Article 78 Filing

Enough is enough.  I have submitted over 250 filings and comments to the New York Department of Public Service (DPS) Document and Matter Management (DMM) system.  There has never been any acknowledgment of any submittal much less any sign that DPS staff have considered my concerns about New York’s transition away from fossil fuels.  I recently reached the breaking point and with a like-minded individual who shared my frustration, decided to file an Article 78 judicial review of the May 16, 2025 decision of the New York Public Service Commission (“PSC”) in its Case No. 15-E-0302 approval of a Clean Energy Standard (“CES”) Tier 4 Implementation Plan.  This is an overview.

I am convinced that implementation of the Climate Leadership & Community Protection Act (Climate Act) net-zero mandates will do more harm than good if the future electric system relies only on wind, solar, and energy storage because of reliability and affordability risks.  I have followed the Climate Act since it was first proposed, submitted comments on the Climate Act implementation plan, and have written over 570 articles about New York’s net-zero transition.  I acknowledge the use of Perplexity AI to generate summaries and references included in this document.  The opinions expressed in this article do not reflect the position of any of my previous employers or any other organization I have been associated with, these comments are mine alone. 

Background

The Climate Act established a New York “Net Zero” target (85% reduction in GHG emissions and 15% offset of emissions) by 2050 and has two electric sector targets: 70% of the electricity must come from renewable energy by 2030 and all electricity must be generated by “zero-emissions” resources by 2040. Proponents of the Climate Act argue that the transition strategies must be implemented to meet these targets.  However, they do not acknowledge that Public Service Law (PSL) Section 66-P, Establishment of a renewable energy program, is also a law. PSL 66-P requires the Commission to establish a program to ensure the State meets the 2030 and 2040 Climate Act requirements.  

Over the years my concerns about the transition of the New York electric system have focused on two issues: the failure of the PSC to adequately address its mandate to ensure access to safe, reliable utility service at just and reasonable rates and for the PSC to provide an appropriate solution to the challenge of dark doldrums.  My submittals have argued that the PSC must establish safety valve metrics for affordability and reliability to ensure that the broad mandate for safe and reliable utility service at reasonable rates is accomplished.  I have made numerous submittals that argue that wind and solar resource availability lulls represent the fundamental fatal flaw of renewable energy systems.  Until solutions for this problem are proposed and tested, it is dangerous to proceed with the PSL 66-P renewable energy program.

My co-intervenor is Richard Ellenbogen, CEO of Allied Converters. He intervened in PSC Case No. 15-E-0302 on August 8. 2023 and submitted comments in that PSC case on five occasions.  He is an engineer by training and decarbonized his own factory starting in 1999.  Measurements at the factory resulted in the Public Service Commissions Case 08-E-0751 to reduce power line losses. Ellenbogen was an early adopter of renewable technologies going back to the 1990‘s and decarbonized both his home and business two decades ago.

Article 78

Until this action I have never paid much attention to the Article 78 process.  These proceedings are lawsuits “used mainly to challenge an action (or inaction) by agencies of New York State and local governments.”  According to Perplexity AI four main questions can be raised in an Article 78 proceeding:

1. Failure to Perform a Duty: Whether the agency or officer failed to perform a duty required by law (mandamus).
2. Acting Beyond Authority: Whether the agency or officer acted without or in excess of its jurisdiction (prohibition).
3. Arbitrary or Capricious Action: Whether a determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.
4. Lack of Substantial Evidence: Whether a determination made after a hearing was supported by substantial evidence

On  September 19, 2025 Rich Ellenbogen and I served papers announcing our intent to litigate.  Our filing states that “The PSC does not appear to have considered or rationally evaluated the evidence presented to it, to the effect that the Tier 4 Implementation Plan is unfeasible and unreasonable.”  The submittal includes a description of our concerns In the “Nature of Action”:

1.           This case seeks judicial review of a May 16, 2025 decision of the New Y ork Public Service Commission (“PSC”) in its Case No. 15-E-0302, which is attached hereto as Exhibit A. In that PSC case, the agency approved a petition by the New York State Energy Research and Development Authority (“NYSERDA”) proposing a Clean Energy Standard (“CES”) Tier 4 Implementation Plan. At least 194 intervening parties appeared before the PSC, and a listing of the PSC’s docket reflecting the identities of such intervenors is attached hereto as Exhibit B. However, there are fundamental mistakes on the PSC’s docket, including that the PSC docket may not accurately reflect all intervenors.

