NY Politicians Face Climate Act Consequences

Roger Caiazza

Politicians Face Climate Act Decision

There has been a new development for New York’s Climate Leadership & Community Protection Act (Climate Act) net-zero plan.  On Oct. 24, 2025, the New York Supreme Court issued a decision and order in a case pitting environmental organizations against the New York State Department of Environmental Conservation (DEC).  The judge ordered DEC to issue final regulations establishing economy-wide greenhouse gas emission (GHG) limits on or before Feb. 6, 2026.  The Climate Act has always been more about appealing to certain constituencies than trying to save the planet but now the politicians are going to have to consider the consequences if they do not step up and think about making revisions.

Decision Summary

Supreme Court Judge Julian Schreibman’s decision describes how New York got to where they are.  He wrote:

In the present case, in 2019, the Legislature passed the Climate Act with the express goal of making New York a leader in addressing climate change through reduced emissions of greenhouse gases. The Climate Act specifically committed the state to achieving a 40% reduction in greenhouse gas emissions by 2030, and an 85% reduction by 2050, measured against 1990 emissions levels.

The decision goes on to explain that the Climate Act implementation plan has three steps:

1. DEC was required to set emission limits for the reduction targets;
2. The Climate Action Council, “an advisory group made up of 22 members with relevant expertise”, was given two years to prepare a Scoping Plan containing recommendations for “attaining statewide greenhouse gas emissions limits”; and
3. The DEC was required to issue regulations that would achieve the mandated emissions reductions following the findings of the Scoping Plan.

The State met the first two requirements but the regulations that were supposed to be released by January 1, 2024, were not promulgated.  On March 31, 2025, a group of environmental advocates filed a petition pursuant to CPLR Article 78 alleging, among other things, that DEC had failed to comply with the timeframe.

The petition from the environmental advocates states:” The Scoping Plan recommends that New York implement a “cap-and-invest” system to ensure that the state meets those limits.^”  This is supposed to provide a cost-effective way to ensure compliance with the Climate Act emission limits.  As explained here, my comments on the Draft Scoping Plan explained why it would not work as claimed.  My comments were never acknowledged, much less discussed by the Council.  Now that dreams cannot avoid reality, the State’s argument in the case boils down to:

Petitioners have not shown a plausible scenario where the 2030 greenhouse gas reduction goal can be achieved without inflicting unanticipated and undue harm on New York consumers, and the concrete analysis in the 2025 Draft Energy Plan dispels any uncertainty on the topic: New Yorkers will face alarming financial consequences if speed is given preference over sustainability.

Schreibman’s decision noted that the State had made a persuasive argument that there were issues related to achieving the emissions targets.  However, he notes:

The Legislature has not empowered DEC to set its own targets, to achieve results within a range, or to simply to make progress. Instead, it has specified a result and required DEC to issue regulations that “shall” fulfill it.

Faced with this mandate, DEC does not have the discretion to say no or to decide that it has the authority to choose not to follow the express legislative directive at issue. Under our system of separation of powers, upon concluding, based on its subject-matter expertise, that achieving the goals of the Climate Act might be “infeasible” for the reasons stated, DEC had two options. One, it could issue compliant regulations anyway, and let the chips fall where they may for the State’s political actors. Or, two, it could raise its concerns to the Legislature so that the State’s elected representatives could make a determination about what costs their constituents can or cannot bear in the pursuit of reining in climate change.

The decision concludes:

The Court has no more authority to set climate policy than DEC and would generally expect to have less. However, bearing in mind the factors and issues addressed by the parties, the Court considers that, at this point, it would be improvident to order relief before the next regularly scheduled session of the Legislature convenes. The Court takes judicial notice that the next such session is scheduled to commence in January 2026. If legislative action modifies DEC’S obligations under the Climate Act, DEC will act in accordance therewith. In the absence of legislative relief, however, respondent shall “promulgate rules and regulations to ensure compliance with the statewide emissions reductions limits” set forth in the Climate Act no later than February 6, 2026. Respondent is cautioned that, having afforded it with the time to both further develop its regulations and address its concerns to the political branches, the Court is highly unlikely to grant extensions of this deadline.

