2021 10:13 PM

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS

SANE ENERGY PROJECT and COOPER PARK RESIDENT

COUNCIL, INC., Petitioners/Plaintiffs,

-against- CITY OF NEW YORK, FIRE DEPARTMENT OF NEW YORK and BROOKLYN UNION GAS COMPANY D/B/A NATIONAL

GRID, Respondents/Defendants.

Index No.: 518354/2021 Hon. Karen B. Rothenberg

Motion Sequence No. 2

RESPONDENT THE BROOKLYN UNION GAS COMPANY

D/B/A NATIONAL GRID’S MEMORANDUM OF LAW IN OPPOSITION

TO PETITIONERS’ MOTION FOR A PRELIMINARY INJUNCTION

NIXON PEABODY LLP

50 Jericho Quadrangle, Suite 300 Jericho, New York 11753 Tel: (516) 832-7500

Attorneys for Respondent The Brooklyn

Union Gas Company d/b/a National Grid NY

FILED: KINGS COUNTY CLERK 08/04/2021 10:13 PM INDEX NO. 518354/2021

NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/04/2021

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TABLE OF CONTENTS

Page(s)

PRELIMINARY STATEMENT .............................................................................................. 1

STATEMENT OF FACTS ...................................................................................................... 4

ARGUMENT .......................................................................................................................... 5

POINT I - THE APPLICABLE LEGAL STANDARD ............................................................ 5

POINT II - PETITIONERS HAVE FAILED TO DEMONSTRATE THAT THEY WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF INJUNCTIVE RELIEF ................. 6

A. Petitioners Do Not Submit Competent Evidence to Support Their Assertions of Irreparable Harm .......................................................................... 7

B. The Purported Harms Petitioners Identify do not Exist ....................................... 9

C. Plaintiffs Have Been Aware of the Construction for Months Prior to Seeking Injunctive Relief, Undermining Their Supposed Fear of Immediate, Irreparable Harm ............................................................................11

POINT III - PETITIONERS ARE NOT LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIM AGAINST NATIONAL GRID ......................................................................12

A. The Environmental Review relating to the Variance Application and EAS is not ongoing and incomplete; it ended in 2017 and is not pending ...................13

B. The Truck Unloading Station Project is Exempt from Environmental

Review under SEQRA .....................................................................................14 C. The Truck Unloading Station Project can Lawfully Be Separated from the

Prior Variance Application ...............................................................................16

POINT IV - THE BALANCING OF THE EQUITIES WEIGHS HEAVILY IN FAVOR OF NATIONAL GRID AND AGAINST THE ISSUANCE OF INJUNCTIVE RELIEF ...........17

A. National Grid Will Suffer Decidedly Greater Harm If Preliminary Injunctive Relief is Granted ..............................................................................17

B. The Harm National Grid Will Suffer from an Injunction is Not “At Its

Own Doing” ....................................................................................................19 C. Petitioners’ Unreasonable Delay in Seeking This Injunctive Relief is

Indicative of Their Unclean Hands ....................................................................20

POINT V - AN UNDERTAKING SHOULD BE REQUIRED IN THE UNLIKELY EVENT A PRELIMINARY INJUNCTION IS GRANTED .....................................................21

CONCLUSION ......................................................................................................................22



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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Stewart Park & Res. Coal., Inc. (SPARC) v. Slater, 232 F. Supp. 2d 1 (N.D.N.Y. 2002) ............................................................................. 19, 20

State Cases

1234 Broadway LLC v. West Side SRO Law Project, Goddard Riverside Cmty.

Ctr., 86 A.D.3d 18 (1st Dep’t 2011) .......................................................................................... 12

Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 (1990) .........................................................................................................6

Arjent Servs., LLC v. Gentile, No. 114221/08, 2008 N.Y. Slip. Op, 33298U, at *7 (Sup. Ct. N.Y. Cnty. Dec. 8, 2008) ..............................................................................................................................6

Bank of Am., N.A. v. PSW NYC LLC,

No. 651293/10, 2010 WL 4243437 (Sup. Ct. N.Y. Cnty Sept. 16, 2010) ...............................6

Benjamin Kurzban & Son, Inc. v. Board of Educ. of City of N.Y., 129 A.D.2d 756 (2d Dep’t 1987) ..................................................................................... 7, 8

Bisca v. Bisca,

108 Misc.2d 227 (Sup. Ct. Nas. Cnty 1981) .........................................................................6

Booth v. Village Planning Bd. of the Vill. of Perry, No. 45250, 2013 WL 1401264 (Sup. Ct. Wy. Cnty April 1, 2013) ...................................... 16

Caprari v. Town of Colesville,

199 A.D.2d 705 (3d Dep’t 1993) ....................................................................................... 20

Chrysler Corp. v. Fedders Corp., 63 A.D.2d 567 (1st Dep’t 1978) ........................................................................................ 11

Clover Street Assocs. v. Nilsson,

244 A.D.2d 312 (2d Dep’t 1997) ....................................................................................... 21

Faberge Int’l, Inc. v. DiPino, 109 A.D.2d 235 (1st Dep’t 1985) .................................................................................. 6, 13

Fischer v. Deitsch,

168 A.D.2d 599 (2d Dep’t 1990) ....................................................................................... 17



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Golden v. Steam Heat, Inc., 216 A.D.2d 440 (2d Dep’t 1995) .........................................................................................6

Hoffman Investors Corp. v. Yuval,

33 A.D.3d 511 (1st Dep’t 2006) ..........................................................................................7

Madden Int’l., Ltd. v. Lew Footwear Holdings Pty Ltd., 50 Misc.3d 1210(A), (Sup. Ct. N.Y. Cnty Jan. 15, 2016) ......................................................7

Manhattan Valley Neighbors for Permanent Housing for the Homeless v. Koch ,

168 A.D.2d 262 (1st Dep’t 1990) ...................................................................................... 15

Marino v. Platt, 104 Misc.2d 386 (Sup. Ct. Ono. Cnty May 21, 1980) ......................................................... 15

McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., Inc.,

114 A.D.2d 165 (2d Dep’t 1986) .........................................................................................5

