JOHN J. HOFFMAN
ACTING ATTORNEY GENERAL OF NEW JERSEY
R.J. Hughes Justice Complex
25 Market Street, P.O. Box 093
Trenton, New Jersey 08625
Attorney for Plaintiff,
State of New Jersey
By:
David C. Apy
Assistant Attorney General
(609) 292-8567
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION, and
BOB MARTIN, COMMISSIONER,
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiffs,
vs.
NATIONAL SCIENCE FOUNDATION,
FRANCE CORDOVA,as director
of the National Science
Foundation, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINSTRATION,OFFICE
OF OCEAN AND COASTAL RESOURCE
MANAGEMENT, PAUL SCHOLZ,
as director of the Office of Ocean and
Coastal Resource Management,
and LAMONT-DOHERTY EARTH OBSERVATORY
VERIFIED COMPLAINT FOR
INJUNCTIVE AND
DECLARATORY RELIEF
Defendants.
Plaintiffs State of New Jersey, Department of Environmental
Protection
("NJDEP"),
and
Commissioner
Bob
Martin
(together
John J. Hoffman, Acting Attorney
"Plaintiffs"), by their attorney,
, allege as follows:
General of the State of New Jersey
NATURE OF THE ACTION
1.
on behalf of the State of
Plaintiffs bring this action
king injunctive and declaratory
New Jersey and its citizens, see
t
Seismic Survey Research Projec
relief with respect to a Marine
tly
of New Jersey that is curren
("the Project") off the coast
funding and authorization of
being conducted by and with the
defendants.
3-D seismic survey in
The Project is a high-energy,
shore.
~25-85 km off New Jersey's
the northwest Atlantic Ocean
te an
endants have denied the Sta
In determining to proceed, def
h its
Project for consistency wit
opportunity to review the
stal Zone
gram as required by the Coa
coastal zone management pro
e their
r, defendants failed to mak
Management Act; and, furthe
day
act ("FNSI") available for a 30
Finding of No Significant Imp
ence
ed by defendant National Sci
public review period as requir
nt to
ulations, promulgated pursua
Foundation's ("NSF") own reg
the
National
procedural
Environmental
defects,
Policy
defendants'
Act.
In
collective
light
of
decisions
these
have
,
d in a manner that is arbitrary
allowed the Project to procee
in
procedure, and otherwise not
capricious, in violation of
accordance
with law, all in violation of
Procedure Act.
the Administrative
these procedural
Moreover, the harms caused by
2
ntly
the Project has, or immine
defects are especially acute as
will be, commenced.
JURISDICTION
ter of
ion over the subject mat
This Court has jurisdict
2.
question), 5
28 U.S.C. X1331 (federal
this action pursuant to
Act), and 28
ministrative Procedure
U.S.C. §701 et sue. (Ad
ory Judgment Act).
U.S.C. ~2201(a) (Declarat
VENUE
3.
Venue
over
this
action
is
proper
in
this
District
es venue in an
e)(3), which establish
91(
~13
.C.
U.S
28
to
nt
pursua
__
States in any
or agency of the United
action against an officer
ides, if no
one of the plaintiffs res
judicial district in which
additionally
in the action. Venue is
real property is involved
3 and
pursuant to 5 U.S.C. §70
ct
tri
Dis
s
thi
in
te
ria
approp
ed have the
isions sought to be review
dec
y
tor
ula
reg
the
e
aus
bec
ces of the
idents and natural resour
potential to impact the res
State of New Jersey.
PARTIES
is a
Environmental Protection
Plaintiff Department of
with offices
the State of New Jersey,
principal State agency of
and
Trenton, New Jersey 08625,
,
eet
Str
te
Sta
t
Eas
401
located at
4.
3
,
ntal protection of the waters
is responsible for the environme
New
life of and in the State of
lands, air, wildlife, and plant
air, wildlife, and plant life
Jersey, including waters, lands,
by the Project.
that may be adversely impacted
Jersey
holds
resources
a
within
its
territory
that
natural
all
of
the
will
be
affected
in
interest
sovereign
The State of New
by
defendants' Project.
5.
Plaintiff
Bob
Martin
is
the
Commissioner
of
the
ated at
Protection, with offices loc
Department of Environmental
is
nton, New Jersey 08625, and
401 East State Street, Tre
responsible
for
the
implementation
of
New
the
Jersey's
rds that
s, regulations, and standa
environmental protection law
pertain to the Project.
6.
Defendant
National
Science
Foundation
("NSF"),
with
VA 22230,
son Boulevard, Arlington,
offices located at 4201 Wil
various
inistering the funding for
is responsible for adm
owner of
projects. NSF is also the
ch
ear
res
ted
por
sup
lly
era
fed
used to
the research vessel being
the R/V Marcus G. Langseth,
conduct the Project.
7.
Defendant
France
A.
Cordova
is
the
Director
of
the
from
oversees all NSF activities
National Science Foundation and
ment of
priorities to the establish
icy
pol
of
nt
pme
elo
dev
the
t guidelines.
administrative and managemen
4
ospheric Administration
Defendant National Oceanic and Atm
8.
Office
("NOAA"),
of
Ocean
and
Coastal
Resource
Management
1305 East West Highway, Silver
("OCRM"), with offices located at
stal
le for administering the Coa
Spring, MD 20910, is responsib
sistency program; for reviewing
Zone Management Act's federal con
for
erally-assisted projects; and
state requests to review fed
generally
assisting
states
in
managing,
preserving,
and
coastal resources.
developing their marine and
9.
M
the Acting Director of OCR
Defendant Paul M. Scholz is
tes are
le for deciding whether sta
within NOAA, and is responsib
jects for
iew federally assisted pro
granted an opportunity to rev
stal management program.
consistency with their coa
10.
with
th Observatory ("LDEO"),
Defendant Lamont-Doherty Ear
des, NY
1000, 61 Route 9W, Palisa
offices located at P.O. Box
Columbia
the Earth Institute within
10964, is a component of
University.
R/V Marcus G. Langseth
Defendant LDEO operates the
t the Project.
which is being used to conduc
(Certif, of Kevin
Hassel at Par. 7).
STATUTORY BACKGROUND
Act
The Coastal Zone Management
11.
et
51
Act ("CZMA"), 16 U.S.C. §14
The Coastal Zone Management
seq.,
was
enacted,
among
other
reasons,
to
ensure
local
between federal, state, and
coordination and consistency
encourage states to exercise
actions in the coastal zone; to
ds and waters in the coastal
their full authority over the lan
e
to recognize that states hav
zone by assisting the state; and
n,
interests in the protectio
substantial and significant
zone
of the resources of the coastal
management, and development
l
active participation of coasta
that can only be served by the
16
affecting such resources.
states in all Federal programs
U.S.C. X1451.
A,
tions implementing the CZM
Pursuant to NOAA's regula
h their
t review for consistency wit
states are entitled to reques
ivities
all federally assisted act
coastal management program
12.
taking
place
outside
of
their
coastal
zone
that
a
state
ects in
y foreseeable coastal eff
abl
son
rea
e
hav
l
wil
s
ine
determ
"Federal
15 C.F.R. 930.98.
e.
that state's coastal zon
a federal
"assistance provided under
assistance" is defined as
tractual
ncy through grant or con
program to an applicant age
other
, guarantees, insurance, or
arrangements, loans, subsidies
form of financial aid."
13.
15 C.F.R. 930.91.
itoring federally assisted
States are tasked with mon
ect in
a reasonably foreseeable eff
activities that would have
other
y must then notify OCRM and
their coastal zone, and the
posed
intends to review the pro
stakeholders if the state
gram.
h its coastal management pro
activity for consistency wit
15 C.F.R. 930.98.
D
icy Act
The National Environmental Pol
14.
icy Act ("NEPA"), 42 U.S.C.
The National Environmental Pol
humans
encourage harmony between
X4321 et seq., was enacted to
minate
efforts that prevent or eli
and the environment, promote
tanding of
and to enrich the unders
damage to the environment,
to the
natural resources important
the ecological systems and
Nation.
42 U.S.C. §4321.
in every proposal for
agencies,
NEPA requires all federal
major federal action,
to prepare
and
IS") that
nmental impact statement ("E
consider a detailed enviro
t cannot be
ion's adverse effects tha
includes the proposed act
g term
ion, and the action's lon
act
the
to
ves
ati
ern
alt
avoided,
effects.
