Environmental Law: NY Climate Action plan would mean major transition for residents, businesses

As we have reported on in past columns, New York’s Climate Leadership and Community Protection Act (CLCPA) calls for greenhouse gas reduction from 1990 levels of 40% by 2030 and 85% by 2050. Consequently, New York is seeking renewable energy generation targets of 70% by 2030 and 100% emissions free by 2040. These targets are exceedingly ambitious and are rife with siting, approval, implementation and reliability concerns.

A final scoping plan has been developed by the CLCPA Climate Action Council. The plan was approved by the Council on Dec. 19, 2022 by an 19-3 vote. The plan is aimed at addressing the statutory targets by fundamentally transforming all aspects of New York life. While reporting has touched on elements of the proposed plan coming out of proposals and public meetings in the last year, it’s hard to over-state the significance of the changes that the state will experience if they come to fruition. The plan will affect all facets of everyday life, ranging from transportation, homes, commercial buildings, energy to local project approvals.

On the transportation front, the plan calls for a complete transition to zero emission vehicles (ZEV) by 2035. The plan also requires 100% ZEV for non-road vehicles by 2035 and medium and heavy-duty vehicles by 2040. Thus, private, commercial and construction vehicles will be forced away from gas and diesel combustion engines to battery electric and plug-in hybrid. While noting that the state’s transportation system accounts for 28% of statewide greenhouse gas emissions in 2019, it suggests that expanding charging systems and options, along with suggested maintenance savings, will enhance the transition to ZEVs. The plan also calls for smart growth development to enhance density, mixed-use development and reduced need for vehicle transportation while increasing public transit and walkable communities.

Writing this article in Buffalo after a recent weekend snowstorm and historic November snowstorm that brought over 70 inches of snow to the area, it’s hard to fathom how ZEVs will be as safe, reliable and efficient for residents, businesses and municipalities during significant weather events. Gas and diesel engines powered the cars, trucks and plows that helped Western New Yorkers get through these snowstorms.

The Climate Council plan will fundamentally change how New York residents live by banning gas heating equipment and cooking appliances. It requires adoption of zero emission building codes and standards. Strikingly, all new residential construction projects in single-family and low-rise buildings will be required to install zero emission equipment starting in 2025. The plan requires energy-efficient heat pumps or other non-combustion heating systems in these residences after that date. High rise residential and commercial buildings will be required to use zero emission equipment in 2028.

Perhaps more amazing, New York residents with existing homes will be required to replace fossil fuel burning heating units that fail after 2030 with zero emission systems. Hence, if you have a natural gas boiler or furnace and it fails in 2030 the Climate Action Plan mandates that you replace it with an entirely new technology at unknown cost and availability. Perhaps not surprisingly, one of the three no votes was Donna Decarolis, President of National Fuel Gas, who stated that the plan puts too much reliance on a single form of energy, electricity, when existing natural gas networks provide balance. Also, stating the obvious observation that seems to have been ignored by the Council that “consumers could end up paying more for less reliable energy.”

The plan also requires energy efficiency assessments. Starting with buildings over 10,000 square feet in 2024, building owners will be required to report on energy consumption. This information is supposed to help inform decisions about building upgrades and performance standards. The building energy assessment is likely to be intrusive and expensive for existing buildings where owners have historically been able to make their own informed decisions about heating, cooling, and performance standards.

The plan is going to be very demanding and expensive for New York residents and building owners. Hence, Albany is touting that there will be incentives to try to soften the blow. The plan calls for a Retrofit and Electrician Readiness Fund for low- to moderate-income houses, affordable housing and disadvantaged communities to help cover costs of mandated building improvements to install energy and efficiency measures.

The plan mandates transforming New York’s power system to meet the CLCPA standards. Although market changes with wind, solar and hydropower have transitioned away from fossil fuel sources such as coal for electric generation and reduced emissions by 46% since 1990, the plan aims to move rapidly beyond that. In particular, to meet the 2040 goal of an electric system that produces no emissions in 2040, it calls for the deployment of 6,000 megawatts of solar by 2025 and 9,000 megawatts of offshore wind by 2035. The climate plan also calls for deploying 3,000 megawatts of energy storage by 2030 in an attempt to create more in state power and flexibility.

Notably, the plan suggests that a Clean Energy Standard will enhance renewable deployment and the state will have to “redesign its markets to support clean resources by 2050.” This will require significant enhancements to the power grid to improve delivery of electricity and integration of renewable energy. While the plan suggests that future changes will ensure electric grid reliability and security, the rapid transition has faced problems in other markets such as California and Texas recently.

The scoping plan also focuses on climate justice to address perceived inequities and attempting to ensuring that disadvantaged communities benefit from climate change actions and the move to clean energy. Among other items, the plan requires that disadvantaged communities receive a minimum of 35%, and up to 40%, of the benefits of spending on clean energy and efficiency programs, including spending on housing, pollution reduction, workforce development and incentives.

The Climate Action scoping plan is the most expansive environmental regulatory scheme ever adopted in New York. The various mandates will fundamentally transform New York life. In the process it will remove the freedom to use heating, cooling systems selected by home and building owners and their contractors. When the vehicle mandates become effective in 2035 it will also remove choice in new vehicles. As businesses, regulated entities and residents digest the 445-page plan there will almost certainly be legal challenges to the expansive regulatory scheme.

George S. Van Nest is Partner in Underberg & Kessler LLP’s Litigation Practice Group and chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation.