NY State Senate Bill 2021-S5394

Senate Bill S5394

2021-2022 Legislative Session

Grants private citizens broad authorization to commence civil judicial actions under certain titles of the environmental conservation law

download bill text pdf

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to environmental conservation
Mar 03, 2021	referred to environmental conservation

co-Sponsors

2021-S5394 (ACTIVE) - Details

See Assembly Version of this Bill:: A2261
Current Committee:: Senate Environmental Conservation
Law Section:: Environmental Conservation Law
Laws Affected:: Add Art 71 Title 45 §§71-4501 - 71-4513, amd §71-1311, En Con L
Versions Introduced in Other Legislative Sessions:: 2009-2010: A4272
2011-2012: S7814, A4656, A4801
2013-2014: S2769, A2047
2015-2016: S1087, A5802
2017-2018: S3269, A1811, A8965
2019-2020: S5013, A1424
2023-2024: S7913, A1622

2021-S5394 (ACTIVE) - Summary

Enacts "private environmental law enforcement act"; authorizes any private citizen who has an interest which is or may be adversely affected to commence civil judicial actions for injunctive or declaratory relief to remedy environmental harms under certain circumstances; provides that such action may be commenced against any person for any violation of an administrative or court order compelling an investigation or remediation of an inactive hazardous waste disposal site.

2021-S5394 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5394

SPONSOR: PARKER
 
TITLE OF BILL:

An act to amend the environmental conservation law, in relation to
granting private citizens the right to initiate civil enforcement
actions for violations of such law

 
PURPOSE OR GENERAL IDEA:

To grant private citizens broad authorization to commence civil judicial
actions under certain titles of the Environmental Conservation Law
(ECL).

 
SUMMARY OF SPECIFIC PROVISIONS:

The bill adds a new Title 45 to Article 71 of the ECL to provide broad
authority to citizens to bring civil actions to remedy environmental
injury.

The bill authorizes any private citizen who has an interest which is or
may be adversely affected to commence civil judicial actions to remedy
environmental harms under certain circumstances. Any such party may,
under these circumstances, commence a civil action in a court of compe-
tent jurisdiction for injunctive relief against any person who is
alleged to be in violation of any rule, regulation, permit, certificate
or order promulgated or issued pursuant to:  sections 15-0501, 15-0503
or 15-0505 of Title 5 and Title 27 of Article 15 (protection of Waters
and Water Supply), Titles 5, 7, 8, 10 or 17 of Article 17, Articles 19,
23, 24, 25, 33, 37 or 40 (Water Pollution control, Air pollution
control, Mineral Resources, Freshwater Wetlands, Tidal Wetlands, Pesti-
cides, Hazardous Substances Listing and Hazardous Substances Bulk Stor-
age), or Title 3, 7, 9 or 15 of Article 27 (Solid, Infectious and
Hazardous Waste) of the ECL.  A civil action may also be commenced to
enforce a violation of an administrative or court order compelling reme-
diation of an inactive hazardous waste disposal site. The State may only
be sued pursuant to this bill in its capacity as the owner or operator
of a pollution source in violation of any statutory or regulatory
requirements, or as a person responsible for an inactive hazardous waste
disposal site pursuant to ECL Article 27, Title 13.

The bill requires prior notice to the alleged violator, the Commissioner
of Environmental Conservation and the Attorney General as a condition
precedent to commencement of a citizen suit. Such notice must be served
at least 60 days prior to the commencement of an action by a private
citizen. This notice requirement may be waived if a substantial and
imminent hazard to the environment can be shown.  The plaintiff must
follow procedures as may be promulgated by the Commissioner in providing
the required notice.

The bill also prohibits a citizen suit if the commissioner or the Attor-
ney General has commenced and is actively prosecuting an administrative
or civil action relative to the alleged violation; or has obtained a
settlement or disposition of such an action; or is seeking remediation
of the inactive hazardous waste disposal site. In addition, no action
may be commenced if the alleged violation is the subject of a consent
order, a court order or any other order setting forth a compliance sche-

dule for the elimination of the violation, provided the alleged violator
is in compliance with the schedule.

