By Michael Kuser

The Albany County Supreme Court on Monday rejected New York’s motions to dismiss outright a lawsuit challenging the state’s Clean Energy Standard and provisions for zero-emission credit subsidies for nuclear plants.

The decision means that ZEC opponents will get their day in court, although the presiding judge did dismiss a handful of their complaints — as well as a number of the plaintiffs themselves.

Environmental group Hudson River Sloop Clearwater and 60 other litigants last year challenged the New York Public Service Commission’s August 2016 order (15-E-0302) adopting the CES and creating the ZEC program.

The petitioners filed suit in response to a December 2016 PSC ruling that rejected nearly all requests to rehear the order. The PSC in that ruling noted that issues raised in other requests would be “further explored” in the future.

Chief among their complaints is that the commission rushed the CES without allowing sufficient time for public comment, violating provisions of New York’s State Administrative Procedures Act and Public Service Law.

The suit challenges the provision of ratepayer subsidies in the form of ZECs to four nuclear plants in the state, including Entergy’s Indian Point north of New York City and Exelon’s three upstate plants: James A. Fitzpatrick, R.E. Ginna, and Nine Mile Point Units 1 and 2.

In his Jan. 22 ruling, Judge Roger D. McDonough declined to comment on the merits of the procedural claims made by the environmentalists and consumer advocates.

“In the absence of a proper motion for summary judgment or even a request for [procedural review], the court declines to entertain such discussions without the benefit of answers and the full administrative record,” said the ruling, which provided the PSC 35 days to file its answers.

Procedural Review

McDonough did grant the PSC’s motion to dismiss the petitioners’ claims on Indian Point, finding them “unripe because they are wholly dependent upon Indian Point applying and being approved for ZEC payments.”

The judge also dismissed 56 plaintiffs from the litigation for procedural reasons such as ripeness, standing and statute of limitations. He also dismissed a claim premised on the State Environmental Quality Review Act.

The plaintiffs, however, cheered the decision to reject the state’s motion to dismiss the suit altogether. Manna Jo Greene, environmental director of Hudson River Sloop Clearwater, called it a “David versus Goliath” victory.

“We were opposed by the PSC, the nuclear energy plant owners … but we prevailed and proved our issues are substantive and triable,” Greene said in a statement.

The PSC declined to comment on the case.

The decision comes at the same time federal courts are hearing — or soon will hear — appeals on prior ZEC rulings in other states.

A three-judge panel of the 7th U.S. Circuit Court of Appeals on Jan. 3 heard oral arguments on Illinois’ 2016 law. The Electric Power Supply Association and retail ratepayers are asking the court to overturn a district court ruling that dismissed their challenge last July. (See Ill. ZECs Defenders Face Harsh Questioning on Appeal.)

The 2nd Circuit Court is likely in March to hear an appeal on a similar district court ruling in New York.