Matter of Rodgers v. City of N. Tonawanda, 60 A.D.3d 1379 (4th Dep’t 2009) ...................................................................................... 16

Scotto v. Mei,

219 A.D.2d 181 (1st Dep’t 1996) ...................................................................................... 13

Matter of Settco, LLC v. New York State Urban Dev. Corp. , 305 A.D.2d 1026 (4th Dep’t 2003) .................................................................................... 16

Sun Beach Real Estate Dev. Corp. v. Anderson ,

469 N.Y.S.2d 964 (2d Dep’t 1983), aff’d, 62 N.Y.2d 965 (1984) ........................................ 17

United for Peace & Justice v. Bloomberg, 5 Misc.3d 845 (Sup. Ct. N.Y. Cnty. 2004) ......................................................................... 20

Valdez v. Ne Brooklyn House Dev. Corp.,

8 Misc.3d 1008(A), (Sup. Ct. Kings Cnty 2005)................................................................. 21

WebMD Health Corp. v. Martin, 12 Misc.3d 1180(A), (Sup. Ct. N.Y. Cnty July 11, 2006) .................................................. 6, 7

William M. Blake Agency, Inc. v. Leon,

283 A.D.2d 423 (2d Dep’t 2001) .........................................................................................5



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State Statutes

Public Officers Law §§ 84 et seq. ............................................................................................ 12

State Environmental Quality Review Act (“SEQRA”) ...................................................... passim

CPLR 6312 (b) ....................................................................................................................... 21

Regulations

6 NYCRR § 617.3(f) .............................................................................................................. 14

6 NYCRR § 617.5(a) .............................................................................................................. 14

6 NYCRR § 617.5(c)(2) ................................................................................................... 14, 15

6 NYCRR § 617.5(c)(25) ........................................................................................................ 15

6 NYCRR § 617.7(c)(1)) ..........................................................................................................8



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PRELIMINARY STATEMENT

Respondent The Brooklyn Union Gas Company d/b/a National Grid (“National Grid”)

submits this memorandum of law, along with the Affirmation of Christopher Porzio, Esq. (“Porzio

Aff.”), Affidavit of Christopher Connolly (“Connolly Aff.”), Affidavit of Saed Abdul Hamid

(“Hamid Aff.”), and Affidavit of Philip A. DeCicco (“DeCicco Aff.”), in opposition to the

preliminary injunction motion made by plaintiffs/petitioners SANE Energy Project (“SANE”) and

Cooper Park Resident Council Inc. (together, “Petitioners”).

The Court is faced with an application for injunctive relief made under supposedly exigent

circumstances to enjoin a multi-million dollar construction project that began in December 2020

and has been ongoing for 7 months now, where Petitioners have had actual knowledge that the

work was in progress since at least February 8, 2021 and is based entirely on a draft document

relating to a variance application submitted by National Grid to the City of New York that is eight

years old, is stale, dormant, is no longer under active consideration, and relates to a prior project

that was supposed to be complete in 2018, but never came to fruition. More specifically,

Petitioners are seeking to preliminarily enjoin work on liquefied natural gas (“LNG”) trucking-

related infrastructure at National Grid’s Greenpoint Energy Center located at 287 Maspeth

Avenue, Brooklyn, New York 11211 (the “Greenpoint Facility”), including construction of the

truck unloading station (the “Truck Unloading Station Project”). Petitioners, however, fail to meet

their burden of establishing their clear entitlement to preliminary injunctive relief.

With respect to the all-important element of irreparable harm, Petitioners have submitted

absolutely no proof that they will suffer any harm at all, much less irreparable harm, in the absence

of an injunction. Petitioners offer no evidence of any actual harm that has been caused to date by

the Truck Unloading Station Project, which has been ongoing since December 2020. Similar ly,

Petitioners have failed to offer any competent, expert evidence that the harms they identify –



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increased stormwater, flooding, soil disturbance, or increased risk of gas-related explosions – are

likely to occur if construction continues. Instead, they offer affidavits of laypeople who lack the

relevant expertise and who express subjective, but unsubstantiated, “concerns” about these issues.

These affidavits are patently insufficient to establish these purported harms with the requisite

evidentiary force to justify preliminary injunctive relief. In contrast, National Grid’s submissions

establish that none of these alleged problems has occurred to date during the construction, nor are

any reasonably expected to occur.

Petitioners also fail to demonstrate likelihood of success on the merits of their cause of

action for injunctive and declaratory relief against National Grid. That claim is premised entirely

on the notion that the Truck Unloading Station Project violates the State Environmental Quality

Review Act (“SEQRA”) because it is purportedly subject to and part of an ongoing, incomplete

SEQRA review relating to a 2016 draft Environmental Assessment Statement (the “EAS”) that

pertained to a 2013 variance application that would have permitted National Grid to transport LNG

in emergencies (the “Variance Application”). First, Petitioners’ foundational factual premise is

incorrect. Nothing has occurred with respect to the EAS since early 2017, and the Variance

Application has effectively been abandoned and has been a dead letter for several years. Indeed,

the Variance Application was officially withdrawn by National Grid earlier this week to the extent

there was any conceivable argument that it was technically still pending.

In addition, the Truck Unloading Station Project is not subject to an environmental review

under SEQRA because it is a Type II action since it is: (1) a replacement in-kind of the existing

truck unloading station at the Greenpoint Facility that had not been used since 1977; and (2) falls

under the category of an act of a ministerial nature involving no exercise of discretion because the

construction work requires only the routine, non-discretionary issuance of permits by the New



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York City Department of Buildings (“DOB”) and the Fire Department of the City of New York

(“FDNY”).

Furthermore, even accepting the premise that the Truck Unloading Station Project was part

of the EAS and that SEQRA regulations require consideration of a “whole action,” the Truck

Unloading Station Project is a Type II action, and therefore it is not subject to SEQRA review and

can be lawfully severed from any environmental review of the EAS. Construction of the Truck

Unloading Station Project can therefore proceed.

Finally, a balancing of the equities tilts heavily in favor of National Grid and against an

injunction. First, Petitioners’ delay in seeking this injunction is unreasonable and inequitable –

because the construction is now approximately 50% complete and Petitioners have known about

its permitting since December 2020 and that it was “in progress” since early February 2021. In

addition, National Grid’s submissions here demonstrate the significant financial losses it will

suffer – likely in the millions of dollars – as well as the adverse operational domino effect that may

compromise its ability to be prepared for all contingencies and serve its customers in the coming

winter months, if injunctive relief is granted. This stands in stark contrast to the complete absence

of harm to Petitioners if their injunction motion is denied.

For these reasons, discussed in more detail below, Petitioners’ motion for a preliminary

injunction should be denied.



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STATEMENT OF FACTS

On January 28, 2013 National Grid submitted to the FDNY the Variance Application to

permit the trucking of LNG to serve the Greenpoint Facility (the “Variance Application”).

Connolly Aff. ¶ 4. On November 1, 2016, National Grid submitted the revised EAS to the

FDNY for review and comment. See id. ¶ 6; Ex. F to Petition at 1. As reflected in the EAS, the

project discussed therein was anticipated to be completed and operational in 2018. Ex. F to

Petition at 4. Upon receiving comments from the FDNY on the draft EAS in an April 2017

letter, National Grid never responded and decided not to pursue that Variance Application. Id.

¶¶ 7-9. No final EAS was ever submitted nor filed with respect to the Variance Application and

nothing further occurred with respect to the EAS. Id. ¶ 9.

Despite abandoning the Variance Application, National Grid continued to engage in

discussions with New York City agencies, including the FDNY, regarding what emergency

circumstances might trigger the urgent need to truck LNG into the Greenpoint Facility. Id. ¶ 8.

Based on these discussions, National Grid understood that it would not receive approval of a

general variance from the Fire Code, but instead would have to apply for an event-specific variance

on a case by case basis for the limited duration of a defined emergency event, such as a massive

storm, like Superstorm Sandy. Id. ¶ 10.

As a result of those conversations, National Grid concluded that in order to adequately

serve its customers during such an emergency and to be in a position to pursue the needed variance

at such a time, it would need to have the proper infrastructure in place. Id. ¶ 11. This meant first

replacing the existing truck unloading station at the Greenpoint Facility which had not been used

since 1977, and is no longer operational, with a replacement in-kind truck unloading station. Id.

The Truck Unloading Station Project entails the installation of a new LNG truck unloading

station, along with a control kiosk, concrete trench, fire protection systems, a new internal



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roadway, associated piping, electrical, and control systems connected to the existing LNG plant.

Id. ¶¶ 9-10. After significant time was spent on planning and design, the actual construction on

the Truck Unloading Station Project began on December 16, 2020. Id. ¶ 11. As of the date this

Court entered the temporary restraining order (“TRO”) halting construction, July 27, 2021, the

Truck Station Project was approximately half completed and National Grid had spent

approximately $13.4 million. Id. ¶ 11. Completion of the Truck Unloading Station Project will

not result in the actual trucking into LNG, as a variance from FDNY would still be required for

trucking. Id. ¶ 7.

As described in more detail in the Hamid Aff., all permits and approvals needed for the

completed work have been obtained and ones required for the remaining work have been or are

being applied for – meaning the Truck Unloading Station Project is, to date, fully and lawfully

permitted. Id. ¶¶ 17-30. At no point during the planning or construction of the Truck Unloading

Station Project did National Grid receive any communication from the City, including FDNY, the

lead agency with respect to the Variance Application, that the work on the Truck Unloading Station

Project would violate SEQRA or any other law. Hamid Aff. ¶ 34.

ARGUMENT

POINT I

THE APPLICABLE LEGAL STANDARD

“Preliminary injunctive relief is a drastic remedy which will not be granted unless a clear

right thereto is established under the law and the undisputed facts upon the moving papers, and the

burden of showing an undisputed right rests upon the movant.” William M. Blake Agency, Inc. v.

Leon, 283 A.D.2d 423, 424 (2d Dep’t 2001) (citations and quotations omitted). “[T]he remedy of

granting a preliminary injunction is a drastic one which should be used sparingly.” McLaughlin,

Piven, Vogel, Inc. v. W.J. Nolan & Co., Inc., 114 A.D.2d 165, 172 (2d Dep’t 1986).



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In order to demonstrate entitlement to a preliminary injunction, the movant bears a “heavy

burden” to make a clear showing on each of three elements: (1) probability of ultimate success on

the merits; (2) irreparable injury in the absence of an injunction; and (3) a balancing of the equities

in its favor. See, e.g., Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860, 862 (1990). Moreover, the

movant must establish all three elements by “affidavit and other competent proof, with evidentiary

detail” and cannot rely on conclusory allegations or unsupported contentions to sustain its burden.

Faberge Int’l, Inc. v. DiPino, 109 A.D.2d 235, 240 (1st Dep’t 1985).

As discussed in detail below, Petitioners have failed to establish any of the three required

elements for preliminary injunctive relief, much less all three, requiring denial of their motion.

POINT II

PETITIONERS HAVE FAILED TO DEMONSTRATE THAT THEY WILL

SUFFER IRREPARABLE HARM IN THE ABSENCE OF INJUNCTIVE RELIEF

“Irreparable harm has been called the most important prerequisite for the issuance of a

preliminary injunction.” Arjent Servs., LLC v. Gentile, No. 114221/08, 2008 N.Y. Slip. Op,

33298U, at *7 (Sup. Ct. N.Y. Cnty. Dec. 8, 2008). The irreparable harm “must be shown by the

moving party to be [actual and] imminent, not remote or speculative.” Golden v. Steam Heat, Inc.,

216 A.D.2d 440, 442 (2d Dep’t 1995). Thus, “‘[t]o prevail, the movant must establish not a mere

possibility that it will be irreparably harmed, but that it is likely to suffer irreparable harm if

equitable relief is denied.’” Bank of Am., N.A. v. PSW NYC LLC, No. 651293/10, 2010 WL

4243437, at *10 (Sup. Ct. N.Y. Cnty Sept. 16, 2010) (emphasis in original) (citation omitted)).