The Attorney General is given the right to intervene in any civil action
commenced by a private citizen under this bill. A private citizen who
has given notice of intent to commence an action under this bill may
intervene upon timely motion as a matter of right in any civil action or
administrative enforcement proceeding subsequently commenced by the
Attorney General or the Department of Environmental Conservation relat-
ing to the violation alleged in the notice of intent.

No citizen suit may be settled except upon an affirmative order of the
court upon notice to all parties, the Commissioner of Environmental
Conservation and the Attorney General. The court will not approve a
settlement if the court determines-that a monetary settlement in excess
of total costs has been offered or paid by a defendant in exchange for
settlement. Awards of the costs of litigation and reasonable attorney
and expert witness fees may be made by the court to a plaintiff in any
action brought under this bill, where the court determines such awards
to be appropriate. In addition, a prevailing defendant may make a motion
to recover costs, however, he or she must show that the action or claim
brought by the plaintiff was frivolous.  No such awards for costs or
fees may be made against the State or any of its political subdivisions.

The bill contains a "savings" clause to ensure that rights existing
under statutory or common law to seek enforcement of any statute, rule,
regulation, permit or order, or to obtain any available relief, are not
diminished.

 
JUSTIFICATION:

The large number of violations of environmental laws, rules, regu-
lations, permits, certificates and orders makes it impossible for the
State to pursue timely enforcement actions in every instance where such
actions may be necessary or appropriate. This bill provides private
citizens with the right to seek enforcement through the courts in
instances involving violations of those provisions of the ECL relating
to protection of waters, water supply, water power, drainage, solid and
hazardous waste, freshwater and tidal wetlands, pesticides and hazardous
substances bulk storage. To avoid duplication of effort, the bill
prohibits initiation of a citizen suit when a particular activity or
condition constitutes a violation of the ECL if the Commissioner or the
Attorney General is diligently prosecuting an administrative or judicial
proceeding.

With limited enforcement resources, the State simply cannot bring an
enforcement action for every violation of the ECL or the rules, regu-
lations, permits, certificates or orders issued thereunder. As a result,
a member of the regulated community may reason that if compliance with
legal requirements, which may be costly, is postponed, it may be worth
running the risk that an enforcement action will be commenced.

A broad citizen suit bill would allow the State to marshal the pool of
resources and assistance that could be provided-by concerned citizens.
Allowing private citizens to seek judicial enforcement of certain ECL
violations would increase the likelihood that such violations would be
prosecuted. This increased enforcement effort would have a significant
deterrent effect on the regulated community.
By requiring notice to the Department and the Attorney General of the
intent to institute a citizen suit, allowing the State to intervene in
such suits and requiring notice to the Department and the Attorney
General prior to settlement of such suits, this proposal assures that
the State can oversee and provide input into the conduct and settlement
of citizen suits. The State's role as guardian of the environment and
enforcer of the State's environmental laws is thereby preserved. The
public is both willing and able to assist in this enforcement effort, as
evidenced by the number of citizen suit litigations under federal laws
and the overwhelming popular support for New York's recently enacted
"Toxic Torts" bill. Citizen suit provisions are contained in numerous
federal environmental statutes, including the Clean Air Act, the Clean
Water Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Safe Drinking Water Act, the Noise Control
Act and the CERCLA reauthorization bill.

A pooling of all available resources will assist both public and private
sectors in achieving their common goal of increased compliance with the
environmental laws of New York State. It will enable government to allo-
cate scarce enforcement resources more efficiently by allowing it to
concentrate on the most significant violations with the assurance that
lower priority violations will not be overlooked.