42 U.S.C. 4331.
the Council on
on of NEPA is overseen by
ati
ent
lem
imp
The
15.
promulgated at
which has its regulations
Environmental Quality,
federal
to 40 C.F.R. 1507.3,
nt
sua
Pur
0.
150
40 C.F.R.
uirements.
s to implement NEPA's req
ure
ced
pro
pt
ado
t
mus
es
agenci
es to adopt
allows individual agenci
1.3
150
.R.
C.F
40
r,
the
Fur
is required
when an individual agency
procedures setting forth
to
prepare
an
environmental
assessment.
Environmental
federal
documents which assist
lic
pub
e
cis
con
are
ts
assessmen
r a more
determination of whethe
old
esh
thr
the
in
es
agenci
If a federal
essary. 40 C.F.R. 1508.9.
comprehensive EIS is nec
t an EIS
environmental assessment tha
agency concludes from its
7
not
is
significant impact" ("FNSI")
a
"finding
of
no
40 C.F.R. 1508.13.
with NEPA are located at
NSF's regulations for complying
16.
45
issue
must
agency
the
necessary,
C.F.R.
640.
Pursuant
to
45
C.F.R.
when
640.4(e),
an
t an EIS
pared by NSF determines tha
environmental assessment pre
ble
ding FNSI shall be made availa
is not required, the correspon
en, if
iod before any action is tak
for a 30-day public review per
or is
t normally requires an EIS
the proposed action is one tha
normally requiring an EIS.
closely similar to an action
ure Act
The Administrative Proced
17.
701
ure Act" ("APA"), 5 U.S.C.
The "Administrative Proced
suffering
of review for any person
et seq., provides a right
2. Reviewing
ncy action. 5 U.S.C. X70
age
of
e
aus
bec
ng
wro
al
leg
de agency
d unlawful and set asi
courts are authorized to hol
action,
findings,
and
conclusions
found
to
be
arbitrary,
by law, or
ance of procedure required
capricious, without observ
e with law.
otherwise not in accordanc
5 U.S.C. X706.
FACTS
its Coastal Zone
New Jersey's Management of
18.
the
ing regulations set forth
The CZMA and its implement
coastal
s and approves a state's
iew
rev
A
NOA
ch
whi
by
s
proces
management program.
16 U.S.C. §1455(d)
New Jersey's coastal
ts, among
NOAA in 1978 and it reflec
program was approved by
l zone to
goal of managing its coasta
other things, New Jersey's
protect
its
commercial,
including
support
and
resources
natural
recreational,
and
multiple
aesthetic
uses,
uses.
The Coastal Zone Management
)
(Hassell Certif. at Pars. 3-4
nt
rs the planning and enhanceme
Office within NJDEP administe
Zone
federally approved Coastal
aspects of New Jersey's
Management Program.
19.
As
set
(Hassell Certif. at Par. 5).
forth
in
N.J.A.C.
7:7E-1.1(c),
New
Jersey's
icies
m goals and supplemental pol
Coastal Zone Management Progra
Effective
(2)
ecosystems;
coastal
Healthy
(1)
include:
management of
ocean and
estuarine
resources; (3)
Meaningful
shores;
tidal waterways and their
public access to and use of
Coastal
water-dependent uses; (5)
ed
liz
ita
rev
and
ned
tai
Sus
(4)
well-planned coastal
healthy and
Safe,
(6)
open space;
on-making,
Coordinated coastal decisi
communities and regions; (7)
ed public
research; and (8) Coordinat
comprehensive planning and
tif. at
C. 7:7E-1.1. (Hassell Cer
education and outreach. N.J.A.
Par. 6).
The Project
20.
th
using the R/V Marcus Langse
Defendant Lamont-Doherty is
c study
t, a high-energy 3-D seismi
from NSF to conduct the Projec
(Hassell
coast of New Jersey.
the
off
an
Oce
ic
ant
Atl
the
in
a 12 by 50
The study area is within
Certif. at Par. 7)
km off
a, approximately 25 to 85
kilometer (km) rectangular are
the coast of New Jersey.
Ibid.
D
21.
The
study
will
data
collect
using
or
8-airgun
According to NSF,
(Hassell Certif. at Par. 8).
subarray.
a 4-
t on the environment would be
potential impacts of the Projec
ration of the airgun array.
primarily a result of the ope
The
s
0 LL and Bolt 1900 LLX airgun
airguns are a mixture of Bolt 150
of
in3, and have a firing pressure
ranging in size from 40 to 220
1950 pounds per square inch.
fired
Ibid. The airguns will be
t a
days, and when fired will emi
every 5.4 seconds for thirty
at Par.
decibels. (Hassell Certif.
source level from 246 to 254
utilize a Kongsberg EM 122
Lamont-Doherty also plans to
ions in
rently with the airgun operat
multibeam echosounder concur
22.
9).
(Hassell Certif. at Par.
or.
order to map the ocean flo
four or
the echosounder will emit
Depending on the water depth,
nds in
sound, two to 15 milliseco
eight successive pulses of
maximum
13.0 kilohertz, and with a
duration, at between 10.5 and
source level of 242 decibels.
23.
Ibid.
l
-bottom profiler, which wil
The study will also use a sub
maximum
erval of one second, with a
emit pings with a pulse int
dy will
ls. Ibid. Finally, the stu
radiated power of 222 decibe
t profiler.
use an acoustic Doppler curren
level
for
the
profiler
is
proprietary,
decibels.
acoustic source level of 224
Ibid.
but
has
Ibid.
the CZMA
OCRM's Non-Compliance with
10
The source
a
maximum
CZMA instruct states to
NOAA's regulations implementing
24.
e activities outside of the
monitor proposed federal assistanc
coastal
zone.
(Hassell
Certif.
at
Par.
If
3)
a
state
e
eral assistance activity will hav
determines that a proposed fed
ects, the state can request to
reasonably foreseeable coastal eff
gram
tency with its management pro
review the activity for consis
by
"immediately"
stakeholders.
notice
to
OCRM
and
other
15 C.F.R. 930.98.
ont-Doherty's application
On March 17, 2014, notice of Lam
25.
for
providing
an
Marine
Incidental
Mammal
Register.
Harassment
Protection
Act
Authorization
was
published
pursuant
in
the
to
the
Federal
the Register discussed
Although the publication in
indication
ledged that there was no
now
ack
has
M
OCR
t,
jec
Pro
the
s for the
eral assistance to Rutger
that NSF was providing fed
.
the Principal Investigator
Project and is serving as
26.
ative from NJDEP contacted
On April 11, 2014, a represent
over the
expressing NJDEP's concern
a representative from NOAA
on New
ably foreseeable effects
proposed activity's reason
ources.
Jersey's coastal uses and res
27.
y Mountain sent an email to
On April 16, 2014, Dr. Gregor
in its
stions that NJDEP may have
NJDEP offering to answer que
In that email, Dr. Mountain
t.
review of the proposed Projec
planned
"Principal Investigator in a
referred to himself as the
by the NSF."
for a research project funded
research cruise
11
Dr. Mountain, however, did not offer any indication that NSF was
providing federal assistance, as defined at 15 C.F.R. 930.91, to
an applicant agency.
28.
21,
April
On
representative
NOAA
at
an
2014,
email
NJDEP
to
in
sent
was
from
a
of
a
anticipation
teleconference being held the next day between OCRM, NJDEP, and
NSF.
(Hassell Certif. at Pars. 14, 26, Exh. J)
Through the
email, NJDEP was informed for the first time that NSF would be
providing funding to Rutgers for the Project.
29.
On
May
16,
2014,
NJDEP
submitted
to
OCRM
and
other
requisite stakeholders its request to review the Project for
consistency
with
its
coastal
management
program.
(Hassell
Certif. at Pars. 16-17, Exh. A).
30.
On June 18, 2014, OCRM sent NJDEP a letter denying its
request to review the Project.
Exh. B)
(Hassell Certif. at Par. 18,
OCRM did not address NJDEP's determination that the
Project will have reasonably foreseeable effects in New Jersey's
coastal zone.
Instead, OCRM denied NJDEP's request to review
because OCRM found the request was not made within 30 days of
when NJDEP received notice of the action, and was therefore not
made in a timely manner under 15 C.F.R. 930.98.
31.
