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Concerned Citizens of Cohocton Valley v. New York State Dep't of Envtl. Conservation

Citation: 28 ELR 20039
No. 96-7373L, -9474CON, 127 F.3d 201/(2d Cir., 09/02/1997)

A court dismisses two consolidated appeals that pertain to the construction and development of an interstate natural gas storage facility in New York. The first appeal was brought by the project developer who was concerned about the possible preclusive effect of the lower court's dismissal of a citizen group's challenge to the project. The second appeal was brought by the facility operator whose action to enjoin the citizen group from enforcing state law was dismissed for lack of subject matter jurisdiction.

The court first holds that the project developer, as the prevailing party below, may not appeal. The developer is not aggrieved by its loss of an opportunity to defend the group's state-law claim in federal court on grounds of preemption and, thus, lacks standing. In addition, the developer failed to identify any ruling of the district court that might be entitled to preclusive effect and cause it to be aggrieved. The district court's ruling is preclusive only on the narrow issue of whether the state-law claims alleged by the citizen group can be maintained in federal court. Thus, in the absence of an adverse potentially preclusive ruling, the developer may not appeal.

Next, the court holds that the district court properly dismissed the facility operator's suit for lack of subject matter jurisdiction. The court notes that it need not decide definitively whether a state official must be a defendant in a federal suit in which the plaintiff is seeking injunctive relief against the enforcement of state law on the ground of federal preemption. At a minimum in a federal suit enforcing state law there must be adversity between the plaintiff and the state enforcing authorities. No such adversity exists in the present case. The operator received all necessary state and local approvals to begin construction. And where state officials have no intention of enforcing state law against a plaintiff, a suit against a private entity cannot be considered a suit for relief from state regulation.

Counsel for Plaintiff
Mark A. Chertok
Sive, Paget & Riesel
460 Park Ave., New York NY 10022
(212) 421-2150

Counsel for Defendants
Alan J. Knauf
Knauf & Craig
The Alliance Bldg.
183 E. Main St., Ste. 1250, Rochester NY 14604
(716) 546-8430

Before Kearse, J.*