New York energy law is the
statutory
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
,
regulatory
Regulation is the management of complex systems according to a set of rules and trends. In systems theory, these types of rules exist in various fields of biology and society, but the term has slightly different meanings according to context. For ...
, and
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
of the
state
State may refer to:
Arts, entertainment, and media Literature
* ''State Magazine'', a monthly magazine published by the U.S. Department of State
* ''The State'' (newspaper), a daily newspaper in Columbia, South Carolina, United States
* ''Our S ...
of
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
concerning the policy, conservation, taxation, and utilities involved in
energy
In physics, energy (from Ancient Greek: ἐνέργεια, ''enérgeia'', “activity”) is the quantitative property that is transferred to a body or to a physical system, recognizable in the performance of work and in the form of heat a ...
. Secondary sources have also influenced the law of energy in the Empire State.
The myriad legal issues concerning
hydrofracking in New York has in the 2010s spawned a new body of legal authority with primary authorities such as case law, statutes, and zoning regulations, as well as secondary sources such as law review and newspaper articles, for this rapidly changing field of law.
Energy Law (Consolidated Laws)
The ''
New York Consolidated Laws'' includes a statutory code called the "Energy Law". Under New York law, "energy" and "energy resources" are defined as:
The N.Y. Energy Law became effective on July 26, 1976 as Chapter 17-A of the
Consolidated Laws
The ''Consolidated Laws of the State of New York'' are the codification of the permanent laws of a general nature of New York enacted by the New York State Legislature.
It is composed of several chapters, or laws. New York uses a system called ...
. The 1970s was a period of tremendous expansion of both federal and state laws concerning energy.
This code is divided into these articles, which are ''not'' sequential:
1. Short Title; Definitions
3. State Energy Policy
5. State Energy Office, etc.
7. Transfer of Functions
8. Light Efficiency Standards (for existing buildings) Act
9. Energy Performance (for public buildings)
10. Fuel Set-aside Act
11. Conservation Construction Code Act
12. Solar Energy Products Warranty Act
13. State Green Building Construction Act (new, "Effective Date: 03/24/2009")
[N.Y. Energy Law, Art. 13, of Consolidated Laws, a]
New York State Legislature official website
go to "ENG", then "Article 13". Accessed February 4, 2009.
16. Appliance Efficiency Standards (new)
17. Energy Information
18. Temporary Nuclear Waste Repositories
21.
Energy Supply and Production
Appendix – Rules
The ''
Bluebook
''The Bluebook: A Uniform System of Citation'' is a style guide that prescribes the most widely used legal citation system in the United States. It is taught and used at a majority of U.S. law schools and is also used in a majority of federal ...
'' citation for ''McKinney's Statutes'' is N.Y. Engy. L., while for the ''
Consolidated Laws
The ''Consolidated Laws of the State of New York'' are the codification of the permanent laws of a general nature of New York enacted by the New York State Legislature.
It is composed of several chapters, or laws. New York uses a system called ...
'', the citation is "Energy".
Recent legislation and Legislative committees
State senate
The
New York State Senate
The New York State Senate is the upper house of the New York State Legislature; the New York State Assembly is its lower house. Its members are elected to two-year terms; there are no term limits. There are 63 seats in the Senate.
Partisan com ...
Energy and Telecommunications Committee is chaired by
Kevin Parker, of
Brooklyn, New York
Brooklyn () is a borough of New York City, coextensive with Kings County, in the U.S. state of New York. Kings County is the most populous county in the State of New York, and the second-most densely populated county in the United States, be ...
.
The energy and
telecommunications
Telecommunication is the transmission of information by various types of technologies over wire, radio, optical, or other electromagnetic systems. It has its origin in the desire of humans for communication over a distance greater than that fe ...
committee was previously chaired by Senator
Joseph Griffo
Joseph A. "Joe" Griffo (born January 16, 1956) is an American politician serving as a member of the New York Senate from the 47th district since 2007. The 47th district includes all of Lewis County, most of Oneida County, and parts of St. La ...
, a
Republican
Republican can refer to:
Political ideology
* An advocate of a republic, a type of government that is not a monarchy or dictatorship, and is usually associated with the rule of law.
** Republicanism, the ideology in support of republics or agains ...
from
Rome
, established_title = Founded
, established_date = 753 BC
, founder = King Romulus (legendary)
, image_map = Map of comune of Rome (metropolitan city of Capital Rome, region Lazio, Italy).svg
, map_caption ...
, in
Oneida County; before that Republican Senator
George D. Maziarz
George D. Maziarz (born May 25, 1953) is a Republican Party (United States), Republican politician from New York State. From 1995 to 2015, Maziarz represented the New York's 62nd State Senate district, 62nd District in the New York State Senate, ...
, of
Newfane, in western
Niagara County
Niagara County is in the U.S. state of New York. As of the 2020 census, the population was 212,666. The county seat is Lockport. The county name is from the Iroquois word ''Onguiaahra''; meaning ''the strait'' or ''thunder of waters''.
Niag ...
, was chair, and prior to Maziarz,
Democratic Senator
Darrel Aubertine
Darrel J. Aubertine (born June 3, 1953) is an American politician and farmer from the State of New York. A Democrat, Aubertine served as Commissioner of the New York State Department of Agriculture and Markets from April 2011 to October 2013. H ...
, of upstate
Cape Vincent,
Jefferson County, was chair of the committee.
This is Parker's second term as chair of the energy and telecommunications committee. Before 2009, it was a "
backbench
In Westminster and other parliamentary systems, a backbencher is a member of parliament (MP) or a legislator who occupies no governmental office and is not a frontbench spokesperson in the Opposition, being instead simply a member of the " ...
" committee; in 2008, the Senate referred six bills to the Assembly Energy committee, but none of them were passed.
[New York State Assembly website Updates from the Committee on Energy]
Retrieved March 6, 2009. Senate Majority Leader
Malcolm Smith replaced Senator Parker, then chair, with Aubertine on May 11, 2009, after Parker's arrest on
harassment
Harassment covers a wide range of behaviors of offensive nature. It is commonly understood as behavior that demeans, humiliates or embarrasses a person, and it is characteristically identified by its unlikelihood in terms of social and moral ...
charges. Aubertine supported an extension to the "Power for Jobs" state program. In November 2010, Aubertine lost re-election, and the Republicans garnered a majority. In 2014, George Maziarz held a meeting with the Public Service Commission to discuss the PSC's extension of the 18-a surcharge (the temporary utility assessment) which he claimed overcharged ratepayers by $250 million and the state Senate Republicans were calling a new state tax. Maziarz chose not to run for re-election in 2014 after being charged by former state Attorney General
Eric Schneiderman
Eric Tradd Schneiderman (born December 31, 1954) is an American lawyer and politician who served as the 65th Attorney General of New York from 2011 until his resignation in May 2018. Schneiderman, a member of the Democratic Party, spent ten year ...
with election law violations. In 2018, the Democratic party regained the majority.
The Senate Environmental Conservation, as
standing committee
A committee or commission is a body of one or more persons subordinate to a deliberative assembly. A committee is not itself considered to be a form of assembly. Usually, the assembly sends matters into a committee as a way to explore them more ...
, is chaired by
Todd Kaminsky, of
Long Island, New York
Long Island is a densely populated island in the southeastern region of the U.S. state of New York, part of the New York metropolitan area. With over 8 million people, Long Island is the most populous island in the United States and the 18th ...
.
Assembly
As of November 2018, Member of the Assembly
Michael Cusick
Michael J. Cusick (born February 21, 1969) is a New York State legislator who represents the New York State Assembly's District 63, in Staten Island, New York. He is a Democrat, and has served in the Assembly since 2003.
Early life and educatio ...
, a Democrat representing parts of
Staten Island
Staten Island ( ) is a borough of New York City, coextensive with Richmond County, in the U.S. state of New York. Located in the city's southwest portion, the borough is separated from New Jersey by the Arthur Kill and the Kill Van Kull an ...
, is chairperson of the
New York State Assembly
The New York State Assembly is the lower house of the New York State Legislature, with the New York State Senate being the upper house. There are 150 seats in the Assembly. Assembly members serve two-year terms without term limits.
The Assem ...
Committee on Energy.
In 2014, Member of the Assembly
Amy Paulin
Amy Paulin (born November 29, 1955) was elected to the New York State Assembly in November 2000. She represents the 88th Assembly District. Paulin chairs the Assembly Committee on Corporations, Authorities and Commissions, and serves on the Comm ...
, representing parts of suburban Westchester County, was the chair. Congressman
Paul Tonko
Paul David Tonko ( ; born June 18, 1949) is an American politician serving as the U.S. representative for since 2013. He represented the 21st congressional district from 2009 to 2013. A member of the Democratic Party, Tonko has been called a s ...
