The recent decision in Global Companies, LLC v New York State Department of Environmental Conservation, 2017 WL 4817272 (3d Dep’t 2017) illustrates how difficult it can be for an applicant to force an end to the SEQRA process and require a decision on an application.   In April 2013, Global applied for a modification to its clean air act permit, seeking to expand the storage capacity at its petroleum storage and transfer facility in Albany.   In November 2013, DEC declared itself lead agency for SEQRA and issued a negative declaration and a Notice of Complete Application.  In June 2014, an Article 78 action was commenced challenging the negative declaration and in May 2015 DEC notified Global that it was rescinding the Notice of Complete Application.

Global then brought an Article 78 and declaratory judgment action seeking to compel DEC to make a final decision on the application.   The trial court granted the mandamus, based largely on the provision of the Environmental Conservation Law that requires DEC to render a decision within 18 months after receipt of a complete application.  The Appellate Division reversed.

Global argued that if DEC could revoke a notice of complete application, the 18 month period in the statute would be rendered meaningless and their application would be in limbo.  One of my partners refers to the situation as a “SEQRA perpetual motion machine.”  Global also noted that it was not asking the court to order DEC to grant its application; it was merely asking the court to require DEC to make a decision.

The Appellate Division reasoned that whenever there are changes to the project, DEC can restart the 18 month clock.  Every project changes during the review process and it cannot be that every change restarts the clock.  The court noted, however, that in challenging the agency’s decision to view a change as significant enough to restart the clock, the “arbitrary and capricious” standard applies.  That is a very difficult standard and means that, to a large extrent, a lead agency can put off deciding on an application for as long as it wants.