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
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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.