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October 8, 2021

Court Rules in Favor of Office of Renewable Energy Siting Regulations in Article 78 Challenge

As we reported in our previous alert, on June 29, 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. The court previously denied the petitioners’ motion for a preliminary injunction on September 21, 2017. In that prior ruling, the court had already determined that with due diligence on the part of ORES, “the regulatory structure is workable.”

In this recent ruling, the court noted that, while the petition assumed bad faith and noncompliance by ORES upon review of a project application, the issue at hand was the adoption of the regulatory structure, not its implementation. In dismissing the petition, the court found, among other issues, that:

  1. The petitioners’ claim that public participation in the 94-c process is only illusory was without merit, given that the regulations mandate public participation in multiple phases of the proceeding, including public hearing and public comment periods.
  2. The respondent complied with the State Environmental Quality Review Act (SEQRA) hard-look test when it issued a negative declaration in adopting the 94-c regulations, as no project was actually under consideration; instead, the SEQRA analysis merely required a reasoned basis to support the established minimum setback, noise, and endangered and threatened species study requirements set forth in the regulations.
  3. The petitioners failed to distinguish between the authority of ORES to issue a waiver on a case-by-case basis, which is generally applicable to all municipalities, and the implementation of that authority by ORES and the general waiver was not a special law violating the Municipal Home Rule Law; the court further held that, due to the state’s preemption relative to the siting of major renewable energy facilities, the regulations do not violate the New York State Constitution or the provisions of the Municipal Home Rule Law.

Petitioners may choose to appeal the decision to the Appellate Division, Third Department, and without any injunction in place, the ORES regulations would remain in effect during any such appeal, as they have during the pendency of this litigation. Because the court’s ruling decided only the propriety of ORES’s “adoption of the regulatory structure, not its implementation,” 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; Yvonne Hennessey, Environmental Practice Area chair, at; Ekin Senlet, Regulatory Practice Area co-chair, at; David Solimeno, associate, at; Dan Krzykowski, law clerk, at; or another member of the firm’s Regulatory or Environmental Practice Areas.

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