A Court Ordered New York to Issue Major Climate Rules. What’s Next?

 Staying Focused

 

Governor Kathy Hochul is digging in after a state court ruled Friday that New York is violating its flagship climate law and ordered the state to comply. Rebuffing the judge, she is gearing up for a rematch in the courts and a potential showdown over the state’s green energy transition during next year’s legislative session.

 

Ulster County Supreme Court Judge Julian Schreibman gave Governor Kathy Hochul’s administration until February 6 to issue regulations that would “ensure” the state meet emissions targets set out in the law. They include a 40 percent reduction in emissions by 2030, which the state estimates it is at least six years behind on.

 

For years, Hochul’s plan to get New York on track was a pollution pricing program known as “cap and invest” — until she abruptly shelved it in January, prompting climate groups to sue.

 

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.”

 

So where could things go from here?

 

The Courts

 

The appeals process could allow Hochul to extend the court deadline past February, and potentially even beyond her bid for reelection next November, legal experts told New York Focus. Her administration has 30 days to file a notice of appeal, a simple one-page form that sends the case to a higher court. This would automatically suspend Schreibman’s decision, unless the plaintiffs can persuade an appellate judge that the order should hold while the appeal is heard.

 

Then, the state has six months to file a complete appeal, meaning it could take until the end of April just for the appeals case to begin in earnest. From there, the appeals court may take anywhere from six months to a year to reach a decision, said Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University.

 

That could push the case into 2027 — after the gubernatorial election, and around the time that the Hochul administration has hinted it could reopen the discussion around cap and invest.

 

“I don’t see what incentive the state has to go fast on this,” Gerrard said, nodding to the electoral calendar. “Whichever decision [Hochul] makes is going to annoy a lot of people.”

 

Either party in the case could request an expedited schedule, he noted, but it would be up to the appellate judge to decide whether to grant it.

 

Gerrard is skeptical that the Hochul administration can ultimately prevail in court as long as the climate law remains in its current form. One of the main precedents cited in Friday’s decision was a case that forced New York City to move ahead with mandatory recycling in the early 1990s. (Gerrard represented the environmentalists who brought the case.) It went up to the state’s highest court, which ruled that an executive agency could not ignore a legal mandate just because of economic or other challenges. Schreibman’s order made the same argument.

 

“I don’t think there’s a strong case for an appeal,” Gerrard said. “The law is very clear.”

 

The Legislature

 

Even if an appeal doesn’t succeed in the long run, it could buy Hochul time to move the fight into an arena where she has more sway: state budget negotiations.

 

Hochul’s budget proposal in January will set the agenda for the first several months of Albany’s legislative session, putting in motion a marathon of negotiations that will decide spending and innumerable other state policies. The budget, which is due by April 1 but tends to run long past the deadline, often serves as a vehicle for politically thorny policies that might not pass the legislature on their own.

 

In 2023, Hochul tried to loosen New York’s climate law standards in a surprise budget maneuver, only to walk back the proposal within days after fierce backlash from climate groups. Since then, though, Donald Trump’s election, surging power demand from data centers, and rising concerns about the cost of living have roiled climate politics.

 

Few lawmakers have commented publicly on Friday’s ruling so far. State Senator Liz Krueger, a climate hawk and chair of the chamber’s budget committee, was the first, saying in a statement Monday that there was “no appetite” among her Democratic colleagues to amend the climate law. The Senate passed a resolution last year urging Hochul to press ahead with cap and invest, and Krueger said the program remains the best way to raise the funds needed for New York to shift to a cleaner, cheaper energy system.

 

But speaking with New York Focus on Tuesday, Krueger said she couldn’t rule anything out.

 

“I’m living in a world where new chaos ensues, primarily driven by the federal government, each and every day, so asking me what I think can happen three months from now is a bit of a challenge,” she said.

 

Some in the legislature appear open to pushing back climate law deadlines, as business groups have increasingly pressed the state to do.

“If there’s a discussion to be had about affordability and making life more affordable for New Yorkers, we should have that conversation,” said Assemblymember John McDonald, an Albany-area Democrat.

 

Hochul has cited potential energy cost hikes for consumers as her top reason for pausing cap and invest, though the state’s own modeling and outside studies have found that low- and moderate-income households would likely see a net savings from the policy. Higher earners would see a slight increase.

McDonald said a “mild extension” to the climate law could well be warranted given the many obstacles in New York’s way.

 

“If there’s a way that we can still work towards our goal, albeit a little bit slower, it’s better than not achieving the goal at all,” he said. McDonald is one of at least nine Assembly Democrats who have signed on to a letter asking the governor to delay by a year the implementation of a state law that would require most new buildings to run all-electric. Hochul has said she is considering the delay.

 

Assemblymember Sarahana Shrestha of Ulster County, a democratic socialist and former climate organizer, said that the camps in the Assembly haven’t changed drastically since Trump took office. But in Trump’s second term, “everything is on fire,” she said. “So in terms of what legislators will pick as their top three fights to go all in on, that’s a real challenge.”

 

Assemblymember Michaelle Solages, chair of the Black, Puerto Rican, Hispanic, And Asian Legislative Caucus, was circumspect.

 

“As we review the ruling, it’s clear that New York must maintain its leadership in addressing the climate crisis responsibly and effectively, especially as the federal government rolls back environmental protections and undermines progress on clean energy,” she wrote in a text message.

 

Spokespeople for Assembly and Senate leadership did not respond to requests for comment on Friday’s ruling.

 

A ‘Stark Choice’

 

As Albany gears up for the new legislative session in January, the climate law’s backers and opponents are both seizing on Friday’s court order.

 

“It was a resounding legal decision and victory for the environment, victory for the rule of law, which in this day and age we do not take for granted,” said Vanessa Fajans-Turner, executive director of Environmental Advocates NY. She added that she was “disappointed to see the governor negotiating against herself in this matter” after Hochul’s agencies spent years laying the foundations for a successful cap and invest program.

 

Justin Wilcox, executive director of the business group Upstate United, said New York now faces a “stark choice” between pushing ahead with cap and invest and amending the climate law.

 

“Upstate United believes the choice is clear: New York’s leaders must act swiftly to amend the law,” he said in a statement Monday.

 

State Senator Jake Ashby, an Albany-area Republican, went further, calling for a full repeal of the law in a statement Wednesday.

Krueger, the Senate budget chair, said she was bracing herself for a rollercoaster of a legislative session.

 

“I don’t think anybody expects this to be a normal year in any way, shape, or form,” she said. “I think it would be a tragic mistake for the state of New York to roll back anything we’ve passed into law vis-à-vis climate. … That doesn’t mean there aren’t going to be people who push for that.”

 

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