NY Appellate Court Holds that the Office of Renewable Energy Siting Properly Followed SEQRA and Upheld the Preemptive Language of the State Statute with Respect to Local Laws

This post was authored by Brandon C. Kemp, Jacob Fuchsberg Touro Law Center

New York State has pushed hard against climate change by establishing the New York Climate Leadership and Community Protection Act (CLCPA) which amended several statutes, acts, and regulations in an effort to address the imminent risk of climate change and to primarily achieve zero emissions of electrical energy by 2040. To achieve this goal, Executive Law § 94-c was added. This statute created the Office of Renewable Energy Siting (ORES) whose purpose is to undertake a coordinated and timely review of proposed major renewable energy facilities and exempt them from the requirements of the State Environmental Quality Review Act (SEQRA).

Mechanisms were put in place to override or waive certain local laws that were unreasonably burdensome to achieve the goal of ORES. This action was started and combined by numerous municipalities, municipal corporations, and private entities (Petitioners) pursuant to CPLR article 78 against ORES.

Petitioners sought a declaratory judgment to annul the regulations and direct ORES to engage in a proper SEQRA review. Specifically, they alleged ORES: (1) mischaracterized the action as an unlisted action rather than a type 1 action (this carries the presumption of requiring preparation of an environmental impact statement (EIS)); (2) failed to take a hard look at the environmental consequences of the regulations; (3) violated the home rule provision of the NY Constitution; and (4) violated the express terms of Executive Law § 94-c.

The Appellate Division, Third Department, began by agreeing with petitioners that ORES misclassified the ORES review meeting as unlisted, rather than type 1. The court stated that the promulgation of regulations is clearly not intended to be excluded from a type 1. However, a misclassification does not always lead to the annulment of a negative declaration if the lead agency conducts the equivalent of a type one review. The court determined that ORES satisfied a type 1 review even with the misclassification.

As to the allegation that ORES failed to take a hard look at the environmental consequences of its regulations, the court stated that it did not violate SEQRA by properly determining that the need for an EIS was obviated. The lead agency need not investigate every environmental problem during the course of a SEQRA review, and generalized community objections or speculative environmental consequences are not sufficient to establish a SEQRA violation. ORES properly relied on outside sources and the advice of others in performing its function. Additionally, numerous public comments were submitted as well; to which ORES responded extensively.

The court then sought to address Petitioner’s argument that ORES’s ability to preempt local laws if the local land use laws are unreasonably burdensome is ultra vires. The court stated that the doctrine of preemption represents a fundamental limitation on home rule powers and the legislature may expressly state its intent to preempt, or it may do so by implication. Therefore, the court held that the state legislature has the authority to act with respect to matters of State concern and dismissed the argument.

Finally, the court stated that Petitioner’s argument that ORES violated the express terms of Executive Law § 94-c is completely without merit. Petitioner’s argument was based on the statute being vague. The Petitioner did not meet its burden.  Since the regulations provide ample guidance on what information ORES will consider when evaluating waiver requests the argument is without merit.

Matter of Town of Copake v. N.Y. State Office of Renewable Energy Siting, 191 N.Y.S.3d 181 (App. Div. 3rd Dept. 2023)