An action brought in Albany County for a preliminary injunction concerning the State’s Executive Law § 94-c regulations under the purview of the Office of Renewable Energy Siting’s (“ORES”) for issuance of permits for large-scale solar projects, and to review the regulations, which was dismissed in 2021, was finally heard on appeal. The Appellate Division, Third Judicial Department issued its relatively brief decision affirming the decision of the lower court and dismissing the action in its entirety.
The Court’s Holding That ORES Sufficiently Complied with the State Environmental Quality Review Act
Though the Court agreed with the challenging parties’ claim that ORES misclassified the passage of the regulations under the State Environmental Quality Review Act (“SEQRA”) (as an unlisted action), and acknowledged that the correct classification (Type I action) would have created the presumption that an Environmental Impact Statement should be prepared, the Court ultimately reasoned that ORES took the necessary “hard look” to determine that the regulations would not have any adverse environmental impacts.
The Court’s Examination of ORES’ Compliance with Statutory Authority Especially in Light of the State’s Zero Emissions Goal
The Court also held ORES did not exceed its statutory authority by, among other things, granting automatic approvals for applications if review was not completed within one year as built into its regulations. The Court relied on the State’s ultimate goal of zero emissions of electrical energy by 2040 for support of this finding.
The Court’s Decision That ORES and Its Regulations Do Not Conflict with State Home Rule Law
Finally, the Court found that, specifically regarding the regulations’ preemption of local land use laws in certain circumstances, the regulations were not unconstitutionally vague or otherwise in conflict with New York constitutional Home Rule provisions.
What does this mean for solar?
With this ruling, ORES and its regulations remain in effect. It is now clear that the State’s public policy in favor of solar energy is a guiding force behind ORES, the regulations and this decision, at least for now.
However, the solar wars wage on. The Town of Copake, et al., filed a motion to reargue in hopes to reverse the decision and remand the matter with directions to annul the regulations and require ORES to engage in a new rulemaking process in Compliance with SEQRA, or, in the alternative, to appeal the Third Department Decision and Order to the Court of Appeals.