The moving party must establish that a “real threat of irreparable injury exists by factual

demonstration. Mere apprehension . . . will not qualify as irreparable injury.” Bisca v. Bisca, 108

Misc.2d 227, 231 (Sup. Ct. Nas. Cnty 1981). Furthermore, the movant must “demonstrate . . .

irreparable injury by means of detailed, competent evidence, not merely conclusory assertions.”



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WebMD Health Corp. v. Martin, 12 Misc.3d 1180(A), at *6 (Sup. Ct. N.Y. Cnty July 11, 2006)

(citation omitted); see also Hoffman Investors Corp. v. Yuval, 33 A.D.3d 511, 512 (1st Dep’t 2006)

(denying injunctive relief because there “was no evidentiary support for a finding that plaintiff

would suffer irreparable harm”).

Any delay in seeking injunctive relief is “itself antithetical to irreparable harm in the

absence of a preliminary injunction.” Madden Int’l., Ltd. v. Lew Footwear Holdings Pty Ltd., 50

Misc.3d 1210(A), at *6 (Sup. Ct. N.Y. Cnty Jan. 15, 2016) (internal citation and quotation omitted)

(“Preliminary injunctions are generally granted under the theory that there is an urgent need for

speedy action to protect the plaintiffs’ rights. Delay in seeking enforcement of those rights,

however, tends to indicate at least a reduced need for such drastic, speedy action.”).

A. Petitioners Do Not Submit Competent Evidence to Support Their Assertions

of Irreparable Harm

Petitioners argue that without injunctive relief, they will be harmed by what they suggest

are the potential adverse impacts of the Truck Unloading Station Project, namely disturbance of

soil, an increase in stormwater and flooding risk, potential LNG spills and leaks at the Truck

Unloading Station, as well as the increased risk of gas-related explosions. (Petitioners’

Memorandum of Law (“Pet. Memo”) at p. 7) (NYSCEF Doc. No. 8). The sum total of Petitioners’

“evidence” in support of these supposed harms are: (1) affidavits of laypersons containing

boilerplate, conclusory allegations of their “concerns” relating to these issues; and (2) the EAS

itself.

The layperson affidavits come nowhere near sustaining Petitioners’ burden of

demonstrating irreparable harm by competent evidence. They contain no evidentiary detail and

no factual demonstrations to support the affiants’ conclusory “concerns.” See, e.g., Benjamin

Kurzban & Son, Inc. v. Board of Educ. of City of N.Y. , 129 A.D.2d 756, 757 (2d Dep’t 1987)



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(attorney’s affirmation was insufficient to demonstrate irreparable injury because attorney merely

declared “plaintiff would be forced to go out of business” if injunctive relief were not granted

without submitting any “financial statements or other evidence”). In addition, based on their

affidavits, these laypeople do not have any relevant experience or expertise with respect to

environmental issues, construction and its impacts, or any other subject that would establish their

entirely subjective concerns about flooding, soil disturbance or explosions are reasonable or

realistic. To establish irreparable harm on a subject such as this – the purported environmental

impact of an ongoing construction project – competent expert testimony is required. Petitioners

have not offered any and, therefore, have failed to satisfy their burden of proof.

For example, Kevin LaCherra states that he is “particularly concerned about increases in

stormwater and flooding” as a “fourth-generation resident of Greenpoint.” See Petition Exhibit D

¶¶ 7-8. Despite having no expertise on such a scientific matter, Mr. LaCherra claims generally

that “flooding events now appear to be occurring on much shorter timeframes . . . as a result of

rising sea levels and increasing storm activity due to climate change.” Id. Without any actual,

supporting evidence, or expertise, the conclusory, entirely speculative, concerns of these

laypersons cannot sustain Petitioners’ unsubstantiated assertions of irreparable harm.

Furthermore, National Grid’s references to potential environmental impacts in what was

only a draft EAS in 2016 served merely to explain that such impacts could theoretically occur; it

does not establish that they are either likely to occur or threaten anything approaching imminent

and irreparable harm now, in 2021. The SEQRA review process, beginning with the submission

of an EAS, is designed to allow the applicant to assess, and describe “whether a Type I or

unlisted action [not Type II] may have a significant adverse impact on the environment” (6

NYCRR Section 617.7(c)(1)); Any potential risk identified during this review does not



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automatically become a significant adverse impact, let alone an imminent risk that rises to the

level of irreparable environmental impact. But that is exactly what Petitioners are contending

here – because National Grid identified some of these purported issues as potential impacts in

the EAS purportedly means that significant adverse circumstances will result from continued

construction, and that the resultant harm to the environment and/or the surrounding community

would be severe, imminent and irreparable. Pet. Memo at 7-8. This is a completely

unwarranted, indeed illogical, leap that should be rejected out of hand by the Court.

B. The Purported Harms Petitioners Identify do not Exist

As noted above, Petitioners argue that they face imminent harms of increased stormwater,

flooding, and soil disturbance as a result of the Truck Unloading Station Project if it is not enjoined.

Tellingly, however, Petitioners have not provided any evidence that any of these problems have

actually occurred to date, despite the fact that construction has been ongoing for over seven

months. This seriously undermines their conclusory assertions of irreparable harm.

Furthermore, National Grid confirms that there have been no instances of flooding or

increase in stormwater nor any soil disturbance problems to date caused by construction that has

already been completed, contradicting Plaintiffs’ assertions that such issues are “likely” to occur

if construction continues. Hamid Aff. ¶ 37.1 Petitioners offer no evidence or explanation as to

how the remaining construction would create these supposed harms when the work thus far did

not.

In addition, every construction project involves some measure of “soil disturbance,” and

this and the other purported concerns raised by Petitioners relating to stormwater and flood risk

1 Some of Petitioners’ contentions are also factually inaccurate. For example, in support of their contention that

flooding is more likely from the construction sought to be enjoined, they point out that the Truck Unloading

Station Project is supposedly located in a 100-year floodplain. See LaCherra Aff. ¶ 8. But, that is not the case. See Hamid Aff. ¶ 42.



