RECENT FEDERAL DECISIONS

August 2009

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District Court Holds New York Environmental Conservation Law Does Not Provide a Private Right of Action
Kalden Construction Company, Inc. v. Hanson Aggregates New York, Inc., ___F.Supp.2d___

Plaintiff claims under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and the New York Environmental Conservation Law (ECL) arose from plaintiff’s purchase of a parcel from the former Potter-Dewitt Corporation (Potter) that had previously discharged over one hundred barrels of waste on the property. After filing, defendant (Potter’s predecessor in interest) filed a motion to dismiss under Federal Rule of Civil Procedure § 12(b)(6), alleging that plaintiff’s loss of property and/or revenue claims are not recoverable under CERCLA, and that plaintiff’s second cause of action should be dismissed as there is no private right to sue under ECL Article 27. The CERCLA issues were remedied before any hearing on defendant’s motion through plaintiff’s agreement to amend its complaint to remove the demand for damages attributable to loss of property value/revenue. The only issue before the court was the defendant’s motion to dismiss plaintiff’s second cause of action under the ECL. Although the court had this issue before it once before, it did not address the issue of whether ECL provides a private right of action as the prior motion failed on procedural grounds. In this case, the court held that precedent suggests that a private right of action under ECL does not exist, as the statutory language specifically authorized the Attorney General to enforce any rule or regulation promulgated pursuant to ECL Article 27, thereby occupying the field.