NJDEP's May 16, 2014 request to review the Project was
submitted less than 30 days after it received notice through the
April 21, 2014 email of the federal assistance being provided to
12
Rutgers, the applicant agency.
uest
OCRM's denial of NJDEP's req
ry to
orted by the record, contra
to review the Project is unsupp
established
procedure
NJDEP
deprived
of
by
required
ability
the
NOAA's
regulations,
and
review
the
Project
for
to
l management program.
consistency with its coasta
32.
ting
t a letter to OCRM reques
On June 25, 2014, NJDEP sen
19,
(Hassell Certif. at Par.
ial.
reconsideration of the den
Exh. C).
NEPA
NSF's Non-Compliance with
33.
for
ncies to prepare an EIS
NEPA requires federal age
major
federal
environment.
Environmental
actions
In
that
2011,
June
Impact
may
Statement
affect
significantly
NSF
a
issued
("PEIS")
for
the
Programmatic
Marine
Seismic
n.
National Science Foundatio
Research Funded by the
nmental
issued a Draft Enviro
On December 16, 2013 NSF
differences
because of numerous
t
jec
Pro
the
for
t
men
Assess
d in the
seismic testing considere
the
and
t
jec
Pro
the
n
wee
bet
Namely, the
. 21, Exh. E).
(Hassell Certif. at Par
PEIS.
34.
Project
will:
(1)
use
a
different
energy
source
level
and
in the shelf
Project will occur only
configuration; and (2) the
shelf and
sidered projects on the
con
S
PEI
the
s
rea
whe
a,
are
ilable
Assessment was made ava
The Draft Environmental
slope.
rty days.
for public comment for thi
13
35.
On
July
Assessment
and
2014,
NSF
Finding
of
1,
a
issued
No
a
final
Significant
Environmental
Impact
complying with NEPA.
pursuant to its regulations for
Certif.
at
Par.
24,
Exh.
The
H)
FNSI
(FNSI)
(Hassell
NSF's
included
will
nt environmental impacts
determination that no significa
, no
posed action and, therefore
result from implementing the pro
uired.
further study under NEPA is req
36.
NSF's
FNSI
included
a
section
entitled
"Public
cesses."
with Other Agencies and Pro
Involvement and Coordination
on NSF's
t the Draft EA was posted
That section noted only tha
comment period.
website for a 30 day public
The FNSI, Final EA,
nt to 45
silent on NSF's duty, pursua
and NSF's website were all
period of
Is available for a 30-day
C.F.R. 640.4(e), to make FNS
that
the proposed action is one
if
t,
men
com
and
iew
rev
public
normally requires an EIS.
Status of the Project
37.
R/V Marcus G. Langseth left
On or about July 1, 2014, the
.
off the coast of New Jersey
New York Harbor and traveled
As of
of the
ated in the near vicinity
July 3, 2014, the Ship is loc
project description.
survey area described in the
14
CLAIMS FOR RELIEF
First Count
38.
and reassert all of the
Plaintiffs hereby incorporate
int.
foregoing paragraphs of the Compla
39.
istance for an activity
Defendants provided federal ass
s
e reasonably foreseeable effect
that Plaintiffs believe will hav
13).
(Hassell Certif. at Pars. 10in New Jersey's coastal zone.
ty
ability to review the activi
Plaintiffs timely requested the
Program
sey's Coastal Management
for consistency with New Jer
ied
Defendants arbitrarily den
.
pursuant to 15 C.F.R. 930.98
ccurate
on an unsupported and ina
NJDEP's review request based
uest was untimely.
determination that NJDEP's req
the
iffs' request to review
Defendants' denial of Plaint
lementing
lates the CZMA, its imp
Project for consistency vio
40.
regulations,
procedure,
and
and
is
arbitrary,
otherwise
not
capricious,
in
in
accordance
violation
of
law,
in
with
§706.
ve Procedure Act. 5 U.S.C.
violation of the Administrati
Second Count
41.
and reassert the foregoing
Plaintiffs hereby incorporate
paragraphs of the Complaint.
42.
is
ined that seismic testing
Defendants previously determ
nt of a
y requiring the developme
a major federal action thereb
seismic
utilizes a distinct form of
PSIS. Because this Project
15
or PSIS, Defendants issued
testing not covered by Defendants' pri
A")
a Draft Environmental Assessment ("E
(Hassell Certif. at
Final EA and
Defendants thereafter issued a
Par. 21, Exh. E)
ting - that it had already
FNSI for an activity - seismic tes
determined required an EIS.
ns,
Pursuant to NSF's own regulatio
er interested members of the
New Jersey, its citizens, and oth
the
an opportunity to comment on
public should have been given
FNSI.
43.
45 C.F.R. 640.4(e).
a FNSI for the Project
Defendants' decision to issue
of public review and comment is
without allowing a 30 day period
is
implementing regulations, and
contrary to NEPA, Defendants'
arbitrary,
otherwise
capricious,
not
in
without
accordance
observance
with
law
in
of
procedure,
and
of
the
violation
5 U.S.C. X706.
Administrative Procedure Act.
as relief:
WHEREFORE, plaintiffs demand
1)
with
ants' decision to proceed
That the Court declare defend
the
Project
to
be
arbitrary,
capricious,
an
abuse
of
CZMA,
law and in violation of the
discretion, in violation of
Procedure Act;
NEPA, and the Administrative
2)
ants from proceeding with the
That the Court enjoin defend
review
endants allow plaintiffs to
Project unless and until def
ment
h New Jersey's coastal manage
the Project for consistency wit
16
a
endants publish its FNSI for
program; and unless and until def
any action is taken; and
30 day public review period before
3)
deems appropriate and
Such other relief as the Court
just.
Respectfully submitted,
Dated:
July 3, 2014
JOHN J. HOFFMAN
torney General of New Jersey
Acting
By:
David C. A
Assistant Att rney General
x
R.J. Hughes Justice Comple
25 Market Street
P.O. Box 112
Trenton, NJ 08625
(609) 292-8567
[email protected]
17
. 11.2
L.R. CIV PR
PURSUANT TO
N
IO
AT
IC
IF
CERT
states that:
rtification,
ce
of
y
wa
nation
JOHN GRAY, by
Permit Coordi
at
ce
fi
Of
e
for th
ting Director
1. I am the Ac
partment of
New Jersey De
e
th
in
th
wi
ental Review,
and Environm
.
l Protection
Environmenta
int.
Verified Compla
e
th
ad
re
2. I have
factual
the foregoing
at
th
y
ur
rj
of pe
under penalty
d
3. I certify
are true an
. Complaint
ed
fi
ri
Ve
e
th
contained
allegations
correct.
July 3, 2014
Executed on:
By:
ay
John
Director
ng
ti
Ac
tion.
rmit Coordina
Office of Pe
tal Review
nmental
and Environmen
nt of Enviro
me
rt
pa
De
ey
New Jers
Protection
L.R. CIV. PR. 11.2
ADDITIONAL CERTIFICATION PURSUANT TO
11.1 that, to the
I hereby certify pursuant to L.Civ. Rule
the subject of any other
best of my knowledge, this matter is not
action
pending
in
any court or of
any pending arbitration or
administrative proceeding.
Executed on: July 3, 2014
JOHN J. HOFFMAN
Jersey
Acting~torney General of New
By:
David C. Ap
Assistant Atto ney General
R.J. Hughes J stice Complex
25 Market Street
P.O. Box 112
Trenton, NJ 08625-0093
(609) 292-8567
[email protected]
19
STATE OF NEW JERSEY, DEPARTMENT OF
ENVIRONMENTAL PROTECTION, and
BOB MARTIN, COMMISSIONER,
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiffs,
vs.
NATIONAL SCIENCE FOUNDATION,
FRANCE CORDOVA,as director
of the National Science
Foundation, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINSTRATION,OFFICE
OF OCEAN AND COASTAL RESOURCE
MANAGEMENT, PAUL SCHOLZ,
as director of the Office of Ocean and
Coastal Resource Management,
and LAMONT-DOHERTY EARTH OBSERVATORY
UNITED STATES DISTRICT
COURT FOR THE DISTRICT
OF NEW JERSEY
Defendants.
