

Cape May Greene, Inc. v. Warren,

698 F.2d 179 (3d Cir. 1983) ............................ 26, 27

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,

Inc.,

467 U.S. 837 (1984) .............................................. 27

Connecticut ex rel. Blumenthal v. Crotty,

346 F.3d 84 (2d Cir. 2003) .................................... 12

Conservation Law Foundation v. Watt,

560 F.Supp. 561 (D.C.Mass.,1983) ....................... 25

Delaware Dep't of Nat. Res. & Env't Control v.

FERC,

558 F.3d 575 (D.C. Cir. 2009)............................... 20

xiii

FDA v. Brown & Williamson Tobacco Corp.,

529 U.S. 120 (2000) .............................................. 16

In re Border Infrastructure Env't Litig.,

915 F.3d 1213 (9th Cir. 2019) .............................. 25

Marsh v. Oregon Nat. Res. Council,

490 U.S. 360 (1989) .................................... 8, 11, 24

Nat. Res. Def. Council, Inc. v. Callaway,

389 F. Supp. 1263 (D. Conn. 1974) ............. iv, 4, 10

Nat. Res. Def. Council, Inc. v. Callaway,

524 F.2d 79 (2d Cir. 1975) ........................... iv, 4, 10

New Jersey v. Delaware,

552 U.S. 597, 623 (2008) ...................................... 20

Ohio v. United States Army Corps of Engineers,

259 F.Supp.3d 732 (N.D.Ohio, 2017) ................... 26

Rosado v. Pruitt,

2018 WL 262835 (E.D.N.Y., 1/2/2018) ................... 1

Rosado v. Wheeler,

473 F. Supp. 3d 115 (E.D.N.Y. 2020)1, 8, 13, 20, 21

Sec'y of the Interior v. California,

464 U.S. 312 (1984) ........................................ 20, 24

Shanty Town Assocs. Ltd. P'ship v. E.P.A.,

843 F.2d 782 (4th Cir. 1988) ................................ 26

SLPR, LLC v. San Diego Unified Port Dist.,

2009 WL 10672895 (S.D. Cal. Aug. 4, 2009) ....... 25

xiv

Southold v. Wheeler,

48 F.4th 67 (2d Cir. 2022) ........................ 1, 8, 9, 13

State of Missouri v. State of Illinois,

180 U.S. 208 (1901) .............................................. 28

U.S. Forest Serv. v. Cowpasture River Pres.

Ass’n,

140 S.Ct. 1837 (2020) ........................................... 17

Union Dep’t, AFL-CIO v. Am. Petroleum Inst.,

448 U.S. 607 (1980) .............................................. 18

Util. Air Regul. Grp. v. E.P.A.,

573 U.S. 302 (2014) .............................................. 17

Weaver's Cove Energy, LLC v. Rhode Island

Coastal Res. Mgmt. Council,

589 F.3d 458 (1st Cir. 2009) ........................... 20, 25

West Virginia v. Environmental Protection

Agency,

142 S. Ct. 2587 (2022) .................................... 16, 17

Will v. Mich. Dep’t of State Police,

491 U.S. 58 (1989) ................................................ 17

Williams v. Pennsylvania,

579 U.S. 1, 9 (2016) .............................................. 18

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) .................................................. 24

Statutes

16 U.S.C. § 1451 ................................................... 2, 18

16 U.S.C. § 1456 ............................ i, 2, 4, 5, 18, 19, 20

28 U.S.C. § 1254 ......................................................... 2

33 U.S.C. § 1401 ......................................................... 3

33 U.S.C. § 1412 ..................................................... 4, 5

33 U.S.C. § 1413 ................................................... 3, 11

33 U.S.C. § 1416 ....................................................... 11

42 U.S.C. § 4332 ............................................... 2, 4, 10

5 U.S.C. § 701 .............................................................. i

5 U.S.C. § 706 ....................................................... 2, 29

Rules

Ocean Disposal; Designation of a Dredged

Material Disposal Site in Eastern Region of

Long Island Sound; Connecticut,” found at 81

F.R. 87820-01 .......................................................... 1

Regulations

15 C.F.R. § 930.33 ................................................ 7, 21

Other Authorities

126 Cong. Rec. H34063 ............................................ 11

81 Fed. Reg. 87820 ................................................. 1, 3

xvi

35 Fed.Reg. 15623 .................................................... 10

60 F.R. 51782-01 ...................................................... 12

70 Fed. Reg. 32498-01 and 32509 ........................... 13

81 Fed. Reg. 24748 ................................................... 13

Ames, Some Factors in the Decline of the

Osprey in Connecticut, 81 Auk 19 (April

1964) ...................................................................... 10

Hayes, Abnormalities in Young Terns, 89 Auk.

19 (January 1972) ................................................. 10

In Re Electric Boat (NOAA Nov. 2020)

(https://coast.noaa.gov/data/czm/consistency/

appeals/fcappealdecisions/mediadecisions/ebcdecision.pdf)............................................................15

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Town of Southold, NY, respectfully

requests that this Court grant a writ of certiorari to the

United States Court of Appeals for the Second Circuit.

OPINIONS BELOW

This action challenges a final rule by the EPA,

entitled “Ocean Disposal; Designation of a Dredged

Material Disposal Site in Eastern Region of Long

Island Sound; Connecticut,” found at 81 F.R. 87820-01.

The U.S. District Court for the Eastern District

of New York granted the Town of Southold and CT

DEEP permission to intervene in an unreported

decision, found at Rosado v. Pruitt, E.D.N.Y. Docket

No. 17-CV-4843, 2018 WL 262835 (E.D.N.Y., 1/2/2018).

