Danskammer still wants to build a new fracked gas power plant – despite climate law
June 9, 2022
Chris Bellovary and Erin Doran
Update: Riverkeeper files an amicus brief in support of DEC’s denial of Danskammer’s air permit application. On October 7, 2022, Riverkeeper submitted an amicus brief in the pending administrative procee
ding regarding Danskammer’s air permit application, arguing that DEC’s denial was well-founded in New York State’s environmental laws and policies. DEC denied Danskammer’s application because the project would be inconsistent with the statewide GHG emissions limits established by the Climate Leadership and Community Protection Act. DEC’s denial is precisely within the purpose and scope of our landmark climate law, which was intended to urgently address the climate crisis and protect communities already experiencing environmental harms. In addition, DEC’s denial is in line with the Green Amendment, which gives New Yorkers the right to clean air and water and a healthful environment. Ultimately, DEC’s decision is consistent with New York’s leadership on climate and environmental protection, and should be upheld. Riverkeeper thanks the Pace Environmental Litigation Clinic for representing us in this matter. Update: Court affirms DEC’s ability to deny permits that are inconsistent with NYS’s landmark climate law. Administrative hearing still pending for the proposed fracked gas power plant. Riverkeeper is monitoring two legal challenges by the owners of the Danskammer facility in the Town of Newburgh, in their attempt to revive their plan to build a fracked gas power plant on the site. The project was halted last year following widespread community opposition and the state's landmark decision to deny a key permit necessary for the project to proceed. We're confident that neither challenge will prevail. Update: Good news! On June 8, 2022, the Orange County Supreme Court dismissed Danskammer’s Article 78 challenge to DEC’s denial of its air permit. The court held that DEC has the authority under Section 7(2) of the Climate Leadership and Community Protection Act to deny permits that are inconsistent with the landmark climate law. Riverkeeper thanks the Pace Environmental Litigation Clinic for representing us on our motion to file an amicus brief in this matter. 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. Read the decision here. However, the court did not reach the question of whether DEC’s denial was appropriate for the proposed fracked gas power plant due to factual issues that will be explored in the pending administrative hearing. Riverkeeper has also filed for amicus status in that proceeding. Stay tuned. Background On October 27, 2021, the New York State Department of Environmental Conservation denied Danskammer Energy’s request to modify its Title V air permit for the Danskammer Generating Station to allow it to construct a brand new fracked-gas power plant. As stated by DEC, “The Project would be inconsistent with or would interfere with the attainment of the Statewide greenhouse gas (GHG) emission limits established in Article 75 of the Environmental Conservation Law (ECL). Moreover, Danskammer has not demonstrated that the Project is justified as it has failed to show either a short term or long term reliability need for the Project. Nor has Danskammer identified adequate alternatives or GHG mitigation measures. Accordingly, given that the Department is unable to satisfy these elements required by Section 7 of the Climate Leadership and Community Protection Act (CLCPA or Climate Act), the Department is compelled to deny the Title V Application.” Two challenges In late November, Danskammer requested an adjudicatory hearing from the DEC Office of Hearings and Mediation Services. That hearing will take place before Administrative Law Judge Michael Caruso. Riverkeeper strongly supports DEC’s decision. Last month we petitioned for Amicus Party status in that hearing, which would allow us to provide legal briefs in the case on specific issues, to help ensure the judge is fully informed before making a decision. In late December, Danskammer began another proceeding in Orange County Supreme Court, filing a challenge under Article 78 of the New York Civil Practice Law and Rules. In its petition, Danskammer alleged that DEC’s permit denial was unlawful and unconstitutional, and requested for DEC’s permit denial to be vacated, and for the matter to be sent back to DEC with instructions from the judge as to how DEC should proceed. Riverkeeper believes Danskammer’s allegations are incorrect, and that DEC made the only permissible decision available to it. Riverkeeper will also petition the Orange County Supreme Court to submit an amicus curiae (“friend of the court”) brief in the matter. Ironically, Danskammer is really complaining about its own failure to act. In the Notice of Complete Application issued by DEC on June 30, 2021, DEC publicly identified that Danskammer’s application did not provide DEC with sufficient information to “… provide a detailed statement of justification of the project notwithstanding inconsistency with the Climate Act; and (2) identify alternatives or GHG mitigation measures to be required.” Danskammer could have followed up with DEC to provide the information that DEC identified as missing. Riverkeeper is not aware of any attempts by Danskammer to provide the necessary information over the almost four months that followed, before DEC denied the permit application. Riverkeeper believes DEC’s decision was correct on the merits. In addition, though, we believe Danskammer’s decision not to provide the necessary information gave DEC no alternative other than to deny the requested permit modification. Media contact: Leah Rae, lrae@riverkeeper.org
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