DEP Environmental Protection Invoices, 1999-2001

NYC 9/11 Public Portal Document

NYC Environmental Law Fax:212-788-1619 Dec 272000 16:47 P.11

ARGUMENT II

SOUND PUBLIC POLICY CONSIDERATIONS SUPPORT THE DISTRICT COURT'S DETERMINATION THAT CONSTRUCTION OF THE WI'? DOES NOT REQUIRE APPROVAL FROM THE STATE LEGISLATURE.

A number of important yet divergent public policy considerations buttress the decision of the District

Court that the WTP does not require approval by the State Legislature.

A. Providing An Adequate Water Supply Is An Essential Function For Which A Municipality Must Be Conferred All Necessary Authority.

The Supreme Court of the United States has determined that "(t)he providing of a sufficient water supply

for the inhabitants of a great and growing city is one of the highest functions of municipal government."

Provident Institution for Savings v. Jersey City, 113 U.S. 506, 516 (1885). The Supreme Court has also

declared that:

"No higher police duty rests upon municipal authority than that of furnishing an ample supply of pure and wholesome water for public and domestic uses. The preservation of the health of the community is best obtained by the discharge of this duty, to say nothing of the preservation of property from fire, so constant an attendant upon crowded conditions of municipal life...(t)he wants of the public must, under all conditions, be supplied." City of Columbus v. Mercantile Trust and Deposit Co 218 U.S. 645, 658 (1910)

In construing whether the City of New York's provision of water constituted a governmental function, the

Court concluded that the acquisition and distribution of a supply of water for the needs of a modem city

involve the exercise of essential governmental functions and that "without such a supply, public schools,

public sewers so necessary to preserve health, fire departments, street sprinkling and cleaning, public

buildings, parks, playgrounds, and public.baths could not exist. Brush v. Comm. of Internal Revenue, 300

U.S. 352, 370 (1937) reversed on other grounds. 306 U.S. 466 (1939) (emphasis supplied). The Court further declared that "the health and comfort of the city's population of 7,000,000 souls, and in some degree their

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