 
PRIOR LEGISLATIVE HISTORY:

2019-20: S.5013 - REFERRED TO ENVIRONMENTAL CONSERVATION
2017-18: S.3269 - REFERRED TO ENVIRONMENTAL CONSERVATION
2015-2016: S.1087B - Amend and Recommit to Environmental Conservation
2013-2014: S.2769A/A.2047A -- Died in EnCon/Advanced to Third Reading
2011-2012: Referred to Rules/Advanced to Third Reading

 
FISCAL IMPLICATION FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately; provided, however, that no
action authorized by section 71-4501 of the environmental conservation
law, as added by section one of this act, may be commenced against any
city, village, town. or county prior to September 1, 2025 and nothing in
this act shall affect any action commenced pursuant to section 71-1311
of the environmental conservation law prior to such effective date.

2021-S5394 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5394
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               March 3, 2021
                                ___________
 
 Introduced  by  Sens. PARKER, COMRIE, HOYLMAN, KRUEGER -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Environmental Conservation
 
 AN  ACT  to  amend  the  environmental  conservation law, in relation to
   granting private citizens the  right  to  initiate  civil  enforcement
   actions for violations of such law

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Article 71 of the environmental conservation law is amended
 by adding a new title 45 to read as follows:
                                 TITLE 45
                           PRIVATE ENVIRONMENTAL
                            LAW ENFORCEMENT ACT
 SECTION 71-4501. ENFORCEMENT BY PRIVATE CITIZENS.
         71-4503. NOTICE OF ACTION.
         71-4505. INTERVENTION.
         71-4507. APPROVAL OF SETTLEMENTS.
         71-4509. COSTS, FEES AND PENALTIES.
         71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
         71-4513. SAVINGS CLAUSE.
 § 71-4501. ENFORCEMENT BY PRIVATE CITIZENS.
   1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 71-4503 OF THIS TITLE,  ANY
 PERSON  WHO  HAS SUFFERED OR MAY SUFFER AN INJURY IN FACT, REGARDLESS OF
 WHETHER SUCH INJURY IS DIFFERENT IN KIND OR DEGREE FROM THAT SUFFERED BY
 THE PUBLIC AT LARGE, MAY COMMENCE A CIVIL ACTION IN A COURT OF COMPETENT
 JURISDICTION FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO  SUBDIVI-
 SION  TWO  OF  THIS  SECTION  AGAINST ANY PERSON FOR ANY VIOLATION OF AN
 ADMINISTRATIVE OR COURT ORDER COMPELLING THAT PERSON TO  INVESTIGATE  OR
 REMEDIATE AN INACTIVE HAZARDOUS WASTE DISPOSAL SITE PURSUANT TO TITLE 13
 OF  ARTICLE  27  OF  THIS  CHAPTER,  OR FOR A VIOLATION OF THE FOLLOWING
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01077-01-1