,
Assemblyman
Kevin Cahill
Kevin Cahill (born November 5, 1955) is an American politician who has represented District 103 in the New York State Assembly. Cahill is a Democrat.
Cahill graduated from the State University of New York at New Paltz in 1977 with a BA in politi ...
, representing Upstate
Ulster
Ulster (; ga, Ulaidh or ''Cúige Uladh'' ; sco, label= Ulster Scots, Ulstèr or ''Ulster'') is one of the four traditional Irish provinces. It is made up of nine counties: six of these constitute Northern Ireland (a part of the United King ...
and
Dutchess
Dutchess County is a County (United States), county in the U.S. state of New York (state), New York. As of the 2020 United States census, 2020 census, the population was 295,911. The county seat is the city of Poughkeepsie, New York, Poughkeeps ...
counties, and
Thomas O'Mara are all past chairs.
Former
comptroller
A comptroller (pronounced either the same as ''controller'' or as ) is a management-level position responsible for supervising the quality of accounting and financial reporting of an organization. A financial comptroller is a senior-level executi ...
Andrew Hevesi, was formerly a chair of the Assembly
Renewable Energy
Renewable energy is energy that is collected from renewable resources that are naturally replenished on a human timescale. It includes sources such as sunlight, wind, the movement of water, and geothermal heat. Although most renewable energy ...
subcommittee.
In 2017, the Committee on Energy held hearings to discuss the pending shut down of Indian Point, Zero-Emissions Credits, and the Clean Energy Standard. Committee on Energy hearings in 2009 included hearings on the New York
Independent System Operator
A regional transmission organization (RTO) in the United States is an electric power transmission system operator (TSO) that coordinates, controls, and monitors a multi-state electric grid. The transfer of electricity between states is considered i ...
's Electricity Commodity Pricing,
[Notice of Public Hearing, from th]
New York State Assembly website Committee on Energy pages
Retrieved March 6, 2009.[Larry Rulison, "NYISO openness needed, critic says: Author of study urges transparency in system's bidding process," '']Albany Times Union
The ''Times Union'' is an American daily newspaper, serving the Capital Region of New York. Although the newspaper focuses on Albany and its suburbs, it covers all parts of the four-county area, including the cities of Troy, Schenectady and Sar ...
'', March 5, 2009, found a
Albany Times Union website
and "Assemblyman blasts NYISO over rates: Brodsky touts new study critical of its method of setting electric prices," ''Albany Times Union
The ''Times Union'' is an American daily newspaper, serving the Capital Region of New York. Although the newspaper focuses on Albany and its suburbs, it covers all parts of the four-county area, including the cities of Troy, Schenectady and Sar ...
'', March 4, 2009, found a
Albany Times Union website
Both articles retrieved March 6, 2009. the December Ice Storm power outages, and an annual report.
The Assembly Energy committee "has
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Jur ...
over legislation related to energy availability and sources, policy and planning, conservation, and electric and gas rate-making in New York State".
This includes any
amendments An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
to N.Y. Energy Law and Public Service Law.
It has
concurrent jurisdiction
Concurrent jurisdiction exists where two or more courts from different systems simultaneously have jurisdiction over a specific case. This situation leads to forum shopping, as parties will try to have their civil or criminal case heard in the c ...
over the
authorities and agencies dealing with energy, including NYSERDA, the
Long Island Power Authority
Long Island Power Authority (LIPA, "lie-pah") is a municipal subdivision of the State of New York that owns the electric transmission and electric distribution system serving all of Long Island and a portion of New York City known as the Rocka ...
,
Department of Environmental Conservation, and the
Power Authority of the State of New York
The New York Power Authority (NYPA), officially the Power Authority of the State of New York, is a New York State public-benefit corporation. It is the largest state public power utility in the United States. NYPA provides some of the lowest-co ...
.
New 2007-2022 laws
The state has enacted, in 2007, a number of recent laws to control
carbon emission
Greenhouse gas emissions from human activities strengthen the greenhouse effect, contributing to climate change. Most is carbon dioxide from burning fossil fuels: coal, oil, and natural gas. The largest emitters include coal in China and larg ...
s. There is also a new Article 13 of N.Y. Energy Law, the State Green Building Construction Act, in 2008.
[New York Laws, Chapter 565 of the Laws of 2008.] This new Act is composed of four sections, including N.Y. Energy L. § 13–107, "Agency green building construction requirements".
They also passed a law to establish a "Green Residential Building Grant Program", which directs NYSERDA to grant moneys subject to
LEED
Leadership in Energy and Environmental Design (LEED) is a
green building certification program used worldwide. Developed by the non-profit U.S. Green Building Council (USGBC), it includes a set of rating systems for the design, construction ...
.
[New York Laws, Chapter 631 of the Laws of 2008.] The LEED status of a recently built state authority convention center - the
Albany Capital Center - is unknown. Finally, the legislature also enacted three closely related laws to expand "Net metering" of alternative energy generating systems.
Senator
Kevin Parker, the past Senate committee chair, stated that he had been "aiming for a long time" to work on energy and environmental issues.
["Issue Forum: Energy," NY Capitol News, February 2009, pp. 4–9, found a]
NY Capitol News website
(.pdf document). Retrieved March 9, 2009. Among the issues he wanted to address are "energy generation and transmission... public transportation...
ndRenewable energy... "
Assemblyman Cahill noted equally "ambitious goals for renewable power and energy conservation", especially by funding the State Energy Plan, "mass transit", repowering "Old hydro facilities" and modernizing the states "electric grid".
NYSERDA president Francis Murray, Jr. echoed that it was "the most ambitious clean-energy program in the nation".
The Power New York Act, enacted in July 2011, re-establishes the Article 10 energy plant siting law, which had expired (sunsetted) over seven years prior. The new law had overwhelmingly favorable editorial support.
In 2012, several items on Governor Andrew Cuomo's agenda were done:
# Launch of the New York Energy highway (see below)
# Passage of
tax credit
A tax credit is a tax incentive which allows certain taxpayers to subtract the amount of the credit they have accrued from the total they owe the state. It may also be a credit granted in recognition of taxes already paid or a form of state "disc ...
s for solar leasing
# Passage of
tax exemption
Tax exemption is the reduction or removal of a liability to make a compulsory payment that would otherwise be imposed by a ruling power upon persons, property, income, or transactions. Tax-exempt status may provide complete relief from taxes, redu ...
s for
solar power
Solar power is the conversion of energy from sunlight into electricity, either directly using photovoltaics (PV) or indirectly using concentrated solar power. Photovoltaic cells convert light into an electric current using the photovoltaic e ...
for all building classes.
For 2012
income taxes
An income tax is a tax imposed on individuals or entities (taxpayers) in respect of the income or profits earned by them (commonly called taxable income). Income tax generally is computed as the product of a tax rate times the taxable income. Tax ...
, taxpayers can now take a credit for "Solar Energy System Equipment Credit" by using Form IT-255.
In 2013, in response to
Hurricane Sandy
Hurricane Sandy (unofficially referred to as ''Superstorm Sandy'') was an extremely destructive and strong Atlantic hurricane, as well as the largest Atlantic hurricane on record as measured by diameter, with tropical-storm-force winds spann ...
, the 2013 LIPA Reform Act was passed. This bill shifted operation of
LIPA's electric transmission and distribution system from
National Grid to PSEG-LI and also allowed for greater review of LIPA's finances by the Public Service Commission. The Act has been criticized by the
New York State Comptroller
The New York State Comptroller is an elected constitutional officer of the U.S. state of New York and head of the New York state government's Department of Audit and Control. The New York State Comptroller is the highest-paid state auditor or ...
for increasing retail rates, increasing LIPA's debt, and decreasing consumer transparency.
A 2016 bill to create tax incentives for
geothermal energy
Geothermal energy is the thermal energy in the Earth's crust which originates from the formation of the planet and from radioactive decay of materials in currently uncertain but possibly roughly equal proportions. The high temperature and pres ...
systems was vetoed by Governor Cuomo.
As part of the
FY 2023 state budget, Governor
Kathy Hochul
Kathleen Hochul ( ; née Courtney; born August 27, 1958) is an American politician serving as the 57th governor of New York since August 24, 2021. A member of the Democratic Party, she is New York's first female governor, as well as the firs ...
signed a legislative agreement to suspend the gasoline and certain other fuel taxes from June 1 to December 31, 2022.
Related statutes
In
Consolidated Laws
The ''Consolidated Laws of the State of New York'' are the codification of the permanent laws of a general nature of New York enacted by the New York State Legislature.
It is composed of several chapters, or laws. New York uses a system called ...
, there are many sections that have cross-references to, or relate to, N.Y. Energy Law and energy taxes in New York. Within N.Y. Environmental Conservation Law are several articles relevant to energy, including the Mineral Resources laws, article 23. This is also called the N.Y. Oil, Gas, and Solution Mining Law, which includes permitting, fees, and related laws.
