Final Thursday, Could 18, a state appellate courtroom affirmed the trial courtroom’s dismissal of City of Copake v. New York State Workplace of Renewable Power Siting, a lawsuit difficult the state’s March 2021 laws for siting and allowing main renewable power amenities. Whereas the appellate courtroom’s resolution to uphold the laws might not appeal to a lot consideration within the press, a call invalidating the laws may have had severe repercussions for the state’s siting course of and jeopardized the state’s means to fulfill its targets for lowering emissions and scaling up renewable power manufacturing below the Local weather Management and Group Safety Act of 2019 (CLCPA). It’s not identified but whether or not the petitioners will enchantment to the state’s highest courtroom.
In April 2020, the New York Legislature enacted the Accelerated Renewable Power Development and Group Profit Act, which created the Workplace of Renewable Power Siting (ORES) and established a brand new siting course of for main renewable power amenities. The brand new siting course of, now codified at Govt Legislation § 94-c, has a number of key options that guarantee moderately immediate decisionmaking and restrict the power of native governments to dam renewable power initiatives. These embrace the next:
- ORES has unique jurisdiction over on-shore renewable power initiatives of at the least 25 megawatts (MW). Builders of initiatives between 20 MW and 25 MW might opt-in to evaluation by ORES as an alternative of native evaluation.
- ORES is permitted to “elect to not apply, in complete or partially, any native regulation or ordinance which might in any other case be relevant if it makes a discovering that, as utilized to the proposed main renewable power facility, it’s unreasonably burdensome in view of the CLCPA targets and the environmental advantages of the proposed main renewable power facility.” In different phrases, ORES can preempt native restrictions on a case-by-case foundation if making use of the restriction would impede the state from assembly its CLCPA targets, together with that (a) 70% of the state’s electrical energy be generated by renewable power sources by 2030 and 100% from zero-carbon sources by 2040 and (b) statewide emissions should be diminished 40% from 1990 ranges by 2030 and 85% by 2050.
- ORES should decide inside 60 days of receiving an utility to web site a renewable power facility whether or not the applying is full. As well as, inside one yr of figuring out that an utility is full, ORES should make a remaining resolution on allowing (until the mission is on brownfields or different degraded land, wherein case ORES should determine inside six months).
In March 2021, ORES promulgated laws to implement the brand new siting course of, as required by statute. Shortly afterward, in June 2021, a coalition of upstate cities and different curiosity teams (collectively, the “petitioners”) filed a lawsuit to invalidate the laws. Of their lawsuit, the petitioners alleged, amongst different issues, that ORES violated the State Environmental High quality Assessment Act (SEQRA) by promulgating the laws with out getting ready an environmental influence assertion (EIS) and in any other case failing to take a “laborious look” on the impacts of the laws. The petitioners additional alleged that ORES’s laws had been extremely vires as a result of they might allegedly obtain hostile environmental outcomes, which might violate the enabling statute’s requirement to determine uniform requirements and situations that “keep away from or decrease, to the utmost extent doable, any potential important hostile environmental impacts.” Lastly, the petitioners alleged that ORES’s laws violated the house rule provisions of Article IX of the New York State Structure by unreasonably permitting waiver of native legal guidelines on issues of native concern.
The Albany County Supreme Courtroom rejected the lawsuit on all counts in a pair of choices issued in September 2021 and October 2021. The petitioners then appealed to the Appellate Division, Third Division (“Third Division”).
Of their enchantment, the petitioners made three arguments.
First, the petitioners argued that the Albany County Supreme Courtroom erred in holding that ORES had carried out the environmental evaluation required by the SEQRA when promulgating the laws. Extra particularly, they argued that ORES violated SEQRA in three distinct methods, particularly: (a) by misclassifying the issuance of laws as an Unlisted motion slightly than a Kind I motion throughout the that means of the SEQRA laws; (b) by failing to take a “laborious look” on the environmental influence of its laws; and (c) by improperly deferring environmental evaluation till functions for particular person initiatives are submitted and thus unlawfully segmenting evaluation. Underneath the SEQRA laws, a Kind I motion “carries with it the presumption that it’s prone to have a major hostile influence on the atmosphere and should require an EIS.” The SEQRA laws supply examples of actions that needs to be thought-about as Kind I actions, considered one of which is “a nonagricultural use occurring wholly or partially inside an agricultural district” on greater than 2.5 acres. Petitioners argued that, as a result of renewable power initiatives are nonagricultural makes use of and the laws facilitate siting such initiatives on agricultural land, the issuance of the laws was a Kind I motion.
