A Legal End to New York’s Dirtiest Power Plants?
On New York City’s hottest summer days, its air is a bit heavier and its people far testier. This charming combination leads to an escalated use of electricity throughout the city– from cranked-up air conditioners to excess refrigeration needs; hot weather can push the main power plant fleet to its limits. In order to avoid blackouts, the grid depends on a particular power plant fleet composed of peaker plants, named for the peak electricity load that they cover. Peaker plants run infrequently, only when electricity demand cannot be met by the main power plant fleet. Due to their sparse use, peakers have historically been afforded relaxed emissions standards compared to conventional power plants and as a result are generally older, less efficient, dirtier, and more expensive to operate. [1] These conditions are of particular concern because most peaker plants in the city are located in environmentally deteriorated neighborhoods with high populations of low-income and minority residents. [2]
Given their potential to exacerbate already environmentally-deteriorated conditions, peaker plants have faced substantial criticism from the communities they occupy, with some of these contentions reaching courts. A pair of cases from the early 2000s revolved around the construction of peaker plants in Queens and an area of South Bronx dubbed “Asthma Alley” for its high asthma rates which are eight times higher the national average. [3] These cases challenged the construction of the plants based on environmental merits. This strategy largely failed– the plants were successfully built and continue to run today. [4] The failures of these cases from the early 2000s highlight the fundamental weaknesses that were faced in challenging peaker plants on environmental merits in courts at the time. However since these cases in 2001, New York State has passed a Green New Deal, and energy storage technologies have become more viable substitutes compared to peakers. These recent developments render the arguments used in the above cases in favor of the peakers largely irrelevant. Analyzing the 2001 cases in the context of a more contemporary policy and technological environment can demonstrate new opportunities for more successful litigation advocating for the retirement of New York’s peaker plants.
The first of the 2001 cases was Silvercup Studios, Inc. v. Power Authority of the State of New York (2001). [5] Silvercup Studios was a Queens production company only blocks away from the construction site of one of the Power Authority’s new peaker plants. Claiming that the environmental and noise impacts of the plant would negatively impact their operations, the studio sought two legal strategies to prevent the eventual operation of the plant. Their first strategy attempted to revoke the state-issued pollution permits necessary for the plant’s operation. [6] This strategy failed: the New York State Supreme Court found that the New York Department of Environmental Conservation issued the permits in accordance with procedures outlined in regulation. The court thus upheld the permits without further analysis into the Department’s evaluation process. Conversely, the studio succeeded in their second strategy: the court found that the Power Authority did not perform an adequate environmental impact analysis under State Environmental Quality Review Act (SEQRA) and ordered a stay in the construction of the plant until the Power Authority drafted an adequate Environmental Impact Statement in compliance with SEQRA. [7]
Plaintiffs similarly targeted the Power Authority’s environmental impact analysis under SEQRA in UPROSE v. New York Power Authority (2001). [8] Here, the plaintiffs claimed that the Power Authority had not adequately considered alternate locations for proposed plants in the Bronx and Queens. The plaintiffs also claimed that the Power Authority did not adequately consider the pollution impacts from the plants. Both alternative location and pollution impact analyses are required in an Environmental Impact Statement under SEQRA. Similar to Silvercup, the State Supreme Court ordered a stay on the construction of the plants until the Power Authority prepared an environmental impact statement compliant with SEQRA standards, specifically ordering that the Power Authority include a section addressing health concerns and possible substitute locations.
In both of the above cases, the plaintiffs successfully compelled the Power Authority to draft environmental impact statements under SEQRA. However, the peakers challenged in the above two cases were built and continue to operate today. This highlights a fundamental weakness in addressing peaker environmental concerns in the courts. While the court can compel agencies to comply with procedural regulations or force agencies to retract an action if it is without basis, a court generally may not substitute its judgment for that of an agency; it is not the role of the courts to "weigh the desirability of any action or [to] choose among alternatives." [9] While courts recognized the environmental impacts of the peakers in both cases, the courts also ultimately left it to the discretion of the Power Authority regarding what action should be taken for these concerns.
By deferring to agencies, state court decisions are clearly not privy to environmental justice issues. This was demonstrated in Silvercup, in which, upon finding that the Department of Environmental Conservation complied with procedural requirements, the court automatically upheld the Department's decision to issue the pollution permits. Following this logic, the Power Authority could complete the court-ordered environmental impact statements, which included environmental justice analysis, yet still come to the same conclusion as before the litigation: there were no feasible alternatives to the peakers, resulting in construction as originally planned.