New York taxes a variety of energy uses and products. The state publishes monthly statistics of all tax revenue, including for petroleum and other taxes. The state collects an effective rate of 24.4 cents per gallon tax on gasoline and gasohol ("motor fuel"), and 22.65 cents per gallon on diesel.
[Motor Fuel Excise Tax Rates as of January 1, 2008 from the Federation of Tax Administrators website](_blank)
Retrieved February 24, 2009. The Empire State is tied with California for the highest combined gas taxes, at 67.7 cents per gallon. New York also has a motor fuel tax. It requires a certification that the tax has been assumed or paid by the
distributor
A distributor is an enclosed rotating switch used in spark-ignition internal combustion engines that have mechanically timed ignition. The distributor's main function is to route high voltage current from the ignition coil to the spark plugs ...
. The state requires certain records to be kept. The state also has a "highway use tax".
As of 2007, New York collected one of the smallest amounts of revenue from extraction taxes of any state—only 5.8 percent of its overall sources.
[2007 State Tax Collection by Source from the Federation of Tax Administrators website](_blank)
. Retrieved February 24, 2009.
New York has a statute that regulates the "Recording of solar energy easements".
[N.Y. Real Property Law § 335-b, found a]
New York state assembly official website
then go to RPP. Retrieved February 5, 2009. It requires that such easements be in writing, signed, and acknowledged with the same formalities as recording other
conveyances.
It also requires, "Any instrument creating a solar energy easement shall include ... (a) The vertical and horizontal angles, expressed in degrees, at which the solar energy easement extends over the real property ... (b) Any terms or conditions ...
nd(c) Any provisions for compensation of the owner of the property...."
The state has an "alternative fuels (tax) credit" at N.Y. Tax Law § 187-b that applies to certain
hybrid car
A hybrid vehicle is one that uses two or more distinct types of power, such as submarines that use diesel when surfaced and batteries when submerged. Other means to store energy include pressurized fluid in hydraulic hybrids.
The basic princip ...
s, against the
franchise tax
A franchise tax is a government levy (tax) charged by some US states to certain business organizations such as corporations and partnerships with a nexus in the state. A franchise tax is not based on income. Rather, the typical franchise tax ca ...
es in Tax Law §§ 183, 184, 185. It does ''not'' apply to any individual
income tax
An income tax is a tax imposed on individuals or entities (taxpayers) in respect of the income or profits earned by them (commonly called taxable income). Income tax generally is computed as the product of a tax rate times the taxable income. Tax ...
.
Other related sections of the N.Y. Consolidated laws include:
[New York state Assembly official website](_blank)
Retrieved February 9, 2009.
# Executive Law § 11 Fuel and energy shortage state of emergency
# Executive Law § 29-G Emergency management assistance compact
# Executive Law § 201-A State clean-fueled vehicle program
# Public Service Law § 66 General powers of commission in respect to gas, etc.
# Public Service Law § 66-C Conservation of energy
# Public Service Law § 66-G Sale of indigenous natural gas for generation of energy
# State Finance Law § 127-A Energy conservation in state-aided programs
# Tax Law § 19 Green building credit
# Tax Law § 186-a Tax on the furnishing of utility services (a tax of 2 1/2% starting January 1, 2000, on gross income is imposed on "every provider of telecommunication services")
# Tax Law § 301-I Energy business
# Tax Law § 1105-A Reduced tax rate on certain energy sources and services
# Social Services Law § 153-F State reimbursement of home energy grant expenses
# Real Property Tax Law § 487 Exemption from taxation for certain solar or wind.
There are also at least two unconsolidated sections of law that refer to Energy Law, which allow for a credit against certain local taxes.
Case law
There is a body of case law concerning energy in New York, enough for NY Jur 2d to have a listing for "Energy", and case law on energy
taxation
A tax is a compulsory financial charge or some other type of levy imposed on a taxpayer (an individual or legal person, legal entity) by a governmental organization in order to fund government spending and various public expenditures (regiona ...
.
Under New York law, both the
New York Attorney General
The attorney general of New York is the chief legal officer of the U.S. state of New York and head of the Department of Law of the state government. The office has been in existence in some form since 1626, under the Dutch colonial government of ...
or a
district attorney
In the United States, a district attorney (DA), county attorney, state's attorney, prosecuting attorney, commonwealth's attorney, or state attorney is the chief prosecutor and/or chief law enforcement officer representing a U.S. state in a l ...
may prosecute alleged polluters who make
oil spill
An oil spill is the release of a liquid petroleum hydrocarbon into the environment, especially the marine ecosystem, due to human activity, and is a form of pollution. The term is usually given to marine oil spills, where oil is released into th ...
s.
The motor fuel excise tax is collected from a "distributor" – usually a wholesaler – even though the ultimate burden to pay the tax may be on a
retailer
Retail is the sale of goods and services to consumers, in contrast to wholesaling, which is sale to business or institutional customers. A retailer purchases goods in large quantities from manufacturers, directly or through a wholesaler, and t ...
or purchaser. There is a presumption of taxability, so taxing authorities can allow reasonably for only a 1% loss for "evaporation and spillage" in long-term storage tanks. A
bus
A bus (contracted from omnibus, with variants multibus, motorbus, autobus, etc.) is a road vehicle that carries significantly more passengers than an average car or van. It is most commonly used in public transport, but is also in use for cha ...
company, such as
Greyhound bus
Greyhound Lines, Inc. (commonly known as simply Greyhound) operates the largest intercity bus service in North America, including Greyhound Mexico. It also operates charter bus services, Amtrak Thruway services, commuter bus services, and p ...
, is considered a distributor for the purposes of the motor fuel excise tax. A retailer is liable for the amount of tax due bought from a supplier from
New Jersey
New Jersey is a state in the Mid-Atlantic and Northeastern regions of the United States. It is bordered on the north and east by the state of New York; on the east, southeast, and south by the Atlantic Ocean; on the west by the Delaware ...
.
The issue of taxation of
Native Americans for motor fuel has created a moderately large body of case law in itself. While the state can not impose excise taxes ''directly'' on "Indians", it can tax the sale of fuel to non-Indians even on
Indian reservation
An Indian reservation is an area of land held and governed by a federally recognized Native American tribal nation whose government is accountable to the United States Bureau of Indian Affairs and not to the state government in which it ...
s. This statute, dictating the collection of gas and similar taxes, does not violate the
Commerce clause
The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
.
[''Snyder v. Wetzler'', 84 N.Y.2d 941, 620 N.Y.S.2d 813, 644 N.E.2d 1369 (1994), found a]
Leagle.com website
March 13, 2013; see 102 N.Y. Jur. 2d Taxation and Assessment § 2548, citing this case. The law has also been upheld as not in violation of the
Equal protection clause
The Equal Protection Clause is part of the first section of the Fourteenth Amendment to the United States Constitution. The clause, which took effect in 1868, provides "''nor shall any State ... deny to any person within its jurisdiction the equal ...
, based on the
rational basis test
In U.S. constitutional law, rational basis review is the normal standard of review that courts apply when considering constitutional questions, including due process or equal protection questions under the Fifth Amendment or Fourteenth Amendment ...
.
Conservation easement
In the United States, a conservation easement (also called conservation covenant, conservation restriction or conservation servitude) is a power invested in a qualified private land conservation organization (often called a "land trust") or gove ...
s in New York have been created by caselaw and private
real estate contract
A real estate contract is a contract between parties for the purchase and sale, exchange, or other conveyance of real estate. The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. Real estate ca ...
s.
In ''Matter of Suozzi v Tax Appeals Trib. of the State of N.Y.'', 2020 NY Slip Op 00193 (3d Dept. 2020), the Third Department appellate court held that a
heat pump
A heat pump is a device that can heat a building (or part of a building) by transferring thermal energy from the outside using a refrigeration cycle. Many heat pumps can also operate in the opposite direction, cooling the building by removing h ...
that draws
kinetic energy
In physics, the kinetic energy of an object is the energy that it possesses due to its motion.
It is defined as the work needed to accelerate a body of a given mass from rest to its stated velocity. Having gained this energy during its accele ...
from the
potential energy
In physics, potential energy is the energy held by an object because of its position relative to other objects, stresses within itself, its electric charge, or other factors.
