Lawsuit Challenges State’s Plan for NNYB Funding

Remember last Halloween?

New York State was celebrating a $1.6 billion loan, the largest in TIFIA (Transportation Infrastructure Finance and Innovation Act) loan request history, and key financing for its bridge project.

This year, environmental groups are asking a court to prevent the state from using federal Clean Water Act funds — neither the recently diminished loan request nor the remaining $29 million that was approved — for the Tappan Zee Bridge project or for any such project other than their intended use.

The lawsuit — filed in State Supreme Court in Albany County by Pace Law School’s Environmental Litigation Clinic, which represents the groups — names state Department of Environmental Conservation Commissioner Joseph Martens (who also chairs the facilities board) and other state leaders, and seeks “full denial of the attempted raid,” EANY Communications Director Travis Proulx said.

Governor Cuomo is not named in the documents.

The Tappan Zee project was not included in the State’s CWSRF Intended Use Plan when it was finalized in February 2014. The project was added four months later with no public notice or comment, in violation of Clean Water Act requirements spelled out in EPA regulations.

Proulx said the lawsuit seeks to deny the limited percentage of funding approved “because the state failed to follow due process and blocked public access to information and participation, which is required.”

eligible projects

Although few eligible items, an abundance of opposition.

In late June, the state’s Environmental Facilities Corporation (EFC) decided by unanimous (5 to 0) vote to loan the Thruway Authority $511.45 million from the Clean Water State Revolving Funds (CWSRF). And in July, three voting members of the Public Authorities Control Board agreed to its request for half of the $511 million.

Emphasizing that three agencies approved the loan — most of which the EPA nixed in September — EFC Director of Public Information Jon Sorensen said the money was approved “to finance those aspects of the New NY Bridge project that will implement existing plans to protect, restore and promote the Hudson River Estuary.”

Reducing project costs by up to $35 million will “help keep future bridge tolls as low as possible,” Sorensen said. “EFC intends to vigorously defend its right to finance Clean Water Act projects that benefit the Hudson River Estuary toll payers in the state.”

“The surest way to protect this vital funding source for its intended purpose is to make sure the Court has jurisdiction to enforce the Clean Water Act as necessary,” Riverkeeper, Inc. President Paul Gallay said.

At the NNYB site/© Janie Rosman 2014

EANY executive director Peter Iwanowicz claimed the future stability of the Clean Water Act was at stake because of the need to “fight to protect the (it) from executive overreach.” Given the urgent need for funding for water infrastructure, “the Cuomo administration should be working with the EPA to develop the funding plan necessary.”

Legal costs — and why the lawsuit is being handled by neither internal lawyers nor the state Attorney General’s office — are unknown. There will be a hearing in January; the administration has a few weeks left to appeal the EPA’s September 16 decision.

“The EPA will then deliver a final decision which, we expect, will uphold the original ruling,” Proulx said. “Because of the ongoing appeal, it is still possible for terribly dangerous precedence to be set should the EPA come to an alternate conclusion.”

I’d like to know what you think.

Copyright © Janie Rosman and Kaleidoscope Eyes 2014

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