Danskammer Lawsuit Tossed: Orange County Judge Rules that DEC Has Authority to Reject New Gas Plants Under the CLCPA
June 9, 2022
Riverkeeper Team
Re-posted from the Sierra Club.
New York – Yesterday, Judge Robert A. Onofry dismissed a lawsuit filed by Danskammer Energy LLC, seeking to overturn the Department of Environmental Conservation's denial of a permit necessary for Danskammer to build a new fracked gas plant on the banks of the Hudson River in Orange County.
Judge Onofry ruled that the Department had ample authority under the state's landmark Climate Leadership and Community Protection Act (CLCPA) to deny permits for new polluting gas plants that interfered with the law's aggressive GHG emissions reductions mandates. Judge Onofry noted the "immediacy" of the CLCPA’s mandate to address "a currently existing, urgent problem that [is] worsening..." As the decision explains, "That gas fired power plants are being subjected to greater scrutiny under the CLCPA is consistent with the stated goals of the legislation."
In upholding DEC's authority to deny Title V permits under Section 7(2) of the CLCPA, the Court noted that "to adopt Danskammer's position would be to ignore the entire thrust, purpose and legislative history of the [CLCPA]." It also found that Danskammer's remaining fact-based challenges must first go through the administrative hearing process at DEC before they can be brought in state court, a process Danskammer had already initiated. Danskammer has the option to appeal the decision to the New York Supreme Court Appellate Division.
“We commend the court’s decision upholding the plain language of New York’s landmark Climate Law. This allows DEC to deny permit applications for unjustified, polluting projects that will worsen the climate crisis,” said Earthjustice Senior Attorney Lisa Perfetto. “Danskammer’s fossil gas plant would cause an enormous increase in emissions of greenhouse gasses and other pollutants. These would harm people locally and across the state at a time when the Climate Law demands an accelerated transition to clean energy. Today’s decision confirms DEC’s authority to make that transition a reality.”
“We represent over 60 businesses and community groups that applaud this decision– it’s one of many steps in the right direction. Danskammer is an environmental injustice for an already-burdened community, and it’s against our state climate policy,” said Stop Danskammer Coalition Coordinator Jess Mullen.
“The court's ruling affirms our long-standing view that government agencies, such as DEC, have the statutory authority and responsibility to make decisions pursuant to the CLCPA and deny permits that don't adhere to the law's emission reduction mandates. Fossil fuel power plants throughout the state must ensure that their operation does not hinder state-mandated climate milestones and take the CLCPA and this decision into account when pursuing projects. This ruling also presents an opportunity for polluters to change their way of doing business, as PEAK Coalition has evidenced the viability of renewable energy and battery storage in the future of our grid. PEAK also believes the decision sends a message to polluters that they must comply with the CLCPA, and Disadvantaged and other environmental justice communities can no longer be designated as energy or pollution sacrifice zones pursuant to the state's climate law. The impacts of this decision will have lasting benefits to environmental justice communities where these polluting facilities are located,” said Daniel Chu, Energy Planner at the New York City Environmental Justice Alliance representing the PEAK Coalition.
“Yesterday’s decision affirms that New York’s nation-leading climate law is working as intended,” said Allison Considine, Senior Campaign Representative at Sierra Club. “The court upheld the Department of Environmental Conservation’s authority to determine that Danskammer’s new fossil fuel-fired power plant is incompatible with the Climate Leadership and Community Protection Act, a law passed by our elected officials at the direction of New Yorkers who understand that climate change already threatens our safety and will only get worse unless we reduce fossil fuel use.”
“We commend the court for affirming that the Climate Leadership and Community Protection Act gives agencies like the DEC the authority to deny permits for projects that would be inconsistent with the law,” said Scenic Hudson Director of Environmental Advocacy and Legal Affairs Hayley Carlock. “The Danskammer plant would increase greenhouse gas emissions and pollute overburdened communities. DEC correctly concluded that issuing an air permit for the plant would interfere with the attainment of the CLCPA’s goals and contribute to the climate crisis. Scenic Hudson will continue to fight the plant in the ongoing administrative proceedings before the DEC and the state Siting Board.”
“Riverkeeper applauds the court’s decision affirming the Department of Environmental Conservation’s ability to deny permits that are inconsistent with the goals of the Climate Leadership and Community Protection Act,” said Riverkeeper Senior Attorney Erin Doran. “This opinion sends a strong message to Danskammer and other polluting facilities that DEC is well within its authority to scrutinize their greenhouse gas emissions and act accordingly to avoid exacerbating the climate crisis.” Riverkeeper thanks the Pace Environmental Litigation Clinic for representing us on our motion to file an amicus brief in this matter.
“We applaud Earthjustice, which represents Sierra Club and Orange RAPP, in this ongoing struggle against Danskammer’s polluting proposal,” said Chair of Orange RAPP Sandra Kissam. “Earthjustice has convinced Orange County Supreme Court to throw out Danskammer’s weak claim that the DEC does not have the authority to deny them permits under the Climate Leadership and Community Protection Act. The court’s dismissal upholds the authority of the CLCPA and sends a critical message to any other proposals that would challenge this law.”
Contacts:
Adil Trehan, Sierra Club, adil.trehan@sierraclub.org, (202) 630-7275
Leah Rae, Riverkeeper, lrae@riverkeeper.org, (914) 715-6821