Second, the petitioners argued that the Albany County Supreme Courtroom erred in holding that the ORES laws had been in step with the necessities of the enabling laws, Govt Legislation § 94-c. Particularly, they argued that ORES’s failure to adequately conduct satisfactory environmental evaluation made it unimaginable for ORES to adjust to Govt Legislation § 94-c, which required ORES to determine uniform requirements and situations that “keep away from or decrease, to the utmost extent doable, any potential important hostile environmental impacts.”
Third, the petitioners argued that the Supreme Courtroom erred in holding that the ORES laws governing waiver of native legal guidelines don’t violate the Residence Rule provision of Article IX of the New York State Structure. The petitioners famous that Article IX supplies that “each native authorities shall have energy to undertake and amend native legal guidelines not inconsistent with the provisions of this structure or any basic regulation regarding its property, affairs, or authorities.” The petitioners additional famous that Article IX supplies that consistency with state regulation “shall be liberally construed.” The petitioners argued that ORES “seeks illegally to preempt the Residence Rule powers of native governments” by promulgating laws that enable ORES to put aside native restrictions which are in any other case in step with the overall legal guidelines and state structure
In its resolution final week, the Third Division agreed with the petitioners’ threshold argument that ORES “misclassified” its promulgation of the siting laws as an “Unlisted” motion (as an alternative of a “Kind I” motion) throughout the that means of the SEQRA laws. As mentioned above, one of many enumerated examples of a Kind I motion within the SEQRA laws is “a nonagricultural use occurring wholly or partially inside an agricultural district” on greater than 2.5 acres. Right here, the courtroom held that “provided that the laws authorize the siting of huge renewable power amenities, the laws will alter agricultural property, which . . . necessitates classification as a kind I motion.”
Nevertheless, regardless of agreeing with the petitioners that ORES misclassified the regulation, the Third Division defined that misclassification just isn’t deadly if the company “conducts the equal of a kind I evaluation however the misclassification.” Right here, the courtroom discovered that ORES “took a radical and laborious have a look at the potential destructive environmental impacts related to the proposed laws,” thus satisfying its obligations below SEQRA. The courtroom famous that this evaluation included conducting seven public hearings, responding “extensively” to public feedback, and contemplating earlier critiques undertaken by different companies.
The courtroom additionally rejected the petitioners’ argument that ORES improperly deferred environmental influence evaluation by not contemplating the implications of approving initiatives that will likely be submitted below its laws. The courtroom held that “[e]nacting these laws just isn’t a part of a segmented or deferred evaluation, however slightly a pragmatically-based SEQRA evaluation that’s designed to evaluation the laws themselves, slightly than evaluation the long run impacts of specific initiatives which are in any other case exempt from SEQRA.”
Along with rejecting the petitioners’ SEQRA-based claims, the courtroom rejected the petitioners’ argument that ORES exceeded its statutory authority below Govt Legislation § 94-c. The courtroom famous that the statute directed ORES to problem laws to implement the siting course of and that ORES “merely fleshed out the small print of the siting routine” as directed.
Likewise, the courtroom discovered that ORES didn’t violate the Residence Rule provision set out in Article IX of the New York State Structure. The courtroom defined that, below Third Division precedent, “the place State pursuits are concerned to a considerable diploma, in depth or extent, the State might freely legislate with out house rule approval, however the laws’s influence on native issues.” The courtroom additional defined that, below Third Division precedent, “complete regulatory schemes” for siting public utilities, such because the siting course of at problem within the lawsuit, preempt native zoning ordinances.
The Could 18 resolution upholding the ORES laws is a constructive improvement for the renewable power trade in New York, and it’ll assist the state to realize its targets for scaling up renewable power technology and lowering emissions below the CLCPA. With respect to SEQRA jurisprudence, nonetheless, the courtroom’s holding that the issuance of the laws was a Kind I motion (slightly than an Unlisted motion) might have the impact of encouraging companies to categorise extra of their very own rulemakings as Kind I actions, which can lead to elevated administrative burden.