New York Court Refuses To Block State’s Plan For A “Renewables” Program

From the MANHATTAN CONTRARIAN

Francis Menton

For a couple of years now, I have been collaborating with a small group of friends here in New York to see if we can introduce some rationality into the State’s completely insane energy plans. The other three members of our little cabal (Roger Caiazza, Richard Ellenbogen and Constantine Kontogiannis) are a scientist (Caiazza) and two engineers who are knowledgeable about how the electrical grid works. Our efforts have included things like submitting comments on various regulatory proposals, intervening in Public Service Commission proceedings, and even bringing court proceedings to try to block crazy and impossible schemes from taking effect. So far we have scored exactly zero public successes, although we do occasionally receive communications (always confidential and never in writing) from various bureaucrats who say things like “I know you’re right, but I can’t speak up or I will lose my job.”

On Monday (July 13) we achieved our latest defeat when a Justice of the Albany County Supreme Court (William Little) issued an Order dismissing a Petition we had filed seeking to overturn a May 2025 Order of the Public Service Commission on the subject of the State’s Renewable Program and Clean Energy Standard. The PSC’s Order was issued in one of its proceedings, numbered 15-E-0302. Here is a link to the PSC’s Docket of that proceeding, where the Order in question can be found as item number 1364.

Much of this stuff gets little coverage in the general press, and I thought that readers may be interested in some of the blow by blow.

The backstory is that New York adopted a Climate Act back in 2019, mandating conversion of the electrical grid to a zero emissions system by 2040, with interim deadlines; and under that statute various state agencies got tasked with figuring out how to do it. Note that there had not been in 2019, nor has there been as of today, any demonstration project or feasibility study on how to make a functional “zero emissions” electrical grid that can fulfill the demands of our economy. The State agencies that got the task, in this instance, were mainly the Public Service Commission (PSC) and the New York State Energy Research and Development Authority (NYSERDA).

So, how to move forward? Well, if you’re the PSC, your standard MO is to conduct some kind of massive quasi-litigation “proceeding,” where everybody and his brother gets invited to toss ideas into the hopper, and eventually the all-knowing bureaucrats somehow digest it all and ultimately apply their infinite expertise to issue a ruling to tell everyone what to do. Did that model make any sense in this instance? Well, central planning in general never makes any sense. And anyway, it doesn’t matter, because this is what the PSC does and it’s all they know how to do; and so, if they’re in charge, this is how it’s going to be done.

Here, by the time the Climate Act came down in 2019 the PSC already had one of these “proceedings” going, number 15-E-0302, with the title “Proceeding on Motion of the Commission to Implement a Large-Scale Renewable Program and a Clean Energy Standard.” So they decided to use that proceeding as a vehicle for coming up with Orders to tell the peons what to do.

In 2023, Ellenbogen and Caiazza decided to get involved, and started throwing comments into the mix. This was before I began working with them, so I never personally became a party in this proceeding. On the PSC Docket at the link above, the following are comments submitted by those two prior to the PSC’s May 2025 Order: # 1094, 8/16/23, by Ellenbogen; # 1203, 2/20/24, by Ellenbogen; # 1255, 7/30/24, by Ellenbogen; and # 1348, 2/24/25, jointly by Caiazza and Ellenbogen. There may also be others that I have missed; plus, Ellenbogen continued to submit comments after the May 2025 Order came down.

The gist of the comments was that the State’s plans for the electrical grid, particularly for primarily wind and solar generation and battery backup, were essentially impossible and could never work. As just a couple of examples of points made in these extensive comments, this is from the initial Ellenbogen Comment of 8/16/23:

[T]he way that the [New York State Climate Act] policy is structured cannot possibly work and it is going to cost the state hundreds of billions of dollars, while not reducing atmospheric carbon, and worse yet, it precludes methods of reducing carbon emissions that actually will work much more rapidly based upon the physics of how utility systems actually operate. . . . The issues with the CLCPA Plan are as follows:

1 – There is a lack of available energy to support the Plan

2 – Costs to implement the Plan will far exceed other, better solutions. These costs accrue based upon shortages of materials and skilled labor, high energy storage costs, and a lack of financial adequacy

3 – Atmospheric Carbon Levels will rise far above what could be achieved using other alternatives

4 – Planned timing mandates are unachievable. . . .

All these points are then fully supported in the text of the comment.

