Stop-the-Barge v. Cahill

In Stop-the-Barge v. Cahill (1 N.Y.3d 218) respondent New York City Energy (NYCE) had submitted an application to Respondent New York City Department of Environmental Protection (DEP) to obtain a permit allowing them to install a power generator on a barge which was to be moored in the East River. Part of that application included an Environmental Assessment Statement. Upon receipt of the application, DEP assumed lead agency status and proceeded to conduct its coordinated SEQRA review. DEP subsequently issued three conditional Negative Declarations, the last of which was dated January 10, 2000. On January 19, 2000 the Declaration was published for the mandatory thirty day comment period (see 6 NYCRR 617.7(d)(1)(iv)). None of the Petitioners sought to be heard during that time. Subsequent to the issuance of the conditional Negative Declaration, NYCE applied for, and was later awarded, an air permit from DEC. On February 20, 2001 Petitioners brought an Article 78 action seeking various forms of injunctive relief and vacatur of the Negative Declaration. Respondents then sought dismissal on statute of limitations grounds, alleging, inter alia, that the four month term began to run -- at the latest -- upon the conclusion of the thirty day comment period on February 20, 2000. Petitioners answered that such period commenced when DEC issued the air permit on December 18, 2000; reasoning that Respondents could not advance the project until that time. In granting Respondents' motion, the Court held that the issuance of the final conditional Negative Declaration "was a final agency action for purposes of judicial review," Id. Specifically, the Court held that notwithstanding that NYCE obtained the air permit from DEC after the Negative Declaration was made -- it was the Negative Declaration, in fact, which "resulted in actual concrete injury to Petitioners because it essentially gave the developer the ability to proceed with the project without the need to prepare an environmental impact statement," Id.