COMPLAINT
BRIEF AND EXHIBITS IN SUPPORT OF PLAINTIFFS' VERIFIED
FOR DECLARATORY AND INJUNCTIVE RELIEF
JOHN J. HOFFMAN
ACTING ATTORNEY GENERAL OF
NEW JERSEY
R.J. Hughes Justice Complex
25 Market Street, P.O. Box
093
Trenton, New Jersey 08625
Attorney for Plaintiff,
State of New Jersey
By:
David C. Apy
Assistant Attorney General
(609) 292-8567
TABLE OF CONTENTS
1
STATEMENT OF THE CASE ..........................................
...3
STATEMENT OF FACTS ..........................................
ARGUMENT
I. THE PRESENT APPLICATION SATISFIES THE STANDARDS FOR
RELIEF
PRELIMINARY
AND
TEMPORARY
OF
ISSUANCE
THE
......11
NEPA
AGAINST DEFENDANTS' VIOLATION OF THE CZMA AND
i
..12
A. Likelihood of Success on the Merits ............
.......12
. CZMA ....................................
16
ii. NEPA ..........................................
.........20
B. Irreparable Harm ........................
..............24
C. Harm to the Nonmoving Parties ......
............24
D. The Public Interest ..................
....................
CONCLUSION ..............................
26
TABLE OF AUTHORITIES
r~r~~
) ....20
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531 (1987
...........11
Ballas v. Tedesco, 41 F. Supp. 2d 531 (D.N.J. 1999)
Kos Pharms, Inc. v. Andrx Corp., 369 F.3d 700 (3d Cir.
.......11
2004) ..................................................
Limerick Ecology Action, Inc. v. U.S. Nuclear Regulatory
........16
Commission, 869 F.3d 719 (3d Cir. 1989) ...............
Marsh v. Oregon Natural Resources Council, 490 U.S. 360
................16
(1989) ........................................
............21
Masschusetts v. Watt, 716 F.2d 946 (lst Cir. 1983)
(2010) ......21
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139
ing and
Natural Resources Defense Council v. Texaco Refin
.............20
.....
Marketing, Inc., 906 F.2d 934 (3d Cir. 1990)
on-Merck
Novartis Consumer Health v. Johnson & Johns
2002) .........11, 20
Consumer Pharms. Co., 290 F.3d 578 (3d Cir.
490 U.S. 332
Robertson v. Methow Valley Citizens Council,
.................17, 23
(1989) ...................................
.....................24
Sampson v. Murray, 415 U.S. 61, 90 (1974)
978 (8th Cir.
Sierra Club v. Army Corps of Eng'rs, 645 F.3d
......................21
2011) ...................................
of Envt'1
South Camden Citizens in Action v. N.J. Dep t
.................20
Prot., 145 F. Supp. 2d 446 (D.N.J. 2001) .....
Coastal
Southern Pacific Transportation Co. v. California
.................15
Commission, 520 F. Supp. 800 (N.D. Cal. 1981)
...............20, 21
Winter v. NRDC, 555 U.S. 7 (2008) ..........
2d 774
Yankton Sioux Tribe v. Kempthorne, 442 F.Supp.
..............21
.....
.....
.....
.....
(D.S.D. 2006) ...............
16, 19
5 U.S.C. §706 .............................................
.....passim
16 U.S.C. §1451 et seq. ..............................
..........5
N.J.S.A. 13:19-1 et seq ..............................
..24
..........
42 U.S.C. X4321 ...................................
...........17
42 U.S.C. §4332(2)(C) ..............................
Regulations
..............6
15 C.F.R. §930.1 et seq. .........................
13
...............
15 C.F.R. §930.54 ..............................
12
....................
15 C.F.R. X930.90 .........................
12
.........................
15 C.F.R. §930.91 ....................
12
.........................
15 C.F.R. X930.92 ....................
.7
.........................
15 C.F.R. §930.95 ....................
13
.........................
15 C.F.R. §930.98 ....................
.........................
40 C.F.R. X1501.3 ....................
17
.........................
40 C.F.R. §1501.4 ....................
17
............17, 18, 19
40 C.F.R. X1508.9 .........................
7
........................1
40 C.F.R. §1508.13 ....................
...................16,
45 C.F.R. §640.4(e) ....................
18
.......................6
N.J.A.C. 7:7 et seq. ....................
......................6
N.J.A.C. 7:7A et seq. ....................
.............6,
N.J.A.C. 7:7E-1.1 .........................
22, 25
.6
....................
N.J.A.C. 7:7E-4.4 .........................
N.J.A.C. 7:7E-4.5
.............................................. 6
iv
STATEMENT OF THE CASE
Jersey
New
the
of
(collectively
Protection
Environmental
of
Department
Envirpnmental
of
Commissioner
Martin,
Bob
and
(NJDEP)
Protection
Department
Jersey
New
Plaintiffs
y restraining order and
referred to as "NJDEP"), seek a temporar
preliminary
to
injunction
funded
federally
a
prevent
seismic
t Lamont-Doherty Earth
study (the Project) undertaken by defendan
(Lamont-Doherty)
Observatory
the
Rutgers,
University
State
coast
the
off
of
(Rutgers),
Jersey
New
Jersey.
New
of
is
, and has received federal
serving as the Principal Investigator
funding for the Project.
June
On
Atmospheric
Coastal
Administration
Resource
National
defendant
2014,
18,
(NOAA)
Management
and
(OCRM)
its
denied
Office
and
Oceanic
of
NJDEP's
Ocean
request
and
to
with New Jersey's federallyreview the Project for consistency
approved
coastal
zone
plan.
management
In
denying
NJDEP's
Zone Management Act (CZMA) in
request, NOAA violated the Coastal
not affording
NJDEP
the opportunity to review
the
Project for
resources and its long-term
its effects on New Jersey's coastal
plan to promote
ely manage
healthy coastal ecosystems, effectiv
ndent uses. NJDEP timely
ocean resources, and promote water-depe
requested
to
regulations,
review
as
the
the
project
in
study
seismic
accordance
will
have
with
NOAA's
reasonably
coastal uses and resources.
foreseeable effects on New Jersey's
1
even consider
In violation of its regulations, NOAA refused to
proposal,
the
review
to
request
NJDEP's
asserting
erroneously
mely. NOAA subsequently
that NJDEP's request to review was unti
issued
Authorization
Harassment
Incidental
an
the
allowing
Project to harass marine mammals.
t National Science
Additionally, on July 1, 2014, defendan
No
of
Finding
Pursuant
regulations
own
Policy
Environmental
Environmental
Act
(NEPA),
and
Assessment
to
the
Project.
implementing
the
National
related
Impact
Significant
its
to
final
a
issued
(NSF)
Foundation
NSF
required
is
provide
to
findings prior to allowing
thirty days for public review of its
ent,
NSF failed to follow this requirem
the activity to proceed.
ng contemporaneously with this
and the seismic study is commenci
filing.
coastal uses and resources
NJDEP's ability to protect its
these violations of NEPA and
will be irreparably harmed should
the CZMA not be remedied.
danger
of
irreparable
requiring the
Furthermore, because of the imminent
extraordinary
harm,
court to entertain
circumstances
exist
this request as an Order to
should this be heard as a
Show Cause, as any remedy will be moot
motion in the regular course.
NJDEP
respectfully
preliminary
Incidental
requests
injunction
Harassment
a
See L.Civ.R. 65.1.
temporary
enjoining
the
Authorization
Accordingly,
restraining
implementation
and
order
of
commencement
and
NOAA's
of
the
w of its
Project, unless and until NSF allows 30 days for revie
of
No
opportunity
to
Finding
Significant
the
review
has
the
with
its
Jersey
Impact
and
New
project
for
consistency
Coastal Management Program.
STATEMENT OF FACTS
A. The Seismic Study
study in
Lamont-Doherty has proposed conducting a seismic
d the vessel
the Atlantic Ocean off the coast of New Jersey aboar
R/V
Marcus
G.
Langseth,
which
14,781 (March 17 2014).
public
entity,
Certification of
B)
Rutgers,
is
owned
by
NSF.
79
Fed.
Reg.
The Project is being undertaken by a
with
federal
assistance
Kevin Hassell ("Hassell Cert."),
from
¶18
NSF.
(Exhibit
kilometer (km)
The Project is to be conducted in a 12 by 50
approximately 25 to 85
rectangular area in the Atlantic Ocean,
Jersey, and within
km (15.5 to 52.8 miles) off the coast of New
the U.S. Exclusive Economic Zone.
