It’s official: New York is being sued over delays in implementing its climate law.
Four environmental and climate justice groups filed a lawsuit Monday in a state court, claiming that New York is “stonewalling necessary climate action in outright violation” of its legal obligations. By not releasing economy-wide emissions rules, the suit alleges, the state Department of Environmental Conservation, or DEC, is “defying the Legislature’s clear directive” and “prolonging New Yorkers’ exposure to air pollution … especially in disadvantaged communities.”
CLCPA
It’s the first lawsuit to charge the state with failing to enforce the core mandate of its 2019 Climate Leadership and Community Protection Act, or CLCPA: eliminating nearly all of New York’s greenhouse gas emissions by 2050. The law tasks DEC with crafting rules to get there and to reach an interim target of 40 percent emissions cuts by 2030.
The state’s deadline to release those rules was Jan. 1, 2024 — a date the agency blew past. More than a year later, New York has yet to issue even draft rules, and it’s becoming less and less clear that it intends to do so, even though, throughout last year, Governor Kathy Hochul’s administration promised that it was working on them as quickly as possible.
The lawsuit centers on rules for cap and invest, an economy-wide carbon pricing program that Hochul has been promising since 2023. DEC and the state’s energy research and development arm, NYSERDA, spent much of the last two years developing the program. In December, agency staff told environmental groups that the draft rules were all but ready to go and would be released in January, allowing the state to start charging polluters before the end of 2025.
STATE OF THE STATE
Then came the about-face.
At her State of the State speech in mid-January, Hochul made no mention of cap and invest. Her briefing book said DEC and NYSERDA needed more time to work out the details, promising only that DEC would publish rules requiring polluters to report their emissions. Her administration maintains that it is still moving ahead with cap and invest, but has declined to commit to any timeline for doing so. (Asked last week whether Hochul stands by this position, the governor’s office referred New York Focus to DEC and NYSERDA. A spokesperson said the agencies “are continuing to develop a cap-and-invest program” and pointed to the newly released emissions reporting rule as evidence.)
Hochul’s backtracking is at the heart of the lawsuit filed Monday by Earthjustice and two other environmental law groups on behalf of Citizen Action of New York, PUSH Buffalo, Sierra Club, and WE ACT for Environmental Justice, all members of the NY Renews coalition that led the charge to pass the CLCPA.
“We’ve just seen a continual slow walk of climate action at the state level… that puts us in a position where we need to have a judge put us back on track,” said Eric Walker, the energy justice senior policy manager at WE ACT.
New York Focus reached out to Hochul’s office, DEC, and the Attorney General for comment after the lawsuit was filed and will update this story if they respond.
CAP AND INVEST
State regulators estimated that cap and invest could prevent up to 1,500 premature deaths and 1,800 asthma-related emergency room visits per year by 2035.
The draft rule DEC published last Wednesday could help the state implement cap and invest. The rule — one of three meant to set up the program — lays out which polluters are required to report their greenhouse gas emissions and how. But, as DEC emphasized in its press release, this rule “is solely for reporting purposes and would not require pollution reductions.”
Today’s lawsuit highlights that the reporting rule, if adopted as proposed, would not take effect until June 2027. It also points out that DEC intends for the collected data to “help inform other policies or actions that may be taken to reduce pollution, including but not limited to a potential future cap-and-invest program” — implying that cap and invest rules might not be released for years, if ever. An FAQ page from the agency explicitly asks when the cap and invest program will be implemented, and does not provide a date.
CLEAN AIR AND WATER
The plaintiffs charge that by walking back from its climate plan, New York is also infringing on its residents’ constitutional rights — specifically the rights to “clean air and water, and a healthful environment” enshrined through the Green Amendment that voters approved in 2021. Air pollution is especially harming the health of residents in disadvantaged communities, they allege, where several of the groups’ members live near fossil fuel plants or in high truck traffic areas.
“As we continue to not put cap and invest in place, we see the continued disproportionate impacts of air quality on disadvantaged communities, communities of color, and low-income communities across the state,” said Walker.
“We need cap and invest to be in effect right now. and it could be if we had simply just released the regs that are sitting on a shelf,” he continued. (Internal emails reported by Politico show that DEC and NYSERDA had already completed the draft rules at the beginning of this year.)
The lawsuit is not the CLCPA’s first test in court. The climate law has been at the center of nearly 20 court cases, mostly challenging agency decisions over things like air permits and highways, but also the governor’s abrupt suspension of congestion pricing last summer. But it’s the first lawsuit seeking to enforce the emissions reduction mandate as a whole, according to Rachel Spector, Earthjustice’s lead attorney in the case.
“These regulations are the core of the law, and they’re necessary for it to be effective,” said Spector, adding that the DEC must issue enforceable rules to give the law “any kind of teeth.”
Less than a year ago, Hochul spoke about cap and invest as if it were already up and running:
“We set a cap on statewide climate pollution,” she told attendees of the Global Economic Summit in Ireland last May. “Every year, we set the cap lower to align with our aggressive climate goals. Major polluters must pay to emit greenhouse gases.”
Since then, regulators have admitted that the state is far behind in meeting key climate targets, and business groups have stepped up calls for the state to rethink the CLCPA.
But for now, it’s still the law, and Spector said there’s no excuse for the state not to enforce it.
Regulators “do have discretion — they can shape regulations in a way they see fit, as long as they comply with the pretty high-level, broad requirements that are set out in the law,” she said. “But they still have to do it.”