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May 22, 2023

Appellate Division, Third Department, Denies Appeal and Upholds Office of Renewable Energy Siting Regulations

As we previously reported, in 2021, multiple municipalities and interest groups filed an Article 78 petition against the New York State Office of Renewable Energy Siting (ORES) challenging its recently promulgated permitting and siting regulations under Section 94-c of the New York Executive Law. 

On October 7, 2021, Judge Peter Lynch of the Albany County Supreme Court issued a ruling dismissing the petition and upholding the ORES regulations. Petitioners subsequently appealed to the Appellate Division, Third Department. 

On May 18, 2023, the Appellate Division, Third Department, denied the petitioners’ appeal, similarly upholding the ORES regulations. In dismissing the appeal, the court found, among other issues, that:

  1. While ORES did initially misclassify their promulgation of permitting and sitting regulations as an unlisted action under the State Environmental Quality Review Act (SEQRA) rather than a Type I action, that misclassification did not invalidate ORES’s SEQRA-negative declaration. 
  2. ORES complied with the SEQRA hard-look test through a variety of actions, including drafting a short Environmental Assessment Form (EAF), holding seven public hearings, responding to extensive public comments, consulting with other agencies and an outside consultant on the regulations, and issuing an amended short EAF.
  3. ORES did not exceed its statutory authority, as Executive Law § 94-c directs ORES to issue regulations “to implement the siting permit program,” which ORES did; the adoption of these regulations by ORES was not part of a deferred or segmented review. 
  4. ORES’s ability to preempt local laws, known as the waiver provision, does not violate the New York State Constitution or the Home Rule Provision because ORES’s preemption power is a general law, applying uniformly to all municipalities. Moreover, energy infrastructure siting is a matter of state concern that applies to the state as a whole, and the upheld ORES regulations do not single out any of the petitioner municipalities.

Regardless of whether the petitioners pursue an appeal of the decision to the New York State Court of Appeals, without any injunction in place, the ORES regulations would remain in effect during any resulting appeal, as they have during the pendency of this litigation. The court’s ruling decided only the propriety of ORES’s adoption of the regulatory structure not its implementation. Therefore, future case-by-case, project-specific challenges could still be made with respect to how the ORES regulations have been implemented.

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Group leader and Regulatory Practice Area co-chair, at; Ekin Senlet, Regulatory Practice Area co-chair, at; Yvonne Hennessey, Environmental Practice Area chair, at; Dan Krzykowski, associate, at; or another member of the firm’s Regulatory or Environmental Practice Areas.

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