79 Fed. Reg. 14,781 (March 17
2014); Hassell Cert. ¶24 (Exhibit H at 4).
of
the
Project
arrangement
of
is
"to
sediments
collect
deposited
and
The stated purpose
analyze
during
times
data
of
on
the
changing
ago to present.
global sea level from roughly 60 million years
as river valleys
The 3-D survey would investigate features such
under a kilometer of
cut into coastal plain sediments now buried
."
younger sediment and flooded by today's ocean
14,781.
3
79 Fed. Reg.
of a towed
The study will collect this data through the use
4The
mixture
a
airguns are
Cert.
Hassell
subarray.
or 8-airgun
¶24
(Exhibit H at 5).
Bolt 1500 LL and
of
Bolt 1900 LLX
3, and have a firing
airguns ranging in size from 40 to 220 in
79 .Fed. Reg. 14782.
.
pressure of 1950 pounds per square inch
nds continuously for
The airguns are to be fired every 5.4 seco
ce level from 246 to
thirty days, and when fired will emit a sour
254 decibels.
Ibid.
Lamont-Doherty
plans
also
to
a
utilize
Kongsberg
122
EM
the airgun operations to
multibeam echosounder concurrently with
Depending on the water depth, the
Ibid.
map the ocean floor.
successive pulses of sound,
echosounder will emit four or eight
two to 15
milliseconds
kilohertz,
and
source
maximum
a
at between 10.5 and 13.0
level
of
242
decibels.
-bottom profiler, which
The Project will also use a sub
Ibid.
will
with
in duration,
emit
maximum
pings
radiated
with
pulse
a
power of
222
interval
of
decibels.
one
Ibid.
second,
Finally,
ler current profiler.
Project will use an acoustic Dopp
Lamont-Doherty's
proposal
indicates
that
the
with
source
a
the
Ibid.
level
for
a maximum acoustic source
the profiler is proprietary, but has
level of 224 decibels.
Ibid.
ssment issued by NSF
The proposal and an environmental asse
the ecological value of the
related to the Project demonstrate
waters
off
New
Jersey's
coast.
4
These
waters
are
within
the
s, i.e. marine mammals such
range of thirty-one cetacean specie
as
whales
including
dolphins,
and
species
six
ered Species Act.
endangered under the U.S. Endang
¶24 (Exhibit H at 12)
common in the area.
listed
as
Hassell Cert.
are also
Several species of sea turtles
Id. at 25.
The waters are additionally
near
and the Project is located
home to many fish and sharks,
Fish Habitats.
two areas designated Essential
Id. at 28.
ment Program
B. New Jersey's Coastal Manage
The
federal
Coastal
Zone
Management
Act,
16
U.S.C.
§1451
our national
d in 1972 and expresses
et. seq. (CZMA), was enacte
le, to
t, develop, and where possib
policy to "to preserve, protec
stal zone
ources of the Nation's coa
restore or enhance, the res
16 U.S.C. §1452(1).
generations."
for this and succeeding
macy of
s of federalism and the pri
ple
nci
pri
ong
str
g
sin
res
Exp
develop
CZMA encourages states to
state decision-making, the
ties
provided for federal activi
coastal management programs and
16 U.S.C.
tly with state plans.
to be carried out consisten
~~1452(2), 1456.
Coastal
A, New Jersey enacted the
In accordance with the CZM
developed
N.J.S.A. 13:19-1 et seq. and
Area Facility Review Act,
founded on
stal Management Program,
a federally approved Coa
broad
coastal
(2) effective
goals:
(1)
promoting
s;
healthy coastal ecosystem
estuarine
management of ocean and
resources; (3)
and their
and use of tidal waterways
meaningful public access to
5
r-dependent uses; (5)
shores; (4) sustained and revitalized wate
well-planned coastal
coastal open space; (6) safe, healthy and
decision-
coastal
coordinated
(7)
regions;
and
communities
; and (8) coordinated
making, comprehensive planning and research
education
public
policies
enforceable
are
goals
the
under
approved
as
These
7:7E-1.1(c)
N.J.A.C.
outreach.
and
CZMA.
Hassell Cert. ¶6.
implemented
is
program
This
Zone
Coastal
the
through
seq., Coastal Permit Program
Management rules, N.J.A.C. 7:7E et
N.J.A.C.
rules,
Act
Protection
Coastal
rules,
Management
including
the
seq.,
and
N.J.A.C.
7:7A
et
7:7
regulates
Program
issuance
permits
of
et
for
Wetlands
Freshwater
the
New
seq.
coastal
docks
Jersey's
development,
and
for
piers
-4.4, and recreational docks
commercial fisheries, N.J.A.C. 7:7E
and
N.J.A.C.
piers,
7:7E-4.5.
The
Management
Coastal
Office
ent aspects of New Jersey's
administers the planning and enhancem
federally
¶5.
approved
Staff
develop
Management
Coastal
and
Program.
implement long-range
Hassell
planning
Cert.
projects
coordinate their efforts
involving coastal resource issues, and
with
complementary
coastal area.
Federal
programs
having
similar
initiatives
in
the
Hassell Cert. ¶5.
regulations
implementing
the
CZMA
provide
for
e review of proposed federal
consistency determinations and stat
vities.
activities or federally funded acti
See 15 C.F.R. 930.1
actions,
federal
requires
consistency
Federal
seq.
et.
have a
occurring inside or outside of state's coastal zone, that
or uses of
reasonable potential to affect the coastal resources
that
state's
coastal
be
to
zone,
that state's
with
consistent
t practicable.
enforceable coastal policies to the maximum exten
Hassell Cert. ~3; 16 U.S.C. §1456(a)(2).
States
to
encouraged
"listed"
of
types
are
15
determinations.
include
C.F.R.
certain
consistency
require
that
activities
plans
their
in
the
Nevertheless,
930.95(a).
of activities that are
regulations also provide for state review
not listed in the plans.
Neither seismic
15 C.F.R. 930.95(d)
waters are listed in
research nor federal activities in federal
New Jersey's Coastal Management Plan.
C. NJDEP's request to review the Project
On
with
December
17,
National
the
Incidental
Marine
Harassment
Fisheries
Authorization
Service
(NMFS)
the
for
permit
seeking
an
taking
of
79 Fed. Reg. 14,780 (March 17,
marine mammals during its study.
2014).
an application
Lamont-Doherty filed
2013,
the March 17,
Notice of the application was published in
ter notice made no
2014 Federal Register. Ibid. The Federal Regis
y in the project
mention of the involvement of any public entit
funding.
or any public entity's receipt of federal
A
support
draft
of
Environmental
the
proposal.
Assessment
Hassell
7
was
Cert.
also
¶21
Ibid.
prepared
(Exhibit
E).
in
A
had
(PSIS)
Statement
Impact
Environmental
Programmatic
ic studies
previously been prepared in 2011 in support of seism
of
all
energy
waters;
however,
source
levels
considered
PEIS
the
configurations,
and
both
different
and
different
continental shelf
locations, as it had analyzed projects on the
and
slope,
proposed
Lamont-Doherty's
while
study
takes
at l;
Hassell Cert. ¶¶21, 22 (Exhibits E
only on the shelf.
place
Exhibit F).
about
concerns
of
learned
NJDEP
to
resources
effects
April
On
a
Martin,
16,
Rutgers
received
NJDEP
professor
and
Coastal
and
Resource
Hassell Cert. ¶19 (Exhibit
Management (OCRM) on April 11, 2014.
C)
and
Ocean
of
Office
NOAA's
uses
coastal
Jersey's
New
on
communicated
and
proposal
general
the
an
the
email
from
Gregory
Dr.
Investigator
Principal
on
information on the Project.
the study, offering to provide more
Project was NSF funded,
Notably, while the email stated that the
it failed to disclose
y
that Rutgers or any other public entit
Ibid.
was receiving funding for the Project.
April
that
21
entity,
NJDEP
Rutgers,
was
received
notice
receiving
by
federal
It was not until
that
email
assistance.
a
public
Hassell
Cert. ¶~14, 26 (Exhibit J).
In
a
letter
dated
Acting
Davidson,
the
proposed
seismic
May
Director
study
16,
of
would
n
2014,
OCRM,
impose
directed
NJDEP
to
stated
direct
and
Margaret
that
the
indirect
urces of New
reasonably foreseeable effects on the uses and reso
Jersey's
coastal
(Exhbit
X17
Cert.