Common types of potential energy include the gravitational potentia ...
in the ground "is not a qualified
solar energy
Solar energy is radiant light and heat from the Sun that is harnessed using a range of technologies such as solar power to generate electricity, solar thermal energy (including solar water heating), and solar architecture. It is an essenti ...
system within the meaning of
, Y.Tax Law § 606(g-1)." This is because the taxpayers didn't own
solar panel
A solar cell panel, solar electric panel, photo-voltaic (PV) module, PV panel or solar panel is an assembly of photovoltaic solar cells mounted in a (usually rectangular) frame, and a neatly organised collection of PV panels is called a photo ...
s, but "installed a ground source heat pump system to heat, cool and provide hot water for their home,
hich
Ij ( fa, ايج, also Romanized as Īj; also known as Hich and Īch) is a village in Golabar Rural District, in the Central District of Ijrud County, Zanjan Province, Iran
Iran, officially the Islamic Republic of Iran, and also ...
functions by way of a heat exchanger that is installed in the ground outside the home. The heat exchanger is a piping system that takes heat from the ground, which is generated by solar thermal energy stored in the earth's crust, and transfers it to a heat pump in order to bring heat from the ground into the home during cooler months."
While "a ground source heat pump system indirectly utilizes solar radiation," they were not entitled to claim "a $5,000 Solar Energy System Equipment Tax Credit..." although their contractor had assured them they could; the taxpayers end up being audited and thus "owed the $5,000 tax credit, plus interest."
Rules, regulations, and benefits
Regulatory law, generally
General energy regulations may be found at Title 9, Subtitle BB of the ''New York Code of Rules and Regulations'' (N.Y.C.R.R.). Changes to the rules are published in the ''New York Register''.
New York regulation has "allowed consumers and businesses to choose their own supplier" of gas and electricity, in the hope that this will lower
retail price
A price is the (usually not negative) quantity of payment or compensation given by one party to another in return for goods or services. In some situations, the price of production has a different name. If the product is a "good" in the ...
s, as well as to spur the development of "more innovative products".
However, these energy choices have not saved the ultimate consumer very much, because the price of natural gas, and any energy produced from it, had fallen relatively low as of 2012.
The news report cited studies by
AARP
AARP (formerly called the American Association of Retired Persons) is an interest group in the United States focusing on issues affecting those over the age of fifty. The organization said it had more than 38 million members in 2018. The magazin ...
, the Public Utility Law Project, and the Retail Energy Supply Association (RESA), "an energy supplier trade group", were made between 2010 and 2012.
Only if consumers switch from oil to gas would they save much money.
The
New York Public Service Commission
The New York Public Service Commission is the public utilities commission of the New York state government that regulates and oversees the electric, gas, water, and telecommunication industries in New York as part of the Department of Public Ser ...
holds public hearings regarding the permits for gas lines.
In 2019, Governor Cuomo threatened to cancel
National Grid's franchise certificate to operate
natural gas
Natural gas (also called fossil gas or simply gas) is a naturally occurring mixture of gaseous hydrocarbons consisting primarily of methane in addition to various smaller amounts of other higher alkanes. Low levels of trace gases like carbo ...
lines in downstate New York, unless they reversed a self-imposed moratorium on new gas customers; the effect would have been to prevent them from operating by regulatory dictate. National Grid faced a two-week deadline to reverse its denial of "gas service to over 1,100 customers" between May and November 2019; the utility "blamed New York’s rejection of an application for a $1 billion pipeline bringing natural gas from Pennsylvania’s shale gas fields," but the pipeline will not be ready until 2020. On November 26, 2019, National Grid agreed to end its moratorium to Brooklyn, Queens, Nassau and Suffolk Counties, and to give up to $7 million in customer assistance to remedy hardships created by the six-month moratorium.
Attorney general
Letitia James lauded the agreement, saying "I am grateful that Governor Cuomo pushed National grid to do the right thing and brought attention to this critical matter."
The
New York State Comptroller
The New York State Comptroller is an elected constitutional officer of the U.S. state of New York and head of the New York state government's Department of Audit and Control. The New York State Comptroller is the highest-paid state auditor or ...
is the sole trustee of the state's $226 Billion state employees'
pension plan
A pension (, from Latin ''pensiō'', "payment") is a fund into which a sum of money is added during an employee's employment years and from which payments are drawn to support the person's retirement from work in the form of periodic payments ...
and has the authority to issue regulations and trades according to that. On December 9, 2020,
Thomas DiNapoli
Thomas Peter DiNapoli II (born February 10, 1954) is an American politician serving as the 54th and current New York State Comptroller since 2007. A member of the Democratic Party, he was previously the New York State Assemblyman for the 16th dis ...
announced a plan to divest about $12 billion of that money from oil and gas companies to renewable energy companies, in line with the
Paris Climate Agreement
The Paris Agreement (french: Accord de Paris), often referred to as the Paris Accords or the Paris Climate Accords, is an international treaty on climate change. Adopted in 2015, the agreement covers climate change mitigation, adaptation, and ...
.
New York Energy Highway
Th
New York Energy Highwayis a project developed by Governor Andrew Cuomo, and announced in his 2012 state of the state address.
The purpose of the initiative is "to ensure that New York's energy grid remains the most advanced in the nation and to promote increased business investment in the state".
A
Task force was charged with "its implementation and enlisting the private sector".
The Task Force is co-chaired by
NYPA CEO Gil Quiniones and
New York State Department of Environmental Conservation
The New York State Department of Environmental Conservation (informally referred to as NYSDEC, DEC, EnCon or NYSENCON) is a department of New York state government. The department guides and regulates the conservation, improvement, and protection ...
commissioner Joseph Martens. In April 2012, the Task Force held a summit at
Columbia University
Columbia University (also known as Columbia, and officially as Columbia University in the City of New York) is a private research university in New York City. Established in 1754 as King's College on the grounds of Trinity Church in Manhatt ...
to
explore the issues involved. They also called for more ideas through an administrative request process, which that lasted from April 11 through May 30, 2012. According to co-chair Quiniones, writing in the industry paper ''EnergyBiz'', the results were that 400 people attended the Energy Highway Summit, and 85 entities submitted over 100 suggestions and ideas for the Task Force.
Th
Energy Highway Blueprintis the Task Force's October 2012 report with 13 proposals, including investment of over $1 billion "new electric transmission capacity
ndnew renewable energy projects", the retrofitting of "existing inefficient, high emission plants", the development of "Smart Grid technologies," and conducting "field studies of Atlantic Ocean offshore wind development potential".
In December of that year, Cuomo announced progress on the plan that included a $726 Million upgrade to the state's transmission network.
In early 2013, the Public Service Commission solicited comments and accepted a report filed by
ConEd
Consolidated Edison, Inc., commonly known as Con Edison (stylized as conEdison) or ConEd, is one of the largest investor-owned energy companies in the United States, with approximately $12 billion in annual revenues as of 2017, and over $62 b ...
and the state Power Authority about the future of the
Indian Point Nuclear Power Plant, in particular the permitting process.
Cuomo has indicated that he is against the continued use of Indian Point.
The October 2012 Blueprint called for alternatives to Indian Point, which was the only plant named specifically by his administration for closure and replacement.
However, the Task Force has no administrative authority to close Indian Point.
Furthermore, the Task Force's Blueprint is not directly linked to Cuomo's opposition to renewal of that plant's permit by the
Nuclear Regulatory Commission
The Nuclear Regulatory Commission (NRC) is an independent agency of the United States government tasked with protecting public health and safety related to nuclear energy. Established by the Energy Reorganization Act of 1974, the NRC began operat ...
.
Nonetheless, in a December 2012
press release
A press release is an official statement delivered to members of the news media for the purpose of providing information, creating an official statement, or making an announcement directed for public release. Press releases are also considere ...
about the transmission upgrade funding, Cuomo noted in ''
dictum
In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning.
Legal writing
In United States legal ter ...
'' that:
The Task Force identified two coal-operated energy plants' reliability issues, and are working with the Public Service Commission and two utilities,
National Grid and
NYSEG
New York State Electric and Gas (NYSEG) is an electric and gas utility company owned by Avangrid that serves customers in New York. NYSEG was incorporated in 1852 as the Ithaca Gas Light Company. Throughout the end of the 19th century and the ea ...
, on the matter.
They also have worked on the "key items" of "easing
transmission congestion Electricity transmission congestion is a condition of the electrical grid that prevents the accepted or forecasted load schedules from being implemented due to the grid configuration and equipment performance limitations. In simple terms, congestion ...
ndexpanding natural gas delivery".
On April 23, 2013,
Albany Law School
Albany Law School is a private law school in Albany, New York. It was founded in 1851 and is the oldest independent law school in the nation. It is accredited by the American Bar Association and has an affiliation agreement with University at A ...
will host a seminar at the
New York State Capitol
The New York State Capitol, the seat of the Government of New York State, New York state government, is located in Albany, New York, Albany, the List of U.S. state capitals, capital city of the U.S. state of New York (state), New York. The seat o ...
on the future of the State Energy Highway.
Benefits in NY law
Assemblyman
Ronald Canestrari
Ronald J. "Ron" Canestrari (born May 22, 1943) is an American politician and former Democratic member of the New York State Assembly.