The District Court then granted summary

judgment in favor of the EPA, per the Order found at

Rosado v. Wheeler, 473 F.Supp.3d 115, 147 (E.D.N.Y.,

2020).

The Judgment of the District Court was

affirmed by the Second Circuit Court of Appeals in

Town of Southold v. Wheeler, 48 F.4th 67 (2d Cir.

2022).

By Order dated and entered November 17, 2022,

the Second Circuit Court of Appeals denied the Town

of Southold’s Petition for En Banc review. Town of

Southold v. Wheeler, et al., 2d Cir. Docket Nos. 20-3188

and 20-3189, Docket Entry No. 232.

JURISDICTIONAL STATEMENT

Judgment was entered in the District Court on

July 20, 2020. A Judgment was entered by the Second

Circuit Court of Appeals on September 2, 2022

affirming the District Court’s Judgment. A Petition for

en banc review was denied by Order dated November

17, 2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS INVOLVED

The constitutional provisions, statutes, ordinances,

and regulations involved in the case, which are set out

verbatim in an appendix, are:

The Coastal Zone Management Act (“CZMA”),

specifically 16 U.S.C. §§ 1451 – 1454 and 1456.

Department of Commerce Regulations, Part 930,

entitled “Federal Consistency With Approved

Coastal Management Programs, 15 C.F.R. §§ 93030

– 9345 and 930150 – 930157.

Policies 5, 6, 8, 10 and 11 of the Town of Southold’s

Local

Waterfront

Revitalization Plan,

incorporated into New York State’s Coastal

Management Plan with the concurrence of the U.S.

Department of Commerce on July 24, 2014.

The Administrative Procedure Act (“APA”), 5

U.S.C. § 706

The National Environmental Policy Act (“NEPA”),

42 U.S.C. § 4332.

Marine Protection, Research, and Sanctuaries Act

(“MPRSA”), specifically 33 U.S.C. §§ 1401 and

1411-1413

STATEMENT OF THE CASE

A. Summary

This is a dispute over the EPA’s designation of a

permanent waste disposal site in the Long Island

Sound that it estimates will be used to dispose of over

20 million cubic yards of dredge spoils over the next 30

years, largely originating from contaminated

industrial areas around the submarine base and

related manufacturing facilities near Groton and New

London, Connecticut. The EPA chose a location on the

edge of the maritime border between New York and

Connecticut – 0.19 nautical miles, or just over 1,150

feet, from the Town’s waters – that is 2.3 nautical miles

upstream from the western coast of Fishers Island, one

of New York’s most heavily protected habitats. (81 Fed.

Reg. 87820; JA. 28, 32-33). 1

The use of this site, particularly at the scale

anticipated, presents an enormous risk of adverse

environmental impacts and the creation of a public

nuisance for the hamlet of Fishers Island and the

surrounding islands and marine environments in the

Town of Southold. Prior nearby dumping activities

have, on a smaller scale, prompted concerns of “brown

foam” washing onto beaches where children play and

into particularly sensitive environmental areas. (Id.,

E.D.N.Y. Docket No. 17-CV-4843, Docket Entry 72-5,

Pgs. 5-8).

References to “JA” are to the Joint Appendix before the

Second Circuit Court of Appeals.

The Town and its residents have adamantly

opposed dredge spoil disposal in this area, and it has

been a hot-button issue since the EPA was first created

and given the power to designate disposal sites and

issue permits under the MPRSA, subject to the

procedural requirements of NEPA and the

jurisdictional limitations of the CZMA. See, e.g. Nat.

Res. Def. Council, Inc. v. Callaway, 389 F. Supp. 1263,

1293 n. 66-67 (D. Conn. 1974), rev'd in part, 524 F.2d

79 (2d Cir. 1975).

The EPA projects that the coastline that will

receive the greatest concentration of dissolved

contaminants and fine grain material – by a factor of

ten – will be a Significant Coastal Fish and Wildlife

Habitat on the western coast of Fishers Island. (JA.

458, 460, 1216, 2058). The Agency’s tracer study and

modeling shows that, for every boatload of dredge

spoils that will be dumped at this disposal site, a plume

of material will flow towards Fishers Island, engulf it,

and be pulled into and through a particularlyimportant marine habitat known as the Race. (JA. 458,

460, 1216, 2958).

Congress did not give the EPA authority to

override or disregard federally-approved state and

local policies, but instead has only authorized it to

issue permits and designate disposal sites under 33

U.S.C. §§ 1411 – 1412 if those actions are “consistent

to the maximum extent practicable with the

enforceable policies of approved State management

programs.” 16 U.S.C. § 1456(c)(1)(A).

Before designating this site, the EPA was not

only required to take a hard look at the environmental

impacts of its action under NEPA, 42 U.S.C.A. § 4332,

and evaluate specific site selection criteria under the

MPRSA, 33 U.S.C. § 1412, but also to ensure that its

proposed action was consistent with the enforceable

policies of the Town’s federally-protected Local

Waterfront Revitalization Plan, which is incorporated

into New York State’s Coastal Management Program,

16 U.S.C. § 1456(c)(1)(A), and includes requirements

that a proposed action must:

“Protect water quality of [Southold’s]

coastal waters from adverse impacts

associated

with

excavation,

fill,

dredging, and disposal of dredged

material. (Policy 5, Standard 5.3(C);

SPA 193; 2 Town of Southold Local

Waterfront

Revitalization

Plan

(“LWRP”), III-19)

Be preceded by an environmental

analysis of the potentially impacted

areas that identifies baseline values for

the “natural ecological communities”

potentially affected by the action so as

to aid in mitigation, monitoring, and, if

needed, restorative efforts; and, where

the impacted area is a Significant

Coastal Fish and Wildlife Habitats (of

which at least three are in the path of

the dredge spoil plume), this analysis

must include a Habitat Impairment

Test identifying the “tolerance range of

important species of fish or wildlife” in

the affected habitats to evaluate, among

References to “SPA” are to the Town of Southold’s Special

Appendix before the Second Circuit Court of Appeals.

other things, whether the proposed

action would result in the “adverse

alteration of physical, biological, or

chemical characteristics” of those

habitats. (Policy 6, Standards 6.1 and

6.2; SPA. 195 – 197; LWRP III-22)

Ensure that “the dredging of toxic

material from underwater lands and

the deposition of such material shall be

conducted in the most mitigative

manner possible so as not to endanger

fish and wildlife resources, in either the

short or long term.” (SPA 206; Policy 8,

Standard 8.3(A), LWRP III–33).

