THE OFFICE OF RENEWABLE ENERGY SITING (ORES) CONDUCTED A PROPER REVIEW BEFORE ISSUING THE CHALLENGED REGULATIONS CONCERNING THE SITING OF MAJOR RENEWABLE ENERGY FACILITIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the Office of Renewable Energy Siting (ORES) had conducted a proper review before issuing regulations concerning the siting of major renewable energy facilities. The opinion is far too detailed to fairly summarize here:

… [P]etitioners — who include numerous municipalities, municipal corporations and private entities — commenced the instant combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, seeking, among other things, to annul the regulations and direct ORES to engage in a proper SEQRA [State Environmental Quality Review Act] review. Specifically, petitioners alleged that, among other things, ORES: (1) mischaracterized the action as an unlisted action rather than a type I action; (2) failed to take a hard look at the environmental consequences of the regulations; (3) violated the home rule provision of the NY Constitution; and (4) violated the express terms of Executive Law § 94-c. * * *

… [W]e agree with petitioners’ threshold argument that ORES misclassified this action as unlisted, rather than type I. … … [T]he promulgation of the regulations should have been classified as a type I action that would carry the presumption of requiring preparation of an EIS [Environment Impact Statement] … . However, “a misclassification does not always lead to the annulment of the negative declaration if the lead agency conducts the equivalent of a type I review notwithstanding the misclassification” … , and, notably, “a type I action does not, per se, necessitate the filing of an EIS” … . * * *

A review of the vast record reveals that ORES took a thorough and hard look at the potential negative environmental impacts associated with the proposed regulations. Matter of Town of Copake v New York State Off. of Renewable Energy Siting, 2023 NY Slip Op 02721, Third Dept 5-18-23

Practice Point: The newly created Office of Renewable Energy Siting conducted a proper review before issuing the challenged regulations concerning the siting of major renewable energy facilities.