 S. 5394                             2
 
 PROVISIONS OF OR ANY RULE,  REGULATION,  PERMIT,  CERTIFICATE  OR  ORDER
 PROMULGATED OR ISSUED PURSUANT TO:
   A. SECTION 15-0501, 15-0503 OR 15-0505 OF THIS CHAPTER; OR
   B. TITLE 27 OF ARTICLE 15 OF THIS CHAPTER; OR
   C. TITLE 5, 7, 8, 10 OR 17 OF ARTICLE 17 OF THIS CHAPTER; OR
   D. ARTICLE 19 OF THIS CHAPTER; OR
   E. ARTICLE 23 OF THIS CHAPTER; OR
   F. ARTICLE 24 OF THIS CHAPTER; OR
   G. ARTICLE 25 OF THIS CHAPTER; OR
   H. TITLE 3, 7, 9 OR 15 OF ARTICLE 27 OF THIS CHAPTER; OR
   I. ARTICLE 33 OF THIS CHAPTER; OR
   J. ARTICLE 37 OF THIS CHAPTER; OR
   K. ARTICLE 40 OF THIS CHAPTER.
   2.  IN  ANY  ACTION  COMMENCED  PURSUANT  TO  SUBDIVISION  ONE OF THIS
 SECTION, THE COURT MAY ISSUE DECLARATORY AND/OR  INJUNCTIVE  RELIEF  FOR
 EACH  VIOLATION  FOUND.  THE JUDGMENT IN ANY SUCH ACTION MAY ALSO IMPOSE
 SUCH CONDITIONS ON THE DEFENDANT AS ARE NECESSARY TO  ASSURE  COMPLIANCE
 WITH  SUCH  LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER WITHIN A
 REASONABLE TIME PERIOD.
   3. NO PERSON SHALL COMMENCE A CIVIL ACTION PURSUANT TO SUBDIVISION ONE
 OF THIS SECTION UNLESS THE ALLEGED VIOLATION COULD BE SUBJECT TO A JUDI-
 CIAL ENFORCEMENT ACTION OR ADMINISTRATIVE ENFORCEMENT PROCEEDING BROUGHT
 BY OR ON BEHALF OF THE DEPARTMENT, THE STATE OF NEW  YORK,  THE  COMMIS-
 SIONER, OR THE COMMISSIONER'S DESIGNEE.
   4.  NO  ACTION  MAY BE BROUGHT AGAINST THE STATE OR ANY OF ITS DEPART-
 MENTS, AGENCIES OR BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS  OR  ANY
 PUBLIC  AUTHORITY  PURSUANT  TO  THIS  TITLE EXCEPT IN THEIR CAPACITY AS
 OWNER OR OPERATOR OF A POLLUTION SOURCE OR AS A PERSON  RESPONSIBLE  FOR
 THE INVESTIGATION OR REMEDIATION OF AN INACTIVE HAZARDOUS WASTE DISPOSAL
 SITE PURSUANT TO TITLE 13 OF ARTICLE 27 OF THIS CHAPTER.
 § 71-4503. NOTICE OF ACTION.
   1.  EXCEPT  AS  PROVIDED IN SUBDIVISION TWO OF THIS SECTION, NO ACTION
 MAY BE COMMENCED UNDER SUBDIVISION ONE OF SECTION 71-4501 OF THIS TITLE:
   A. PRIOR TO SIXTY DAYS AFTER WRITTEN NOTICE BY CERTIFIED MAIL,  RETURN
 RECEIPT  REQUESTED, HAS BEEN GIVEN BY THE PLAINTIFF TO THE COMMISSIONER,
 THE ATTORNEY GENERAL, AND ANY PERSON ALLEGED TO BE IN VIOLATION  OF  ANY
 LAW, RULE, REGULATION, PERMIT, CERTIFICATE OR ORDER. SUCH WRITTEN NOTICE
 SHALL  BE  GIVEN  IN  SUCH A MANNER AS THE COMMISSIONER MAY PRESCRIBE BY
 REGULATION, AND SHALL IDENTIFY ANY PERSON ALLEGED TO BE IN VIOLATION  OF
 ANY  SUCH  LAW,  RULE,  REGULATION,  PERMIT, CERTIFICATE OR ORDER AS SET
 FORTH IN SUBDIVISION ONE OF SECTION 71-4501  OF  THIS  TITLE  AND  SHALL
 DESCRIBE   WITH  REASONABLE  PARTICULARITY  THE  ACTIVITY  OR  CONDITION
 COMPLAINED OF INCLUDING, WHERE APPROPRIATE, DATA OR TEST RESULTS IN  THE
 POSSESSION OF THE PLAINTIFF WHICH DESCRIBE SUCH ALLEGED VIOLATION; OR
   B.  IF  THE  COMMISSIONER  OR THE COMMISSIONER'S DESIGNEE, AT ANY TIME
 PRIOR TO THE END OF THE SIXTY DAY NOTICE PERIOD PRESCRIBED IN  PARAGRAPH
 A OF THIS SUBDIVISION OR PRIOR TO COMMENCEMENT OF SUCH ACTION, WHICHEVER
 IS  LATER  AND UPON WRITTEN NOTICE TO THE PERSON WHO PROVIDED THE NOTICE
 PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION,   HAS  COMMENCED  AND  IS
 ACTIVELY  PROSECUTING  AN ADMINISTRATIVE ENFORCEMENT PROCEEDING PURSUANT
 TO THIS CHAPTER RELATIVE TO THE ALLEGED VIOLATION; OR
   C. IF THE ATTORNEY GENERAL, AT ANY TIME PRIOR TO THE END OF THE  SIXTY
 DAY NOTICE PERIOD PRESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION OR PRIOR
 TO  COMMENCEMENT  OF  SUCH  ACTION, WHICHEVER IS LATER, AND UPON WRITTEN
 NOTICE TO THE PERSON WHO PROVIDED THE NOTICE PRESCRIBED IN  PARAGRAPH  A
 OF  THIS  SUBDIVISION, HAS COMMENCED AND IS ACTIVELY PROSECUTING A CIVIL