Avoid the “placement of dredged

material in Long Island Sound when

upland alternatives exist” and take

precautions to “[m]aintain the chemical,

physical and biological integrity of

[Fishers Island’s] surrounding waters

and harbors and their dependent

habitats.” (Policy 10, Standards 10.5

and 10.6, SPA 216-217 and 219; LWRP

III–51). And,

Use the “best available scientific

information in managing the resources”

so as to maintain “the long-term health

and abundance of marine fisheries” and

protect “spawning grounds, habitats,

and water quality.” (Policy 11,

Standards 11.1 and 11.2; SPA. 220;

LWRP III-52-53).

In the narrative section of its LWRP, The Town

explained that its policies were intended, in part, to

take a “clear and strong stance regarding the dumping

of contaminated dredge spoils in or near the Race or

the Fishers Island conservation zone,” such that

dredge spoil disposal in the area that the EPA has now

designated would “be contrary to the intents and

purposes of” its policies. (SPA. 146, 157, 164).

However, based upon a contorted argument that

site designation by itself will not affect the Town’s

coastal zone, the EPA determined that designation of

this contested site was “fully consistent” with the

Town’s policies. Rather than evaluating the potential

impact from the expected use of the site, exposing

Southold’s coastal and marine habitats to a large

amount of material over an extended period of time,

the EPA’s analysis consisted of justifications for not

engaging in that analysis, including that “designation

of the site does not actually authorize the disposal of

any dredged material;” that its only geographic area of

concern under the CZMA was the immediate dumping

zone rather than Southold’s coastal zone; and that the

sediment suitability criteria it uses as part of its caseby-case application process for federal and larger

private projects should alleviate any concerns. (JA. 92,

3222 – 3223, 3248, 3262); but see 15 C.F.R. §§ 930.33

and 930.151.

New York State objected to the EPA’s

consistency determination, but the EPA overruled its

objection and nonetheless issued a final rule

designating the site. Id. New York sought judicial

review; the Town of Southold intervened; and

summary judgment as granted in favor of the EPA.

The District Court limited its review, including as to

whether the designation was consistent with state and

local policies, to the arbitrary and capricious standard,

giving special deference to the EPA’s scientific

expertise, and placing the burden on the Town and

State to prove inconsistency with their policies while

limiting them to arguments that had been raised

during the notice and comment process and had been

addressed as part of the EPA’s administrative record.

Rosado v. Wheeler, 473 F. Supp. 3d 115, 131 (E.D.N.Y.

2020), aff'd sub nom. Town of Southold v. Wheeler, 48

F.4th 67 (2d Cir. 2022).

On appeal, the Second Circuit found that the

EPA’s determination as to whether its own actions

were consistent with the Town’s federally-approved

policies was subject to arbitrary and capricious review,

and that the APA’s “in accordance with the law”

standard was “inapplicable” because “this case turns

on ‘complex factual determinations,’ not a ‘pure

question of statutory interpretation’.” Town of

Southold v. Wheeler, 48 F.4th 67, 79 (2d Cir. 2022)

citing Marsh v. Oregon Nat. Res. Council, 490 U.S. 360,

376 (1989). With respect to Southold’s argument that

the designation was not consistent with its policies and

the EPA had failed to analyze the impact on the Town’s

coastal and marine habitats, the Court of Appeals

found that the EPA had “adequately responded” to

objections raised during the notice and comment

period by indicating that it was limiting its geographic

analysis to the area “within the disposal site,” that

future applications for disposal permits would be

subject to “suitability” criteria, and that any

inconsistencies with its policies that the Town had not

specifically raised during the notice and comment

period were waived. Town of Southold v. Wheeler, 48

F.4th 67, 85 (2d Cir. 2022).

B. THE AFFECTED AREA

The area surrounding Fishers Island has the

“highest quality marine waters” in the Long Island

Sound. (SPA. 130). The western shore of the island has

the most extensive series of eelgrass beds in New York

State, which are “particularly sensitive to water

quality parameters,” as well as “one of the most

significant concentrations of rare plants” in the State,

with over 45 different rare, threatened or endangered

plant species, all of which provide a home for over 90

bird species, some of which are threatened or

endangered. (SPA. 131, 225-228). Fishers Island’s

residents have been adamantly opposed to dredge spoil

disposal in this area. (SPA. 79-80).

The Race, a deep channel to the southwest of

Fishers Island, is “a key foraging and migration route

for various fish species and plays an important role in

commercial, sport and lobster fishing.” (SPA. 269 –

273). Among other things, it is home to one of the last

remnants of the once thriving lobster population in the

Long Island Sound. (SPA. 176 – 177, 269 – 270)(JA.

171)

Other protected habitats that are not discussed

in the EPA’s analysis but appear to be in the path of

the plume of material from disposal operations include:

the Dumpling Islands and Flat Hammock, located just

north of Fishers Island, which contain a bird sanctuary

operated by the Audubon Society and provide an

important nesting ground for numerous bird species

(SPA. 275-277); and Great Gull Island and Little Gull

Island, located to the southwest of Fishers Island,

which are among the most important habitats in the

country for the endangered roseate tern and

threatened common tern and are home to a bird

sanctuary operated by the American Museum of

Natural History.