Biography
Canestrari was born on May 22, 1943, in Cohoes. He attended the Christian Brothers Academy in Alb ...
announced the expansion of New York's Home Energy Assistance Program (HEAP) "to help additional households meet their home heating needs...."
In his 2014
State of the State address, Governor Cuomo pushed for more renewable energy benefits. This resulted in NYSERDA's "Renewable Heat NY" that provides subsidies for wood pellet burners.
Energy-related authorities
NYSERDA
The chief regulator for the Energy Law is the "
Commissioner
A commissioner (commonly abbreviated as Comm'r) is, in principle, a member of a commission or an individual who has been given a commission (official charge or authority to do something).
In practice, the title of commissioner has evolved to in ...
" or "president" of the
New York State Energy Research and Development Authority (also called NYSERDA).
[NYSERDA official website About webpage]
. Accessed August 6, 2008. The
board of directors
A board of directors (commonly referred simply as the board) is an executive committee that jointly supervises the activities of an organization, which can be either a for-profit or a nonprofit organization such as a business, nonprofit organiz ...
of NYSERDA includes—as a
matter of law – several utility insiders, as well as ''
ex officio
An ''ex officio'' member is a member of a body (notably a board, committee, council) who is part of it by virtue of holding another office. The term '' ex officio'' is Latin, meaning literally 'from the office', and the sense intended is 'by right ...
'' commissioners.
Richard Kauffman
Richard L. Kauffman (born February 10, 1955) is the first New York State "energy czar," officially referred to as the ''Chairman of Energy and Finance for New York'' in the administration of New York Governor Andrew Cuomo. In this role, Kauffman ...
is chairman of the board, and Alicia Barton has been President and
CEO
A chief executive officer (CEO), also known as a central executive officer (CEO), chief administrator officer (CAO) or just chief executive (CE), is one of a number of corporate executives charged with the management of an organization especially ...
since June 2017.
NYSERDA was created as a
public benefit corporation under NY law.
[N.Y. Public Authorities Law §§ 1850 '' :et seq.'', found a]
New York State Legislature official website
go to "PBA", then "Article 8", finally "Title 9 – (1850–1883) NEW YORK STATE ENERGY RESEARCH AND DEVELOPMENT AUTHORITY". Accessed August 6, 2008.[NYSERDA law from its official website]
(pdf document). Accessed August 6, 2008.
The regulations governing NYSERDA may be found at Parts 500–506 of the Code of Rules and Regulations. There are procedures for
minutes
Minutes, also known as minutes of meeting (abbreviation MoM), protocols or, informally, notes, are the instant written record of a meeting or hearing. They typically describe the events of the meeting and may include a list of attendees, a state ...
of meetings and approval of actions by the
Governor
A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political ...
pursuant to law. There are specific regulations for accessing public meeting records pursuant to
Freedom of Information Acts. Generators of low-level
radioactive waste
Radioactive waste is a type of hazardous waste that contains radioactive material. Radioactive waste is a result of many activities, including nuclear medicine, nuclear research, nuclear power generation, rare-earth mining, and nuclear weapons r ...
must make reports to NYSERDA. Any "action" of the Authority is subject to the state Environmental Quality Review Act (SEQRA). Other regulations include provisions for prompt payment of
accounts payable
Accounts payable (AP) is money owed by a business to its suppliers shown as a liability on a company's balance sheet. It is distinct from notes payable liabilities, which are debts created by formal legal instrument documents. An accounts payable ...
, a
privacy policy
A privacy policy is a statement or legal document (in privacy law) that discloses some or all of the ways a party gathers, uses, discloses, and manages a customer or client's data. Personal information can be anything that can be used to identif ...
, and the purchase of
energy efficient products.
NYSERDA funds a program, with the
Farm Bureau
The American Farm Bureau Federation (AFBF), also known as Farm Bureau Insurance and Farm Bureau Inc. but more commonly just the Farm Bureau (FB), is a United States-based insurance company and lobbying group that represents the American agri ...
, to assist farmers to make electricity from cow
manure
Manure is organic matter that is used as organic fertilizer in agriculture. Most manure consists of animal feces; other sources include compost and green manure. Manures contribute to the fertility of soil by adding organic matter and nutri ...
, or more formally, "to install
anaerobic digester
Anaerobic digestion is a sequence of processes by which microorganisms break down biodegradable material in the absence of oxygen. The process is used for industrial or domestic purposes to Waste management, manage waste or to produce fuels. Mu ...
gas-to-electric facilities on farms".
NYISO
New York has an
independent system operator
A regional transmission organization (RTO) in the United States is an electric power transmission system operator (TSO) that coordinates, controls, and monitors a multi-state electric grid. The transfer of electricity between states is considered i ...
, the New York Independent System Operator (NYISO).
[New York Independent System Operator official website Public information page]
Retrieved March 6, 2009. The NYISO is the
501(c)(3)
A 501(c)(3) organization is a United States corporation, trust, unincorporated association or other type of organization exempt from federal income tax under section 501(c)(3) of Title 26 of the United States Code. It is one of the 29 types of 50 ...
nonprofit
A nonprofit organization (NPO) or non-profit organisation, also known as a non-business entity, not-for-profit organization, or nonprofit institution, is a legal entity organized and operated for a collective, public or social benefit, in co ...
quasi-governmental agency charged by New York with auctions of energy supplies. Specifically, the NYISO
The NYISO also organizes symposia on New York energy law. Robert Fernandez is the interim president and chief executive officer of the NYISO. The current chairperson of the board is Ave Bie.
The NYISO is subject to regulation by the legislature.
The NYISO is also regulated by the
Federal Energy Regulatory Commission
The Federal Energy Regulatory Commission (FERC) is the United States federal agency that regulates the transmission and wholesale sale of electricity and natural gas in interstate commerce and regulates the transportation of oil by pipeline in ...
.
Based on its 2016 annual report, the NYISO received $156 million in revenue from its rate schedule 1 tariff charge applied to market participants on a $/MWh basis throughout the year. It also received $5.46 million from planning studies revenue. The 2016 NYISO expenditures included $81.4 million for compensation, $23.3 million for professional fees and consultants, and $19.4 million for maintenance, software licenses, and facility costs. About $170 million worth of assets was listed as software developed for internal use prior to calculating accumulated depreciation.
The NYISO is governed by a system of committees - similar in many ways to the organization of Standard Oil and its trusts in the years 1879–1885.
The management committee's by-laws were last updated on March 13, 2013. The public may only attend sessions of the management committee in person, and must register with the secretary beforehand. The public may not participate in the governance process. All
motions
In physics, motion is the phenomenon in which an object changes its position with respect to time. Motion is mathematically described in terms of displacement, distance, velocity, acceleration, speed and frame of reference to an observer and me ...
to be acted on must receive a 58% vote to pass. Voting is conducted using a
show-of-hands unless members prefer a
roll call
''Roll Call'' is a newspaper and website published in Washington, D.C., United States, when the United States Congress is in session, reporting news of legislative and political maneuverings on Capitol Hill, as well as political coverage of c ...
or
secret ballot
The secret ballot, also known as the Australian ballot, is a voting method in which a voter's identity in an election or a referendum is anonymous. This forestalls attempts to influence the voter by intimidation, blackmailing, and potential vote ...
vote. All officer elections will be conducted by secret ballot voting. The five voting sectors of the management committee are generation owners, other suppliers, transmission owners, end-use consumers, and public power entities. The mentioned voting sectors are allocated with 21.5%, 21.5%, 20%, 20%, and 17% of the total vote, respectively. A
quorum
A quorum is the minimum number of members of a deliberative assembly (a body that uses parliamentary procedure, such as a legislature) necessary to conduct the business of that group. According to ''Robert's Rules of Order Newly Revised'', the ...
of at least three sectors must be present for a vote. The management committee can enter into an
executive session
An executive session is a term for any block within an otherwise open meeting (often of a board of directors or other deliberative assembly) in which minutes are taken separately or not at all, outsiders are not present, and the contents of the dis ...
upon a 58% vote during a meeting, or upon an anonymous request beforehand. In the executive session, non-voting ISO members, the FERC and the NYSPSC are excluded.
New York State Reliability Council
The New York State Reliability Council is a non-profit organization that provides the NYISO reliability specifications on an annual basis. These specifications impact the amount of resources that are required in the NYISO's capacity market.
The council is governed by an executive committee of thirteen members: six from the state's transmission owner sector, one from the generation owner sector, one from the large consumers sector, one from the municipal and electric cooperative sector, and four without affiliations to any wholesale market participants.
In 2014, the NYSRC had a budget of $761,000.
New York Public Service Commission
The
New York Public Service Commission
The New York Public Service Commission is the public utilities commission of the New York state government that regulates and oversees the electric, gas, water, and telecommunication industries in New York as part of the Department of Public Ser ...
is a government agency that regulates the various utilities of the state of
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
. Its regulations are contained in
title 16 of the New York Codes, Rules and Regulations (Public Service Law).
