Attorney General’s Office and Young/Sommer Successfully Defend New York’s Climate Leadership and Community Protection Act and the Office of Renewable Energy Siting
Posted on May 22, 2023
On May 18, 2023, the Third Department upheld Albany County Supreme Court’s ruling dismissing an Article 78 action filed by multiple municipalities, corporations, and private groups, challenging the 94-c regulations promulgated by the Office of Renewable Energy Siting (“ORES”). The lawsuit sought to annul the regulations that were promulgated by the State pursuant to Section 94-c of the NY Executive Law for siting approval of renewable energy projects in excess of 25 megawatts (MW). Young/Sommer appeared in the matter on behalf of Alliance for Clean Energy New York, who moved to intervene in the action on behalf of its members which include environmental groups and renewable energy companies.
In upholding the lower court’s dismissal, the Third Department found that in promulgating the 94-c regulations ORES took a thorough and hard look at the potential negative environmental impacts associated with the proposed regulations, which included consulting with other state agencies, conducting seven public hearings on the draft regulations and responding to extensive public comments. The Court also held that ORES did not exceed its statutory authority and that the enactment of the ORES regulations did not amount to a segmented or deferred review, but rather “a pragmatically based SEQRA review that is designed to review the regulations themselves, rather than review the future impacts of particular projects that are otherwise exempt from SEQRA”.
Importantly, the Third Department upheld ORES’s authority to preempt local laws in certain circumstances finding “[w]here State interests are involved to a substantial degree, in depth or extent, the State may freely legislate without home rule approval, notwithstanding the legislation’s impact on local concerns”. The waiver provision allows a case-by-case waiver of local laws by ORES when the local law is determined to be unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed facility. In upholding the waiver provision, the Court held that energy infrastructure siting is a matter of State concern and that ORES’s preemption power is a general law, applying uniformly to all municipalities and therefore not unconstitutional under the home rule provisions under the NY Constitution.
This victory represents a significant milestone in the ongoing battle to protect our environment and achieve the State’s plan to decrease reliance on energy derived from fossil fuels. In addition to this Court victory, Young/Sommer has successfully navigated the 94-c permit review process for another solar developer (Moraine Solar) bringing the total number of projects permitted by Young/Sommer under 94-c to ten projects totaling over 1 GW of projects.