C. HISTORICAL BACKGROUND, 1955-1999

Disposing spoils from federal projects in the

area adjacent to the ELDS goes back, on a much

smaller scale, to 1955 (JA. 161, 184). Indeed, research

regarding the effect of certain contaminants found in

these dredge spoils, including DDT and PCBs, on local

wildlife in the coastal areas of the eastern Long Island

Sound was among the research that informed banning

those chemicals in the first place. 3

The EPA was created in 1970, a year after

Congress passed NEPA. (42 U.S.C. § 4332; 35 Fed.Reg.

15623). In 1972, Congress passed both the MPRSA,

prohibiting dumping without a permit, and the CZMA,

requiring that federal actions be consistent to the

maximum extent practicable with approved state

policies.

At the time, the U.S. Navy was engaged in a

dredging project near the submarine base in

Connecticut, and intensified its operations prior to the

MPRSA and CZMA taking effect, going from an

average of 240,000 cubic yards per year to 2.1 million

cubic yards in the first eight months of 1972.

Callaway, 389 F. Supp., 1278 n. 66-67 (D. Conn. 1974)

Assuming continued dumping in this area would no

See Hayes, Abnormalities in Young Terns, 89 Auk. 19

(January 1972); see also Ames, Some Factors in the Decline of the

Osprey in Connecticut, 81 Auk 19 (April 1964).

longer be permissible, the Navy sought a permit to

dispose of the spoils off the coast of Rhode Island, but

then the involved federal agencies conferred and

determined that a waiver may be possible based upon

the “economic desirability” of a closer location. Id., 389

F. Supp., 1275, 1293 and N.53. An injunction was

issued, Id., but the EPA estimates that disposal

operations continued until 1976. (JA 184).

In 1980, Congress amended the MPRSA to

provide “greater protection” to the Long Island Sound,

requiring compliance by “any” Federal project or any

non-federal project disposing of over 25,000 cubic

yards. 33 U.S.C.A. § 1416(f); Pub. L. 96-572, 94 Stat.

3345 (1980); (JA 3110); See Marsh, 859 F.2d, 1143

citing 126 Cong. Rec. H34063.

It is not clear from the record precisely how this

area was re-designated as a disposal site, but dumping

resumed for nine years, from 1982 to 1991, after which

Congress “clarified” that temporary disposal site

designations under the MPRSA are only permissible

for “a period of not greater than 5 years,” with one

single 5-year extension on certain conditions. (JA 184,

189); 64 FR 29865-01; P.L. 102-580, 106 Stat. 4869; 33

U.S.C. 1413(b).

In 1995, the U.S. Navy again undertook

dredging near the submarine base, and re-designated

the area adjacent to the ELDS for disposal of 1.1

million cubic yards of “contaminated material.” (60 FR

51782-01). As part of its decision, it observed that the

EPA had interpreted the Federal Water Pollution

Control Act as not requiring consideration of New

York’s water quality as long as the initial discharge

occurred on Connecticut’s side of the border, and

similarly interpreted the CZMA as only requiring

consistency with Connecticut’s coastal management

policies. (60 FR 51782-01). This decision prompted

litigation by environmental groups and the Town, as

well as “concerted opposition from the State, and

Town, particularly Fishers Island residents.” (SPA 94);

See Fishers Island Conservancy v. U.S. Army Corps of

Engineers, et al., E.D.N.Y. Docket No. 95-cv-04374.

D. 1999 Forward – The EPA Begins

Considering

Permanent

Site

Designation, Southold Obtains Federal

Approval For Policies Designed to Address

its Concerns, And the EPA Ignores Those

Policies

In 1999, the EPA announced its intention to

prepare an environmental impact statement to

consider permanently designating dredge disposal

sites in the Long Island Sound. (64 FR 29865-01).

Around the same time, the lobster population in

the Long Island Sound suffered a significant die-off,

with various contributing factors. (See JA 53, 171; SPA

145 - 146). The disease was observed to be three times

more prevalent on the side of the Fishers Island that

faced the U.S. Navy’s dredge disposal operations. Id.

New York sought to restrict lobstering near Fisher’s

Island and exclude that area from its reciprocal permit

arrangement

with

Connecticut,

prompting

Connecticut to sue, and the restriction was found

unconstitutional. Connecticut ex rel. Blumenthal v.

Crotty, 346 F.3d 84, 88 (2d Cir. 2003).

In 2004, amid increased concerns and seeking

greater federal protection for its coastal and marine

habitats than what was already available under New

York State’s existing Coastal Management Program

(“CMP”), the Town of Southold adopted a Local

Waterfront Revitalization Plan (“LWRP”), which was

incorporated into New York’s CMP with the

concurrence of Department of Commerce (SPA 45, 57).

As described above, the LWRP was specifically

intended, in part, to obtain federal protection for

policies protecting Fishers Island and Southold’s other

coastal and marine habitats from continued exposure

to dredge spoils from dumping near this location.

(SPA. 146, 157, 164).

The following year, the EPA issued a final rule

designating disposal sites in the western and central

Long Island Sound, but indicating an intention to

prepare a Supplemental Environmental Impact

Statement with respect to the eastern Long Island

Sound. Rosado v. Wheeler, 473 F. Supp. 3d 115, 126

(E.D.N.Y. 2020), aff'd sub nom. Town of Southold v.

Wheeler, 48 F.4th 67 (2d Cir. 2022) citing 70 Fed. Reg.

32498-01 and 32509.