 S. 5394                             3
 
 ACTION IN A COURT OF THE UNITED STATES OR NEW YORK STATE WHICH SEEKS  AN
 ORDER OR INJUNCTION RELATIVE TO THE ALLEGED VIOLATION; OR
   D.  IF  THE  ALLEGED  VIOLATION   IS THE SUBJECT OF A CONSENT ORDER, A
 COURT ORDER OR ANY OTHER WRITTEN AGREEMENT SIGNED BY THE COMMISSIONER OR
 THE COMMISSIONER'S DESIGNEE AND THE ALLEGED  VIOLATOR  SETTING  FORTH  A
 COMPLIANCE  SCHEDULE  TO ELIMINATE THE ALLEGED VIOLATION IN A REASONABLE
 TIME PERIOD, OR OF A SETTLEMENT  OR  DISPOSITION  OF  AN  ADMINISTRATIVE
 ENFORCEMENT  PROCEEDING  OR  A  CIVIL  ACTION COMMENCED PURSUANT TO THIS
 CHAPTER, PROVIDED THAT THE ALLEGED VIOLATOR IS IN  COMPLIANCE  WITH  THE
 TERMS  OF  SUCH  CONSENT  ORDER,  COURT  ORDER, AGREEMENT, SETTLEMENT OR
 DISPOSITION.
   2. THE PLAINTIFF MAY COMMENCE  AN  ACTION  UNDER  SUBDIVISION  ONE  OF
 SECTION  71-4501  OF  THIS TITLE PRIOR TO SIXTY DAYS AFTER THE GIVING OF
 NOTICE REQUIRED BY PARAGRAPH A OF SUBDIVISION ONE OF THIS SECTION UPON A
 SHOWING TO THE COURT THAT THE MATTER IN CONTROVERSY INVOLVES A  SUBSTAN-
 TIAL AND IMMINENT HAZARD TO THE ENVIRONMENT.
   3.  A COPY OF THE COMPLAINT, AND, UNLESS SERVICE IS THEREAFTER WAIVED,
 ALL MOTION PAPERS AND ANY SUBSEQUENT PLEADINGS SHALL BE SERVED UPON  THE
 COMMISSIONER, THE ATTORNEY GENERAL AND THE DEFENDANT.
 § 71-4505. INTERVENTION.
   1. THE STATE AS REPRESENTED BY THE ATTORNEY GENERAL MAY INTERVENE AS A
 MATTER OF RIGHT IN ANY ACTION BROUGHT PURSUANT TO THIS TITLE.
   2.  ANY  PERSON  WHO  IS  AUTHORIZED TO COMMENCE AN ACTION PURSUANT TO
 SECTION 71-4501 OF THIS TITLE AND  WHO  HAS  GIVEN  NOTICE  PURSUANT  TO
 SECTION  71-4503  OF  THIS  TITLE  MAY INTERVENE UPON TIMELY MOTION AS A
 MATTER OF RIGHT IN ANY ACTION OR PROCEEDING  SUBSEQUENTLY  COMMENCED  BY
 THE DEPARTMENT OR THE ATTORNEY GENERAL RELATING TO ANY VIOLATION ALLEGED
 IN SUCH NOTICE.
 § 71-4507. APPROVAL OF SETTLEMENTS.