Going Forward

The judge ruled that DEC must either issue compliant regulations or tell the Legislature that they must change the law.  In the cap-and-invest approach pollution permits to operate (aka allowances) are set equal to the emission targets.  Judge Schreibman said DEC could “issue compliant regulations and let the chips fall where they may for the State’s political actors”.  The Clean Energy Standard Biennial Review and the Draft Energy Plan both concluded that GHG emissions in 2030 would exceed the emission target.  If that projection occurs, then there will not be enough allowances and the only way for entities to comply with the law is to stop operating.  That would create an artificial energy shortage.  It is disappointing that the State’s argument did not raise this possibility.  However, it would not matter because DEC can only issue compliant regulations or the politicians must act to revise the law. 

An article by Greenberg Traurig notes that issuing compliant regulations by February 6, 2026 is “virtually impossible” for DEC to comply because:

State Administrative Procedure Act § 202, which specifies that draft regulations are subject to a minimum 60-day public comment period. Additionally, it takes the Department of State at least two weeks to publish draft regulations in the State Register after being provided with the same by an agency. Finally, there would likely be thousands of public comments to which DEC would be required to respond. 

It seems equally unlikely that DEC “could raise its concerns to the Legislature so that the State’s elected representatives” could revise the law in this timeframe. 

The Greenberg Traurig article describes the third possible option:

All of this may be rendered moot, however, if DEC appeals the decision – a viable option given Gov. Hochul’s public statement following the decision – and appropriate amendments are made to ECL § 75- 0109(1) in the next legislative session.

Colin Kinniburgh wrote a recent article about the decision that indicates that the third option is likely:

Now, Hochul is slamming the court order as unrealistic in light of President Donald Trump’s war on renewable energy and the ongoing economic fallout from the Covid-19 pandemic. Speaking to reporters Monday, she made clear that she has no intention of reviving the cap and invest program in the coming months. Instead, she plans to appeal the ruling and seek a deal with the legislature to amend the climate law.

“We have time to work it out,” she said. “We’ll work on appeal. We’ll sit down and talk to the legislature [about] what’s within the realm of possibility and reality here in light of all these changed circumstances.”

In my opinion, appealing the ruling is not going to change the decision.  It is clear cut.  DEC had to promulgate regulations that meet the Climate Act law.  Even though they know it won’t work and will cost too much, that does not matter.  The only way to change the requirement is to hold the politicians accountable and have them change the law.  Appealing will just push the nasty ramifications of political accountability off, probably past the Gubernatorial election.  How convenient.

My Recommendation

I am very frustrated with the Climate Act net zero transition because the reality is that there are so many issues coming up with the schedule and ambition of the Climate Act that it is obvious that New York needs to pause implementation and figure out how best to proceed.  In my opinion, the best way to proceed is to couple a revised Climate Act schedule with clearly defined standards for affordability, reliability, and environmental impacts.  A trackable metric for each should be developed and a tracking system be put in place.  The key point is that the law should be modified so that there are consequences when those metrics are exceeded. 

The process to establish these metrics should incorporate extensive public participation.  New Yorkers need to understand the range of costs, impacts on personal choice, and changes to lifestyles that are buried in the Scoping Plan and Energy Plan.  If these safety valve metrics have reasonable limits, I expect that affordability, reliability, and environmental impacts targets will be exceeded as soon as tracking begins.   That is the point.  Eliminating fossil fuels sounds has been portrayed as simple and cheap but the reality is very different.

Conclusion

The Climate Act has always been about politics and appeasing certain constituencies with climate “leadership”.  Now the State admits the costs will cause undue harm to consumers.  The politicians who supported the Climate Act did not include defined affordability and reliability risk limits, a feasibility analysis, or concrete implementation plans.  The necessity to consider a pragmatic approach is undeniable now.  Will the politicians step up and address the issues identified in the last five years of implementation experience?  That would require admission that their grandiose plans are not working but failing to act will impact consumers.  I suspect that politicians will selfishly kick the can down the road and hope that their constituents don’t vote them out in the next election.

Roger Caiazza blogs on New York energy and environmental issues at Pragmatic Environmentalist of New York.  This represents his opinion and not the opinion of any of his previous employers or any other company with which he has been associated.