In 2016, the Commission adopted a Clean Energy Standard, to assist in achieving the state's target of obtaining 50% of its electricity from renewable and nuclear sources by 2030, which will see customer bills increase to support these sources. A particular aim was to support three nuclear plants,
Ginna,
James A. FitzPatrick
James Anthony FitzPatrick (February 26, 1894 – June 12, 1980) was an American producer, director, writer, and narrator, known from the early 1930s as "The Voice of the Globe" from his ''Fitzpatrick's Traveltalks''.
Biography
James Anthony Fi ...
and
Nine Mile Point
Nine Mile Point Nuclear Station is a nuclear power plant with two nuclear reactors located in the town of Scriba, approximately five miles northeast of Oswego, New York, on the shore of Lake Ontario. The site is also occupied by the James A. ...
that had become uneconomic; the support for nuclear is expected to cost $1 billion in the first two years.
The commission has employed and been influenced by an array of interesting personnel: a former
Weather Underground
The Weather Underground was a Far-left politics, far-left militant organization first active in 1969, founded on the Ann Arbor, Michigan, Ann Arbor campus of the University of Michigan. Originally known as the Weathermen, the group was organiz ...
member, political insiders, and industry insiders - including an at least one industry insider whose parent was an employee of the commission.
Power Authority of the State of New York
The regulations governing the
Power Authority of the State of New York
The New York Power Authority (NYPA), officially the Power Authority of the State of New York, is a New York State public-benefit corporation. It is the largest state public power utility in the United States. NYPA provides some of the lowest-co ...
may be found at Parts 450–463 of the Code of Rules and Regulations.
The Power Authority's proposed contract to buy hydroelectric power from the Canadian province of
Quebec
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
has generated controversy.
[Katrina Kieltyka, "Sierra Club fighting plan to buy Canadian power: Say hydroelectric dams would harm indigenous people," ''Legislative Gazette'', March 16, 2009, p. 21, available a]
''Legislative Gazette'' archives
(.pdf file). Retrieved March 20, 2009. The Sierra Club, the
Innu
The Innu / Ilnu ("man", "person") or Innut / Innuat / Ilnuatsh ("people"), formerly called Montagnais from the French colonial period ( French for "mountain people", English pronunciation: ), are the Indigenous inhabitants of territory in the ...
community, and the
National Lawyers Guild
The National Lawyers Guild (NLG) is a progressive public interest association of lawyers, law students, paralegals, jailhouse lawyers, law collective members, and other activist legal workers, in the United States. The group was founded in 193 ...
are fighting to prevent the proposed contract, which would have to be approved by
Governor Paterson under his regulatory authority.
The Power Authority has been criticized by scholars for "missed opportunities" in using its administrative powers.
Long Island Power Authority
The
Long Island Power Authority
Long Island Power Authority (LIPA, "lie-pah") is a municipal subdivision of the State of New York that owns the electric transmission and electric distribution system serving all of Long Island and a portion of New York City known as the Rocka ...
owns the electric transmission and distribution infrastructure on a large portion of
Long Island
Long Island is a densely populated island in the southeastern region of the U.S. state of New York (state), New York, part of the New York metropolitan area. With over 8 million people, Long Island is the most populous island in the United Sta ...
. Daily operations are managed by PSEG Long Island, a subsidiary of
Public Service Enterprise Group
The Public Service Enterprise Group (PSEG) is a publicly traded diversified energy company headquartered in Newark, New Jersey, Newark, New Jersey and was established in 1985 with a legacy dating back to 1903.
The company's largest subsidiary is ...
.
Secondary sources
History
New York has long taxed and regulated energy sources and utilities.
In the early 1930s, Governor
Franklin Delano Roosevelt
Franklin Delano Roosevelt (; ; January 30, 1882April 12, 1945), often referred to by his initials FDR, was an American politician and attorney who served as the 32nd president of the United States from 1933 until his death in 1945. As the ...
used the state's gasoline tax to fund
farm to market road
In the United States, a farm-to-market road or ranch-to-market road (sometimes farm road or ranch road for short) is a state highway or county road that connects rural or agricultural areas to market towns. These are better quality roads, usually ...
s.
Scholarship and research
The ''Fordham Environmental Law Journal'' hosted a panel about the siting of
electric generator
In electricity generation, a generator is a device that converts motive power (mechanical energy) or fuel-based power (chemical energy) into electric power for use in an external circuit. Sources of mechanical energy include steam turbines, gas ...
s in
New York City
New York, often called New York City or NYC, is the List of United States cities by population, most populous city in the United States. With a 2020 population of 8,804,190 distributed over , New York City is also the L ...
under New York energy law.
[ Aravella Simotas, at the time a law student, moderated the Fordham University Law School panel, years before she was elected to ]New York State Assembly
The New York State Assembly is the lower house of the New York State Legislature, with the New York State Senate being the upper house. There are 150 seats in the Assembly. Assembly members serve two-year terms without term limits.
The Assem ...
. Aravella Simotas, "Discussion: Panel III: Electric Generators in New York City: Balancing the Energy and Environmental Needs of the Community," 8 Fordham Envtl. Law J. 531 (2002). Abstract found a
Lexi-Nexis website
Accessed January 20, 2011.
Climatologist
Michael Mann
Michael Kenneth Mann (born February 5, 1943) is an American director, screenwriter, and producer of film and television who is best known for his distinctive style of crime drama. His most acclaimed works include the films ''Thief'' (1981), ' ...
spoke at
Union College
Union College is a private liberal arts college in Schenectady, New York. Founded in 1795, it was the first institution of higher learning chartered by the New York State Board of Regents, and second in the state of New York, after Columbia Co ...
in October 2012 about the public policy issues involved with
climate change
In common usage, climate change describes global warming—the ongoing increase in global average temperature—and its effects on Earth's climate system. Climate change in a broader sense also includes previous long-term changes to E ...
.
The
New York State Bar Association
The New York State Bar Association (NYSBA) is a voluntary bar association for the state of New York. The mission of the association is to cultivate the science of jurisprudence; promote reform in the law; facilitate the administration of justice ...
offered a
continuing legal education
Continuing legal education (CLE), also known as mandatory or minimum continuing legal education (MCLE) or, in some jurisdictions outside the United States, as continuing professional development, consists of professional education for attorneys t ...
class in 2012 on "Marcellus Shale: New Regulations and Challenges", which is available as of February 2014 as an audio course. A panel of "multidisciplinary faculty of professionals addresse
the new body of law being created in New York to address the substantial development that is expected in the Marcellus Shale region".
NYSBA's environmental law section followed up in May 2014 with a legislative forum on the regulation of rail cars carrying shale oil through cities such as Albany.
Lobbying
The energy industry is represented by the ''Energy Association of New York'', which lobbies on behalf of the state's larger energy-producing corporations and utilities. Wholesale electric power suppliers of New York are represented by The Independent Power Producers of New York, Inc. (IPPNY) Large industrial electric consumers are represented by Multiple Intervenors. Electric utility companies are represented by New York Transco or by themselves. The law firm Whiteman Osterman & Hanna is known for having employed, Todd Howe, bagman for Joe Percoco. One of their senior counsel was a former chairman of the New York State Public Service Commission and is currently general counsel to the New York State Reliability Council.
Ethics guidelines
A total of 17
wind energy
Wind power or wind energy is mostly the use of wind turbines to electricity generation, generate electricity. Wind power is a popular, sustainable energy, sustainable, renewable energy source that has a much smaller Environmental impact of wi ...
companies have agreed to a set of ethics guidelines, which will delineate the companies' relationships with employee, contractors, and local governments.
[Eric S. Turner, "Fourteen more wind power companies in New York agree to ethics guidelines," '']Legislative Gazette
The ''Legislative Gazette'' is a weekly newspaper covering New York state government and politics located in Albany, New York. Published on Mondays from September through June, the publication bills itself as "The weekly newspaper of the New York ...
'', August 3, 2009, pp. 7, 10. Governor
Andrew Cuomo
Andrew Mark Cuomo ( ; ; born December 6, 1957) is an American lawyer and politician who served as the 56th governor of New York from 2011 to 2021. A member of the Democratic Party, he was elected to the same position that his father, Mario Cuo ...
announced that 14 companies had joined the ''Wind Industry Ethics Code'' in August 2009, joining three others who had signed on earlier, in 2008–2009.
LEED
Many buildings in New York state have achieved high LEED status, which earns their owners grants or tax abatements,
including the
Empire State Building
The Empire State Building is a 102-story Art Deco skyscraper in Midtown Manhattan, New York City. The building was designed by Shreve, Lamb & Harmon and built from 1930 to 1931. Its name is derived from "Empire State", the nickname of the st ...
and the
Hearst Tower.
