Challenge to Power Plant Regulations Is Dismissed

, New York Law Journal

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A unanimous Appellate Division, Third Department, panel has affirmed the dismissal of a lawsuit challenging power plant regulations passed as part of the Regional Greenhouse Gas Initiative (RGGI), an agreement between seven states, including New York, to reduce greenhouse gas emissions.

Gov. George Pataki entered into the RGGI in 2005. It was a nonbinding memorandum of understanding (MOU) in which the governors of the signatory states agreed to propose legislation or regulation to curb carbon emissions. In 2008, New York passed regulations requiring power plants with an output of 25 megawatts or more to get approval from the state and to buy carbon offsets. Three New York electricity rate payers filed a lawsuit challenging the regulation, claiming that implementing the regulations without legislative approval was unconstitutional.

The appellate court in Thrun v. Cuomo, 516556, held that the claims challenging the regulation directly were time-barred. The claims challenging Pataki's signing of the RGGI were not time-barred, it ruled, but failed because the RGGI was not itself a law or regulation. "By signing the MOU, 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. It is the regulations implementing RGGI in New York—not the MOU—that form the legal basis for the state's participation in the RGGI program," the panel wrote.

The ruling affirmed a decision by Supreme Court Justice Thomas McNamara. Justices Karen Peters (See Profile), Robert Rose (See Profile), John Lahtinen (See Profile) and Elizabeth Garry (See Profile) sat on the panel.

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