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are issues routinely identified and managed in connection with all construction projects. There is

nothing unique, or problematic about those issues here in the context of the Truck Unloading

Station Project. See Hamid Aff. ¶ 39.

Petitioners also claim that they would be irreparably harmed by potential LNG spills, leaks,

or a “flooding-induced gas infrastructure explosion.” Pet. Memo at pp.7-8; LeCherra Aff. ¶ 8.

However, there is no greater risk here compared to any other typical construction work. See Hamid

Aff. ¶ 40. There are no new storage tanks being constructed at the truck unloading station, and all

natural gas or LNG piping has been purged and isolated during the piping tie-ins to the existing

plant (i.e., when the existing plant piping is connected to the new piping being installed for the

Truck Unloading Station Project). Id. The truck unloading area, concrete trench, and control kiosk

are located hundreds of feet away from the existing LNG tanks. Id. In fact, during construction

of piping tie-ins, the LNG plant is shut down and is not liquefying natural gas or vaporizing LNG,

as the systems to liquefy or vaporize the gas have to be purged and isolated for tie-in completion.

Id. ¶ 41. As such, Petitioners’ purported concern about increased risk of gas-related explosions

due to the construction is entirely without basis.

With respect to the purported “safety and health hazards of potential LNG spills and leaks”

(Pet. Memo at 7-8), those alleged risks and harms have no relation to the mere construction of the

Truck Unloading Station Project. The trucking of LNG is not occurring now, as Petitioner s

concede in their papers (Pet. Memo at 9), cannot occur without variances from FDNY, is not part

of the scope of the Truck Unloading Station Project (Hamid Aff. ¶¶ 6, 7), and is not sought to be

enjoined on this motion. See Order to Show Cause. As a result, these purported harms, which are

not proven and do not relate to the actual construction at issue here, should not be considered by

the Court and cannot provide a basis for a preliminary injunction halting that construction. See



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Chrysler Corp. v. Fedders Corp., 63 A.D.2d 567, 569 (1st Dep’t 1978) (defining irreparable injury

as “a continuing harm . . . caused by the acts sought to be restrained if permitted to continue”)

(emphasis added).

C. Plaintiffs Have Been Aware of the Construction for Months Prior to Seeking

Injunctive Relief, Undermining Their Supposed Fear of Immediate,

Irreparable Harm

The final nail in the coffin for Petitioners’ baseless assertions that they will be irreparably

harmed in the absence of preliminary injunctive relief is their inexcusable and inequitable delay in

seeking this “emergency relief.”

The construction project is approximately half-way done as of the filing of Petitioners’

application. Hamid Aff. ¶ 11. The project began in December 2020 with a goal of completion in

December 2021, and is now more than seven-months complete. Id. Petitioners have long been

aware of the subject construction and still waited until the end of July 2021 to bring this

purportedly urgent request for injunctive relief, including a TRO. As Petitioners acknowledge,

they were aware that National Grid began seeking permits from city agencies in the fall of 2020

for the Truck Unloading Station Project. See Pet. at ¶ 37.

In addition, specific details about the construction were provided to SANE in the pending

Public Service Commission rate cases, Case Nos. 19-G-0309 and 19-G-0310 relating to the setting

of National Grid’s rates (the “Rate Case”). For example, Petitioner SANE learned as early as

December 1, 2020 that permits for “general construction” and “foundation/structural” were issued

by the DOB. DeCicco Aff. ¶ 7 & Exhibit A. Thus, as of that time, Petitioners were aware that

construction would commence imminently with respect to the Truck Unloading Station Project.

Moreover, on February 8, 2021, National Grid provided a response to one of SANE’s information

requests in the Rate Case explicitly stating that the Truck Unloading Station Project was “in

progress.” DeCicco Aff. ¶ 8 & Exhibit B. As a result of that disclosure, SANE had been aware



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that the construction was already ongoing for a period of more than five months before bringing

this motion. To make matters worse, Petitioners’ counsel in this case, Todd Ommen, expressly

acknowledged in an email dated April 30, 2021 that he was aware that the Truck Unloading Station

Project was “in progress,” yet Petitioners waited until late July to bring this motion. See Porzio

Aff. at Ex. A.

Furthermore, on May 6, 2021, in response to one of SANE’s requests in the Rate Case,

National Grid provided SANE with the EAS. DeCicco Aff. ¶ 10 & Exhibit D. The EAS is plainly

the lynchpin for Petitioners’ present application, yet they waited almost three months from

receiving the document to make this “emergency” application.2

In short, Petitioners’ completely unreasonable delay in seeking a preliminary injunction

undermines the conclusion that they would suffer irreparable harm without an injunction.

POINT III

PETITIONERS ARE NOT LIKELY TO SUCCEED

ON THE MERITS OF THEIR CLAIM AGAINST NATIONAL GRID

With respect to likelihood of success on the merits, “the threshold inquiry is whether the

proponent has tendered sufficient evidence demonstrating ultimate success in the underlying

action.” 1234 Broadway LLC v. West Side SRO Law Project, Goddard Riverside Cmty. Ctr. , 86

A.D.3d 18, 23 (1st Dep’t 2011).3 Where there is a dispute regarding the relevant facts, a

2Petitioners could have obtained the EAS and sought injunctive relief months ago, as the EAS has been in

the possession of the FDNY, a New York City Agency, since 2016 and therefore the document was

subject to FOIL. See Public Officers Law §§ 84 et seq.

3Petitioners argue they should be held to a reduced burden in establishing a likelihood of success on the

merits because the denial of injunctive relief would render the final judgment sought ineffectual. Pet. Memo

at 6. This contrived argument should be rejected because the risk of a final judgment being ineffectual here

was created by Petitioners’ own delay in initiating this action and because they have conveniently sought

on this motion the same relief against National Grid as they do in the underlying action – enjoining the Truck Unloading Station Project.



