S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
     S. 3722                                                  A. 5515
 
                        2019-2020 Regular Sessions
 
                       S E N A T E - A S S E M B L Y
 
                             February 13, 2019
                                ___________
 
 IN SENATE -- Introduced by Sen. LAVALLE -- read twice and ordered print-
   ed, and when printed to be committed to the Committee on Judiciary
 
 IN  ASSEMBLY  -- Introduced by M. of A. THIELE -- read once and referred
   to the Committee on Judiciary
 
 AN ACT directing the state attorney general to intervene  on  behalf  of
   the plaintiffs in Connecticut Fund for the Environment, Inc., et al. v
   United  States General Services et al. seeking to invalidate the deci-
   sion of the federal government to sell Plum Island  and  to  take  all
   additional legal action necessary for the conservation of Plum Island
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative Findings.  Plum Island, a small island off  the
 coast  of  Long  Island,  New  York, is owned by the federal government.
 First operated as a coastal artillery  post,  Plum  Island  has  been  a
 federal  research facility for animal diseases from 1954 to the present.
 Because of the federal research  facility  operations,  access  to  Plum
 Island  has  been extremely limited, with human activity on the 840-acre
 island largely restricted to approximately 170 acres.
   The remaining 670 acres is a unique and extraordinary nature  preserve
 that  is  home  to  several  federal  endangered species, has a critical
 ecological link to Long Island Sound and the marine species that inhabit
 it, and serves as habitat for over 200 species of birds.  Plum  Island's
 undisturbed  habitat  includes  196  acres of upland forest, 96 acres of
 freshwater wetlands, and 101 acres of a beach/dune system.
   In January 2009, the United States  Department  of  Homeland  Security
 (DHS) decided to relocate its animal disease research facility, known as
 the  Plum  Island  Animal Disease Center ("PIADC") to Manhattan, Kansas.
 DHS also began preparations to sell Plum Island. The federal  government
 prepared  an  Environmental Impact Statement ("EIS") for the sale of the
 PIADC and Plum Island, and issued its final  decision  to  move  forward
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03298-01-9

 S. 3722                             2                            A. 5515
 
 with  the  sale of the island to the highest bidder in a Record of Deci-
 sion ("ROD").
   The  EIS  process  was  fundamentally  flawed.  The federal government
 misconstrued its statutory directive, interpreting  their  authority  to
 only permit a public auction of the entirety of Plum Island to the high-
 est bidder.  This interpretation excluded a conservation sale from their
 alternatives analysis.
   The  federal government violated the National Environmental Policy Act
 (NEPA)  by  failing  to  consider  important  government  interests  and
 programs in arriving at its decision, including the protection of feder-
 ally-listed  and state-listed endangered and threatened species, compli-
 ance with New York and Connecticut coastal  consistency  determinations,
 and the adverse economic impacts of a potential sale of Plum Island.
   The federal government violated NEPA by failing to adequately consider
 alternatives to a public auction to the highest bidder, such as a bifur-
 cated  sale  of discrete parcels or a single unitary sale with conserva-
 tion easements attached to the property or conservation of  those  parts
 not  supporting  the PIADC operations, even though consideration of such
 alternatives were repeatedly requested.
   The federal government violated NEPA by failing to  consult  with  and
 rely upon the expertise of the appropriate federal agencies with respect
 to endangered species, coastal zone and environmental cleanup.
   The  federal  government violated NEPA and the Coastal Zone Management
 Act (CZMA) by failing to engage in consistency determinations  with  the
 appropriate state agencies.
   Finally, the federal government violated NEPA by basing their decision
 on  inadequate ecological data and failed to detail how they would clean
 up contamination associated with the PIADC.
   The federal government issued this EIS notwithstanding the  fact  that
 they  were  made  aware  of  each  of  these violations through repeated
 comments from state agencies,  other  federal  agencies  and  non-profit
 organizations.
   The  federal government's ill-considered decision to sell Plum Island,
 and the fundamentally flawed EIS supporting that decision, threaten  the
 continued  existence of the endangered species that inhabit Plum Island,
 the ecology of Long Island Sound, and violate numerous Federal laws.
   The Connecticut Fund for the Environment, Inc. (d/b/a Save the  Sound)
 and  other  plaintiffs,  including  several  from  New  York State, have
 brought an action seeking  declaratory  and  injunctive  relief  in  the
 United States District Court in the Eastern District. The action seeks a
 declaration  that the federal government's decision to sell the entirety
 of Plum Island at public auction, as well as the EIS and ROD  supporting
 that  decision  is  in  violation of law and seeks to enjoin the federal
 government from selling Plum Island.
   The legislature finds that the sale of  Plum  Island  for  development
 violates several long stated important policies of the State of New York
 relating to historic preservation, the environment, water quality, coas-
 tal protection, municipal home rule and local land use controls, climate
 change,  sea  level  rise, and ecology and habitat. The Governor and the
 State Department of Environmental Conservation have previously expressed
 the need to preserve the island for public benefit.
   It is the purpose of this act to direct the state attorney general  to
 intervene  in the legal action initiated by the Connecticut Fund for the
 Environment, Inc., on behalf of the plaintiffs, and to  take  all  other
 necessary  legal  action to protect the aforementioned legitimate inter-
 ests of the state of New York.

 S. 3722                             3                            A. 5515
 
   § 2. The state attorney general is hereby directed to intervene in the
 legal action entitled CONNECTICUT FUND FOR THE ENVIRONMENT, INC., ET AL.
 V UNITED STATES GENERAL SERVICES ET AL., on behalf  of  the  plaintiffs.
 Said  action  seeks to invalidate the decision of the federal government
 to  sell  the  entirety of Plum Island at public auction, as well as the
 EIS and ROD supporting that decision and seeks  to  enjoin  the  federal
 government  from selling Plum Island. The state attorney general is also
 authorized to  take  any  and  all  additional  legal  action  necessary
 consistent  with  the  findings of this act enumerated in section one of
 this act, to preclude the sale of Plum Island for  development  purposes
 and to seek its conservation.
   § 3. This act shall take effect immediately.