APPELATE COURT DISMISSES CHALLENGE OVER N.Y. RGGI PARTICIPATION

Karen Frantz
GHG Monitor
12/06/13

An attempt to block New York state from participating in the Regional Greenhouse Gas Initiative, an effort among Northeastern and Mid-Atlantic states to reduce carbon emissions, was dismissed by the Third Judicial Department of the New York State Supreme Court’s Appellate Division this week. In the dismissal the court ruled the challenge, filed by three New York residents and electricity ratepayers against the state, was filed outside the statute of limitations. The judges said the suit, which was filed in 2011, needed to have been filed within four months of when New York’s emissions cap was finalized in 2008. They also dismissed a challenge to then-Gov. George Pataki’s signage of a non-binding memorandum of understanding on the RGGI in 2005 because Pataki “did not obligate New York to participate in the RGGI program, but merely agreed to propose a carbon dioxide emissions cap-and-trade program in New York.”

The decision was applauded by state Attorney General Eric Schneiderman. “The courts’ rulings are a significant victory for all of us who recognize the clear and present danger presented by climate change, and the importance of confronting its destructive effects,” he said. “I will continue to use the full force of my office to vigorously defend RGGI and other sensible efforts that reduce climate change pollution and, thereby, protect the health ad welfare of New Yorkers.”

New York began implementing the RGGI program in 2008. The state caps CO2 emissions by electric-generating power plants of 25 megawatts and larger and companies must buy carbon allowances to cover their emissions through a public auction, with the money made through the auctions going to support greenhouse gas-reduction and climate-protection efforts. The plaintiffs had argued that the memorandum of understanding (MOU) signed by Pataki was executed and regulations were promulgated “without legislative approval or statutory authorization and in violation of the NY Constitution and the separation of powers doctrine;” that the RGGI program “imposes an unlawful tax upon ratepayers not authorized by the legislature” and is “arbitrary and capricious;” and that the MOU “constituted an interstate compact signed in violation of the U.S. Constitution,” according to the Appellate Division ruling.