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preliminary injunction should not be granted. Scotto v. Mei, 219 A.D.2d 181, 184 (1st Dep’t 1996);

Faberge, 109 A.D.2d at 240. Here, Petitioners have failed to establish the merits of their claim

that construction of the Truck Unloading Station Project is illegal because it purportedly violates

SEQRA and should be enjoined because: (i) there is no currently pending SEQRA review which

must be completed before construction can continue; (ii) no SEQRA review is necessary because

the construction on the Truck Unloading Station Project is a Type II action; and (iii) even if the

Truck Unloading Station Project were to be considered part of a “whole action” encompassing the

transport of the LNG, that project can, nevertheless, be lawfully severed and separated from that

environmental review because it is a Type II action.

A. The Environmental Review relating to the Variance Application and EAS is

not ongoing and incomplete; it ended in 2017 and is not pending

Petitioners’ foundational premise on its cause of action against National Grid – that the

subject construction violates SEQRA because that work is “the subject of a SEQRA review that is

still pending and incomplete” based on the Variance Application and EAS (Pet. Memo at 6) – is

incorrect because the Variance Application to which the EAS relates is no longer pending or under

consideration. First, the EAS was a draft submitted by National Grid to the FDNY in 2016.

Petition Ex. F at 1. On April 4, 2017, the City of New York, Office of the Mayor wrote a letter to

National Grid containing comments and questions from the various agencies concerning the EAS

that needed to be addressed in a subsequent submittal to which National Grid never formally

responded. Id. ¶¶ 7, 9. National Grid did not address any of the comments in the 2017 letter, nor

did it submit a revised EAS. Id. ¶ 9. Thus, National Grid believes the Variance Application and

the EAS are no longer pending. Id.

As Petitioners are well aware, the EAS does not currently appear in the FDNY CEQR

database. Id. Moreover, any future EAS submittal would be required to comply with the



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comprehensive requirements of the Climate Leadership and Community Protection Act

(“CLCPA”) that became effective in 2020, and were not contemplated in the draft EAS submitted

in 2016. Connolly Aff. ¶ 9. The point, ultimately, is that the EAS has not been pursued by National

Grid – nor advanced by any New York City agency – since 2017, rendering it no longer viable and

undermining Petitioners’ assertion that the environmental review pertaining to that EAS is

somehow still alive, ongoing but incomplete.4Further putting the lie to the notion that the

environmental review pertaining to the EAS remains ongoing is the fact that, as established in the

EAS, the operational date for the project discussed therein was 2018, which has long passed,

demonstrating the mootness and irrelevancy of that application and EAS to the current work.

Exhibit F to Petition at 6.

B. The Truck Unloading Station Project is Exempt from Environmental Review

under SEQRA

Petitioners’ assertion that the construction of the truck unloading station is illegal without

a completed SEQRA review is incorrect because the subject construction on the Truck Unloading

Station Project is a Type II action under SEQRA and “no SEQR[A] determination of significance,

EIS or findings statement is required.” 6 NYCRR Section 617.3(f) (emphasis added) see also 6

NYCRR Section 617.5(a) (“[Type II Actions] have been determined not to have a significant

impact on the environment or are otherwise precluded from environmental review under

Environmental Conservation Law, article 8.”). The Truck Unloading Station Project falls into two

specific categories of Type II actions identified by SEQRA:

Replacement, rehabilitation or reconstruction of a structure or

facility, in kind, on the same site, including upgrading buildings to meet building, energy, or fire codes, unless such action meets or exceeds any of the thresholds in section 617.4. 6 NYCRR

Section 617.5(c)(2)

4To the extent the EAS and the Variance Application are somehow still deemed technically pending, National Grid

earlier this week formally withdrew them. Connolly Aff. ¶ 12 & Exhibit C.



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Official acts of a ministerial nature involving no exercise of

discretion, including building permits and historic preservation permits where issuance is predicated solely on the applicant’s compliance or noncompliance with the relevant local building or preservation code(s). 6 NYCRR Section 617.5(c)(25).

To be considered a replacement action exempt from SEQRA review, “exact replication is

not required; a replacement in kind will be effected if a new facility has a substantially similar use

to the old facility.” Manhattan Valley Neighbors for Permanent Housing for the Homeless v.

Koch, 168 A.D.2d 262, 263 (1st Dep’t 1990) (citation omitted). Here, the construction qualifies

as a replacement action under Section 617.5(c)(2) because National Grid is replacing in kind the

existing truck unloading station at the Greenpoint Facility, that was last used in 1977 and is no

longer operational, with one that meets current code requirements. Hamid Aff. ¶¶ 7, 8.

In addition, the project falls under the category of an act of a ministerial nature involving

no exercise of discretion because it required only the routine, non-discretionary issuance of

building and fire permits and letters of acceptance by the DOB and FDNY. See Hamid Aff. ¶ 16;

See, e.g., Marino v. Platt, 104 Misc.2d 386, 388 (Sup. Ct. Ono. Cnty May 21, 1980) (“issuance of

a permit is a purely ministerial act and thus exempt from the requirements of SEQR[A]”); 6

NYCRR Section 617.5(c)(25). Indeed, National Grid has obtained from relevant agencies with

jurisdiction any and all necessary permits, letters of acceptance, and approvals for the construction

of the Truck Unloading Station Project completed to date. Hamid Aff. ¶¶ 17-34; Exhibits A-L

thereto. Furthermore, neither the FDNY nor New York City has raised any concerns with the

legality of National Grid’s construction, including but not limited to that it somehow violates

SEQRA. Hamid Aff. ¶ 34. As such, Petitioners will not succeed in obtaining a judgment declaring

that the Truck Unloading Station Project is illegal without a completed SEQRA review, because a

SEQRA review is plainly not required for this Type II action.



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C. The Truck Unloading Station Project can Lawfully Be Separated from the

Prior Variance Application

Petitioners assert that the Truck Unloading Station Project is part of a “whole action” to

transport LNG to the Greenpoint Facility, as purportedly evidenced by the EAS and, thus cannot

occur prior to the conclusion of an environmental review. See Pet. Memo at 15-16. Even accepting

the premise that the Truck Unloading Station Project was part of the Variance Application, the

construction activities sought to be enjoined would still not be subject to SEQRA review.