In their joint comment in February 2025, Caiazza and Ellenbogen raised the absurd fact that New York State agencies had recognized that an emissions-free grid could not be achieved without something called “dispatchable emissions-free resources,” or DEFRs, but that these DEFRs did not exist. Excerpt:

Responsible New York agencies all agree that new [dispatchable emissions-free resources] DEFR technologies are needed to make a solar and wind-reliant electric energy system work reliably. No one knows what those technologies are. We believe the only likely viable DEFR backup technology is nuclear generation because it is the only candidate resource that is technologically ready, can be expanded as needed, and does not suffer from limitations of the Second Law of Thermodynamics. This situation is a fundamental reason why a pause [of Climate Act implementation] is necessary. If the only viable DEFR solution is nuclear, then the wind, solar, and energy storage approach cannot be implemented without nuclear power. Using nuclear solely as a backup is inappropriate because it works best as a baseload resource. Developing baseload nuclear eliminates the need for a huge DEFR backup resource and massive buildout of wind turbines and solar panels sprawling over the state’s lands and water. NYSERDA and DPS have a five-year plan presumably to determine what technology should be used going forward. It is obviously prudent to pause renewable development until some DEFR technology is proven feasible.

Needless to say, the PSC paid no attention whatsoever to these comments. On May 16, 2025 it went ahead and issued its Order. The gist of the Order is to approve something called the “Tier 4 Implementation Plan” put forward by NYSERDA. The final version of that Plan was then issued by NYSERDA in June 2025, and appears as item 1367 on the PSC Docket of the case. It is about as dense an example of bureaucratese as anything you will ever read. Go ahead and try to read it if you don’t mind losing a few million brain cells. It’s about some various trading schemes for some kinds of RECs (renewable energy credits), and systems for meeting the CES (clean energy standards). None of it has any chance of accomplishing any actual material reduction in greenhouse gas emissions (in case you think that might be significant), but by failing to pay attention to new reliable generation it puts grid reliability at serious risk.

So in August 2025, Ellenbogen and Caiazza filed what is called in New York an Article 78 proceeding, which is a court case challenging the action of a state agency as “arbitrary and capricious.” (I did not join as a party in this proceeding because I had not gotten involved early enough to submit my own comments in this particular case.). The Petition filed in court by Ellenbogen and Caiazza substantially tracked the comments that they had submitted in the PSC proceeding. Excerpt:

This case seeks judicial review of a May 16, 2025 decision of the New York Public Service Commission (“PSC”) in its Case No. 15-E-0302, which is attached hereto as Exhibit A. In that PSC case, the agency approved a petition by the New York State Energy Research and Development Authority (“NYSERDA”) proposing a Clean Energy Standard (“CES”) Tier 4 Implementation Plan. . . . The PSC does not appear to have considered or rationally evaluated the evidence presented to it, to the effect that the Tier 4 Implementation Plan is unfeasible and unreasonable. Mr. Caiazza and Mr. Ellenbogen each submitted comments to the PSC before it adopted the Tier 4 Implementation Plan. Mr. Ellenbogen specifically notified the PSC that:

• There is a lack of available energy to support the Plan.

• Costs to implement the Plan will far exceed other, better solutions.

• These costs accrue based upon shortages of materials and skilled labor, high energy storage costs, and a lack of financial adequacy.

• Atmospheric Carbon Levels will rise far above what could be achieved using other alternatives.

• Planned timing mandates are unachievable.

Basically, Ellenbogen and Caiazza are completely right on all of these points. So how did the court find a way to dismiss the case? Easy! It found that the case had not been timely filed under the relevant statute of limitations. In this case the relevant statute of limitations provides that the case must be filed within four months of the Order being challenged, and this case was in fact filed within that window. However, the court found that NYSERDA, and not just the PSC, was a “necessary party” to the case; and the original Petition, which was timely, had failed to name NYSERDA. When the PSC had complained that NYSERDA should have been added as a party, Ellenbogen and Caiazza promptly added that additional agency. But that occurred some days after the four month statute had expired. Too bad! And by the way, just in case this bullshit technicality may not stick, the court adds that Ellenbogen and Caiazza don’t have “standing” because they have not suffered a sufficiently “particularized” injury to complain.

Are you shocked by the result? I am not. Sure the PSC and NYSERDA are doing absurd things here that are the very definition of “arbitrary and capricious” actions that Article 78 proceedings are designed to address. However, I am not surprised that Justice Little was looking for an easy exit strategy. Implementation of the impossible Climate Act mandates is perhaps the biggest political hot potato in New York at the moment. Would one lonely trial court judge in Albany really stick his neck out to try to stop the vast climate juggernaut arrayed in our state against the boogeyman enemy of carbon emissions? Unlikely.

A victory would have been great. But piece by piece we are laying down markers that become increasingly difficult for the bureaucrats to ignore. We may be only four people, with thousands lined up against us. But we do have math and physics on our side. Eventually we will prevail.