Hassell
zone.
These
A)
the marine harvest
concerns included the detrimental effect to
al and recreational
and resulting impact on New Jersey's commerci
fishing
this
letter
Coastal
for
consistency
May
20,
on
April
21
the
with
Cert.
Hassell
2014.
that
30
project
the
of
policies
than
less
Program
Management
discovering
OCRM received
¶18
review the
Thus, NJDEP specifically requested to
(Exhibit B)
project
than
later
no
the
of
reach
entire
the
See also Hassell Cert. ¶13.
Ibid.
testing area.
utilize
which
boating,
and
the
New
after
days
includes
Jersey
first
significant
ers.
grant funding to a public entity, Rutg
request to review the
On June 18, 2014, OCRM denied NDJEP's
ey's request was untimely.
application, concluding that New Jers
By letter dated June 25, 2014,
Hassell Cert. ¶18 (Exhibit B)
denial by OCRM, as it did
NJDEP requested reconsideration of the
not
receive
actual
notice
a
that
public
entity
was
receiving
l 22, 2014, and therefore
federal aid for the project until Apri
NJDEP's
within
May
30
16
days
letter
of
assisted project.l
was
receipt
timely
in
that
actual
of
it
notice
requested
of
a
review
federally
Hassell Cert. ¶19 (Exhibit C).
email on April 21, not April
While NJDEP did receive notice by
to OCRM in less than
22, it still timely submitted its request
30 days.
1
D
even
Without
NJDEP's
issued
an
Incidental
Harassment
July
on
Opinion
Biological
and
Authorization
to
NOAA
reconsideration,
for
request
responding
1,
2014,
during the survey.
authorizing the harassment of marine mammals
Hassell
Assessment
Environmental
Final
and
(EA)
without any time for public review of
¶¶23,
24
the
The R/V
(Exhibits G and H)
Finding
a
project
the
allowing
(FNSI),
Impact
Significant
Also on July 1, NSF issued a
¶23 (Exhibit G)
Cert.
to
No
of
proceed
FNSI. Hassell Cert.
has
Marcus G. Langseth
the firing of its airguns
left port and is expected to commence
contemporaneously with this filing.2
Because
depriving
NOA.A
New
reasonably
allowing, a
and
Jersey
NSF
project
its
of
foreseeable
to
have
the
violated
right
to
on
proceed
without
a
review
its
effects
CZMA
coastal
allowing
and
NEPA
project
zone,
the
by
with
and
by
required
s findings, NDJEP has filed
thirty days for public review of NSF'
raining order and preliminary
this suit seeking a temporary rest
injunction
to
enjoin
the
seismic
study
off
of
New
Jersey's
coast.
at
` The vessel's location can be tracked
ition.phtml?call=4VDC6698
http://www.sailwx.info/shiptrack/shippos
10
T O /"~TT1f'L~'ATT
S
THE PRESENT APPLICATION SATISFIES THE STANDARD
ARY
FOR THE ISSUANCE OF TEMPORARY AND PRELIMIN
OF THE
RELIEF AGAINST THE DEFENDANTS' VIOLATION
CZMA and NEPA
I.
dy, which should
Injunctive relief is an "extraordinary reme
be
granted only in limited
Novartis
circumstances."
Consumer
umer Pharms. Co., 290 F.3d
Health v. Johnson & Johnson-Merck Cons
578,
586
Cir.
(3d
2002)
and
(citation
quotation
omitted).
In
orary restraining order
order to prove its entitlement to a temp
y must show:
or a preliminary injunction, the moving part
merits;
(1) a likelihood of success on the
if
harm
ble
para
(2) that it will suffer irre
ting
gran
the injunction is denied; (3) that
in even
preliminary relief will not result
and (4)
y;
part
greater harm to the nonmoving
relief.
that the public interest favors such
[Kos
Pharms,
Inc.
v.
Andrx
Corp.,
369
F.3d
Ballas v.
700, 708 (3d Cir. 2004); see also
538 (D.N.J.
Tedesco, 41 F. Supp. 2d 531,
lyyyll
NJDEP has met these criteria.
the
CZMA and
NOAA and NSF's violation of
harm
NEPA constitutes irreparable
to New
Jersey's
gement Program and ability
ability to implement its Coastal Mana
uses.
to protect its coastal resources and
In contrast, there
should the injunction be
will be no irreparable harm to the NMFS
measure sediments deposited
issued as the Project is designed to
during
the
enforcing
last
60
statutes
million
designed
years.
to
11
The
protect
public
the
interest favors
environment.
As
NJDEP
such,
to
entitled
is
a
temporary restraining
order and
preliminary injunction.
A. Likelihood of Success on the Merits
CZMA
i.
application
The
a
for
restraining
temporary
order
and
a
of
preliminary injunction demonstrates a substantial likelihood
the
on
success
NJDEP
merits.
was
and
inappropriately
for
arbitrarily denied an opportunity to review the application
e giving
consistency with its Coastal Management Program, despit
comment on
adequate notice to NOAA of its request to review and
coastal impacts.
Under
assert
the
their
regulations
right
implementing
review
to
the
CZMA,
federally- assisted
states
may
activities
l zones and
including activities occurring outside their coasta
consistency with
activities unlisted in their coastal plans, for
programs.
management
See
15
C.F.R.
X930.90
et
their
coastal
seq.
"federal
The intent of these regulations is to ensure that
assistance
to
applicant
agencies
for
activities
affecting
any
ties are
coastal use or resource is granted only when such activi
consistent
X930.90.
of
with
approved
management
programs."
15
C.F.R.
Federal assistance includes a grant or any other form
financial aid,
and
an applicant agency is defined as "any
.
unit of State or local government, or related public entity
12
.
"
Rutgers, a public university in
15 C.F.R. §§930.91, 930.92.
New Jersey, qualifies as an applicant agency.
al
For activities which are not listed in the state's coast
requiring
as
plan
outside
occur
consistency
review,
state's
coastal
a
of
or
for
zone,
activities
that
regulations
the
instruct that:
proposed
monitor
should
agencies
State
by
(e.g.
federal assistance activities
ss,
use of the intergovernmental review proce
review of NEPA documents, Federal Register)
applicant
notify
immediately
shall
and
agencies, Federal agencies, and any other
agency or office which may be identified by
w
the State in its intergovernmental revie
of proposed activities which
process
coastal
reasonably foreseeable
have
will
is
agency
State
the
which
and
effects
the
with
consistency
for
reviewing
management program.
[15 C.F.R. X930.98]
ation, the regulation
While "immediately" is not defined by regul
itself
points tp 15
C.F.R. §930.54
in guiding the Director on
whether to disapprove a request for review.
§930.54(a),
C.F.R.
15
requiring
federal
permits
or
Ibid.
addressing
unlisted
licenses,
requires
activities
that
State
n 30 days from notice
agencies notify the Director of OCRM withi
of
the
license
revision
in
or permit application.
2000,
15
C.F.R.
X930.54
Additionally,
also
stated
ly."
must submit its request to review "immediate
prior to
that a
State
The preamble
the revision was a
to the revision removing the word noted that
13
Act
77,145-146
(Dec.
930.54
C.F.R.
Consistency
Federal
Management
8,
has
change
a
than
rather
clarification
been
long
Coastal
Zone
Fed.
Reg.
65
Regulations,
"immediately"
Therefore
2000).
rule.
the
to
meaning
as
interpreted
15
under
days.
30
d have been applied
The "immediately" in 15 C.F.R. X930.98 shoul
NJDEP
d sufficient.
in this context, and 30 days notice deeme
agency less than 30
sent notice to the Director and applicant
a federally assisted
days from receiving notice on April 21 that
coast.
unlisted project was proposed off its
review the project
In its letter denying NJDEP's request to
for
definition
of
provisions
of
an
for
F
Subpart
the
that
"and
agency,"
"applicant
Consistency
s apply."
Assistance to State and Local Government
makes
mentions
mention
no
Rutgers
of
NSF
of
mention
once
the
for
review
Federal
Hassell Cert.
ter
OCRM acknowledged "the Federal Regis
¶18 (Exhibit B at 3)
notice
the
within
falls
Rutgers
that
found
NOAA
consistency,
Rutgers,
the
as
assistance
to
Principal
Rutgers."
denial acknowledges confusion over the
Draft
the
and
Investigator
Ibid.
