Community Wins TGE Appeal- Power Plant Proposal in Death Throes

Some good news about the power plant proposal for the Bayside Oil Site at Kent Ave & N 12th street that has been a block to the progress on the waterfront Bushwick Inlet park.

Dear Friends & Neighbors:

On Friday, the New York State Supreme Court Appellate Division – Second Department dismissed TGE’s appeal of the Siting Board’s decision denying TGE’s application for a permit to construct the power plant at North 12th Street.

TGE has two chances to appeal this decision — although its likelihood of even being able to appeal (let alone succeeding) are very, very remote. First, TGE can seek leave from the Appellate Division to appeal to the Court of Appeals (NY’s equivalent of the U.S. Supreme Court). It can also seek leave directly from the Court of Appeals to appeal to the Court of Appeals. Getting a case to the New York Court of Appeals is very difficult. The Court only accepts cases that present important matters of law. TGE would be asking the Court to consider interpretation of Article X that expired on December 31, 2002. All the lawyers opposing TGE believe that it is highly unlikely that either the Appellate Division or the Court of Appeals will grant TGE leave to appeal beyond this point.

Final denial of any right to appeal should be complete in the first quarter of 2010. At that point, the City will be able to move forward with completing condemnation of the Bayside Fuel Depot for the Bushwick Inlet Park. The City had previously started this condemnation. Justice Abraham Gerges (former council rep before Ken Fisher) stayed the condemnation pending resolution of the TGE Article X application and related appeals.

This decision is very good news for the community. Those of us who went to the oral argument walked out very concerned that the case would be sent back to the Siting Board for further hearings. Happily, that is not the case.

I would be remiss in not extending congratulations to New York City Assistant Corporation Counsel William Plache and John Graham, counsel for the Siting Board. Thanks are especially due to Columbia Law School Professor Edward Lloyd, the Evan M. Frankel Clinical Professor in Environmental Law, Clinic Staff Attorney Susan J. Kraham, and all of the truly extraordinary students at the Columbia Law School Environmental Law Clinic. They did truly extraordinary work and were a pleasure to collaborate with.

Best wishes to all,

Adam D. Perlmutter

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