   1.  NO  ACTION COMMENCED UNDER THIS TITLE SHALL BE SETTLED EXCEPT UPON
 APPROVAL BY THE COURT UPON SIXTY DAYS NOTICE TO ALL PARTIES, THE COMMIS-
 SIONER AND THE ATTORNEY GENERAL. NOTICE OF THE PROPOSED SETTLEMENT SHALL
 BE PUBLISHED IN THE ENVIRONMENTAL NOTICE BULLETIN. UPON  THE  MOTION  OF
 THE  COMMISSIONER,  THE ATTORNEY GENERAL, OR ANY OTHER PARTY OR UPON ITS
 OWN MOTION, THE COURT MAY REQUIRE SUCH FURTHER NOTICE AS MAY BE REQUIRED
 TO PROTECT THE INTERESTS IN ENVIRONMENTAL PROTECTION OR  ENFORCEMENT  OF
 CITIZENS  WHO ARE NOT A PARTY TO THE ACTION. THE COURT SHALL NOT APPROVE
 A SETTLEMENT IN AN ACTION COMMENCED UNDER THIS TITLE IF THE COURT DETER-
 MINES THAT A MONETARY SETTLEMENT IN EXCESS OF COSTS,  DISBURSEMENTS  AND
 REASONABLE  EXPERT WITNESS AND ATTORNEY FEES HAS BEEN OFFERED OR PAID BY
 A DEFENDANT AS CONSIDERATION FOR SUCH SETTLEMENT TO A PLAINTIFF WHO  HAS
 STANDING TO SUE ONLY BY VIRTUE OF THIS TITLE.
   2.  IF,  SUBSEQUENT TO THE COMMENCEMENT OF AN ACTION UNDER SUBDIVISION
 ONE OF SECTION 71-4501 OF THIS TITLE WHICH ACTION HAS NOT  BEEN  FINALLY
 ADJUDICATED,  THE  PERSON  ALLEGED  TO BE IN VIOLATION OF ANY LAW, RULE,
 REGULATION, PERMIT, CERTIFICATE OR ORDER ENTERS INTO A CONSENT ORDER, OR
 IS SUBJECT TO A COURT ORDER OR OTHER WRITTEN  AGREEMENT  SIGNED  BY  THE
 COMMISSIONER  OR  THE COMMISSIONER'S DESIGNEE WHICH SETS FORTH A REASON-
 ABLE SETTLEMENT AND DISPOSITION OF THE ALLEGED VIOLATION, THE  COURT  IN
 WHICH SUCH ACTION IS PENDING, ON MOTION OF ANY PARTY, MAY MAKE AN APPRO-
 PRIATE  COURT ORDER DISPOSING OF THE CASE, INCLUDING THE AWARD OF COSTS,
 DISBURSEMENTS, REASONABLE EXPERT WITNESS AND ATTORNEY FEES TO ANY  PARTY
 IF APPROPRIATE PURSUANT TO SECTION 71-4509 OF THIS TITLE.
 § 71-4509. COSTS, FEES AND PENALTIES.
   1.  THE COURT, IN ISSUING ANY FINAL ORDER IN ANY ACTION BROUGHT PURSU-
 ANT TO SUBDIVISIONS ONE AND TWO OF SECTION 71-4501 OF THIS TITLE MAY  IN

