Mahoney v. U.S. Dep’t of the Interior, 2023 U.S. Dist. LEXIS 122761 (E.D.N.Y. 2023)

Facts

The Mahoneys and the Solomons (the “plaintiffs”), two married couples, brought an action to halt construction of a wind farm and export cable project planned adjacent to their properties in the Wainscott hamlet of East Hampton, New York. The South Fork Wind Farm, 35 miles East of Montauk Point, and South Fork Export Cable Project (collectively, the “project”) the plaintiffs opposed involves excavation of onshore trenches to hold the export cable, which would transfer energy generated by the wind farm to an onshore electric grid in East Hampton.1 Part of the cable’s route onshore would pass under Beach Lane in Wainscott, next to the plaintiffs’ properties.

The main issue for the plaintiffs was that their groundwater was already contaminated with perfluoroalkyl and polyfluoroalkyl (PFAS). Because of this, neither couple used their well water for drinking water; rather, it was only used for “other purposes, such as irrigation.”2 Their claim was that trenching on Beach Lane will worsen the existing PFAS contamination, in violation of the National Environmental Policy Act (NEPA), 42 U.S.C § 4332(2)(C), the Clean Water Act, 33 U.S.C. § 1344(b)(1), the Outer Continental Shelf Lands Act, 43 U.S.C. § 1337(p)(4)(B), and the Administrative Procedure Act.3

The defendants in the case included federal agencies: U.S. Department of the Interior, Bureau of Ocean Energy Management (BOEM), U.S. Department of the Army, and U.S. Army Corps of Engineers (collectively, the “defendants”).4 Each of the defendants was involved in the project, issuing permits for the wind farm at various stages at points between August 2021 and January 2022.5 Each agency also issued a Final Environmental Impact Statement (FEIS), which the permitting process required.6 South Fork Wind, LLC, as the project’s developer, was brought in as defendant-intervenor.7

In years preceding the instant litigation, plaintiffs had opposed permits for the project as petitioners, attending public hearings and participating in comment periods administered by the New York Public Service Commission (PSC).8 PSC’s administrative proceedings looked at, among other issues, the potential of the project to worsen PFAS contamination.9 PSC determined that the project would not worsen PFAS contamination, in part because of preventative measures to ensure digging of the trench would not alter groundwater flow.10 Thus on March 18, 2021, PSC gave the go-ahead for the onshore portion of the project, issuing a Certificate of Environmental Compatibility and Public Need under Article VII of the New York State Public Service Law.11 Plaintiffs initiated this action with the court on March 9, 2022.12

Procedural History

The case was adjudicated by the United States District Court for the Eastern District of New York. The defendants moved to dismiss each of the plaintiffs’ claims for lack of standing under Federal Rules of Civil Procedure (FRCP) Rule 12(b)(1), and alternatively to dismiss two of plaintiff’s claims under Rule 12(b)(6). South Fork Wind, LLC moved for a judgment on the pleadings under Rule 12(c).13

The same court had also previously, in April of 2022, denied the plaintiffs’ motion for a preliminary injunction to halt onshore trenching for the project.14

In addition, the PSC, in its administrative proceedings, denied a rehearing of the issue on the PFAS contamination, holding that the petitioners (including plaintiffs here) had not shown that the project’s PFAS provisions were inadequate.15 Plaintiffs unsuccessfully challenged PSC’s final decision in state court.16

Issue

The current issue before the court is whether under FRCP 12(b)(1) the court has subject matter jurisdiction to hear the case.17

Rationale

The court considered whether it should dismiss the case due to lack of subject matter jurisdiction. The standard for dismissal is when “the district court lacks the statutory or constitutional power to adjudicate” an issue.18 The court noted that plaintiffs bear the burden to prove, by a preponderance of the evidence, that the court does have subject matter jurisdiction.19 Amidst a challenge to subject matter jurisdiction, a court needs to determine “whether the pleadings allege facts that affirmatively and plausibly suggest that [the plaintiff] has standing to sue.”20 Three requirements are provided to establish standing: (1) plaintiff suffered a concrete, particular, actual or imminent injury; (2) that the injury was likely caused by the defendant; and (3) that the injury would likely be redressed by judicial relief.21 The plaintiffs’ pleas must show all of these in the facts it presents.

Here, the court applied the facts given by the plaintiffs to the three requirements. The plaintiffs argued that: (1) living on the land potentially affected by the PFAS contamination and fear that their property will decrease in value constituted an injury; (2) the defendants caused the injury by requiring the project’s trench to be built on the land next door to them; and (3) the injury could be redressed via judicial relief because vacating or changing the wind farm permits would prevent further contamination.22

The court emphasized that plaintiffs must show that their injury is “fairly traceable to the defendant’s actions, ‘not the result [of] the independent action of some third party not before the court.’”23 Thus the injury claimed and the defendant’s actions must be causal and directly related. Here, the court found that there was not enough causal relationship between the named defendants and the injury plaintiffs claimed. It found that PSC was responsible for the onshore trenching plans and permits, making them a “third party not before the court.”24 Documents from both parties made it clear to the court that the decision to use Beach Lane as a path for the export cable was approved by state and local authorities, not the federal agencies named as defendants. The court held that the plaintiffs were unable to show that their alleged injury was likely caused by the defendants. Thus, the plaintiffs failed to meet their burden of establishing subject matter jurisdiction.

Conclusion

The Court granted the defendants’ Rule 12(b)(1) motion to dismiss.25 The plaintiffs’ complaint was dismissed in its entirety with prejudice.

Abby H. Goldfarb
Albany Law School, Class of 2027

Endnotes

1 Mahoney v. U.S. Dep’t of the Interior, 2023 U.S. Dist. LEXIS 122761, *1 (E.D.N.Y. 2023).