For the first time, a court was asked to decide whether the New York State Department of Environmental Conservation’s (NYSDEC) renewal of a Title V air permit complied with the Climate Leadership and Community Protection Act (CLCPA). Until now, the litigation surrounding the CLCPA focused on the NYSDEC’s authority to deny a permit.
In Sierra Club et al v. New York State Dep’t of Env. Conserv., environmental groups asserted that the NYSDEC violated the CLCPA by determining that Caithness Energy’s Title V renewal was consistent with the statewide greenhouse gas (GHG) emissions. Although there was no dispute that the facility was not expected to increase its actual GHG emissions, the petitioners maintained that the NYSDEC failed to consider the facility’s ongoing pollution and the burden imposed on surrounding disadvantaged communities. The petitioners’ primary claim was that a status quo in emissions cannot be consistent with required statewide emissions reductions to the extent that the NYSDEC should have found the permit renewal to be inconsistent and required an analysis of justification and mitigation.
In a rather succinct decision, the court denied the petitioners’ claims in their entirety and found no basis to conclude that the NYSDEC’s determination was made in violation of law procedure, was affected by error of law, or was arbitrary and capricious. In doing so, the court primarily relied on DAR-21, the NYSDEC’s guidance that outlines CLCPA requirements in the context of air permitting, as well as the testimony of the NYSDEC’s air resources engineer that reviewed Caithness’s renewal application.
The court started by focusing on DAR-21’s statement that:
“[a] permit renewal that does not include a significant moderation ... and would not lead to an increase in actual or potential [greenhouse gas] emissions would in most circumstances be considered consistent with the CLCPA ... [h]owever, DEC staff may require an applicant to submit a CLCPA analysis for a permit renewal to ensure the requirements of Section 7(2) are met, if the facts surrounding the project indicate that an analysis is warranted.”
The court then looked to the NYSDEC’s testimony confirming that:
- no changes were made to equipment at the facility;
- there were no significant changes to emissions sources;
- there were no changes or increases in operating hours; and
- the direct and upstream GHG emissions resulting from the combustion of that fuel remain unchanged as well.
The NYSDEC testified that, applying DAR-21, it therefore concluded that the renewal was not inconsistent with Section 7(2) of the CLCPA and did not require Caithness to submit any additional analysis or detailed statement justification. The NYSDEC also determined that the permit renewal did not require any addition analysis to establish compliance with Section 7(3), which concerns disadvantaged communities.
Based on this testimony, the court found the NYSDEC’s determination to be lawful and denied the petitioners’ claims in their entirety.
This case is significant for both the NYSDEC and Title V permittees, as it affirms DAR-21’s guidance that permit renewals that seek no increase in actual GHG emissions are consistent and do not need to provide a detailed statement of justification or identify alternatives or mitigation.
Because it is fully anticipated that the petitioners will appeal the court’s decision, Barclay Damon will continue to monitor this case.
If you have any questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com, or another member of the firm’s Environmental Practice Area.