 S. 5394                             4
 
 ITS  DISCRETION AWARD COSTS, DISBURSEMENTS AND REASONABLE EXPERT WITNESS
 AND ATTORNEY FEES TO ANY PREVAILING OR SUBSTANTIALLY  PREVAILING  PARTY;
 PROVIDED,  HOWEVER,  THAT  SUCH  AN  AWARD TO A PREVAILING RESPONDENT OR
 DEFENDANT  SHALL  NOT  EXCEED  TEN  THOUSAND  DOLLARS  AND  A PREVAILING
 RESPONDENT OR DEFENDANT IN ORDER TO RECOVER SUCH  COSTS,  DISBURSEMENTS,
 REASONABLE  EXPERT WITNESS AND ATTORNEY FEES MUST MAKE A MOTION REQUEST-
 ING SUCH COSTS, DISBURSEMENTS AND FEES AND SHOW THAT THE ACTION OR CLAIM
 BROUGHT WAS FRIVOLOUS. IN ORDER TO FIND THE ACTION OR CLAIM TO BE FRIVO-
 LOUS, THE COURT MUST FIND IN WRITING ONE OR MORE OF THE FOLLOWING:
   A. THE ACTION OR CLAIM WAS COMMENCED, USED OR CONTINUED IN BAD  FAITH,
 SOLELY TO DELAY OR PROLONG THE RESOLUTION OF THE LITIGATION OR TO HARASS
 OR MALICIOUSLY INJURE ANOTHER;
   B. THE ACTION OR CLAIM WAS COMMENCED OR CONTINUED IN BAD FAITH WITHOUT
 ANY REASONABLE BASIS IN LAW OR FACT AND COULD NOT BE SUPPORTED BY A GOOD
 FAITH  ARGUMENT  FOR  AN EXTENSION, MODIFICATION OR REVERSAL OF EXISTING
 LAW. IF THE ACTION OR CLAIM WAS PROMPTLY DISCONTINUED WHEN THE PARTY  OR
 THE  ATTORNEY  LEARNED  OR  SHOULD HAVE LEARNED THAT THE ACTION OR CLAIM
 LACKED SUCH A REASONABLE BASIS, THE COURT MAY FIND THAT THE PARTY OR THE
 ATTORNEY DID NOT ACT IN BAD FAITH.
   2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS  SECTION,
 NO  COSTS, DISBURSEMENTS, OR REASONABLE EXPERT WITNESS AND ATTORNEY FEES
 MAY BE AWARDED AGAINST THE STATE, OR ANY OF ITS  DEPARTMENTS,  AGENCIES,
 BUREAUS OR ANY OF ITS POLITICAL SUBDIVISIONS, OR ANY PUBLIC AUTHORITY IN
 ANY ACTION BROUGHT UNDER THIS TITLE.
   3.  IN ADDITION TO THE STATE'S RIGHT TO INTERVENE PURSUANT TO SUBDIVI-
 SION ONE OF SECTION 71-4505 OF THIS TITLE OR ANY OTHER LAW,  THE  STATE,
 AS REPRESENTED BY THE ATTORNEY GENERAL, MAY APPEAR UPON TIMELY MOTION IN
 AN  ACTION BROUGHT UNDER THIS TITLE FOR THE SOLE PURPOSE OF OBTAINING AN
 AWARD OF PENALTIES AGAINST ANY  PERSON  FOUND  LIABLE  IN  SUCH  ACTION;
 PROVIDED,  HOWEVER, THAT THE PLAINTIFF AND DEFENDANT MUST BE NOTIFIED OF
 THE STATE'S INTENT TO MOVE FOR PENALTIES WITHIN THIRTY DAYS OF COMMENCE-
 MENT OF SUCH ACTION. ANY CLAIM FOR  PENALTIES  BASED  UPON  A  VIOLATION
 WHICH  IS  THE  SUBJECT  OF  AN  ACTION BROUGHT UNDER THIS TITLE MUST BE
 BROUGHT IN SUCH ACTION.
 § 71-4511. APPLICABILITY IN THE ADIRONDACK PARK.
   WITH RESPECT TO THOSE PARTS OF TITLE 27 OF ARTICLE 15 OF THIS  CHAPTER
 AND  THOSE  PARTS  OF  ARTICLE  24  OF  THIS CHAPTER ADMINISTERED BY THE
 ADIRONDACK PARK AGENCY CREATED PURSUANT TO ARTICLE TWENTY-SEVEN  OF  THE
 EXECUTIVE  LAW,  ANY  REFERENCE  IN  THIS  TITLE  TO THE DEPARTMENT, THE
 COMMISSIONER, OR THE COMMISSIONER'S DESIGNEE SHALL BE CONSTRUED TO  MEAN
 THE ADIRONDACK PARK AGENCY.
 § 71-4513. SAVINGS CLAUSE.
   NOTHING  IN  THIS  TITLE  SHALL RESTRICT ANY RIGHT WHICH ANY PERSON OR
 CLASS OF PERSONS MAY HAVE UNDER  ANY  STATUTE  OR  COMMON  LAW  TO  SEEK
 ENFORCEMENT  OF  ANY  STATUTE,  RULE, REGULATION, PERMIT, CERTIFICATE OR
 ORDER, OR TO SEEK ANY OTHER RELIEF.
   § 2. Section 71-1311 of the environmental conservation  law,  subdivi-
 sion 1 as amended by chapter 846 of the laws of 1981, is amended to read
 as follows:
 § 71-1311. Injunction against violations.
   [1.]  Whenever  it appears that any person is violating or threatening
 to violate any provision of article 23 of this chapter or is  committing
 any  offense described in section 71-1305 of this title, the department,
 acting by the Attorney General, may bring suit against  such  person  in
 any court of competent jurisdiction to restrain such person from contin-
 uing such violation or from carrying out the threat of violation. In any

