3d 102
DISCUSSION
"Like substantive federal law itself, private rights of action to enforce federal
law must be created by Congress." Alexander v. Sandoval, 532 U.S. 275, 286,
121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Plaintiff challenges the City's
compliance with the following chapter of the Act:
Nothing in the text of the Act renders the City liable to plaintiff for granting
defendant a building permit without reviewing whether the project is consistent
with the coastal zone. And the "structure" of the Act only reinforces the view
that the Act affords no private right of action. The Act specifies a remedy
against state or city agencies that proceed without consistency review: the
denial of "applications for Federal assistance under other Federal programs." 16
U.S.C. 1456(d); see also, 16 U.S.C. 1455(b) (2000) ("The Secretary may
make a grant to a coastal state under... this section only if the Secretary finds
that the management program of the coastal state meets all applicable
requirements of this chapter. . . ."). It is telling that the Act specifies a
mechanism for enforcing the consistency requirement against state and city
agencies without mention of any private right of action.
enhance state authority, given effect through explicit measures in the statute
itself, cannot be taken to indicate an intent also to create rights of actions that
the statute fails to mention." Dep't of Envtl. Prot. & Energy v. Long Island
Power Auth., 30 F.3d 403, 423 (3d Cir.1994); see also California ex rel. Brown
v. Watt, 683 F.2d 1253, 1270 (9th Cir.1982), rev'd on other grounds, 464 U.S.
312, 104 S.Ct. 656, 78 L.Ed.2d 496 (1984) (assuming, though not deciding, that
no private right of action is available under the Act). District courts within the
Second Circuit have likewise declined to find a private right of action in the
Act. See Town of N. Hempstead v. Vill. of N. Hills, 482 F.Supp. 900, 905
(E.D.N.Y.1979) ("[The Act] is neither a jurisdictional grant, nor a basis for
stating a claim upon which relief can be granted."); see also New York v.
DeLyser, 759 F.Supp. 982, 987 (W.D.N.Y.1991) (suggesting that only possible
private right of action under the Act would be against the federal government
through the Administrative Procedure Act).
8