On September 22, 2021, Justice Peter Lynch of the New York State Supreme Court, Albany County denied the petitioners’ application in Town of Copake v. New York State Office of Renewable Energy Siting, No. 905502-21 (Sup. Ct. Albany Cty. Sept. 24, 2021), rejecting a challenge to regulations promulgated by the New York State Office of Renewable Energy Siting (ORES). Justice Lynch’s decision comes following an earlier ruling that denied the petitioners’ application for a temporary restraining order. These rulings have now twice affirmed the validity of the ORES regulations, which will play an important role in helping New York State to achieve its aggressive renewable energy goals.
As we have previously discussed, the thrust of the petitioners’ complaint is the degree to which ORES regulations limit local control over renewable energy siting. To this end, the petitioners raised various procedural and substantive challenges to the ORES regulations with the ultimate goal of annulling the regulations entirely. Specifically, the petitioners claimed that: (1) the ORES regulations were promulgated in violation of the State Environmental Quality Review Act (SEQRA); (2) ORES acted outside its scope of authority when it promulgated the ORES regulations; (3) the ORES regulations were promulgated in violation of the State Administrative Procedures Act (SAPA); and (4) the ORES regulations are unconstitutional in violation of the New York State Constitution Home Rule provisions. NYSCEF # 1 at ¶¶ 123-197.
In denying the petitioners’ application for a temporary restraining order, the Court found, among other things, that the petitioners had little likelihood of ultimate success on the merits with respect to each of their claims. NYSCEF # 147. As to the petitioners’ SEQRA claims, the Court expressly rejected the petitioners’ contention that the matter should have been classified as a Type I action, finding instead that ORES had correctly classified the promulgation of its regulations as an unlisted action because such action did not meet any of the criteria to be classified as either a Type I or Type II action. Id. The Court likewise found that, contrary to the petitioners’ allegations, ORES did take the requisite hard look at the potential environmental impacts as it had identified the relevant areas of environmental concern and made a reasoned elaboration of the basis for its determination that the adoption of its regulations would not result in any adverse environmental impacts. Id. With regard to the petitioners’ claim that ORES had acted outside of the scope of its authority in enacting the regulations, the Court found that such claim was wholly without merit and that ORES’s actions fell squarely within the authority delegated to it by statute. Id. On the petitioners’ claim that the regulations were promulgated in violation of SAPA, the Court noted that such argument was inconsistent with the administrative record, which reflected a number of public hearings on this matter and ample opportunity for public participation. Id. Finally, on the petitioners’ constitutional claim, the Court called the petitioners’ arguments on this point “unpersuasive,” ruling that the statutory scheme creating ORES and authorizing ORES to implement regulations in furtherance of the statutory scheme was consistent with State constitutional requirements regarding the sharing of power between State and local governments. Id.
As a result of this ruling, the ORES regulations will be permitted to stand, providing a standardized, centralized and more streamlined process for siting certain utility-scale wind and solar projects. This is an important development for New York State, which has implemented substantial renewable energy goals. It is likewise an important development for renewable energy developers, some of whom even sought to intervene in the Town of Copake suit. Indeed this ruling comes at a time when the State has recently doubled down on its renewable energy goals, approving important transmission projects, and renewing incentive programs encouraging the development of new renewable energy generation projects.
Phillips Lytle’s attorneys have been carefully monitoring recent developments in the renewable energy space and are available to assist renewable energy developers in capitalizing on opportunities throughout the State and moving through the ORES process.