However, the Power Authority came to this conclusion in 2001. Since then, the regulatory and technological landscape for peaker plants has changed. For one, Governor Cuomo’s Green New Deal and its ambitious clean energy goals have led to new regulatory restraint on peakers. [10] While the new regulation targets peakers built in the 1970s (rather than the ones built in the early 2000s, as targeted in the above cases), the regulation paves the road for even more robust future action. The key to most of this existing and potential regulation is the increased viability of utilizing battery storage technology as peaking capacity. [11] Not only does it make the Green New Deal’s peaker rules possible, but it also opens up an opportunity for the courts to become more involved in peaker disputes than they were twenty years ago. Battery storage is a viable and much cleaner alternative to peaker plants, this makes the Power Authority’s arguments in support of peakers from the above two cases less viable, as they were hinged on claims of necessity and a lack of alternatives.
A combination of new regulation and better storage thus gives courts headway to intervene in peaker operation in a more meaningful way than before. In both Silvercup and UPROSE, plaintiffs failed to demonstrate that environmental concerns should take priority over grid stability. Even with successes in compelling the Power Authority to conduct environmental impact statements under SEQRA, the court’s agency decision deference model created an argumentative wall of necessity and insufficient alternatives that environmental concerns were unable to surmount. Now, however, environmental health does not necessarily come at the consequence of grid health. Upon recognition that past Power Authority defenses may no longer apply along with support from new regulation, environmental groups may observe a new opportunity where courts could become a more effective tool in protecting the folks in Asthma Alley.
[1] Caroline Spivack, Bronx’s Asthma Alley Protests Plans to Extend Power Plant Permits, City Limits (2015), online at https://citylimits.org/2015/11/12/bronxs-asthma-alley-protests-plans-to-extend-power-plant-permit/ (visited March 1, 2020).
[2] Kirk Johnson, Critics of Power Generators Sue, Citing Threat to Environment, New York Times (2001), online at https://www.nytimes.com/2001/02/08/nyregion/critics-of-power-generators-sue-citing-threat-to-environment.html?mtrref=undefined&gwh=1CB5887ADDBE0D1540AA5C011F130D0F&gwt=pay (visited March 1, 2020).
[3] Whu, Rafael, Ginaida Cirilo, Jonathan Wong, Madelon L. Finkel, Hermann A. Mendez, and Robert J. Leggiadro. "Risk factors for pediatric asthma in the South Bronx." Journal of Asthma 44, no. 10 (2007): 855-859.
[4] Parker, John L., and James Malatras. "Missed Opportunities: California Energy Fears, New York Energy Policy and the New York Power Authority's New York City Turbine Projects." Pace Envtl. L. Rev. 20 (2002): 427.
[5] Silvercup Studios v. Pwr. Auth. St. of N.Y, 285 A.D.2d 598, 729 N.Y.S.2d 47 (N.Y. App. Div. 2001)
[6] Edward Wong, Plan to Build Generators Is Approved, New York Times (2001), online at https://www.nytimes.com/2001/01/13/nyregion/plan-to-build-generators-is-approved.html (visited March 2, 2020)
[7] Michael Gerrard, Environmental Justice and New York Environmental Law, Arnold & Porter (2001), online at https://www.arnoldporter.com/en/perspectives/publications/2001/06/environmental-justice-and-new-york-environmental (visited March 2, 2020)
[8] Matter of Uprose v. Power Auth. St. of N.Y, 285 A.D.2d 603, 729 N.Y.S.2d 42 (N.Y. App. Div. 2001)
[9] Silvercup Studios v. Pwr. Auth. St. of N.Y, 285 A.D.2d 598, 729 N.Y.S.2d 47 (N.Y. App. Div. 2001)
[10] New York State, Department of Environmental Conservation, Adopted Subpart 227-3, Ozone Season Oxides of Nitrogen (NOx) Emission Limits for Simple Cycle and Regenerative Combustion Turbines
[11] Samantha Wilt, NY’s Energy Storage Roadmap for a Clean, Flexible Grid, Natural Resource Defense Council (2018), online at https://www.nrdc.org/experts/samantha-wilt/nys-energy-storage-roadmap-clean-flexible-grid (visited March 3 2020)