DRESDEN, Feb. 9, 2019 — Owners of the Greenidge Generation power station scored a significant legal victory late yesterday when an appellate court in Rochester announced the dismissal of an appeal challenging the facility’s air permit.
Ruling unanimously, a five-judge panel held that the appeal was “moot” on procedural grounds without addressing allegations that state regulators granted permits in violation of the State Environmental Quality Review Act.
The petitioners — the Sierra Club and two local citizens groups — had argued that regulators overlooked discharges from the plant’s coal ash landfill and other potential violations of environmental law.
The plant, located on Seneca Lake’s western shore in Dresden, restarted in March 2017 after a six-year shutdown. During that hiatus, the facility had been purchased by Atlas Holdings, a private equity firm based on Greenwich, Conn. Atlas completed a conversion to burn natural gas and biofuel instead of coal. It also built a four-mile gas pipeline spur to supply the new fuel.
The appellate panel ruled that petitioners waited too long to seek a temporary restraining order (TRO) to block the construction for the conversion and the pipeline.
“Generally, a petitioner seeking to halt a construction project must ‘move for injunctive relief at each stage of the proceeding,’” wrote the panel from the Fourth Judicial Department of the state Supreme Court’s Appellate Division. “The failure to preserve the status quo is entirely the fault of petitioners … ”
Attorneys for the petitioners have not decided whether to appeal the panel’s decision to the state’s highest court, the Court of Appeals, attorney Rachel Treichler said.
The ruling announced Friday upheld an April 2017 decision written by Judge William Kocher in Yates County Supreme Court.
The appellate decision could influence the course of a second Sierra Club lawsuit challenging Greenidge’s water withdrawal and discharge permits, Treichler acknowledged.
Kocher dismissed the water permits suit last November, and the Sierra Club attorneys have filed a notice of intent to appeal. However, they have not yet filed an official appeal brief with the Fourth Department and are now weighing whether to proceed. The mootness issue may apply in that case as well.
Unlike the appellate panel’s decision in the air permit case, Kocher drew conclusions about merits of the Sierra Club’s allegations that the state Department of Environmental Conservation violated environmental laws.
In 2015, the DEC waived a full environmental impact statement for the Greenidge project after concluding that the conversion and restart “will not” have a significant adverse impact on the environment.
But agency didn’t issue the power plant’s water permits until five months after it had restarted. When they were finally awarded, they included a requirement that the plant install wedge wire screens on its water intake pipe in Seneca Lake to comply with the federal Clean Water Act.
The DEC gave the plant until 2022 to meet the federal standards, which are intended to preserve aquatic life.
Petitioners also challenged the plant’s outmoded once-through cooling system, which returns millions of gallons of warmed water to the lake each day. They submitted an affidavit from a scientist who said the massive discharges are likely to promote harmful algal blooms in the lake.
But Kocher dismissed those issues in his ruling in the water permits case three months ago. “The record establishes that the DEC identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination,” he wrote.
In the air permits case, the appellate panel focused on the Sierra Club’s lawyers’ tardiness in seeking injunctive relief.
“Petitioners … waited until the last possible day to commence this proceeding, failed to request a (temporary restraining order), failed to pursue an injunction with any urgency, waited until the last possible day to take an appeal, spent nine months perfecting the appeal, and failed to seek injunctive relief from this court until approximately one year after entry of the (Kocher) judgment, in a transparent attempt to avoid dismissal of this appeal,” the panel wrote.
The appellate judges noted that petitioners didn’t dispute that Greenidge had spent $12 million on plant construction, and they rejected the argument that pending costs for the wedge wire screens may cost significantly more than that as “sheer speculation.”
The panel also took issue with the petitioners request to require a full environmental impact statement for the plant. It ruled that petitioners were assuming that an EIS would not lead to costly alterations to completed construction and that such assumptions were groundless.
Friday’s appellate ruling adopted many of the arguments on “mootness” put forth last summer by Atlas attorney Yvonne Hennessey of the law firm Barclay Damon. The DEC was represented in the case was Claiborne E. Walthall of the state Attorney General’s office.
In previous blog postings, WaterFront has reported on Atlas’ political efforts to obtain Greenidge’s permits from the Cuomo Administration’s DEC.
The company and its officers contributed $120,000 to Gov. Andrew Cuomo’s bids for reelection, and it spent more than $500,000 in payments to Mercury Public Affairs for the services of lobbyist Mike McKeon, a long-time liaison between Cuomo and Republicans.
Those and other expenses were more than covered by a $2 million grant the state awarded to Atlas for the Greenidge conversion.
McKeon later served as a spokesman for another power plant project that became ensnared in a Cuomo Administration bribery scandal — Competitive Power Venture’s $900 million Valley Energy plant 75 miles northwest of New York City.
The CPV case lead to the felony convictions of Joseph Percoco, a former executive deputy secretary to Cuomo, and Peter Galbraith Kelly, a former CPV executive.
McKeon has also served as a longtime spokesman for Mercury in matters related to Paul Manafort, a former chairman of President Trump’s 2016 election campaign, and special counsel Robert Mueller’s investigation into Russian interference with the 2016 presidential election.
As recently as last month, The New York Times quoted McKeon in an article dealing with Mercury, Manafort and the Mueller investigation.
On Feb. 12, Mercury released a public statement that said Greenidge had won “complete victory” in the court case challenging the power plant’s restart. “We hope and trust that this unanimous decision brings this frivolous action to an end,” the statement said.