Congress intervened to allow for one additional

5-year temporary designation while the EPA resumed

consideration of a permanent dredge disposal site in

the eastern Long Island Sound. Id. As part of this

process, Southold’s Town Supervisor wrote to the

Director of the EPA and specifically drew their

attention to Policies 5, 6, 8 and 11 in Southold’s LWRP.

(JA 4916). The Town Supervisor also spoke at a public

hearing and urged the EPA to consider the “cumulative

adverse impacts” of dredge spoil disposal in this area.

(E.D.N.Y. Docket No. 17-cv-04843; D.E. 72-4, Pg. 4).

In April 2016, the EPA published a proposed

rule designating the ELDS. 81 Fed. Reg. 24748. In its

supplemental environmental analysis, the agency

observed that the water current will cause a plume of

material from the dumping site to flow towards Fishers

Island, exposed it a concentration of material that will

be ten times greater than any other coastline. (JA. 458,

460, 1216, 2058). Specifically, a “cloud of material from

disposal operations” would spread out into the Sound

following each 3,000 cubic yard scow-load being

dumped into the water. (JA. 457). The western

coastline of Fishers Island would receive the

“maximum concentration at representative coastal

locations” by “a factor of approximately 10,” which the

EPA attributed to the effect of the material being

pulled by and through the stronger currents of the

Race. (JA. 458, 460, 1216). The plume would be

expected to dilute sharply during the first few hours

after each disposal event, but some of it would linger

and taper off more slowly over a period of

approximately two weeks. (JA. 460).

Nonetheless – in a report that reads more like

advocacy than analysis – the EPA found that site

designation would have no “direct effects” on the

Town’s coastline because site designation, by itself,

“does not actually authorize the placement of dredged

material” and the dumping zone was located “entirely

outside of New York’s waters.” (JA. 3074, 3079, 3090).

Initially, the EPA adamantly refused to consider

Southold’s federally-protected policies at all, arguing

that consistency was not required because it had

reconfigured the boundaries of the dumping zone to be

approximately 1,000 feet beyond the Town’s border

and thus scows would not be dumping dredge spoils

directly into the Town’s waters.

(JA. 3101).

Subsequently, it argued that a specific analysis of the

Town’s policies and coastal and marine habitats was

unnecessary because it had already addressed State’s

more general regional policies. (JA. 3101 - 3102).

However, to be “doubly sure,” the EPA included a

specific finding that designating the ELDS “would be

fully consistent with the policies of the LWRP of the

Town of Southold [because the] EPA’s site designation

neither authorizes dredging nor dredged material

disposal [and] [s]eparate case-specific approvals are

needed to authorize dredging and dredged material

disposal.” (JA 3104).

Notably, in its analysis, the EPA repeatedly

discusses the economic benefit of reducing the cost for

two large near-term projects by the U.S. Navy and its

submarine manufacturer, Electric Boat, but failed to

engage in any inquiry as to the foreseeable

environmental impact of disposing the material from

those known projects. (See JA. 829; See also JA. 110,

383, 394, 548, 1143, 4903). After the site was

designated, Electric Boat applied for a permit through

the case-specific process the EPA used to rationalize

limiting its environmental review for site designation,

and New York attempted to object, but the Department

of Commerce found that the case-specific application

was exempt from further consistency review in the

interest of national security. 4

REASONS FOR GRANTING CERTIORARI

THIS CASE PRESENTS AN OPPORTUNITY TO

FURTHER ADDRESS THE EPA’S ROLE IN

In Re Electric Boat (NOAA Nov. 2020), Pgs. 8 and 18

(https://coast.noaa.gov/data/czm/consistency/appeals/fcappealdeci

sions/mediadecisions/ebc-decision.pdf).

DEFINING THE

AUTHORITY

SCOPE

ITS

OWN

An administrative agency exceeding its powers,

usurping authority that Congress has expressly left to

the states, the President, and the courts –

circumventing procedures laid out by the legislature to

facilitate the political resolution of matters that

involve balancing interstate and federal/state policy

considerations – is of sufficient importance to warrant

this Court’s review.

The EPA has used the

administrative process to claim authority that is

adjacent to this Court’s own original jurisdiction under

Article III, while limiting judicial review, and

undercutting congressionally-recognized powers of

state and local governments to regulate and protect

their coastal zones.

Situations where the EPA determines, over a

state’s objection, that its own actions are consistent

with that state’s laws will inherently involve

significant issues, such that guidance from this Court

on the standard of review is appropriate. Beyond that,

such guidance may be beneficial in analogous

situations where the EPA or other agencies seek to use

administrative deference, waiver, and similar

arguments to expands the scope of their own authority

beyond what Congress intended.

As this Court recently explained when

addressing the scope of an agency’s authority, the issue

is “whether Congress in fact meant to confer the power

the agency has asserted.” West Virginia v. EPA, ____

U.S. _____, 142 S. Ct. 2587, 2607-2608 (2022) citing

FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 159 (2000). Even if an agency’s interpretation of

its own statutory authority has “textual plausibility”

or a “colorable textual basis,” the agency’s own

interpretation cannot supersede “common sense as to

the manner in which Congress” grants regulatory

authority in light of “separation of powers principles

and a practical understanding of legislative intent.”

West Virginia, 142 S. Ct., 2609.

When an administrative agency interprets a

statute in a way that gives itself powers of “vast

economic and political significance,” such an

interpretation should be met “with a measure of

skepticism” rather than deference. Util. Air Regul.

Grp. v. E.P.A., 573 U.S. 302, 324 (2014). It is

“incumbent upon the federal courts to be certain of

Congress’ intent before finding that federal law

overrides’ the usual constitutional balance of federal

and state powers.” Bond v. United States, 572 U.S. 844,

858 (2014)(internal citations omitted). Congress may

not “delegate power in areas of traditional state

sovereignty unless Congress made that intent

unmistakably clear in the language of the statute.”

