Environmental advocates open to settling case over Climate Act

ALBANY —Gov. Kathy Hochul has repeatedly pointed to an October ruling from a state Supreme Court justice as the reason energy costs will shoot up in the next five years if the state Legislature won’t agree to her desire to extend the greenhouse gas reduction deadlines of New York’s Climate Act.

 

In October, state Supreme Court Justice Julian Schreibman ruled the Department of Environmental Conservation needed to follow a statutory mandate to put forth rules to ensure New York reaches its targets of achieving a 40% reduction in greenhouse gas emissions by 2030. New York Attorney General Letitia James appealed the case and it’s pending in the appellate division in Albany. The order by Schreibman, unless it’s overturned, won’t go into effect until the conclusion of that appeal.

 

“A judge is telling us that we have to comply with this, even though we’re not ready for it, and if we do that, I can tell you as sure as I’m standing here, our (energy) costs will go up dramatically,” Hochul said Monday. “We will not walk away from our climate goals, but (we need to) make sure that the path we’re on is realistic and fair to the people we serve, because a climate policy that leaves working families behind is not a sustainable path forward.” 

 

The New York State Energy Research and Development Authority released a memo in February asserting that to bring emissions down enough to meet the 2030 requirements of the Climate Act, the state would need to implement a highly costly version of a cap-and-invest program. 

 

That program would place a price on carbon emissions so heavy industry pays an additional amount to operate. The proceeds are intended to be partly directed to households in the form of rebates and otherwise invested into clean energy technology.

 

Putting in place a cap-and-invest policy was a major policy recommendation in the Scoping Plan, a 2022 report that outlined the state’s path to meeting the 2019 Climate Act’s mandates.  

 

The pricing program included in the memo though included no limit on how much it would cost to emit a ton of carbon. With no price cap, fossil fuels like natural gas and gasoline would quickly become very expensive. Some upstate households would have to pay around $4,000 more in annual energy costs, according to the memo issued last month by Doreen Harris, president and CEO of the New York State Energy Research and Development Authority.

 

Rachel Spector, an attorney with Earth Justice, said the groups who brought the case that Schreibman decided in their favor are willing to settle to ensure the state doesn’t need to put forward policies that are too costly.

 

“There are many ways to proceed and resolve this issue relating to the lawsuit that don’t involve imposing a draconian version of cap-and-invest,” Spector said. 

 

Far milder cap-and-invest plans were studied by the state in 2023 and 2024, but a program was never put in place. 

 

New York wouldn’t have reached its greenhouse gas reduction mandates under its previously studied cap-and-invest rules alone, because regulators planned on placing limits on how high the price of carbon could go to avoid too rapidly increasing energy prices. For example, under one of the studied proposals, emitting a ton of carbon wouldn’t cost more than $32 in 2031. The average low-income household would end up saving a few dollars a month under that scenario. 

 

The February memo from the authority estimated carbon prices could reach nearly $180 a ton by 2031, if no limit was put in place.

 

If New York had gone ahead with even the least costly version of cap-and-invest program, the coalition of environmental groups would not have brought the case, Spector said.

“The reason they brought this case, was the state wasn’t taking action on climate,” Spector said.

 

The notion that New York is mandated to reach the greenhouse gas requirements exclusively through a cap-and-invest program is also a misnomer, she said.

  

“Regulations are supposed to achieve that (greenhouse gas emissions) limit, there’s no requirement that one set of regulations do that,” Spector said.

 

Still, the recent state Supreme Court ruling exposes the rigidity of the Climate Act. 

 

The Department of Environmental Conservation argued in the case it couldn’t meet the Climate Act’s mandates because “the 2030 (emissions reductions) goal itself is not practically feasible due to costs consumers simply cannot bear.”

 

But the Climate Act doesn’t allow for agency discretion over cost concerns; its greenhouse gas reduction mandates are not optional. 

 

“The Legislature has already decided that the Climate Act’s goals 'shall' be achieved,” Schreibman wrote.

 

“The Legislature has not empowered (the Department of Environmental Conservation) 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,” he added in his ruling.

 

While the legal fight over the Climate Act continues in the courts, Hochul is pushing for a “longer runway” to meet the Climate Act targets. The length of that runway is highly dependent on whether the state Legislature agrees to change the way emissions are calculated. The Times Union has reported recently that New York is one of the only government entities to measure greenhouse gas emissions on a 20-year rather than 100-year time span.

 

That calculation method raises emission levels in the state on paper because some fossil fuels like natural gas have a heavy impact on the atmosphere for a very short period of time. Methane, released from natural gas use, exists in the atmosphere for about 12 years. Methane has a profound impact on emissions levels when using a 20-year accounting method, but its effects are muted when studying its potential over 100 years. 

 

“No matter what we do, we’re always going to fail, because we jacked up the standards so high on ourselves,” Hochul said last week.

 

If accounting methods are updated to match the global 100-year standard, New York’s 2030 greenhouse gas reduction mandate could be reached between 2031 and 2035 — when coupled with a slight increase in investment into clean energy technology, according to the New York State Energy Research and Development Authority. Under the state’s current environmental policies, the 2030 requirement won’t be met until at least 2037, the authority reported last year. 

 

Some state lawmakers, including Senate Energy and Telecommunications Chairman Kevin Parker, are open to making changes to the accounting method. But many advocates of the Climate Act do not want to see any amendments. 

 

“We should not reset the basic underpinning because methane, while short-lived, is more pernicious,” said Assembly Environmental Conservation Chair Deborah Glick, who is amenable to changing the timeline for reaching the emissions reductions. 

.

Ezra Bitterman

Investigative Reporter

Ezra Bitterman is a Joseph T. Lyons Investigative Fellow for the Times Union. He is from Los Angeles and studied Journalism at the University of Missouri. Ezra previously reported for the St. Louis Post-Dispatch, Columbia Missourian and Euractiv. He's reachable at Ezra.Bitterman@TimesUnion.com.

 

State doesn't need to raise gas, energy costs under Climate Act