On August 27, 2021, Justice Peter Lynch of the New York State Supreme Court, Albany County issued the first substantive ruling in Town of Copake v. New York State Office of Renewable Energy Siting, No. 905502-21 (Sup. Ct. Albany Cty. Aug. 27, 2021), a lawsuit challenging the validity of regulations promulgated by the New York State Office of Renewable Energy Siting (ORES). Specifically, in a brief order, the Court denied the petitioners’ request for a temporary restraining order and ordered argument on whether the petitioners are entitled to a preliminary injunction. Oral argument is scheduled for September 8, 2021.
At the heart of this dispute is the degree of control local governments may exert over siting of certain renewable energy generation facilities. Until recently, siting of large utility-scale renewable energy generation facilities was subject to review and approval under New York State Public Service Law Article 10. The Article 10 process was designed to encourage community input and cultivate local government involvement, requiring applicants to develop a public involvement plan and even make funding available for community groups. This collaborative approach, however, proved time consuming, and few renewable energy projects were making it through the process to an ultimate determination. Thus, in order to facilitate more expedient progress for achieving the state’s aggressive climate change goals, the Legislature passed New York State Executive Law § 94-c (L. 2020, ch. 58, as amended), which creates ORES and authorizes ORES to promulgate regulations establishing a new program under which project proponents may apply for and obtain permission to site large-scale renewable energy generation projects. With respect to the role of municipalities and local agencies in the siting process, New York State Executive Law § 94-c specifically restricts the authority of a local government or municipality to require any approval with respect to a renewable energy generation facility, except as otherwise authorized under New York State Executive Law § 94-c and ORES regulation.
Pursuant to the authority granted to it under New York State Executive Law § 94-c, ORES promulgated regulations creating procedural and substantive requirements for its new renewable energy siting program. See generally 19 N.Y.C.R.R. §§ 900-1.1 to 900-15.2. The ORES regulations went into effect March 3, 2021. Thereafter, the petitioners—several municipalities where there is widespread community opposition to renewables and anti-development groups—commenced an action pursuant to CPLR Article 78 challenging the ORES regulations. Specifically, the petitioners alleged that the ORES regulations were procedurally improper and in violation of the State Environmental Quality Review Act and the State Administrative Procedures Act; exceeded the statutory authority provided to ORES under New York State Executive Law § 94-c;, and violated the Home Rule Provisions of the New York State Constitution, N.Y. Const. art. IX, § 2. The petitioner’s application is opposed by both ORES and an intervenor —the Alliance for Clean Energy New York, Inc., a trade group of renewable energy developers. The Court has yet to rule on the substantive merits of the petitioner’s claims and the oral argument scheduled for later this month will likely be illuminating.
Ultimately, regardless of the outcome, the Court’s decision on this matter will have significant ramifications for the renewable energy industry, either affirming this new process for renewable energy siting or, as requested by the petitioners, completely upending the ORES process by nullifying the ORES regulations. Phillips Lytle attorneys are tracking this matter closely and are available to discuss potential project implications. Further insight and analysis will be provided once the Court issues its final determination.