Category: Article 78

NY Politicians Face Climate Act Decision

On Oct. 24, 2025, the New York Supreme Court issued a decision and order in a case pitting environmental organizations against the New York State Department of Environmental Conservation (DEC).  The judge ordered DEC to issue final regulations establishing economy-wide greenhouse gas emission (GHG) limits on or before Feb. 6, 2026.  This post summarizes the findings and my thoughts on the ramifications and path forward.

I am convinced that implementation of the Climate Leadership & Community Protection Act (Climate Act) net-zero mandates will do more harm than good 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 nearly 600 articles about New York’s net-zero transition.  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.

Decision Summary

I think Supreme Court Judge Julian Schreibman’s decision includes an excellent overview of how we got where we are.  He wrote:

In the present case, in 2019, the Legislature passed the Climate Act with the express goal of making New York a leader in addressing climate change through reduced emissions of greenhouse gases. The Climate Act specifically committed the state to achieving a 40% reduction in greenhouse gas emissions by 2030, and an 85% reduction by 2050, measured against 1990 emissions levels.

The decision goes on to explain that the Climate Act implementation plan has three steps:

  1. DEC was required to set emission limits for the reduction targets;
  2. The Climate Action Council, “an advisory group made up of 22 members with relevant expertise”, was given two years to prepare a Scoping Plan containing recommendations for “attaining statewide greenhouse gas emissions limits”; and
  3. The DEC was required to issue regulations that would achieve the mandated emissions reductions following the findings of the Scoping Plan.

The State met the first two requirements but the regulations that were supposed to be released by January 1, 2024, were not promulgated.  On March 31, 2025, a group of environmental advocates filed a petition pursuant to CPLR Article 78 alleging, among other things, that DEC had failed to comply with the timeframe.

Although I agreed with most of the descriptive text in the Schreibman decision, I disagree with his characterization of the Climate Action Council having “relevant expertise”.  I evaluated the background of the 22 members and found they were chosen based on political ideology.  Only eight come from energy sector organizations or have backgrounds in the energy sector. Four of the energy sector members are agency heads, two represent renewable energy organizations, and one represents both renewable and traditional energy organizations. This leaves only one member from the traditional energy sector. Furthermore, the stakeholder process ignored comments that did not comport with the Administration’s narrative.  My point is that the Climate Action Council’s Scoping Plan is unworkable because most of its members approved components that can only be described as magical solutions.

The petition from the environmental advocates states:” The Scoping Plan recommends that New York implement a “cap-and-invest” system to ensure that the state meets those limits.”  This is supposed to provide a cost-effective way to ensure compliance with the Climate Act emission limits.  As explained here, my comments on the Draft Scoping Plan explained why it would not work as claimed.  My comments were never acknowledged, much less discussed by the Council.  Now that dreams cannot avoid reality, the State’s argument in the case boils down to:

Petitioners have not shown a plausible scenario where the 2030 greenhouse gas reduction goal can be achieved without inflicting unanticipated and undue harm on New York consumers, and the concrete analysis in the 2025 Draft Energy Plan dispels any uncertainty on the topic: New Yorkers will face alarming financial consequences if speed is given preference over sustainability.

Schreibman’s decision noted that the State had made a persuasive argument that there were issues related to achieving the emissions targets.  However, he notes:

The Legislature has not empowered DEC to set its own targets, to achieve results within a range, or to simply to make progress. Instead, it has specified a result and required DEC to issue regulations that “shall” fulfill it.

Faced with this mandate, DEC does not have the discretion to say no or to decide that it has the authority to choose not to follow the express legislative directive at issue. Under our system of separation of powers, upon concluding, based on its subject-matter expertise, that achieving the goals of the Climate Act might be “infeasible” for the reasons stated, DEC had two options. One, it could issue compliant regulations anyway, and let the chips fall where they may for the State’s political actors. Or, two, it could raise its concerns to the Legislature so that the State’s elected representatives could make a determination about what costs their constituents can or cannot bear in the pursuit of reining in climate change.

The decision concludes:

The Court has no more authority to set climate policy than DEC and would generally expect to have less. However, bearing in mind the factors and issues addressed by the parties, the Court considers that, at this point, it would be improvident to order relief before the next regularly scheduled session of the Legislature convenes. The Court takes judicial notice that the next such session is scheduled to commence in January 2026. If legislative action modifies DEC’S obligations under the Climate Act, DEC will act in accordance therewith. In the absence of legislative relief, however, respondent shall “promulgate rules and regulations to ensure compliance with the statewide emissions reductions limits” set forth in the Climate Act no later than February 6, 2026. Respondent is cautioned that, having afforded it with the time to both further develop its regulations and address its concerns to the political branches, the Court is highly unlikely to grant extensions of this deadline.

Going Forward

The judge ruled that DEC must either issue compliant regulations or tell the Legislature that they must change the law.  In the cap-and-invest approach pollution permits to operate (aka allowances) are set equal to the emission targets.  Judge Schreibman said DEC could “issue compliant regulations and let the chips fall where they may for the State’s political actors”.  The Clean Energy Standard Biennial Review and the Draft Energy Plan both concluded that GHG emissions in 2030 would exceed the emission target.  If that projection occurs, then there will not be enough allowances and the only way for entities to comply with the law is to stop operating.  That would create an artificial energy shortage.  It is disappointing that the State’s argument did not raise this possibility.  However, it would not matter because DEC can only issue compliant regulations or the politicians must act to revise the law. 

