In 2014, the Town of North Hempstead (“Town”) passed a law requiring warning signs on utility poles in the Town.  As part of a larger project, the Long Island Power Authority (“LIPA”) and PSEG Long Island LLC (“PSEG”) placed new utility poles along existing rights-of-way.  The new poles, like the old poles, were treated with pentachlorophenol (“Penta”), a chemical used to prevent damage to the wood.  In April 2014, opponents of the project discovered EPA information suggesting that Penta was harmful to human health.  The following month, the Town began considering laws to require the posting of warning signs on the poles, and such a bill was approved in September 2014.

In January 2015, LIPA and PSEG commenced an action in federal court, alleging the law violated State and Federal freedom of speech.  Specifically, they claimed that the local law was vague, overbroad, and preempted by state statutes giving the New York State Department of Environmental Conservation (“DEC”) jurisdiction over Penta and other pesticides.

On a motion for summary judgment, the Court held that the warning signs constituted noncommercial speech, for which the government’s ability to compel mandatory disclosures is far more limited.  As the Court wrote, “the warning signs bear no discernible relationship to the Plaintiffs’ products, services, or other commercial interests, and are therefore outside the purview of the commercial speech doctrine.”  The Court also found that the signs were not government speech, as the government was not the speaker on the signs and did not appropriate funds to transmit the message.

Applying strict scrutiny, the Court found that the Town lacked a compelling interest in the warning signs, and accordingly that the law was not narrowly tailored to achieve a governmental interest.  The Court suggested that the Town could have chosen to convey its message through television advertising, public education campaigns, or signs on public property.  The Court also rejected the Town’s claims that placing warning signs on the utility poles was more effective, as the Town did not establish that there was a serious public safety concern, and further failed to provide evidence supporting the efficacy of its chosen method of addressing any such concerns.

The case was PSEG Long Island LLC v. Town of North Hempstead, 158 F.Supp.3d 149 (E.D.N.Y. 2016)