Will v. Mich. Dep’t of State Police, 491 U.S. 58, 65

(1989)(internal citations omitted). Federal courts

must “presume Congress does not intend to make a

dramatic departure from the Constitution’s statefederal balance absent a clear statement of that

purpose.” Id. 572 U.S. 844, 866 (2014)(internal

punctuation omitted). Congress must use “exceedingly

clear language if it wishes to significantly alter the

balance between federal and state power,” U.S. Forest

Serv. v. Cowpasture River Pres. Ass’n, 140 S.Ct. 1837,

1849-50 (2020), as it is incumbent upon “the people’s

representatives” to make “fundamental policy

decisions” and “hard choices.” Union Dep’t, AFL-CIO v.

Am. Petroleum Inst., 448 U.S. 607, 687 (1980).

On its face, the APA explicitly says that “the

reviewing court shall decide all relevant questions of

law, interpret constitutional and statutory provisions,

and determine the meaning or applicability of the

terms of an agency action.” 5 U.S.C. § 706. To give

deference to the EPA as to its own jurisdiction and

compliance with statutory requirements violates the

fundamental principal that “no man can be a judge in

his own case.” Williams v. Pennsylvania, 579 U.S. 1, 9

(2016).

In the CZMA, Congress established a dispute

resolution procedure for precisely this type of

situation. The statute “encourage[s] the states to

exercise their full authority over… the coastal zone” by

creating “unified policies… for dealing with land and

water use decisions of more than local significance”

through “federally approved coastal zone management

programs.” 16 U.S.C. § 1451(h and i).

The EPA cannot override federally-protected

coastal management policies but, instead, its role in

the policy-making aspect of the process is limited to

that of an involved agency whose views must be

“adequately considered” by the Department of

Commerce in approving such policies. 16 U.S.C. §

1456(b). Once coastal management policies are

approved, agency actions “shall” be “to the maximum

extent practicable, consistent with approved state

management programs.” 16 U.S.C. § 1456(c)(1).

If there is a serious dispute as to consistency, the

EPA is not the decision-maker. Congress specifically

provided that in the case of a “serious disagreement

between any Federal agency and a coastal state,” the

issue must be referred to mediation overseen by the

Secretary of Commerce and the “Executive Office of the

President.” 16 U.S.C. § 1456. Thus, rather than

whether there was a rational basis for the agency’s

interpretation of its own authority in resolving a

disagreement over consistency, the law deprives the

EPA of jurisdiction once there is a serious

disagreement.

Where, as here, an agency denies that any

disagreement is serious and makes a finding of no

impact or full consistency, the statute explicitly

contemplates judicial review as to whether the agency

is “in compliance” with its consistency obligation. 16

U.S.C. § 1456(c)(1)(b). It is not a subjective standard

as to whether the agency had a rational basis to believe

it was in compliance, but rather an objective standard

as to whether the agency is or “is not in compliance”

with its obligation to be “consistent to the maximum

extent practicable with the enforceable policies” of an

approved coastal management program. 16 U.S.C. §

1456(c)(1)(a-b).

Although

deference

may

appropriate as to particular factual issues within its

analysis, whether a proposed action is consistent is

clearly a question of law, not fact, and deferring to the

EPA in the manner that occurred here allows the

agency to expand its own jurisdiction with very limited

oversight.

If Congress intended for federal agencies to

receive deference in connection with disputed

consistency determinations, it would have said so,

rather than including express language in the CZMA

that strongly suggests the complete opposite. The

plain language of the statute indicates that federal

agencies cannot act unless there is no “serious

disagreement” as to consistency with approved coastal

management policies, or the President waives the

requirement, and whether “a specific Federal agency

activity is not in compliance” with its statutory

obligations is an issue to be determined by the courts

if needed. 16 U.S.C. § 1456(c)(1)(b).

The District Court’s rationale, which carried

over (albeit not explicitly) in the Second Circuit’s

decision, was concern over transforming “coastal

programs into a veto over otherwise lawful agency

actions.” Rosado, 473 F. Supp. 3d, 146. However, this

reasoning flips the federal/state balance that Congress

struck in the CZMA. Indeed, this Court has described

the consistency requirement in terms of being a “veto”

by the state. Sec'y of the Interior v. California, 464 U.S.

312, 340 (1984). See also New Jersey v. Delaware, 552

U.S. 597, 623 (2008)(Delaware had “authority to deny

permission” to New Jersey for project affecting its

coastal zone, per policies approved per the CZMA and

other considerations); Weaver's Cove Energy, LLC v.

Rhode Island Coastal Res. Mgmt. Council, 589 F.3d

458, 462 (1st Cir. 2009)(describing consistency

requirement as “conditional veto”); AES Sparrows

Point LNG, LLC v. Smith, 527 F.3d 120, 123 (4th Cir.

2008)(same); Delaware Dep't of Nat. Res. & Env't

Control v. FERC, 558 F.3d 575, 578 (D.C. Cir.

2009)(similar language).

The EPA’s improper exercise of authority is

harmful to the political process. Congress provided for

a process whereby competing policy considerations can

be balanced. The Town of Southold has an interest in

protecting its habitats, and legitimate concerns about

the consequences of dredge disposal at this site. The

EPA’s analysis is essentially silent as to affected

coastal and marine habitats in the Town of Southold - despite site designation being an “event or series of

events where coastal effects” to the Town’s habitats

“are reasonably foreseeable (15 C.F.R. § 930.33) -- but

extensively discusses policy considerations that are

beyond its purview and/or was not germane to its

environmental analysis as pertains to the Town of

Southold. For example, it considered Connecticut’s

concerns regarding the financial burden of

transporting dredge spoils on small local businesses.