The standards are actually promulgated by a
non-governmental organization
A non-governmental organization (NGO) or non-governmental organisation (see spelling differences) is an organization that generally is formed independent from government. They are typically nonprofit entities, and many of them are active in h ...
(NGO), the
Green Building Certification Institute
Green Business Certification Inc. (GBCI) is an American organization that provides third-party credentialing and verification for several rating systems relating to the built environment. It was established as the Green Building Certification Inst ...
.
Hydrofracking
The myriad legal issues concerning
hydrofracking in New York has spawned a whole body of law, with primary authorities such as case law, statutes, and zoning regulations, as well as secondary sources such as law review and newspaper articles, on this rapidly changing field of law.
Court cases and analysis
''Dryden'' and ''Middletown''
In February 2012, two cases of first impression, ''Anschutz Exploration Corp. v. Town of Dryden'' and ''Cooperstown Holstein Corp. v. Town of Middletown'', dealt with the issue of whether towns in New York can use local
zoning law
Zoning is a method of urban planning in which a municipality or other tier of government divides land into areas called zones, each of which has a set of regulations for new development that differs from other zones. Zones may be defined for a si ...
s to ban hydrofracking, within their
police powers, or whether such action would be preempted by N.Y. Environmental Conservation Law § 23-0303 (2).
[Charles Gottlieb, ''Hydrofracking, Local Zoning, and State Preemption'', paper presented at the ]Warren M. Anderson
Warren Mattice Anderson (October 16, 1915 – June 1, 2007) was an American lawyer and politician from New York. He was Temporary President and Majority Leader of the New York State Senate from 1973 to 1988.
Life
He was born on October 16, 191 ...
Legislative Breakfast Series, "Hydrofracking - Balancing the 3 E's: Energy, Environment, and Economic Development," February 28, 2012 (Albany Law School
Albany Law School is a private law school in Albany, New York. It was founded in 1851 and is the oldest independent law school in the nation. It is accredited by the American Bar Association and has an affiliation agreement with University at A ...
).[''Anschutz Exploration Corp. v. Town of Dryden'' __ N.Y.S.2d ___ (Index # 2012-0902) (N.Y. Supreme Ct. Tompkins Co. February 21, 2012).][Andrew Carden, "Another victory for anti-frackers," '']Legislative Gazette
The ''Legislative Gazette'' is a weekly newspaper covering New York state government and politics located in Albany, New York. Published on Mondays from September through June, the publication bills itself as "The weekly newspaper of the New York ...
'', March 6, 2012, pp. 8, 19.
[''Cooperstown Holstein Corp. v. Town of Middletown'', __ N.Y.S.2d ___ (Index # 2012-0930) (N.Y. Supreme Ct. Otsego Co. February 24, 2012).] In each of these two cases,
New York Supreme Court
The Supreme Court of the State of New York is the trial-level court of general jurisdiction in the New York State Unified Court System. (Its Appellate Division is also the highest intermediate appellate court.) It is vested with unlimited civ ...
ruled in favor of the defendant towns, that the state Oil, Gas, and Solution Mining Law's superseding language did not preempt their zoning laws.
The legal and political issues raised by these explosive cases were the subject of a seminar organized on February 28, 2012 by the
Albany Law School
Albany Law School is a private law school in Albany, New York. It was founded in 1851 and is the oldest independent law school in the nation. It is accredited by the American Bar Association and has an affiliation agreement with University at A ...
.
The ''Anschutz'' case got the most publicity and analysis in the immediate aftermath, because it was decided a week earlier than the ''Cooperstown'' court. Opponents of hydrofacking "emerged trimphant" after winning ''Anschutz''.
[Andrew Carden, "Judge rules local governments can ban fracking," '']Legislative Gazette
The ''Legislative Gazette'' is a weekly newspaper covering New York state government and politics located in Albany, New York. Published on Mondays from September through June, the publication bills itself as "The weekly newspaper of the New York ...
'', February 28, 2012, page 13. Justice Phillip R. Rumsey relied in part on cases from
Colorado
Colorado (, other variants) is a state in the Mountain West subregion of the Western United States. It encompasses most of the Southern Rocky Mountains, as well as the northeastern portion of the Colorado Plateau and the western edge of t ...
that allowed local governments to regulate gas drilling,
as well as from
Pennsylvania
Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
, which concerned the very same
Marcellus shale
Marcellus may refer to:
* Marcellus (name)
* Marcus Claudius Marcellus, Roman commander
Places
* Marcellus, Lot-et-Garonne, France
* Marcellus Township, Michigan
** Marcellus, Michigan, a village in Marcellus Township
** Marcellus Community Sch ...
that is being drilled in
Upstate New York
Upstate New York is a geographic region consisting of the area of New York State that lies north and northwest of the New York City metropolitan area. Although the precise boundary is debated, Upstate New York excludes New York City and Long Is ...
.
''Anschutz'' distinguished this zoning situation from a bonding requirement, which is a direct regulation of the industry that is preempted by the N.Y. Department of Environmental Conservation's permit fees and regulatory scheme.
That court also relied on cases that allowed "exclusionary zoning" that prohibits of "natural resources within the town as a permitted use if limiting that use is a reasonable exercise of its police powers ...."
In ''Cooperstown'', a farmer named Jennifer Huntington leased 400 acres of her land for natural drilling, and she sued after the town changed its zoning laws to ban fracking.
This case has a similar outcome; the town of Middlefield won at the trial court level, in a decision by Acting Justice Daniel F. Cerio.
An attorney at
Earthjustice
Earthjustice (originally Sierra Club Legal Defense Fund) is a nonprofit public interest organization based in the United States dedicated to litigating environmental issues. Headquartered in San Francisco, it has 14 regional offices across the Un ...
lauded the ''Cooperstown'' decision, while the attorney who had represented ''Anschutz'' criticized both decisions.
Since both courts are within the Third Department of the
Appellate Division, and they would be appealed,
[ they were to be consolidated upon appeal. Attorneys for the town of Dryden indicated they are in the process of perfecting the appeal as of September 2012. While '']Albany Times-Union
The ''Times Union'' is an American daily newspaper, serving the Capital Region of New York. Although the newspaper focuses on Albany and its suburbs, it covers all parts of the four-county area, including the cities of Troy, Schenectady and Sa ...
'' columnist Fred LeBrun noted that while opponents are expecting a win, "plenty in our government" predict a successful appeal, so he "wouldn't bet either way". However, two bloggers noted that the appeals have not been perfected as of August 2012. Searches of the website for, and an inquiry into, the Third Department shows that neither losing party has perfected their appeals as of October 17, 2012.
Further complicating the appeals, Norse Energy has also become involved in the ''Anschutz'' case. Back in October 2011, Norse Energy put up their leases for sale, claiming the moratorium by Governor Paterson had hurt the international company's prospects. Instead, Norse bought Anschutz's leases, and thus would have to be replaced as lead plaintiff against the Town of Dryden. Norse Energy's attorneys appear to be arguing that a " greater good" will come about if they are allowed to drill despite the local government's opportunity.
On March 21, 2013, the Third Department issued their ruling in ''Matter of Norse Energy Corp. USA v. Town of Dryden'', upholding the decision of the N.Y. Supreme Court. For a unanimous court, Presiding Justice Karen A. Peters upheld the lower court's denial of intervenor
In law, intervention is a procedure to allow a nonparty, called intervenor (also spelled intervener) to join ongoing litigation, either as a matter of right or at the discretion of the court, without the permission of the original litigants. The ...
status for the environmental group, DRAC, and the constitutionality of the Town of Dryden's zoning ordinance. The Court allowed Norse Energy to be substituted for Anschutz. "As a preliminary matter," they approved "Supreme Court's denial of DRAC's motion to intervene", based on the group's failing to prove "a substantial interest ... different from other residents of the Town". Rather, noting the Town could do a good job at defending its interests, instead granted '' amicus'' status to DRAC and a half dozen others. Citing the New York State Constitution
The Constitution of the State of New York establishes the structure of the government of the State of New York, and enumerates the basic rights of the citizens of New York. Like most state constitutions in the United States, New York's constituti ...
and four New York Court of Appeals
The New York Court of Appeals is the highest court in the Unified Court System of the State of New York. The Court of Appeals consists of seven judges: the Chief Judge and six Associate Judges who are appointed by the Governor and confirmed by t ...
cases, the Third Department noted that the state's local governments have broad home rule
Home rule is government of a colony, dependent country, or region by its own citizens. It is thus the power of a part (administrative division) of a state or an external dependent country to exercise such of the state's powers of governance wit ...
powers under its state constitution. It agreed with the lower court that the local law is not pre-empted, either expressly or by implication.
