Panel Finds D.A. Can Prosecute Alleged Polluter Under N.Y. Law

new york law journal
Mark Fass | New York Law Journal | August 22, 2008

In a case of first impression, an appeals panel has ruled that the Brooklyn District Attorney’s Office may prosecute a purported polluter under the state’s Environmental Conservation Law without first securing the state’s permission.

In reversing the trial court’s decision to throw out the majority of the charges, the Appellate Division, Second Department, ruled that District Attorney Charles J. Hynes did not overstep his authority by pursuing his high-profile case against Constantine Quadrozzi and Mr. Quadrozzi’s company, Quality Concrete, for allegedly dumping industrial waste into Newton Creek, the heavily polluted waterway separating Brooklyn from Queens.

The appellate court’s unanimous decision turned on statutory interpretation, as well as the panel’s finding that the Legislature intended for district attorneys to prosecute cases under the Environmental Conservation Law without first securing the state’s consent. “ECL 71-0403, consistent with the legislative rationale for its enactment, specifically vests local District Attorneys with authority to initiate or conduct prosecutions of alleged ECL violations independently” of the attorney general and the Department of Environmental Conservation, Justice William E. McCarthy wrote for the panel in People v. Quadrozzi, 2006-06575.

The decision will be published Tuesday. Mr. Hynes announced the 22 felony and 20 misdemeanor charges against Mr. Quaddrozi at a January 2005 press conference. “This indictment,” he told reporters, “sends a message that we will not tolerate these actions.” According to prosecutors, investigators witnessed Quality Concrete dumping industrial waste into the creek, which is best known as the site of the 1950s oil leak that still ranks as the nation’s largest-ever oil spill, estimated at between 1 1/2 to three times larger than the 11 million gallons lost in the 1989 Exxon Valdez disaster.

A sample from Quality Concrete’s pipes showed that the pollutants were extremely alkaline and contained chemicals linked to cancer. Although the cement plant was located in an industrial neighborhood in Ridgewood, Queens, Mr. Hynes claimed jurisdiction on the basis of its location within 500 feet of the Kings County border.

Mr. Quadrozzi and his company contested the charges on several grounds, including geographical jurisdiction and the district attorney’s alleged lack of authority under the Environmental Conservation Law. Brooklyn Supreme Court Justice Carolyn E. Demarest rejected the geographical jurisdiction claim, but threw out the majority of the charges based on the defense’s statutory argument (NYLJ, June 16, 2006). She cited ECL 71-1933(9), which holds that

“All prosecutions under this section shall be instituted by the department or the commissioner and shall be conducted by the Attorney General in the name of the people of the state of New York.” Sheared Jurisdiction The Brooklyn District Attorney’s Office appealed and in a decision released earlier this week, the Second Department reversed, reinstating the contested charges.

The panel concluded that, contrary to the defense’s argument and the lower court’s ruling, district attorneys and the state attorney general maintain concurrent jurisdiction over the contested Environmental Conservation Law sections. Justice McCarthy relied on the specificity of ECL 71-193, which delegates “criminal enforcement authority” and permits “the district attorney of the county in which the violation occurs [to] initiate or conduct” prosecution.

“Thus, contrary to the Supreme Court’s analysis and conclusion, ECL 71-0403 is more specific than ECL 17-1933(9) in that it authorizes a local District Attorney, even without prior DEC authorization or initiation, to ‘initiate or conduct any’ ECL prosecution,” Justice McCarthy concluded.

Justices Steven W. Fisher, David S. Ritter and Mark C. Dillon joined the opinion. The district attorney’s appeal was handled by Senior Appellate Counsel Seth Lieberman. “We are very, very pleased with the decision,” Mr. Hynes said yesterday through a spokesman. “We always thought it was a solid case.”

Brian Gardner, Steven Montgomery and Daniel Graber of Sullivan Gardner represented the defendants. Mr. Gardner said he intended to advise his clients to seek leave for appeal, as the decision usurps the authority of the Department of Environmental Conservation. “The history of the legislation, as well as the clear meaning of the legislation, intends for the district attorney to step into the shoes of the attorney general,”

Mr. Gardner said. Because the attorney general here would need the department’s permission to prosecute, so should the district attorney, he said.

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