Appellate Court Reinstates Approvals for Nation’s First Commercial-Sized Biomass Gasification-To-Energy Facility Powered by Municipal Solid Waste and C& D Debris

Posted on January 2, 2013

Young/Sommer recently won an appeal for Taylor Holdings Group, Ltd/Taylor Biomass Energy overturning a lower court judgment that annulled several state and local approvals that permit the development and operation of Taylor’s premier Biomass Gasification-To-Energy facility in the Town of Montgomery, Orange County, New York (Highview Estates of Orange County, Inc. v Town Bd. of Town of Montgomery, Orange County, 955 N.Y.S.2d 175 (2d Dept 2012)). This appeal was prosecuted by the Young/Sommer attorneys of Kevin M. Young, Allyson M. Phillips, and Joseph F. Castiglione.

In or about 2006, Taylor commenced a four year endeavor to secure the necessary zoning amendments and permit approvals from the Town of Montgomery to improve its existing construction and demolition debris recycling facility with a state of the art commercial Biomass Gasification-To-Energy facility capable of generating enough renewable electricity to supply approximately 20,000 single family residential households. The project will provide a local and sustainable solid waste disposal service in Orange County. More important, this project is intended to demonstrate a technology which takes the organic portion of MSW and converts it into a gas than can then be used to generate electricity with less pollution than natural gas. If successful, the technology has the potential for significant greenhouse gas reductions and would allow large metropolitan areas to use their own MSW to generate electricity without pollution and without the emissions from hauling waste out of state for disposal The promise of this innovative technology was the driving force behind the project’s selection for the United States Department of Energy, Loan Guarantee Program funded through the American Recovery and Reinvestment Act of 2009.

Kevin M. Young and Allyson M. Phillips served as the project attorney and appeared before state agencies and local boards, navigating the client through a detailed environmental review and myriad of complex permit approvals. After years of detailed review by the Town Board, its expert consultants, the New York State Department of Environmental Conservation (NYSDEC) and other involved agencies, Taylor obtained the necessary state and local permits and commenced construction of the project.

Nine months into project implementation, the Orange County Supreme Court granted two petitions filed by a neighboring property owner and annulled and set aside the Town Board’s environmental review, the zoning amendments that were adopted to permit and regulate this new and innovative use, the Special Use and Phase I Site Plan approval for the proposed facility, and the solid waste management permit approved by the NYSDEC pursuant to 6 NYCRR Part 360.

Young/Sommer, joined by counsel for the Town of Montgomery and NYSDEC, filed an immediate appeal, and one month later the Appellate Division, Second Department issued a stay preventing the enforcement of the lower court judgment after finding a likelihood of success on the merits of the appeal.

By Decision and Order dated December 5, 2012, the Second Department reversed the lower court judgment in its entirety and confirmed the determinations of the Town Board and NYSDEC. With regard to the Town Board’s review under the New York State Environmental Quality Review Act (SEQRA), the Court found “[t]he Town Board identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination that, consistent with all relevant social, economic, and other essential considerations, it had mitigated adverse impacts to the maximum extent practicable.” Since the Town Board’s adoption of its SEQRA findings was not arbitrary or capricious, the Court held that the challenged permits and approvals should not have been annulled.

The Second Department confirmed that the Town Board took the requisite hard look before rezoning a portion of the Taylor property and establishing the Town’s first biomass gasification-to-energy floating zone on the project site. The Second Department further held that the Town Board was not required to evaluate, on a conceptual basis, potential impacts from future facilities which could only be approved by the creation of a new floating zone following a site specific environmental review and local law amendment.

In addition, the Second Department rejected the finding of the lower court that the Town Board’s SEQRA review was deficient because design details for subsequent phases of site-plan approval had yet to be finalized. “The Town Board reviewed the entire project under SEQRA. The fact that certain design details necessary for subsequent phases of site-plan review were not finalized does not undermine the SEQRA review or result in improper segmentation.” In what is sure to be a lasting precedent in the realm of SEQRA common law, the Second Department clarified that the “FEIS established an ‘envelope’ within which the project was assessed, with the detailed design phase to reflect the ‘envelope’ assessment.” The decision is an extension of the long-standing rule that SEQRA must be completed at the earliest possible stage in a project, often times before the final design is complete.