New York Law Review

Consolidated Edison v. Department of Environmental Conservation, 71 N.Y.2d 186 (1988): Upholding Agency Authority Despite Specific Legislation

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71 N.Y.2d 186 (1988)

An administrative agency’s broad regulatory powers are not revoked by subsequent, more specific legislation in the same field unless the legislature clearly intends to limit the agency’s authority.

Summary

Consolidated Edison (Con Ed) challenged the Department of Environmental Conservation’s (DEC) petroleum bulk storage code, arguing that the 1977 and 1983 Acts superseded DEC’s authority to regulate major and pre-existing non-major facilities. The Court of Appeals reversed the lower courts, holding that DEC’s broad regulatory power over petroleum storage was not revoked. The court reasoned that the Legislature did not expressly or impliedly repeal DEC’s authority and that the statutes could operate harmoniously. This case underscores the principle that specific legislation does not automatically limit broader agency powers unless legislative intent to do so is clear.

Facts

Con Edison, a utility company, operated major and non-major petroleum bulk storage facilities. New York enacted the Oil Spill Prevention, Control and Compensation Act in 1977, aimed at regulating major petroleum bulk storage facilities. In 1983, the Control of the Bulk Storage of Petroleum Act was passed to address smaller storage facilities and applied to new or substantially modified non-major facilities. In 1984, DEC promulgated a petroleum bulk storage code, but despite exemptions in the 1983 Act, it applied to preexisting non-major facilities and amended regulations to require major facilities to comply with the Code, even though subject to federal SPCC Plans. Con Ed challenged this, arguing DEC exceeded its authority.

Procedural History

Con Edison filed an Article 78 proceeding seeking to annul portions of the Code. The Supreme Court granted the petition, concluding the 1977 and 1983 Acts superseded DEC’s authority. The Appellate Division affirmed. The Court of Appeals then reversed the Appellate Division decision.

Issue(s)

Whether the 1977 Oil Spill Prevention, Control and Compensation Act and the 1983 Control of the Bulk Storage of Petroleum Act revoked or superseded the Department of Environmental Conservation’s broad power to regulate the bulk storage of petroleum, thereby precluding the DEC from applying its petroleum bulk storage code to major facilities and pre-existing non-major facilities.

Holding

No, because the Legislature did not expressly or impliedly repeal or modify DEC’s broad regulatory authority, and the statutes can operate harmoniously.

Court’s Reasoning

The Court of Appeals reasoned that administrative agencies possess powers expressly delegated by the Legislature. The Environmental Conservation Law (ECL) grants DEC broad authority to prevent pollution, including regulating the storage of liquids likely to pollute state waters. The court emphasized that specific legislation in a field doesn’t automatically preclude broader agency regulation unless that was the legislature’s intent. There was nothing in the 1977 or 1983 Acts demonstrating an intent to narrow DEC’s authority. The court highlighted that the 1977 Act requires compliance with both state and federal standards for petroleum discharge control, indicating an intent to allow future state regulation. It further stated that the legislature conferred upon the Commissioner the power to adopt such regulations as he deems “necessary to accomplish the purposes” of the Act (Navigation Law § 191). Additionally, implied repeal of legislation is disfavored. The statutes at issue don’t conflict; the 1983 Act governs new non-major facilities, the 1977 Act governs major facilities, and the ECL allows DEC to regulate in areas where other legislation leaves a gap. Since the statutes can operate harmoniously, DEC’s authority wasn’t repealed. As the Court stated, “Absent an express manifestation of intent by the Legislature — either in the statute or the legislative history — the courts should not presume that the Legislature has modified an earlier statutory grant of power to an agency.” Judge Bellacosa concurred in result only, expressing concern about inconsistencies with the holding in Boreali v. Axelrod, 71 N.Y.2d 1 (1988).

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