While, as Petitioners point out, SEQRA provides very generally that a “project sponsor

may not commence any physical alteration related to an action until the provisions of SEQR have

been complied with,” (Pet. Memo. at 14), New York courts have interpreted this regulation to

permit Type II actions to be lawfully severed from a larger project scope and to permit that Type

II portion to proceed without unnecessary SEQRA review. See, e.g., Matter of Rodgers v. City of

N. Tonawanda, 60 A.D.3d 1379, 1379-80 (4th Dep’t 2009) (finding storm sewer outlet

replacement project was “exempted from review under SEQRA as a type II action” and thus the

“project was properly segmented from the remainder of the Gateway Point Park project that is

subject to SEQRA review”); Matter of Settco, LLC v. New York State Urban Dev. Corp., 305

A.D.2d 1026, 1027 (4th Dep’t 2003) (finding no improper segmentation because project exempt

from SEQRA was properly considered “apart from” the environmental impacts of the acquisition

of the subject property); Booth v. Village Planning Bd. of the Vill. of Perry, No. 45250, 2013 WL

1401264, at *3 (Sup. Ct. Wy. Cnty April 1, 2013) (rejecting petitioners’ “contention that SEQR[A]

review was improperly segmented” because “‘type II actions’ may properly be segmented from

review of other actions”).

As a result, even accepting for argument the propositions that the Variance Application is

subject to SEQRA review and the Truck Unloading Station Project was previously defined as part



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of that action in the EAS, the Truck Unloading Station Project can lawfully be segmented from

any SEQRA review relating to the Variance Application because that construction project is a

Type II action. Therefore, Petitioners’ cause of action for declaratory judgment against National

Grid has no merit, requiring denial of their motion.

POINT IV

THE BALANCING OF THE EQUITIES WEIGHS HEAVILY IN FAVOR OF

NATIONAL GRID AND AGAINST THE ISSUANCE OF INJUNCTIVE RELIEF

Generally, the balancing of the equities requires that the movant must establish that the

harm it would sustain in the absence of an injunction is “decidedly greater” than the harm to be

caused to the defendant through the imposition of the injunction. See Fischer v. Deitsch, 168

A.D.2d 599, 601 (2d Dep’t 1990). Here, the balance of the equities weighs heavily in favor of

National Grid for several reasons.

A. National Grid Will Suffer Decidedly Greater Harm If Preliminary Injunctive

Relief is Granted

As noted above in Point II. A., Petitioners have provided no evidentiary proof detailing any

real, much less imminent harms they would suffer if the Truck Unloading Station Project is not

enjoined. Contrary to Petitioners’ baseless assertion that injunctive relief would cause National

Grid “little or no harm,” 5 delaying the Truck Unloading Station Project will, in fact, cost National

Grid millions of dollars. Hamid Aff. ¶¶ 47-48. National Grid has already incurred financial losses

totaling approximately $500,000 from the TRO that enjoined construction from July 27, 2021 to

August 5, 2021 and would continue to suffer losses of approximately $60,000-$80,000 per

5Petitioners’ related contention that compliance with SEQRA review takes precedence over any delay in construction caused by injunctive relief, even if it may harm National Grid, is misleading. As explained above, the

ongoing construction is a Type II project not subject to SEQRA review. Furthermore, Petitioners’ legal authority, Sun Beach Real Estate Dev. Corp. v. Anderson, 469 N.Y.S.2d 964 (2d Dep’t 1983), aff’d, 62 N.Y.2d 965 (1984) is inapposite. The court in Sun Beach merely determined that the provisions of SEQRA would be given priority over a

conflicting local town ordinance. Id. at 374-76. No such conflict exists here.



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working day in the event the TRO is continued or a preliminary injunction is issued. Id. ¶ 47.

Therefore, National Grid’s financial loss would be massive if a preliminary injunction is issued.

Petitioners also ignore or have no appreciation for the effect any further delay in the

construction would have on National Grid’s operations. Simply put, an injunction, no matter the

length in time, would prevent National Grid from completing the necessary work to bring the LNG

plant back online in time for operational activities needed for the winter heating season that are

independent of the truck unloading station itself. Id. ¶ 49. This is because since early July, the

LNG plant has been shut down while the necessary integration work for the Truck Unloading

Station is being completed, such as completing the necessary piping tie-ins to existing plant piping.

Id. ¶ 50. A delay in completing the tie-in process would inhibit National Grid’s ability to bring

the LNG plant back online in time to create a sufficient gas reserve for the winter heating season,

thereby compromising its ability to serve its customers in the cold winter months, contrary to its

regulatory obligations as a public utility. Id.

It is an operational imperative for National Grid to have its LNG storage tanks at 100%

capacity for the upcoming winter season. Id. ¶ 53. As of now, due to the need to stop the

liquefaction of natural gas to accommodate the construction, the tanks are not at that required level.

Id. Any further construction delay due to a preliminary injunction would extend the period of time

before the LNG plant can regain its full supply. Id.

Petitioners further argue that National Grid would suffer no harm from a preliminary

injunction because it cannot make use of the trucking-related infrastructure until it has the ability

to transport LNG pursuant to a variance from the FDNY, which will not occur “at any point in the

near future.” See Pet. Memo at 9. This argument ignores the financial and operational harms to

National Grid discussed above. In addition, National Grid has a duty to serve its customers under



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all conditions and the function of the Truck Unloading Station Project is to provide a contingency

plan to ensure reliability of gas supply for an emergency situation requiring an extraordinary

response. Hamid Aff. ¶ 56. The infrastructure for that contingency where a variance might be

sought logically must be in place before such an emergency arises. National Grid obviously cannot

seek an emergency variance from the FDNY to transport LNG to the Greenpoint Facility if it does

not already have in place an LNG truck unloading station. Such a project takes years in terms of

planning and one full year in terms of actual construction. Hamid Aff. ¶ 5. If the construction is

not completed on time, this contingency plan will not be available for the upcoming winter, to the

potential detriment of National Grid’s customers. Id. ¶ 55-56.

B. The Harm National Grid Will Suffer from an Injunction is Not “At Its Own

Doing”

Petitioners’ contention that the harm National Grid will suffer “was at its own doing,” (Pet.

