A case before the state Supreme Court was nominally about the discretion of a state agency to delay promulgation of rules when an act of the legislature requires those rules. Of greater significance, though, is the nature of the required rulemaking and the arguments advanced by the DEC to defend its position that the rulemaking is “infeasible.”
By Gibbons attorneys Raymond Pomeroy II and Frederick A. McDonald, III
In Citizens Action of New York et al. v. Department of Environmental Conservation, a state Supreme Court in Albany County, New York, granted the petitioner’s request for a mandatory injunction and directed the New York State Department of Environmental Conservation (DEC) to issue regulations under the Climate Leadership and Community Protection Act (CLCPA). The case was nominally about the discretion of a state agency to delay promulgation of rules when those rules are required by an act of the legislature. Of greater significance though is the nature of the required rulemaking and the arguments advanced by DEC to defend its position that the rulemaking is “infeasible.” The case highlights a growing problem in New York State with respect to the development of renewable energy sources and transmission capacity. These problems are particularly relevant to building owners in New York City faced with compliance obligations under Local Law 97 (LL97).
In 2019, the New York State Legislature passed the CLCPA to address climate change and reduce the emissions of greenhouse gases (GHG). The CLCPA requires New York to achieve a 40 percent reduction in GHG emissions by 2030 and an 85 percent reduction by 2050, measured against the 1990 emissions levels. Crucial to reaching those reductions was the inclusion of specific goals for 6 gigawatts of solar power by 2025, 9 gigawatts of new offshore wind power by 2035, and 3 gigawatts of battery storage by 2030. As relevant to the litigation, the CLCPA requires that DEC promulgate regulations to achieve the mandated emissions reductions no later than four years after the enactment of the CLCPA (January 1, 2024).
The court held that DEC violated the mandates of the CLCPA by failing to promulgate regulations within the prescribed time frame. As the court recognized, 18 months had passed since the deadline lapsed. The court further rejected DEC’s argument that promulgating regulations would be “infeasible” because achieving the target emissions “would require imposing extraordinary and damaging costs upon New Yorkers.’” Indeed, as the court found, the Legislature did not empower DEC to choose whether to comply with the CLCPA, but rather created a mandate that DEC would promulgate necessary regulations within a specific timeframe. As part of its decision, the court set a deadline of February 6, 2026, for when DEC must promulgate the required regulations under the CLCPA. DEC is reviewing whether to appeal the decision.
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