Challenge to New York’s Participation in RGGI Dismissed


Posted on June 15th, 2012 by Monica Molina

By Irene Shulman, Intern

On Tuesday, New York State Supreme Court Justice Thomas J. McNamara in Albany County dismissed a lawsuit filed in June 2011 by three members of Americans For Prosperity, a conservative advocacy group, that challenged New York’s participation in the Regional Greenhouse Gas Initiative (RGGI) cap and trade program.

The suit, Thrun v. Cuomo, was brought against New York Governor Andrew M. Cuomo, the New York State Department of Environmental Conservation (DEC), and the New York State Energy Research and Development Authority (NYSERDA). The complaint asserted four causes of action relating to the legality of New York’s participation in RGGI. First, it challenged the authority of Governor Cuomo, DEC, and NYSERDA to enter into the RGGI program because the state legislature never approved the memorandum signed by former Governor Pataki in 2005, or authorized Governor Pataki, DEC, or NYSERDA to join the program. Second, the plaintiffs asserted that New York’s participation in RGGI amounts to an unconstitutional tax not authorized by the legislature, because requiring power companies to pay for their carbon emissions imposes costs that consumers then absorb. Third, the plaintiffs contended that the RGGI program is “arbitrary” and “capricious.” The fourth cause of action raised the question of whether RGGI violates the Compact Clause as a multistate contract not authorized by Congress.

In his decision on Tuesday, Justice McNamara dismissed the case, writing that the plaintiffs failed to establish that they had suffered “distinct injury,” and thus, lacked standing to bring their lawsuit.

The defendants had also argued that there was unreasonable delay between the time that New York began participating in RGGI and when the lawsuit was filed. In 2005, former Governor Pataki signed the Memorandum of Understanding, entering New York into RGGI, and in 2008 New York began participating in RGGI’s carbon permit auctions. The case was not brought until 2011. Justice McNamara wrote in his decision that the case was barred because of this delay.

The complete court decision is available here.

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