Just days after Greenidge Generation filed an Article 78 petition in State Supreme Court in Yates County against the DEC over its decision to deny an air permit renewal for its Dresden plant.
On Tuesday, Earthjustice, on behalf of clients Seneca Lake Guardian, The Committee to Preserve the Finger Lakes, Fossil Free Tompkins, and Sierra Club, along with co-counsel Whiteman, Osternman & Janna LLP filed papers to intervene in the case.
“Greenidge Generation is operating in violation of the CLCPA, as stated by the DEC three times now. We are advocating on behalf of our clients, and we strongly oppose Greenidge’s continued attempts to challenge the DEC’s authority to pollute the Finger Lakes and the climate,” said Mandy DeRoche, Deputy Managing Attorney, Clean Energy Program at Earthjustice.
In their Article 78 petition filed on August 15th, Greenidge alleges that the DEC used an improper and incomplete analysis, which they argue does not align with the Climate Leadership and Community Protection Act, or CLCPA. The company also contends that under the CLCPA and state law, the DEC does not have exclusive authority over electric-generating facilities. They argue that the DEC has overstepped its bounds, encroaching on the roles of the state Public Service Commission and the New York Independent System Operator.
“When we are in front of courts of law and out of politically biased and ad hoc DEC processes, the facts actually matter and the courts continue to recognize our facility meets the letter and intent of state and federal laws,” said Dale Irwin, President of Greenidge Generation.
“This is an important case for Upstate New York: for working locals who’ve waited far too long for the type of high-tech, high-paying career opportunities we continue to create, for local businesses and unions we partner with, and for the local communities that benefit from the significant share of county tax revenue we are generating. We are proving this region can create future-focused jobs and economic activity while meeting the state’s ambitious climate goals.”
Yvonne Taylor, Vice President of Seneca Lake Guardian, said every New Yorker should be outraged as she claims Greenidge attempts to gut the state’s Climate law to serve its own purpose.
“And for what? To make a very few, very rich individuals even richer at the expense of our climate, environment, and Finger Lakes’ $3 billion agritourism economy supporting 70,000 jobs. Regardless of Greenidge’s ridiculous foot stomping, the reality is quite simple: the Department of Environmental Conservation is charged with approving or denying Title V Air Permits, the Climate Leadership and Community Protection Act is the law, and Greenidge must shut down once and for all,”
You can watch a video of the comments by clicking here.
The legal action comes after DEC’s regional director, Dereth Glance, upheld the agency’s decision to deny Greenidge the permit, citing its need to adhere to greenhouse gas emissions limits set by the CLCPA.
Greenidge provided the following information on its stance to Finger Lakes Daily News:
• DEC exceeded its jurisdiction while employing an improper and incomplete analysis that is inconsistent with the language and intent of the CLCPA.
• Under the CLCPA and relevant NY State law, DEC does not have sole authority over electric generating facilities, and DEC usurped the roles of the New York State Public Service Commission and the New York Independent System Operator.
1. DEC violated the supremacy clause, by ignoring the requirements of NYISO’s federally approved deactivation process for existing generating facilities, which ensures reliability and resiliency studies are conducted before deactivation.
2. The CLCPA requires that the New York State Public Service Commission (not DEC) adopt regulations establishing a program to meet a target of seventy percent of statewide electrical generation from renewable sources by 2030, and a target of zero GHG emissions for statewide electrical demand by 2040.
3. The Climate Action Council, designed to guide agency implementation of CLCPA mandates, established “any retirement and/or repurposing of existing fossil fuel generation must be done in coordination with the [NYS]PSC, the NYISO planning process”
4. The Climate Action Council concluded that the application of CLCPA to electric generating facilities cannot occur in a vacuum, which is what DEC did here as the New York State Public Service Commission (NYSPSC) and the New York Independent System Operator (NYISO) were not consulted in this process in any form.
5. In fact, when Greenidge requested to halt power generating operations for maintenance, the request was denied by NYISO due to risks to system reliability and NYISO has requested, on multiple occasions, that Greenidge increase power supply or deliver full load to the grid. Greenidge has complied with those requests.
• DEC asserts that CLCPA authorizes the Department, in its complete and sole discretion, to deny Greenidge’s and any other party’s permit application if the facility at issue will have any GHG emissions – which is true as to almost every single facility for which an air permit is requested – regardless of any justification or alternatives/mitigation considerations, and in spite of all other regulatory and statutory requirements having been met.
• The CLCPA does not invite the Department or any other state agency to make its own subjective ad hoc value judgements regarding the purported “purpose” of a project or facility or what economic activity in New York State is needed, desirable, or worthy.
• Contrary to DEC’s attempt to anoint itself as New York State’s arbiter of economy-wide climate issues, the CLCPA instead created the Climate Action Council, a 22-member appointed body, with the mission to prepare a Scoping Plan with extensive public involvement to serve as the roadmap to achieve the State’s clean energy and climate goals.
• During the internal DEC appeals process, DEC’s own Administrative Law Judge advanced three issues for adjudication in the appeals process, and the Administrative Law Judge sought to hold hearings on all three matters.
o DEC then overruled its own Administrative Law Judge and summarily ended the appeals process, without affording Greenidge an adjudicatory hearing.
• The Denial rests upon the Department’s determination that its issuance of the renewed permit would be inconsistent with the Statewide GHG limits in 2030 and 2050 – despite the fact thatthe permit would expire prior to 2030.
• DEC deprived Greenidge of the right to include in its application information the Department now says is required by applying the CLCPA using standards and criteria not identified to Greenidge until (or even after) the Denial, and then by denying Greenidge an adjudicatory hearing.
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