Memo at 10) is based on the faulty premise that National Grid was required to seek SEQRA review

prior to initiating the work at issue. As discussed above, see supra 14-17, the Truck Unloading

Station Project is not, in fact, subject to SEQRA review. In addition, National Grid has proceeded

with this construction in good faith after obtaining all necessary permits, letters of acceptance and

approvals from the relevant New York City agencies and Petitioners have absolutely no basis to

argue the Truck Unloading Station Project was subject to SEQRA or violating SEQRA by

proceeding with construction because it simply was not and is not violating SEQRA. See Hamid

Aff. ¶¶ 19-33 & Exhibits A-L.

The case Stewart Park & Res. Coal., Inc. (SPARC) v. Slater, 232 F. Supp. 2d 1, 3 (N.D.N.Y.

2002), a vacated decision cited by Petitioners, is completely inapplicable. Stewart involved an

analysis of a motion to stay pending appeal, not a preliminary injunction. Id. at 3. Moreover, the

court found that the harm to defendants, namely that the lowest bidder on a proposed construction



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contract would drop out, thereby costing them millions of dollars, would be of defendants’ own

doing because they began the bidding during the litigation and thus knowingly put themselves in

that position. Id.

No such comparable situation is occurring here. National Grid began construction more

than seven months ago on a Type-II action that is not subject to SEQRA review (see supra, pp.

14-16), long before this proceeding was commenced. It is therefore pure folly for Petitioners to

suggest that National Grid caused its own harms.

C. Petitioners’ Unreasonable Delay in Seeking This Injunctive Relief is Indicative

of Their Unclean Hands

“In balancing the equities, the court should consider various factors, including … whether

plaintiff has unclean hands.” United for Peace & Justice v. Bloomberg, 5 Misc.3d 845, 849 (Sup.

Ct. N.Y. Cnty. 2004). Delay constitutes unclean hands. See id.(“[P]laintiff's delay in coming to

court … demonstrate[s] that it lacks the clean hands that are a prerequisite for the grant of equitable

relief – regardless of any alleged or even actual wrong attributable to defendants”); see also

Caprari v. Town of Colesville, 199 A.D.2d 705, 706 (3d Dep’t 1993) (finding that “in view of

petitioners’ . . . failure to timely safeguard their interest by seeking an injunction, despite the

obvious presence of ongoing construction on Gaffney’s property, the proceedings and action are

barred by the doctrine of laches”).

Petitioners’ unreasonable delay in seeking injunctive relief, as described above in Point

II.C., weighs heavily against Petitioners in balancing the equities. Petitioners’ unclean hands are

particularly evident where Petitioners were aware of permits being issued to National Grid in the

fall of 2020 for the Truck Unloading Station Project and Petitioners were explicitly and undeniably

aware that the project was “in progress” as early as February 8, 2021, but waited several months

before taking any action. DeCicco Aff. ¶ 8 & Exhibit B.



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POINT V

AN UNDERTAKING SHOULD BE REQUIRED IN THE UNLIKELY EVENT A

PRELIMINARY INJUNCTION IS GRANTED

For the numerous reasons set forth above, this Court should deny Petitioners’ motion for

preliminary injunctive relief. In the unlikely event the Court grants that extraordinary relief, the

Court must require Petitioners to post an undertaking that is rationally related to the amount of

National Grid’s potential damages in the event that it is determined that Petitioners were not

entitled to the preliminary injunction. Clover Street Assocs. v. Nilsson, 244 A.D.2d 312, 313 (2d

Dep’t 1997). CPLR 6312 (b), by its terms, makes the posting of an undertaking mandatory in

the event preliminary injunctive relief is granted. See CPLR 6312(b) (stating that, with

exceptions that are not relevant here, “prior to the granting of a preliminary injunction, the

plaintiff shall give an undertaking . . .) (emphasis added).

As discussed above, if construction is further enjoined, National Grid will incur financial

losses of $60,000-80,000 per working day and, as of August 5, 2021, has already incurred

approximately $500,000 in losses due to construction being halted for the term of the TRO. See

Hamid Aff. ¶ 47. These circumstances warrant the posting of a significant undertaking by

Petitioners if a preliminary injunction were to be issued.

In Petitioners’ cited cases, the courts set nominal undertakings primarily because the

defendant parties did not demonstrate substantial harm as a result of injunctive relief, and not

simply because the plaintiffs were of minimal resources. See, e.g., Valdez v. Ne Brooklyn House

Dev. Corp., 8 Misc.3d 1008(A), at *5 (Sup. Ct. Kings Cnty 2005) (setting nominal undertaking

“[g]iven that plaintiff appears to derive her income primarily from social security benefits and

defendant has not demonstrated that it will suffer any undue hardship”) (emphasis added). The



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fact that Petitioners are nonprofit organizations cannot justify a nominal undertaking, where

National Grid will suffer millions of dollars in losses during a further delay in construction.

CONCLUSION

For the foregoing reasons, National Grid respectfully requests that this Court deny

Petitioners’ motion for preliminary injunctive relief and vacate the TRO.

Dated: August 4, 2021

NIXON PEABODY LLP

By: /s/ Christopher Porzio Christopher J. Porzio

Marissa A. Muscarella

50 Jericho Quadrangle, Suite 300 Jericho, New York 11753

P: (516) 832-7500 F: (516) 832-7555 [email protected] [email protected]

Attorneys for Respondent National Grid



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CERTIFICATION

I hereby certify pursuant to Section 202.8-b of the Uniform Civil Rules for the Supreme Court and

the County Court that the foregoing Respondent The Brooklyn Union Gas Company d/b/a National

Grid’s Memorandum of Law in Opposition to Petitioners’ Motion for Preliminary Injunction

contains words as determined by the word count function of Microsoft Word, exclusive of

pages containing the caption, the table of contents, table of authorities and signature block, and

therefore complies with the word count limit set forth in Section 202.8-b.

Dated: August 4, 2021

Jericho, NY NIXON PEABODY LLP

By: /s/ Christopher J. Porzio

NIXON PEABODY LLP 50 Jericho Quadrangle, Suite 300

Jericho, New York 11753 516-832-7500 [email protected]



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