An article by Greenberg Traurig notes that issuing compliant regulations by February 6, 2026 is “virtually impossible” for DEC to comply because:

State Administrative Procedure Act § 202, which specifies that draft regulations are subject to a minimum 60-day public comment period. Additionally, it takes the Department of State at least two weeks to publish draft regulations in the State Register after being provided with the same by an agency. Finally, there would likely be thousands of public comments to which DEC would be required to respond. 

While I am not politically astute it seems equally unlikely that DEC “could raise its concerns to the Legislature so that the State’s elected representatives” could revise the law in this timeframe.  Although the decision stated that “the Court is highly unlikely to grant extensions of this deadline” there was no mention of New York Public Service Law § 66-p (4) “Establishment of a renewable energy program” that includes safety valve conditions for affordability and reliability.   Section 66-p (4) states: “The commission may temporarily suspend or modify the obligations under such program provided that the commission, after conducting a hearing as provided in section twenty of this chapter, makes a finding that the program impedes the provision of safe and adequate electric service; the program is likely to impair existing obligations and agreements; and/or that there is a significant increase in arrears or service disconnections that the commission determines is related to the program”. There has been a significant increase in arrears so if the Public Service Commission were to rule that a temporary suspension was warranted, that might persuade the Judge to extend the deadline.

The Greenberg Traurig article describes the third possible option:

All of this may be rendered moot, however, if DEC appeals the decision – a viable option given Gov. Hochul’s public statement following the decision – and appropriate amendments are made to ECL § 75- 0109(1) in the next legislative session. Pursuant to CPLR § 5519(a)(1), the State would be entitled to an automatic stay of the directive to issue the regulations upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal. In this respect, a decision on an appeal may take more than six months to be issued from the date of the filing made under CPLR § 5519(a)(1). The timing of an appeal may coincidently provide the Hochul administration with time to include amendments of ECL § 75- 0109(1) in the Governor’s Executive Budget Proposal, which is issued in January of each year. Although in recent years it has taken well into May for the final budget to be enacted, there is a strong chance that an appeal would not be heard and decided prior to that time, allowing for sufficient time to change the statutory language upon which the Citizen Action decision was based if there is the political will to do so.

Colin Kinniburgh wrote a recent article about the decision that indicates that the third option is likely:

Now, Hochul is slamming the court order as unrealistic in light of President Donald Trump’s war on renewable energy and the ongoing economic fallout from the Covid-19 pandemic. Speaking to reporters Monday, she made clear that she has no intention of reviving the cap and invest program in the coming months. Instead, she plans to appeal the ruling and seek a deal with the legislature to amend the climate law.

“We have time to work it out,” she said. “We’ll work on appeal. We’ll sit down and talk to the legislature [about] what’s within the realm of possibility and reality here in light of all these changed circumstances.”

In my opinion, appealing the ruling is not going to change the decision.  It is clear cut.  DEC had to promulgate regulations that meet the Climate Act law.  Even though they know it won’t work and will cost too much, that does not matter.  The only way to change the requirement is to hold the politicians accountable and have them change the law.  Appealing will just push the inconvenient ramifications of political accountability off, probably past the Gubernatorial election.  How convenient for Governor Hochul.

In a recent Capital Tonight segment Susan Arbetter interviewed Earthjustice attorney Rachel Spector about the ruling.  I made a transcript and added my comments because I think the responses to her questions exemplify the position of environmental organizations that support the Climate Act.  Despite overwhelming evidence that it is time to reconsider the Climate Act schedule, these organizations deny that there is any need to worry about affordability, reliability, and environmental impacts.  I think their belief that they have sufficient leverage with the New York legislature is going to crash into reality sooner rather than later.

My Recommendation

I am very frustrated with the Climate Act net zero transition because the reality is that there are so many issues coming up with the schedule and ambition of the Climate Act that it is obvious that we need to pause implementation and figure out how best to proceed.  In my opinion, the best way to proceed is to couple a revised Climate Act schedule with clearly defined standards for affordability, reliability, and environmental impacts.  A trackable metric for each should be developed and a tracking system be put in place.  The key point is that the law should be modified so that there are consequences when those metrics are exceeded.  In short, the safety valve provisions of PSL 66-p should be improved and incorporated into the Climate Act. 

The process to establish these metrics should incorporate extensive public participation.  New Yorkers need to understand the range of costs, impacts on personal choice, and changes to lifestyles that are buried in the Scoping Plan and Energy Plan.  If these safety valve metrics have reasonable limits, I expect that affordability, reliability, and environmental impacts targets will be exceeded as soon as tracking begins.   That is the point.  Eliminating fossil fuels sounds has been portrayed as simple and cheap but the reality is very different.

Conclusion

The Climate Act has always been about politics and appeasing certain constituencies with climate “leadership”.  The politicians who supported the Climate Act did not include a feasibility analysis, concrete implementation plans, or defined affordability and reliability risk limits.  The necessity to consider a pragmatic approach is undeniable now.  Will the politicians step up and address the issues identified in the last five years of implementation experience?  That would require admission that the current plan is doomed to failure.  I suspect that politicians will selfishly kick the can down the road to try to avoid the consequences of their virtue-signaling Climate Act.

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.