EA
only
no
with
the
Further,
role of Rutgers in the
en OCRM and NJDEP following
project in the communications betwe
rns on April 11.
NJDEP's initial email expressing conce
Moreover,
when Dr.
Mountain,
the Rutgers
Ibid.
professor acting
NJDEP via email on April
as the Principal Investigator contacted
16,
he
stated
that
he
was
the
14
Principal
Investigator
on
a
knowledge
denial letter,
16,
April
by
regulations
that NJDEP "had
stated
OCRM
project
the
that
based
2014"
the
on
of
F
Subpart
under
was
email
actual
NOAA"s
from
Dr.
In fact, NJDEP
Hassell Cert. ¶18 (Exhibit B at 5)
Martin.
The
Ibid.
was receiving the funding.
In its
C).
(Exhibit
ion
that Rutgers or any other public institut
never said
email
¶19
Cert.
Hassell
NSF."
by
funded
"project
or any other public
did not receive actual notice that Rutgers
for the project until it
entity was receiving federal assistance
received an email April 21 clarifying
the Project.
Indeed,
parties involved in
the
Hassell Cert. ¶¶14 (Exhibit J).
had
OCRM
that
notes
email
this
"done
a
little
that would be considered to
further research into the entities
be the award recipients."
"apologize [d]
institutions
Hence
Ibid.
notice,
Rutgers,
Southern
for the
might
by
actual
was
with
involved
own
NOA.A's
or
the
admission,
that
constructive
receiving
Pacific
confusion associated
be
OCRM
Hassell Cert.. ¶26 (Exhibit J)
federal
a
Co.
did
public
v.
which academic
proposed
NJDEP
assistance
Transportation
with
until
research."
not
entity,
April
California
receive
namely
21.
Cf.
Coastal
(N.D. Cal. 1981) (requiring
Commission, 520 F. Supp. 800, 807-08
.
actual notice under 15 C.F.R. X930.54)
request to review the
Therefore, NJDEP submitted a timely
project for
consistency,
and
OCRM
15
denied
this
request
without
examining
even
raised
uses
and
resource
coastal
Jersey's
request,
its
in
New
to
effects
foreseeable
reasonably
the
g
including its effects on its commercial and recreational fishin
that
instruct
regulations
NOAA's
industries.
"[t]he
Director
activity
may only disapprove of NJDEP's decision to review the
if
Director
the
coastal use
rejecting
finds
that
or resource."
NJDEP's
request
activity
the
15
C.F.R.
to
review
will
not
any
By improperly
§930.98.
Project
the
affect
on
notice
grounds, the Director has made no such determination.
courts may
The Administrative Procedure Act provides that
unlawful
"hold
and
set
aside
agency
action,
findings,
and
ious, an abuse of
conclusions found to be (A) arbitrary, capric
discretion, or otherwise not in accordance
with law; [or]
law[.]"
without observance of procedure required by
NOAA has violated the
§706.
(D)
5 U.S.C.
CZMA, acted arbitrarily, and has
failed to observe the procedures required by law.
Consequently,
on the merits.
NJDEP has demonstrated a likelihood of success
ii.
NEPA
look" at
NEPA requires all federal agencies to take a "hard
and the potential
the environmental impact of their activities
alternatives to those activities.
Council,
Natural
Resources
imposes
"`essentially
agencies
considering
490
U.S.
procedural"'
actions
See, e•g•, Marsh v.
that
16
360
(1989).
duties
have
The
Oregon
statute
upon
administrative
the
potential
for
affecting
the
Action,
Ecology
Limerick
environment.
v.
Inc.
U.S._Nuclear Regulatory Commission, 869 F.3d 719, 725 (3d Cir.
These procedural requirements:
1989).
ensure[] that the agency, in reaching its
will
will have available, and
decision,
ation
inform
detailed
consider,
carefully
nmental
enviro
icant
signif
concerning
the
that
tees
guaran
also
it
impacts;
relevant information will be made available
to the larger audience that may also play a
role in both the decisionmaking process and
the implementation of that decision.
Citizens
Valley
Methow
v.
[Robertson
]
(1989)
349
332,
U.S.
490
Council,
102(2)(C)
Section
of
NEPA
requires
that
is
there
whenever
a
y of the
"major federal action significantly affecting the qualit
environment,"
human
the
must
agency
prepare
a
detailed
and
an Environmental
elaborate document that has come to be known as
Impact
Statement
§1501.4.
In
order
to
U.S.C.
42
(EIS).
make
a
~4332(2)(C);
40
determination
threshold
C.F.R.
as
to
an Environmental
whether an EIS is required, the agency prepares
Assessment,
accompanied
by a
Finding of
No Significant Impact
("FNSI") if the EA supports such a finding.
40 C.F.R. X1501.3;
40 C.F.R. §1508.9, 1508.13.
NSF has promulgated regulations to implement NEPA.
C.F.R. §640 et seq.
See 45
These regulations require allowing time for
particularly when
the public to review its NEPA determinations,
issuing a FNSI related to a project:
17
[i]f, on the
basis of an environmental
assessment, it is determined that an EIS is
not required, a Finding of No Significant
Impact (FNSI) as described in 40 CFR 1508.13
will be prepared.
The FNSI shall include
the environmental assessment or a summary of
it and will be available to the public from
the Committee.
If the proposed action is
normally
an
EIS,
is
one
that
requires
normally
closely
similar
an
action
to
requiring an EIS, or is without precedent,
the FNSI shall be made available for a 30
day public review period before any action
-„~,~r
[45 C.F.R. ~640.4(e) (emphasis added))
This action is clearly one that normally requires an EIS or
is closely similar to one requiring an EIS, thus triggering the
thirty
day
fact,
NSF
public
and
Programmatic
review
U.S.
the
in
period
Geological
In
§640.4(e)
prepared
Society
Environmental Impact Statement (PEIS)
seismic research projects in 2011.
a
for similar
Hassell Cert. ¶22 (Exhibit
NSF's Final EA for the current project acknowledged this
F)
PEIS,
but stated
the
proposed
separate
that a
source
different energy
for
C.F.R.
45
level and
survey,
and
the
EA
necessary "because
was
be
used
survey covers
only
configuration would
proposed
a
shelf waters where the (detailed analysis area of the PSIS] was
on the shelf and slope.”
Thus,
by
different
NSF's
from
own
the
Hassell Cert. ¶24 (Exhibit H at 1).
admission,
this
covered
activities
as
by
a
project
the
similar to one that previously required an EIS.
~~:3
PSIS,
that
is
but
is
Furthermore, an EA
40
C.F.R.
Environmental
guidance
to
According
§1508.9.
on
Council
is designed to be a
published
the
by
be
generally
should
EAs
Quality,
document.
concise
no
longer than 15 pages, and a lengthy EA indicates that an EIS is
Liasons,
NEPA
Federal
Officials
Local
and
State,
Federal,
for
Memorandum
Quality,
Environmental
on
Counsel
needed.
and
Other Persons Involved in the NEPA Process (1981), available at
NSF's
http://energy.gov/sites/prod/files/G-CEQ-40Questions.pdf.
for
EA
final
the
seismic
off
study
New
Jersey's
is
coast
pages, not including hundreds of pages of appendices.
76
Hassell
Cert. ¶24 (Exhibit H).
Therefore,
preparation
the
of
an
EIS
for
similar
projects, as well as the length of the EA prepared here, was an
implicit de facto admission which demonstrate that "the proposed
similar
C.F.R.
is
one
to an
that
action
§640.4(e).
regulations
to
normally
requires
EIS,
[or]
is
requiring an EIS
normally
Consequently,
provide
an
NSF
days
thirty
was obligated
for
public
closely
."
action
45
by its own
review
of
the
FNSI.
NSF has failed to provide this opportunity.
NSF issued its
Final EA and FNSI on July 1, 2014, and it has already been acted
upon.
Hassell
Cert.
¶¶ 23, 24 (Exhibits G and H)
The
R/V
Marcus G. Langseth has already left port, and the seismic study
is expected to begin imminently.
19
"hold
aside
set
unlawful. and
that courts may
Procedure Act provides
Administrative
The
action,
agency
and
findings,
conclusions found to be (A) arbitrary, capricious, an abuse of
discretion,
without observance of
X706.
