Courts typically defer to the governmental agency charged with the responsibility for the administration of a statute in those instances where the agency’s interpretation or application “involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom,” and the agency’s determination “is not irrational or unreasonable.”1 Over the past 16 months or so, however, New York courts—from the Court of Appeals to the Appellate Divisions to the Supreme Courts—have issued a number of decisions refusing to afford judicial deference to decisions by the New York State Department of Environmental Conservation (DEC). One may wonder whether the DEC has lost respect in the courts, or whether it is just on a bad, but temporary, losing streak.
Brownfields Decisions
Consider the unanimous Court of Appeals decision by Judge Susan Phillips Read, issued on Feb. 18, 2010, in Matter of Lighthouse Pointe Prop. Assoc. LLC v. New York State Dept. of Envtl. Conservation.2 This case arose after Lighthouse Pointe Property Associates LLC sought to redevelop land located along the Genesee River in Monroe County into a $250 million mixed-use waterfront development. Lighthouse divided the land into two development parcels: a 22-acre riverfront site and a 25.4-acre inland site. In 2006, Lighthouse filed two requests for acceptance into the Brownfield Cleanup Program (BCP), which is administered by the DEC, one for each parcel.
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