 S. 5394                             5
 
 such  suit, the court shall have jurisdiction to grant to the department
 without bond or other undertaking, such prohibitory or mandatory injunc-
 tions as the facts may warrant, including temporary  restraining  orders
 and preliminary injunctions.
   [2.  If  the department, acting by the Attorney General, shall fail to
 bring suit  to  enjoin  a  violation  or  threatened  violation  of  any
 provision  of  article  23,  or  any  rule,  regulation, or order of the
 department made pursuant hereto, within ten days after receipt of  writ-
 ten  request to do so by any person who is or will be adversely affected
 by such violation, the person making such request may bring suit in  his
 own  behalf  to  restrain  such violation or threatened violation in any
 court in which the department might have brought  suit.  The  department
 shall  be  made a party in such suit in addition to the person violating
 or threatening to violate a provision of article 23, or  a  rule,  regu-
 lation,  or  order  of  the department, and the action shall proceed and
 injunctive relief may be granted to  the  department  without  bond,  or
 other  undertaking in the same manner as if suit had been brought by the
 department.]
   § 3. This act shall take effect immediately; provided however, that no
 action authorized by section 71-4501 of the  environmental  conservation
 law,  as  added by section one of this act, may be commenced against any
 city, village, town or county prior to September 1, 2025 and nothing  in
 this  act  shall affect any action commenced pursuant to section 71-1311
 of the environmental conservation law prior to such effective date.

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Senate Bill S5394

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Sponsored By

Kevin S. Parker

Archive: Last Bill Status - In Senate Committee Environmental Conservation Committee

co-Sponsors

Leroy Comrie

Brad Hoylman-Sigal

Liz Krueger

Jose M. Serrano

2021-S5394 (ACTIVE) - Details

2021-S5394 (ACTIVE) - Summary

2021-S5394 (ACTIVE) - Sponsor Memo

2021-S5394 (ACTIVE) - Bill Text download pdf

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