NSF
observed
not in accordance
or otherwise
has
procedure
NEPA,
violated
procedures
required
by
arbitrarily,
acted
U.S.C.
has
not
NJDEP
has
and
Consequently,
law.
5
by law[.]"
required
(D)
[or]
with law;
demonstrated a likelihood of success on the merits.
B. Irreparable Injury
will
NJDEP
irreparable
suffer
harm
to
its
ability
to
implement its Coastal Management Plan and to protect its coastal
CZMA
uses and resources should the defendants' violations of the
and NEPA not be enjoined.
To
show
irreparable
injury,
a
party
must
demonstrate
equitable
potential harm that cannot be redressed by a legal or
remedy following a trial.
moving party "must demonstrate
that irreparable harm is likely
in the absence of an injunction."
22
(2008).
Injury
to
harm as it can seldom
the
The
Novartis, supra, 290 F.3d 595.
Winter v. NRDC, 555 U.S. 7,
environment
constitutes
be adequately remedied
irreparable
by money damages
and is often of permanent or at least of long duration.
Amoco
see
Prod. Co. v. Village of Gambell, 480 U.S. 531, 545 (1987);
also
Natural
Resources
Defense
Council
v.
Texaco
Refining
and
Marketing, Inc., 906 F.2d 934, 941 (3d Cir. 1990); South Camden
20
Citizens in Action v. N.J.
't of Envt'1 Prot., 145 F. Supp.
2d 446, 499 (D.N.J. 2001).
Additionally, failure
environmental
statute
to comply with a procedurally based
such
as
NEPA
or
the
CZMA
"causes
harm
itself, specifically the risk that `real environmental harm will
occur through inadequate foresight and deliberation."'
Sierra
Club v. Army Corps of Eng'rs, 645 F.3d 978, 995 (8th Cir. 2011).
See also Yankton Sioux Tribe v. Kempthorne, 442 F.Supp. 2d 774,
781
(D.S.D.
2006)
(finding
that
losing
a
procedural
right
to
engage in inter-governmental consultation guaranteed by federal
law and policy constituted irreparable harm).
v.
Watt,
explained
716
F.2d
why
946
(1st
violating
a
Cir.
1983),
procedural
the
In Masschusetts
First
right
constitutes
irreparable harm:
[i]t
is
appropriate
for
the
courts
to
recognize this type of injury in a NEPA
case, for it reflects the very theory upon
which NEPA is based - a theory aimed at
presenting governmental decision-makers with
relevant
environmental
data
before
they
commit themselves to a course of action.
That is not to say that that a likely NEPA
violation
automatically
calls
for
an
injunction; the balance of harms may point
the other way
It is simply to say
that
a
plaintiff
seeking
an
injunction
cannot
be
stopped
at
the
threshold
by
pointing to additional steps between the
governmental
decision
and
environmental
harm.
21
Circuit
The Supreme
Court has made clear that, as Watt held, the
traditional four-factor test for an injunction does indeed apply
to
NEPA,
cannot,
but
in
notably
itself,
has
not
constitute
ruled
that a
irreparable
violation
harm.
See
of
NEPA
Monsanto
Co. v. Geertson Seed Farms, 561 U.S. 139, 157-58 (2010); Winter
555 U.S. at 31-33. The purposes behind statutes such as NEPA and
the
CZMA
make
clear
that
violation
thereof,
by
themselves,
indeed cause irreparable harm.
The CZMA has as its policy "to encourage and assist states
to
exercise
zone
CZMA
effectively
."
program
harms
effectively
and
to
responsibilities
16 U.S.C. §1452.
irreparably
implement
their
NJDEP
a
its
the
coastal
Defendants' violation of the
undermining
by
federally-approved
exercise
in
ability
its
coastal
responsibilities
in
to
management
the
coastal
zone.
goals
manage
New
Jersey's
to
promote
the
development
commercial
and
Management
Program
includes
coastal
ecosystems,
estuarine
resources,
management
fisheries,
dependent uses.
firing of
healthy
ocean
and
Coastal
and
of
to
sustainable
sustain
N.J.A.C. 7:7E-1.1(c)
and
to
as
its
effectively
including
the
recreational
and
revitalize
water-
NJDEP's concern that the
underwater aircannons every five seconds for a full
month adversely affects its commercial and recreational fishing
and boating industries and other uses. and resources within its
22
coastal
NJDEP
zone
have
review
the
gone
unaddressed.
seismic
By
refusing
proposal
study
for
even
to
let
with
consistency
these goals, NJDEP's role as a partner in implementing the CZMA
and its own coastal management plan has been irreparably harmed.
See 16 U.S.C. §1452(2).
Likewise,
government
the
justification
agencies
to
take
behind
a
NEPA
"hard
was
look"
to
force
proposed
at
activities, to promote informed decision-making, and to provide
information to
the
See,
public.
Council, 490 U.S. at 349.
e.g.,
Valley Citizens
Methow
By allowing the project to go forward
without providing the mandated public review period, the policy
behind
NEPA
appropriate
and
NJDEP's
action
to
ability
protect
to
its
review
coastal
FNSI
and
take
resources
and
uses
the
under its Coastal Management Plan is irreparably harmed.
cannot
adequately
ensure
that there are
other
resources
program.
The
review
and
and
provide
comment
on
the
NJDEP
FNSI
to
no impacts on its fishing industries or
uses
protected
violation of these
by
its
coastal
management
statutes themselves, if
not
remedied, will cause irreparable harm to the policies underlying
them and NJDEP's ability to implement these policies.
Accordingly, NJDEP has shown that NSF and NOAA's violations
of NEPA and the CZMA will likely cause irreparable harm to its
ability to effectively implement its coastal management program.
23
C. Harm to the Nonmovin
will
Defendants
not
Parties
be
should
harmed
an
injunction
be
In the Final EA, NSF states that issuing the IHA for
issued.
time
another
could
period
in
result
significant
and
delay
disruption of the study and additional studies using the vessel.
However, time delays and
Hassell Cert. X24 (Exhibit H at 57)
increased expenses that may occur if an injunction is granted do
not constitute irreparable harm to the opposing party.
Sampson
Moreover, in this instance
v. Murray, 415 U.S. 61, 90 (1974).
particularly, the seismic study is supposed to analyze sediment
change over the last 60 million years.
affect
the
Should
time.
if
analysis
defendants
the
Project
Delay could not possibly
moves
forward
ultimately prevail on the
at
later
a
merits,
the
seismic study can be rescheduled.
D. The Public Interest
For
the
reasons
set
above,
forth
the
public
interest
requires the entry of the requested relief pending New Jersey's
review of the proposed activity for consistency with its Coastal
Management Program and to allow for the appropriate review of
NSF's
FNSI.
develop,
The
and
CZMA has as its goal "to preserve, protect,
where
to
possible,
restore
or
enhance,
the
resources of the Nation's coastal zgne for this and succeeding
generations[.]"
16
U.S.C.
X1452.
policy
24
Likewise,
NEPA
has
as
its
to declare a national policy which will
encourage productive and enjoyable harmony
between man and his environment; to promote
which
efforts
will prevent or eliminate
damage to the environment and biosphere and
stimulate the health and welfare of man;
[and] to enrich the understanding of the
ecological
systems and
natural resources
important to the Nation[.]
[42 U.S. C. §4321]
These statutes embody the public interest and must be enforced
in
order
Jersey's
to
vindicate
Coastal
effectively
Furthermore,
it.
Management
manage
ocean
Program
resources,
to
the
goals
protect
and
to
of
New
ecosystems,
promote
water
dependent uses embody the public interest, and these goals and
the
public
issue.
interest
will
be
harmed
See N.J.A.C. 7:7E-1.1(c).
25
should
an
injunction
not
CONCLUSION
For all the reasons, the motion for a temporary restraining
order
and
a
preliminary
injunction
should
be
granted,
and
defendants enjoined from implementing the IHA and undertaking a
seismic
study
in
the
waters
off
of
New
Jersey's
coast.
Furthermore, NJDEP requests oral argument on this request if it
is opposed.
Respectfully submitted,
JOHN J. HOFFMAN
ACTING ATTORNEY GENERAL OF NEW JERSEY
By:
David ~ A~
Assist t ttorney General
Dated : ?/3 !y
26