(JA. 992). The U.S. Navy and its vessel manufacturer,

whose dredging operations raise some of the most

significant environmental concerns, are hard-pressed

to argue that they are unable to travel past the nearest

island and out towards the open ocean, but the EPA

considered their role in the New London area economy

and the benefit of having a long-term cost-effective

solution for dredge spoil disposal. (JA. 385, 442-443,

977).

These are precisely the type of competing

concerns that – but-for the EPA’s attempt to resolve

the matter by fiat – can and should be balanced via the

political process contemplated by the CZMA. For

example, one point of contention was whether, if

designated, this site should have specific use

restrictions beyond those in the western and central

Long Island Sound. Rosado, 473 F. Supp. 3d, 146. The

trial court found that there was “no good explanation

for why those same restrictions are all of a sudden

violative in the context of the Eastern Site,” and

credited the EPA’s argument that there was a benefit

to having “uniformity of site restrictions” and a

“consistent regulatory regime” among the disposal

sites in the Long Island Sound. Id. However, Southold

is not the same as its westerly counterparts, and its

policies protect unique and highly sensitive habitats in

an area where it is significantly more feasible to travel

beyond the mouth of the Long Island Sound. Moreover,

as some of the most significant concerns arise from

large federal projects, compromise has the potential to

result in a situation where the federal government can

lead by example and, in the process, make it more

feasible overall to dispose of material outside of the

Eastern Long Island Sound.

Beyond that, the EPA’s disregard of procedural

safeguards, narrowly interpreting what it was

required to look at rather than taking the requisite

hard look (not only as required by NEPA, but also with

specific considerations pursuant to the Town’s

policies), prevented the development of information

that would have been within the agency’s specialized

expertise to aid in properly addressing this issue.

Based on Fishers Island receiving the highest

concentration of material outside of the dumping zone,

there was a sufficient record to find inconsistency; but,

to find that there would be no impact, or to assess full

consistency or the maximum extent to which

consistency would be practicable, or to otherwise

inform future decision-making processes, a better – or

at least some – understanding of the risks and

foreseeable impact on Southold’s coastal and marine

habitats from the use of this disposal site, at scale over

time, would be necessary and should have been

undertaken.

The way in which the EPA designated this site

improperly

expanded

the

agency’s

powers,

undermining a carefully crafted statutory scheme, and

let it tip the scales on an issue that should have been

beyond its purview. The concerns raised by this matter

warrant this Court’s consideration.

II.

THIS COURT’S GUIDANCE IS NECESSARY TO

AVOID INCONSISTENCY WITH THIS COURT’S

DECISIONS

AND

DISAGREEMENT

CONFUSION AMONG THE LOWER COURTS AS

THE

STANDARDS APPLICABLE TO

JUDICIAL REVIEW OF CZMA CONSISTENCY

DETERMINATIONS

The Second Circuit’s opinion in this case uses a

more deferential standard of review for CZMA

consistency determinations than what has been

suggested by this Court’s precedent and how other

Courts of Appeals have approached the issue.

The EPA interpreted the CZMA and the Town of

Southold’s policies so narrowly as to effectively

eliminate any factual analysis of the impact on the

Town’s coastal and marine habitats, and then limited

judicial review by treating its analysis as a factual

determination entitled to deference.

A CZMA

consistency determination involves, or should involve,

a multi-faceted inquiry. An agency must engage in

sufficient factual review to form a basis for any

conclusions, but identifying what review is necessary

for a given action will involve interpreting and

applying state and local coastal management policies.

Those policies may, as here, have both procedural

requirements as to the nature and extent of the

environmental analysis necessary, and substantive

requirements as to what actions are permissible. While

an agency’s analysis may involve discreet factual

determinations that would be entitled to deference,

that same deference should not apply to its opinion as

to what is necessary to comply with its statutory

obligations.

Contrary to the lower court’s reading, this

Court’s decision in Marsh v. Oregon Nat. Res. Council,

490 U.S. 360, 376 (1989), involved a “narrow” factual

issue and does not require that broader questions of

consistency with the coastal management policies be

treated as factual issues to be determined by the

federal agency whose actions are subject to those

limitations.

In contrast to the narrow issue in Marsh, when

this Court reviewed an agency’s determination –

similar to the determination here -- that a proposed

action would not affect a state’s coastal zone, the Court

engaged in an independent analysis without any

deference to the agency making the determination.

Sec'y of the Interior v. California, 464 U.S. 312,

321(1984).

This Court has not specifically addressed the

standard of review for a disputed CZMA consistency

determination, but its discussion of the CZMA in other

contexts tends to support the view that the consistency

requirement is a limitation on the EPA’s authority, not

a factual finding for which the agency would receive

deference. In California Coastal Comm'n v. Granite

Rock Co., 480 U.S. 572, 592 (1987), the Court explained

that the “congressional intent” of the CZMA to

“enhance state authority” over coastal management

issues. In Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7 (2008), this Court upheld the authority of “the

President—the Commander in Chief,” not the agency

proposing the action, to grant an exemption from the

CZMA consistency requirement.

The analysis that has been used by the Ninth

Circuit, First Circuit, and to some degree the Third and

Fourth Circuits, provides better reasoning than the

approach taken by the Second Circuit in this case.

The Ninth Circuit has treated CZMA

consistency determinations as being subject to APA’s

“accordance with law” standard. In re Border

Infrastructure Env't Litig., 915 F.3d 1213, 1222 (9th

Cir. 2019)(commenting on standard, but not reaching

the merits). See also California Coastal Comm'n v.

