Pace Environmental Law Review Volume 1 Issue 1 1983 Article 8 January 1983 Byram River v. Village of Port Chester: Winning Is Not Enough Lois R. Murphy Follow this and additional works at: https://digitalcommons.pace.edu/pelr Recommended Citation Lois R. Murphy, Byram River v. Village of Port Chester: Winning Is Not Enough, 1 Pace Envtl. L. Rev. 63 (1983) Available at: https://digitalcommons.pace.edu/pelr/vol1/iss1/8 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Environmental Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. Byram River v. Village of Port Chester: Winning is Not Enough I. Introduction In recent years, the eight-mile long Byram River' has acquired a unique legal significance. Though it is not counted among the world's great rivers, the Byram has the distinction of being a plaintiff in a federal lawsuit. Byram River v. Village of PortChester2 was initiated to stop pollution of the river by the sewage treatment plant in Port Chester, New York. Des- ignating the river as the lead plaintiff rightfully emphasized 1. The Byram River originates at Byram Lake in North Castle, New York. It passes through eastern Westchester County (Westchester), New York, and then through Greenwich, Connecticut, emptying into the Long Island Sound. Its last mile forms the natural boundary between Port Chester and Greenwich, thus making it the state line for New York and Connecticut. Within this navigable mile, the Byram holds fresh water, salt water, and polluted water. As a tidal stream, it is subject to reversal of flow every six hours. Tides of Change in the Byram, Port Chester Daily Item, June 18, 1978, at Gll. The Interstate Sanitation Commission (ISC) has designated the Byram River Class A water, indicating that it is primarily suitable for recreation purposes, shellfish culture, and the development of fish life. ISC regulations require that "All waters of the Interstate Sanitation District... shall be of such quality and condition that they will be free from floating solids, settleable solids, oil, grease, sludge deposits, color or turbidity to the extent that none of the foregoing shall be noticeable in the water or deposited along the shore or on aquatic substrata in quantities detrimental to the natural biota; nor shall any of the foregoing be present in quantities that would render the waters in question unsuitable for use in accordance with their respective classifications." Tb meet these conditions, there is a prohibition against discharge of sewage or other polluting matter. ISC Water Quality Regula- tions § 1.01, pursuant to S.J. Res. 159, 49 Stat. 932 (1935). 2. Byram River v. Village of Port Chester (Byram 1), 7 Env't Rep. Cas. (BNA) 1127 (D. Conn. 1974), (Byram If), 394 F. Supp. 618 (S.D.N.Y. 1975). There were two federal court decisions in the Byram River litigation. The first memorandum decision rendered by Judge Jon 0. Newman of the District Court for the District of Connecti- cut dismissed the case. The case was then transferred to the Southern District of New York where Judge Whitman Knapp found most of the defendants liable. This culminated in a Stipulation and Order. Records, Motions, and Memoranda relating to the Connecticut portion of the case will be referred to as Byram I and those relating to the New York portion will be referred to as Byram H. 1 PACE ENVIRONMENTAL LAW REVIEW [Vol. 1 it as the suit's focus and served as a useful tactic3 to breathe new life into a protracted battle. This case study illustrates the difficulty of enforcing environmental laws, administrative decrees, and court or- ders. Even though federal, state, administrative, and common law each prohibit pollution of this interstate waterway, an updated secondary sewage plant has yet to be built and inadequately treated effluent is still being discharged from the plant into the Byram. II. The Parties' The parties involved in Byram River v. Village of Port Chester cover a wide spectrum of litigants. The plaintiffs 3. Making the river a plaintiff was based on a theory posited by Professor Christopher Stone in Should Trees Have Standing?