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Thrun v Cuomo MTD Decision

Thrun v Cuomo MTD Decision

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Published by: Casey Seiler on Jun 13, 2012
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PRESENT:[ION.
THOMAS
J.
McNAMARA
Acting
Justice
STATE
OF
NEWYORKSUPREME
COURT
COUNTY
OF
ALBANY
LISA
THRUN,
JUDITH
FORD
and
AVA
ASHENDORFF,
DECISION
&
ORDER
lndeNo.:
4358-11Plaintiffs,
RJINo.:
01-11-104776
-against
AM)REVV
IVLCUOMO.
AS
GOVERNOR
OF
TUESTATE
OF
NEWYORK;
NEW
YORKSTATE
DEPARTMENT
OF
ENVIRONMENTAL
CONSERVATION;
and
NEW
YORKSTATEENERGY
RESEARCH
AND
DEVELOPMENT
AUTHORITY,Defendants.(SupremeCourt,AlbanyCounty,
Motion
Term)
APPEARANCES:Smith
Valliere,
PLLC(By:
Mark
W.
Smith,Esq.,
and
Noelle
Kowalczyk.
Esq.,
of
Counsel)
75
Rockefeller
Plaza,21stFloorNewYork,New
York10019
and
Sam
Kazman,
Esq.
Competitive
Enterprise
Institute
1899
[Street,
NW
Washington.
D.C.
20036Attorneys
for
Plainrifjs’Eric
T.
SchneidermanAttorney
General
of
theState
of
New
York(By:
Michael
J.
Myers,
Esq.
and
Morgan
A.
Costello,
Esq.,
Assistant
Attorneys
General
Attorneys
for
Defendants
Environmental
Protection
Bureau
The
(‘apitolAlbany,
NewYork12224-034
1
 
Thrun,
ci
al
v.
(‘uorno,
ci
a!
Index
Nd.:
4358-11;
Ru
No.:
01-]
1-104776MeNamara,
J.
In
December
2005
then-Governor
GeorgePatakisigned
a
Memorandum
of
iderstanding
(Memorandum)
withthe
governors
of
six
other
States.
In
the
Memorandum
the
sevensignatoryStates
each
committed:
to
proposefor
legislative
and/or
regulatory
approval
a
CO
l3udget
Trading
Program
(the
“Program)
aimed
at
stabilizing
and
thenred ucing
CO
emissions
within
the
SignatoryStates,and
implementing
a
regional
CO:,
eniisssions
budgetand
allowance
tradingprogram
that
will
regulate
CO
emissions
fromfossil
fuel-firedelectricitygenerating
units
hviag
a
rated
capacity
equal
to
or
greater
than
25
megawatts.”
The
Memorandum
allows
for
other
States
to
sign
Ofl
andalso
provides
that
any
SignatoryState
may
withdraw
its
participation
in
the
program,
known
asthe
Regional
Greenhouse
GasInitiative(RGGI),
Upon
30
days
written
notice.Three
additional
Stateslater
signed
the
Memorandum
and
in
January
2012
NewJersey,one
of
the
originalSignatory
States,ended
its
participation.
NewYork
affirmed
its
participation
in
RGGI
by
promulgatingregulations
that
implement
the
CO,
BudgetTrading
Program
(6
NYCRR
Part242,
eff.
September
24,
2008)and
the
CO,
Allowance
Auction
Program
(21
NYCRR
Part
507,eff.
October
8,
2008),TheBudget
TradingProgram
regulations
were
promulgated
by
the
Department
of
Environmena1Con servation
(DEC)
andthe
Auction
Program
regu1atims
by
theNew
YorkStateEnergy
Research
and
DevelopmentAuthority
(N
SERI’A).
\o
specitic
iegis1ati
e
actionwas
taken
to
authorize
NewYorksparticipation
in
RGGI
though
in
2011
theLegislaturepassedthePowerNYAct
of
2011
(Environmental
Conservation
Law
§
19-0312).The
act
requiresmaj orelectricgeneratingihcilities,those
generating
25,000
kilowatts
or
more
of
electricity,
to
comply
with
applicable
DEC
airqualityrequirements
relating
to
offsetting
of’
emissions
and
directed
the
Comniissioiir
U
promulgate
regulationstarg etingred uctions
in
emissions
of
carbon
dioxide
thatwouldapply
to
major
-
 
Thrun,et
il
v.
(‘iwino,
ci
a!
hides
No.:
4358-i!,RJI
Wv.:
01-il
-104776electricgenerating
facilities
that
commenced
construction
afterthe
efièctive
date
of
the
regulations.
Atthe
time
RGGIwasthe
onlystate
carbon
dioxide
emissionrequirement
applicable
to
powerplants
in
Ne
York.
In
June
2011
plaintiffscommencedthisaction
in
which
they
assertfour
causes
of
action:eachaddressed
in
some
manner
tothe
legality
of
Ne
York’s
participation
in
RGGI.
In
the
first
cause
of
actionplaintiffsargue
that
theNewYork
RGG1
program
is
ultra
vires
because
theMemorandum
was
executed,
andthe
regulations
were
promulgated
by
DECand
NYSERI)A,without
the
consent
or
authorization
of
the
Legislature.The
second
cause
of
action
presents
an
attackontheRGGI
regulations
as
imposing
an
impermissibletaxnot
authorized
by
theLegislature.
In
thethirdcause
of
actionplaintiffs
contend
thattheRGGI
program,
as
implemented,
is
arbitrary
andcapricious.Thefourth
cause
of
actionraises
thequesL1tnof
whether
the
Memorandumviolates
theUnitedStates
Constitution,
Art
I,
§
10,
cI
3:
theCompactClause.Plaintiffsseek
declaratory
judgments
announcing
that
the
entry
of
New
York
State
intotheRUGI
was
uliri
vires;that
in
promulgating
theRGGI
regulations
theactions
of
DECand
NYSERDA
were
ultra
virc,
created
an
unlawful
tax
andwerearbitraryandcapricious;
and
thatthe
RGGI
Memorandum
is
a
multistatecompact
which
has
notbeen
authorized
by
theUnitedStates
Congress
andtherefore,
is
void
under
thc
CompactClause.Defendantshave
moved
to
dismiss
the
complaint
on
the
groundsthat
plaintiffs
luck
sariding,irat
theapplicableStatute
of
Limitations
hasexpired,
that
certain
claims
are
barred
by
the
doctrine
of
laches
andthat
certainother
claims
are
moot.Although
plaintiffs
maintainthat
defendants
havenot
moved
to
dismiss
claimsagainst
the
Governor
andthe
Compact
Clauseclaim,thenotice
of
motiondoes
not
so
limitthe
relielsought
andthe
arguments
made
in
defendants’
memorandum
of
law
do
not
exclude
any
claim
from
t-e
defenses
of
standing
andinches.
At
a
minimum
defendants
specificallyassert
in
the
memorandum
that
all
-3-

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