United States, 5 F. Supp. 2d 1106, 1111 (S.D. Cal.

1998)(explaining that “in accordance with law”

standard applies to CZMA consistency review, and “the

deferential standard of review should not apply”

because “[t]raditional judicial review subserves that

stated legislative intent” of the CZMA); SLPR, LLC v.

San Diego Unified Port Dist., 2009 WL 10672895, at *9

(S.D. Cal. Aug. 4, 2009)(invalidate dredging permit for

violating CZMA under “not in accordance with law”

and remanding for consideration of the impact on the

affected coastline).

The First Circuit has also analyzed consistency

review as a question of law, and emphasized that it is

a question of state law, specifically rejecting the

argument that a federal agency should receive

deference in connection with its interpretation of that

state law. Weaver's Cove Energy, LLC v. Rhode Island

Coastal Resources Management Council, 589 F.3d 458,

469-471 (1st Cir. 2009); See also Conservation Law

Foundation v. Watt, 560 F.Supp. 561, 576

(D.C.Mass.,1983)(“It is plain from the language of the

Act and regulations that the burden of establishing

compliance with a state program is on the federal

agency proposing the contemplated action, and not on

the state.”)

Similar reasoning was aptly used by District

Court in the Sixth Circuit, explaining that the EPA is

required “to accept the State's interpretation of its own

standard,” and to allow the EPA to “override its

obligation to abide by state environmental standards”

by reinterpreting them would give “the agency power in

excess of its Congressionally delegated authority.” Ohio

v. United States Army Corps of Engineers, 259

F.Supp.3d 732, 756-757 (N.D.Ohio, 2017).

The Fourth Circuit does not appear to treat

“accordance with law” and “arbitrary and capricious”

as distinct standards, but has found that deference is

owed to the state with respect to interpreting its

policies while deference is owed to the federal agency

with respect to specific factual findings. Shanty Town

Assocs. Ltd. P'ship v. E.P.A., 843 F.2d 782, 795 (4th

Cir. 1988).

The Third Circuit similarly discussed this issue

in terms of a determination that is not in accordance

being “arbitrary and capricious,” but explained a

heightened degree of scrutiny should apply when the

issue involves “doubt about the agency's compliance

with statutory constraints,” particularly as “agency

action moves toward the gray area at the outer limits

of statutory authority,” or when the agency “begins to

encroach on congressional policies expressed

elsewhere,” and has explained that the “congressional

preference for having [coastal management] policies

initiated at the state level must be respected.” Cape

May Greene, Inc. v. Warren, 698 F.2d 179, 190-191 (3d

Cir. 1983).

Whether this site designation and the process

used to make that decision were consistent to the

maximum extent practicable with Town of Southold’s

federally-approved coastal management policies are

questions of law for the courts to independently

consider, not a factual determination to be made by the

agency subject to only limited review. Similarly, what

is required under the Town’s policies is driven by the

text of those policies, with ambiguity as to the intended

meaning best informed by the narrative portions of the

LWRP, and the EPA’s interpretation of those

obligations is not entitled to any special weight or

deference because it is not the agency that has been

entrusted to administer the Town’s policies. Cf.

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837, 865 (1984).

This case is an appropriate vehicle for providing

valuable guidance and clarity as to how disputed

CZMA consistency determinations should be reviewed

by the lower courts. It is an issue that, when raised,

almost inherently involves a matter local, regional, or

potentially national importance. Courts have carefully

grappled with the issue, and have taken divergent but

not necessarily incompatible approaches, and the

decision in this case being an outlier in the wrong

direction. This Court’s guidance would be beneficial for

future cases, and the circumstances of this case are

particularly conducive to a discussion of these issues

because – notwithstanding the lower court’s analysis

to the contrary – the matter turns on legal arguments

and common sense rather than granular factual issues.

III.

THIS MATTER INVOLVES QUESTIONS OF

EXCEPTIONAL IMPORTANCE AND NATIONAL

SIGNIFICANCE

A governmental action that results in one state’s

waste polluting another “is a matter of very great

importance.” State of Missouri v. State of Illinois, 180

U.S. 208, 246 (1901).

This dispute involves the interests of multiple

states and multiple federal agencies, and has been

brewing for a half-century since the applicable

statutory and regulatory schemes were first

established.

The areas Southold is trying to protect are of

exceptional importance and value.

The dredging

needs in the area surrounding the Naval Submarine

Base are also obviously of national importance, which

elevates the importance of compliance with

environmental laws and policies governing the

disposal of those spoils. Ensuring that the decision as

to where and how that material should be disposed of

was made in accordance with the law is an issue, in its

own right, that is deserving of the Court’s attention.

Beyond the importance of the immediate

dispute before the Court, the broader issue of defining

the EPA’s role in this type of dispute implicates

concerns regarding federalism, administrative powers,

and the rule of law. When the EPA was created and

Congress gave it authority to issue dredge disposal

permits, while at the same time passing separate

legislation reserving power to the states and their local

governments to manage their coastal zones subject a

dispute resolution process that carefully balanced

federal and interstate interest, it could not have

intended to entrust the most difficult policy-laden

decisions to an administrative agency subject to

extremely limited judicial review. Accordingly, this is

an appropriate case for review by this Court.

CONCLUSION

WHEREFORE, it is respectfully requested that

the Town of Southold’s petition for certiorari be

granted.

Dated: February 15, 2023

Respectfully submitted,

/s/Scott J. Kreppein

SCOTT J. KREPPEIN

Counsel of Record

DEVITT SPELLMAN BARRETT, LLP

Attorneys for Petitioner

50 Route 111, Suite 314

Smithtown, New York 11787

(631) 724-8833

s.kreppein@devittspellmanlaw.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.