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Connecticut v. Long Island Lighting Co.

Citation: 12 ELR 20668
No. No. CV 81-1136, 535 F. Supp. 546/17 ERC 1145/(E.D.N.Y., 03/24/1982)

The district court rules that Connecticut is not entitled to monetary or equitable relief for alleged injuries suffered during defendant's noncompliance with the New York state implementation plan (SIP). Plaintiff brought a citizen suit under the Clean Air Act against defendant Long Island Lighting Company (LILCO), the Environmental Protection Agency (EPA), and the New York Department of Environmental Conservation (DEC), alleging that LILCO was in violation of the SIP's one percent sulfur content fuel oil limitation from June 1, 1980, when EPA approval of its variance from the SIP expired, until September 24, 1981, when EPA approved a new variance. The court denies as moot plaintiff's motion for summary judgment since defendant has a variance and therefore is not in violation of the SIP. Next, the court grants the Connecticut Fund for the Environment's motion to intervene, finding that its claims have questions of law and fact in common with plaintiff's claims. Intervention will not result in undue delay since both plaintiff and the intervenors seek identical relief. The court grants defendants' motion for summary judgment dismissing the complaint, ruling that the Clean Air Act's citizen suit provision does not authorize recovery of damages and that the Act's provisions for review of EPA variances preempt plaintiff's recovery under a common law nuisance theory. Furthermore, LILCO's actions did not constitute flagrant, willful violations of the Act. Instead, its technical violation of the SIP was merely the result of bureaucratic delay and was committed with the knowledge that its second variance had already been approved by DEC and would almost certainly be approved by EPA.

Counsel for Plaintiff
Kenneth N. Tedford, Ass't Attorney General for Environmental Protection
Capitol Annex, 30 Trinity St., Hartford CT 06115
(203) 566-2026

Counsel for Defendants
Diane L. Donley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5386

Mary L. Lyndon, Ass't Attorney General
Department of Law
Two World Trade Ctr., New York NY 10047
(212) 488-7490

Edward M. Barrett, General Counsel
Long Island Lighting Co.
250 Old County Rd., Mineola NY 11501
(516) 228-2890

Counsel for Intervenors
Daniel Milstone, Litigation Director
Connecticut Fund for the Environment, Inc.
152 Temple St., New Haven CT 06510
(203) 787-0646