In a lawsuit challenging the denial of a Title V air permit for construction and operation of an expanded and repowered natural gas-fired power plant, a New York Supreme Court held that New York’s Climate Leadership and Community Protection Act (CLCPA) granted the New York State Department of Environmental Conservation (NYSDEC) authority to deny the permit application based on a provision requiring state agencies to consider whether decisions “are inconsistent with or will interfere with the attainment of the statewide greenhouse gas limits” established under the CLCPA. If decisions are deemed inconsistent, agencies must provide a detailed statement of justification as to why limits cannot be met and identify alternatives or greenhouse gas mitigation measures. The court found that the provision’s plain language granted NYSDEC authority to deny a permit, rejecting the owner’s interpretation that the provision required to review consistency with CLCPA goals but did not authorize denial of a permit. The court said such a review would serve “no practical or meaningful purpose” and would render the legislature’s mandate to reduce emissions “completely toothless for years to come.” The court also rejected the owner’s contentions that NYSDEC “usurped a legislative function in denying the permit” and that NYSDEC violated the owner’s due process rights under the New York Constitution and the State Administrative Procedure Act “by promulgating a de facto ‘rule’ prohibiting all gas-fired power plants in New York.” Although the court concluded that it could consider the claims that NYSDEC exceeded its authority and acted unconstitutionally, the court did not decide “significant, fact driven substantive issues” arising from the determination that the project would be inconsistent with CLCPA goals and was not otherwise justified. The court said the owner had failed to exhaust its administrative remedies concerning these issues, which would be addressed in a pending administrative appeal.

Natural gas-fired power plant operator's challenge to denial of Title V air permit application for a new, more efficient electricity generating plant.

Danskammer Energy, LLC v. New York State Department of Environmental Conservation

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Danskammer Energy, LLC v. New York State Department of Environmental Conservation - decision

Filed

United States of America

New York

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

A loan is a policy instrument where funds are provided to a borrower with the expectation of repaying the principal plus interest.

Codes and standards are regulatory instruments that specify minimum standards to protect health and safety. This ranges from performance standards, which prescribe outcomes while allowing flexibility to achieve compliance, to the more prescriptive approach of technology-specific standards.

A ban is a legal action that prevents the sale or supply of a product or service, or that recalls a product from the market. Examples are bans on SF6, greenwashing, fossil fuel advertisement or single-use plastics.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Replacing technologies that burn fossil fuels directly with alternatives powered by electricity.

Actions to reduce emissions in energy generation and supply.

Energy derived from biological compounds that are renewable due to their short life cycle within the carbon dioxide cycle.

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Work that is productive and delivers a fair income, security in the workplace and social protection for all, better prospects for personal development and social integration, freedom for people to express their concerns, organize and participate in the decisions that affect their lives and equality of opportunity.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves activities to move goods and people, alongside the storage of products.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Danskammer Energy, LLC v. New York State Department of Environmental Conservation - decision

Target

Policy instrument

Risk

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Finance