PSEG Poles

THE LITIGATION

Last July the Town sued PSEG and LIPA.

In late November, LIPA and PSEG filed a motion with the Supreme Court to dismiss the Town's petition. 

The Town was entitled to respond, and in late January it filed responsive papers and a motion to amend its petition. 

In early March, LIPA and PSEG replied to the Town response it their motion to dismiss and responded to the Town's motion to amend its Petition. 

And finally, in mid-March the Town replied to LIPA and PSEG's respond to its motion to amend. 

The motions were marked at a conference with the Court on March 22 as "fully submitted"—meaning it became time for the Court to render decisions on the motions. 

What's the litigation about?

SEQRA violated.  LIPA and PSEG have accepted the Town's amendment of its Petition for purposes of the pending motions, so we look to the Town's Second Amended Petition for what the Town is suing for.  Basically, its seeks two forms of relief.  First, a determination that SEQRA was violated by LIPA and PSEG deciding to not do an Environmental Impact Statements, and an order telling them to do one and consider all the alternatives including undergrounding the transmission wires now installed on poles.  Second, the Town wants a determination that LIPA and PSEG's actions constituted a nuisance to the residents of Eastport so the same relif should be allowed for a second reason.

"Standing". LIPA and PSEG countered by first arguing that the Town was not the right party to seek the relief it asked for.  Generally, a party complaining about a SEQRA violation must have been injured more than the public at large and be within the zone of interest protected by SEQRA, and a municipality must show how a property right it had or represented was hurt more than the public at large.  Just complaining about adverse visual impacts is not enough, they argued. But, in their reply papers, LIPA and PSEG dropped their standing argument for purposes of the motion to dismiss.  In its reply, the Town asks the Court to decide the standing issue now.

Mootness.  LIPA and PSEG argued that the case could not go ahead because it raised issues that were moot.  They said that the pole work started on April 10, but Town waited to complain about the SEQRA violations until July 21 to commence the proceeding--well after June 9 when the work on the poles was done--and it did not ask for a preliminary injuction to stop anything left.  To undo the work, they contended, would involve substantial prejudice.

The Town rejected the mootness argument.  It argued:

The prior cases considered various factors when weighing mootness, and in particularly have allowed cases to go forward notwithstanding substantial construction where novel issues or public interests warrant  continuing review.  Here, it argued, LIPA and PSEG have four additional, similar projects planned to "harden" transmission lines using steel poles. 

The Town defends against the charge of having started the proceed too late by pointing to the fact that the Negative Declaration that is the basis for its claims was not available to it until 19 days after its June 28 FOIL request for a copy, and it was a newspaper reporter, rather than LIPA or PSEG, who made it available to the Town.

The Town rejected the contention that PSEG gave it actual notice of the significant details of the project starting 2 years in advance.  Rather, it got only general notice of the project without information on the size differences between the old wood poles and the new steel poles, especially the difference in diameter/footprint.

It goes on to itemize various factual discrepancies in the Negative Declaration and supporting materials regarding where poles were to be installed and the types of poles to be used.  It points out the factual inadequacies of the March 1 letter to some Eastport residents.

In reply, LIPA and PSEG say the other factors the Town relies on regarding mootness are not as significant under case law as the failure to seek a preliminary injunction prior to completion of the work.  Then they go on to address the other factors the Town relies on, but add no new facts to the record except on the difficulty of undoing the project.  They agrees that there are case law exceptions to mootness, but argue that here a) there is no likelihood of repetition, b) the issues are of a type that typically avoid review, and c) that the issues are not substantial and novel.

The Town objected to the new evidence on the difficulty of undoing the project as improperly procedurally and asked the Court to disregard it.  On the issue of what Town officials knew about the project in advance, the Town argued that there were factual disputes that could not be resolved by motions.  It emphasize the irony of LIPA and PSEG's arguing for mootness on the basis of the costs of undergrounding given that it was not part of the SEQRA review. Finally, the Town strongly argued the likelihood of repetition of the problems raised by its Petition:

"Finally, it is clear from the Record that LIPA and PSEG do not perform their associated SEQRA reviews of these types of projects in the open sunlight of public notice and comments – where the public would be expected to be more directly aware of an impending project well before the work even commences – as is done with typical SEQRA reviews by villages, town's and counties (on notice to each neighboring property owner).  Rather, the type of SEQRA review at issue here is performed virtually in secret, without specific written notice to neighboring property owners. Thus, property owners are left having to grapple to quickly understand the extent of what is going on and to quickly do something when work on a project suddenly begins in front of their property, to avoid having their concerns and claims deemed moot."

Nuisance.  This claim, LIPA and PSEG say, cannot be brought according to case law because the courts have held that the right way to do it is by the main claim the Town made.  Even on the nuisance claim itself, they say, there has been no public nuisance of a type that courts recognize; aesthetic impacts are not enough. 

The Town did not respond to these arguments except by arguing in a footnote that the new allegation in its Second Amended Complaint regarding the fatal auto accident at a PSEG-installed pole on the Riverhead Road at the westbound entrance to Route 111 showed that the poles have an impact on public health and safety.

But LIPA and PSEG submitted better than two pages in their memo in reply.  They noted that the Town did not address the argument that the nuisance claim was an impermissible collateral attack on the SEQRA Negative Declaration.  They argue that death by utility pole does not establish interference with any public right and that since the pole replaces an old wood pole and was in the utility right of way along the highway, installing the new poles did not interfere with any public right.

The Town did respond in its final set of papers.  It distinguished the case LIPA and PSEG relied on claiming the Town was collaterally attacking the Negative Declaration.  And it argues that the very fact that a utility is protected when it builds in a utility right of way means that the Town should be able to assert a public nuisance claim to protect the traveling public.