2.           The PSC does not appear to have considered or rationally evaluated the evidence presented to it, to the effect that the Eier 4 Implementation Plan is unfeasible and unreasonable. Mr. Caiazza and Mr. Ellenbogen each submitted comments to the PSC before it adopted the Tier 4 Implementation Plan. Mr. Ellenbogen specifically notified the PSC that:

• There is a lack of available energy to support the Plan.
• Costs to implement the Plan will far exceed other, better solutions.
• These costs accrue based upon shortages of materials and skilled labor, high energy
• storage costs, and a lack of financial adequacy.
• Atmospheric Carbon Levels will rise far above what could be achieved using other alternatives.
• Planned timing mandates are unachievable.
• There are logical non-sequiturs contained in the agency’s proposal.

3.           The PSC does not appear to have even considered the comments submitted by Mssrs. Ellenbogen and Caiazza, much less adequately developed its decisions in a way that addresses those comments.

4.           It is well established in the Third Department that a combined petition under Article 78 and Complaint for Declaratory Judgment is the proper mechanism to challenge certain agency actions. Matter of Clean Air Coal. ofW. N.Y., Inc. v. N.Y. State Pub. Serv. Comm’n, 2024 NY Slip Op 24288. • 4 m3, 85 Mise. 3d 665. 675, 223 N.Y.S.3d 837, 845 (Albany Co. Sup. Ct. 2024). A combined CPLR article 78 proceeding/declaratory judgment action is commenced “by filing and serving a notice of petition and a summons under a single index number, along with a combined petition/verified complaint.” Matter of Neyvtoii v Town of Middletown, 31 AD3d 1004, 1005. 820 N.Y.S.2d 154 (3d Dept 2006). “The summons invokes jurisdiction for the declaratory-judgment- action component while the notice of petition performs the same function for the Article 78 aspect of the case.” Vincent C. Alexander, Prac Commentaries, McKinney’s Cons. Laws of NY, Book; 7B, CPLR § 7804:5: see also CPLR § 304 (a) and 403 (a).

5.           In part, this is an action under Article 78 of the Civil Law and Practice Rules to set aside the PSC’s May 16, 2025 decision as unreasonable. “The administrative agency charged with enforcing a statutory mandate has broad discretion in evaluating pertinent factual data and inferences to be drawn therefrom, and its interpretation will be upheld so long as not irrational or unreasonable.” Matter of 333 E. 49th Assocs., LP v. N.Y. State Div. of Hous. & Cmty. Renewal,

Office of Rent Admin., 2007 NY Slip Op 4546, “ 1, 40 A.D.3d 516, 516. 837 N.Y.S.2d 63. 64 (1st Dept. 2007). But just because an agency is permitted broad discretion and deference, that does not mean that a reviewing court has no role to play. A “reviewing court must be presented with a record containing factually meaningful findings… Otherwise, this Court’s mandate – intended to be a conscientious review power over governmental action – will be transformed into a superficial habit of ‘rubber stamping” the most vacuous statements paraded before us as findings of fact.” Id. at 66 (Marlow, J, dissenting).

6.           “The very fact that the scope of judicial review with respect to the exercise of discretion by administrative officers or boards is extremely limited makes it imperative that the courts exercise the necessary supervision to assure that the decisional process on the administrative level is free from impermissible or irrelevant considerations or unsupported conclusions.” Rochester Colony, Inc. v. Hostetter, 19 A.D.2d 250. 254, 241 N.Y.S.2d 210, 215 (4th Dept. 1963).

7.           This case is also, in part, a declaratory judgment action. “A declaratory judgment action is unquestionably a proper procedure.. .to review a quasi-legislative act of an administrative agency…” Lakeland Water Dist. v. Onondaga Cnty. Water Auth., 24 N.Y.2d 400, 408, 301 N.Y.S.2d 1, 7, 248 N.E.2d 855, 859 (1969) (internal quotations and citations omitted). To the extent that the PSC has engaged in an arguably legislative or quasi-legislative act by approving the Tier 4 Implementation Plan, petitioners seek declaratory judgment that the Plain is void.

Discussion

This step is the direct result of the lack of a transparent and open Climate Act implementation process.  Both Rich and I have been making our arguments for years.  There has not been any substantive responses, and we agreed that we needed to go to court to be heard.

One of the impediments to this approach is that at some point we will need to back up our talk with money. Neither Rich or myself has received any compensation for the thousands of hours we have committed to trying to get the state to consider science and engineering in its net-zero transition plans.  While we do not begrudge the time, money is another story.  I mention that because there might be a Go Fund Me campaign if we need money to pursue this effort.

Conclusion

Rich and I are extremely frustrated by New York’s planned transition away from fossil fuels.  It is unfortunate that we had to resort to litigation to get e PSC to address our concerns.  Stay tuned.