-Thward Legal Rights for Natu- ral Objects, 45 S. Calif. L. Rev. 450 (1972). Stone would give the natural world legal rights akin to those enjoyed by other inanimate entities, such as trusts, corporations, municipalities, subchapters, part- nerships, and nation-states. He believes that if trees, rivers, animals and other non- human resources are given the right to sue, the courts would be compelled to consider damages to the environment as well as to the persons involved. This theory generates a multitude of questions: How does a natural object get rights? Who should speak for the natural object? Would anthropomorphizing all the natural things around us and granting legal status to them flood the courts with a new class of litigants? And, is this new voice duplicative and unnecessary? Even though questions such as these must be answered and refinements made before this embryonic theory is totally viable, the Byram River suit, as one of its first progeny, illustrates that people are willing to ally themselves with a natural object without expection of monetary gain. The suit also indicates that courts are willing to focus on an environmental object apart from the harm done to traditional complainants. Unfortunately, throughout this suit, little notice was taken of the river as a plaintiff. While two federal judges punctuated their opinions with the fact that the Byram River was one of the plaintiffs, and each court document bore a caption acknowledging the river's participation as a moving party, this was the total extent of the legal cognizance of the river. A natural object suing in its own right is an unusual, infrequent, and questionable tactic. Yet, no defendant moved to dismiss the river, litigated its status, or addressed it as an adversary. Although the river's role as a plaintiff has not significantly altered the outcome of this litigation, its de facto recognition as a plaintiff should not be overlooked. This suit has cleared a new path for others to follow in the Southern District of New York and the District of Connecticut. For a more extensive discussion of Stone's theory, see The Byram River Has Standing, So What?, a research paper by this author on reserve at Pace University School of Law Library, White Plains, N.Y. https://digitalcommons.pace.edu/pelr/vol1/iss1/8 2 1983] BYRAM RIVER V. VILLAGE OF PORT CHESTER 65 4 include: the Byram River; J. A. B. Haughwout, a riparian; the Byram River Pollution Abatement Association (BRPAA), a group of concerned citizens; 5 and the Town of Greenwich, Connecticut, which borders the river.6 The defendants all share some measure of responsibility for the operation of the Port Chester sewage treatment plant. They include: the Vil- lage of Port Chester (Port Chester), on the New York side of the river;7 the County of Westchester and its chief executive (Westchester);8 the Interstate Sanitation Commission (ISC), a compact having jurisdiction over the quality of the Byram waters;9 and the New York State Department of Environmen- 4. J.A.B. Haughwout is a Greenwich resident who lives on the shores of the Byram. His property is approximately 1,000 feet from the sewage treatment plant diagonally across the river, affording him the opportunity to monitor variations in the quality of the effluent discharged from the plant. He has a sailboat docked at his property and is adversely affected in the recreational use of his land by the pollution in the river. Amended Complaint, Byram I. 5. The Byram River Pollution Abatement Association (BRPAA) is a nonprofit, tax-exempt corporation of the State of Connecticut formed with the object of protect- ing and improving the quality of the water of the Byram River. lb implement its goals, the BRPAA has been creative and persistent. Members have raised funds to pay for legal services and operating costs of the Association. For instance, the movie "Jaws" became a benefit for the BRPAA titled "Jaws for a Cause." Bumper stickers were sold bearing the slogan, "Byram River Giver." In addition, press releases constantly emanated from the Association documenting the long cleanup of the Byram. BRPAA was involved in monitoring noise, odors, and particulate matter from Peckham Industries, dredging of the Byram to deepen it for bridge clearance, and donating water-testing equipment to the Health Department of the Town of Greenwich. (This information was winnowed from three cartons of clippings and documents that were given to this author by J.A.B. Haughwout in April 1981.) 6. This pollution impairs the ability of Greenwich residents to live on and own property along the river, to use the river for boating, swimming, and fishing, and to enjoy the town bathing beach. It also imperils the comfort, health, and welfare of those living in Greenwich. Amended Complaint, Byram I. 7. From 1915 until 1977, the Village of Port Chester has owned and operated its own sewage treatment plant on Fox Island Road. The plant is located directly on the Byram River, approximately one-half mile from its mouth. Updating Supplement for Blind Brook and Port Chester Sanitary Sewer Districts, Dec. 1974, Malcolm Pirnie, Inc. 8. Although Westchester entered into an agreement in December 1968 with defendant Port Chester, whereby Port Chester would join the Blind Brook Sewer District in 1969 and the primary responsibility for design and construction of a new sewage plant would be assumed by Westchester, the actual transfer of responsibility took place in 1977.