On June 30, 2014, the New York Court of Appeals upheld the local zoning ordinances, as well as the lower court cases that had allowed them, in a 5-2 decision authored by Judge Victoria Graffeo.
Other cases
In July 2012, Lenape Resources, a natural gas drilling company, threatened to sue state and local governments over a hydrofracking ban by the town of Avon.
Also in July 2012, Justice Ferris Lebous ruled in the Broome County, New York
Broome County is a county in the U.S. state of New York. As of the 2020 United States census, the county had a population of 198,683. Its county seat is Binghamton. The county was named for John Broome, the state's lieutenant governor when Br ...
case of ''Jeffrey v. Ryan'' that, while the city of Binghamton
Binghamton () is a city in the U.S. state of New York, and serves as the county seat of Broome County. Surrounded by rolling hills, it lies in the state's Southern Tier region near the Pennsylvania border, in a bowl-shaped valley at the conflue ...
has the right to enact a local regulation, they did not enact a proper moratorium.
Administrative response
While those appeals were pending, the ''New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid d ...
'' reported in mid-June 2012 that Governor Cuomo and his staff were deliberating on a plan to restrict hydrofracking to five counties in the southern tier of New York, along the Pennsylvania border, where the Marcellus shale is deepest and drilling is least likely to pollute well water
A well is an excavation or structure created in the ground by digging, driving, or drilling to access liquid resources, usually water. The oldest and most common kind of well is a water well, to access groundwater in underground aquifers. The ...
supplies in those aquifer
An aquifer is an underground layer of water-bearing, permeable rock, rock fractures, or unconsolidated materials (gravel, sand, or silt). Groundwater from aquifers can be extracted using a water well. Aquifers vary greatly in their characterist ...
s.
Drilling would not be allowed in these areas:
*New York City and its watershed
*Towns that have banned or not agreed to the practice (over 100 towns and villages have banned it, but several dozen have asked for it)
*The Catskill State Park
The Catskill Park is in the Catskill Mountains in New York in the United States. It consists of of land inside a Blue Line in four counties: Delaware, Greene, Sullivan, and Ulster. As of 2005, or 41 percent of the land within, is owned ...
(which is 'forever wild' under the New York State Constitution
The Constitution of the State of New York establishes the structure of the government of the State of New York, and enumerates the basic rights of the citizens of New York. Like most state constitutions in the United States, New York's constituti ...
)
*Areas of surface land directly over certain aquifers
*Land within National Historic Landmark District
National may refer to:
Common uses
* Nation or country
** Nationality – a ''national'' is a person who is subject to a nation, regardless of whether the person has full rights as a citizen
Places in the United States
* National, Maryland, ce ...
s.
The ''Albany Times Union
The ''Times Union'' is an American daily newspaper, serving the Capital Region of New York. Although the newspaper focuses on Albany and its suburbs, it covers all parts of the four-county area, including the cities of Troy, Schenectady and Sar ...
'' the next day filed a front-page, above the fold
Above the fold is the upper half of the front page of a newspaper or tabloid where an important news story or photograph is often located. Papers are often displayed to customers folded so that only the top half of the front page is visible. Th ...
story questioning the plan's leak as a "trial balloon
A trial balloon, or kite-flying (used in the UK and elsewhere), is information sent out to the media in order to observe the reaction of an audience. It can be used by companies sending out press releases to judge reaction by customers, or it can ...
", which had quickly garnered both criticism and support.
In August 2012, LeBrun filed a column that a limited plan was moving forward to allow hydrofracking in the Southern Tier, which he characterized as the " d of the anti-frack world". Wading through 60,000 comments, the New York Department of Environmental Conservation
The New York State Department of Environmental Conservation (informally referred to as NYSDEC, DEC, EnCon or NYSENCON) is a department of New York state government. The department guides and regulates the conservation, improvement, and protection ...
was looking at a "ramp up" period, allowing 50 wells in 2013, and 100 wells in 2014, and only in towns that want them.
Governor Cuomo's budget did not expect any revenues from hydrofracking in fiscal year
A fiscal year (or financial year, or sometimes budget year) is used in government accounting, which varies between countries, and for budget purposes. It is also used for financial reporting by businesses and other organizations. Laws in many ...
2012–2013. There was a study that indicates that New York lacks a state tax on gas production.
Joseph Martens, the Commissioner of DEC, has overall responsibility for regulating all hydrofracking programs. Eugene Leff, his Deputy Commissioner for Remediation and Materials Management, has responsibility for "Materials Management, Environmental Remediation and Mineral Resources", which would include hydrofracking regulations, if any were to be released. Bradley Field is the Director for "Management and regulation of mineral resource development ndOil & Gas Regulation ... oOversee permitting, compliance and enforcement of all regulated wells in New York". All media and other press inquiries must go directly through Emily DeSantis, at Press Operations, who is the Department spokesperson and who issues all press releases. Leff was one of the panelists on NYSBA's 2012 seminar on "Marcellus Shale: New Regulations and Challenges".
As of early 2014, administrative inaction lead to what the Sierra Club
The Sierra Club is an environmental organization with chapters in all 50 United States, Washington D.C., and Puerto Rico. The club was founded on May 28, 1892, in San Francisco, California, by Scottish-American preservationist John Muir, who be ...
called a "de facto
''De facto'' ( ; , "in fact") describes practices that exist in reality, whether or not they are officially recognized by laws or other formal norms. It is commonly used to refer to what happens in practice, in contrast with ''de jure'' ("by la ...
moratorium ... for new drilling of natural gas wells" in the State "using hydrofracking technology". Susan Lawrence, writing an open letter
An open letter is a Letter (message), letter that is intended to be read by a wide audience, or a letter intended for an individual, but that is nonetheless widely distributed intentionally.
Open letters usually take the form of a letter (mess ...
to the group, cited six reasons for the effective ban:
# The DEC had "not finalized" the environmental impact statement.
# Governor Cuomo and the DEC were waiting for the Department of Health to issue a report first.
# The state budget for FY 2013-2014 had no funding for state employees to process the necessary applications.
# Cuomo had stated publicly that he would not decide on the issues until after the November election.
# The ''Dryden'' and ''Middletown'' cases were pending before the New York Court of Appeals.
# The public had concerns in light of the recent increase in rail shipments of oil from hydraulically fractured Bakken formation
The Bakken Formation () is a rock unit from the Late Devonian to Early Mississippian age occupying about of the subsurface of the Williston Basin, underlying parts of Montana, North Dakota, Saskatchewan and Manitoba. The formation was initi ...
wells in North Dakota through Upstate New York
Upstate New York is a geographic region consisting of the area of New York State that lies north and northwest of the New York City metropolitan area. Although the precise boundary is debated, Upstate New York excludes New York City and Long Is ...
.
See also
* Gasoline and diesel usage and pricing
The usage and pricing of gasoline (or ''petrol'') results from factors such as crude oil prices, processing and distribution costs, local demand, the strength of local currencies, local taxation, and the availability of local sources of gas ...
* Green Island Power Authority
* Indian Point Energy Center
Indian Point Energy Center (I.P.E.C.) is a three-unit nuclear power plant station located in Buchanan, just south of Peekskill, in Westchester County, New York. It sits on the east bank of the Hudson River, about north of Midtown Manhattan. Th ...
* Nonbusiness Energy Property Tax Credit
* NRG Energy
NRG Energy, Inc. is an American energy company, headquartered in Houston, Texas. It was formerly the wholesale arm of Northern States Power Company (NSP), which became Xcel Energy, but became independent in 2000. NRG Energy is involved in ener ...
* Wind power in New York
New York has 2,192 MW of installed wind power capacity as of 2022. Most of New York's wind power is located in upstate New York as onshore wind farms. New York has set a goal of developing 9,000 MW of offshore installed wind power capacity by 2035 ...
References
Bibliography
*
External links
NYSERDA official website
NYS Public Service Commission official website
an
NYS Public Service Commission consumer website
Oil and Gas Leases page
at the website of the New York Attorney General
The attorney general of New York is the chief legal officer of the U.S. state of New York and head of the Department of Law of the state government. The office has been in existence in some form since 1626, under the Dutch colonial government of ...
The Energy Association of New York State website
Energy news archives
at ''City and State'', weekly New York newspaper
Legal Updates on Energy Issues in New York
U.S. Energy Information Administration website
GBCI official website
USGBC official website
New York Truth in Heating Law manual
at UtilityProject.org
New York City energy code
New York State Reliability Council
New York Independent System Operator
National Association of Regulatory Utility Commissioners
NYISO's Market Monitoring Unit, Potomac Economics
New Energy New York LinkedIn group
{{DEFAULTSORT:New York Energy Law
United States energy law
Vehicle law
United States transportation law
Renewable energy law
New York (state) law
United States state environmental legislation
Eastern Interconnection
Electric grid interconnections in North America