DRESDEN, Aug. 22, 2024 — Four environmental groups have asked a Yates County Supreme Court judge to allow them to intervene in a lawsuit Greenidge Generation LLC has filed to try to block a state order to shut down the company’s electric generating plant in Dresden by Sept. 9.
The groups have asked Judge Jason Cook for a hearing on their intervention bid on the morning of Aug. 28 in the Penn Yan court. That’s the day Cook has set as the deadline for court filings that “show cause” why he shouldn’t impose a preliminary injunction to suspend the order to close.
Greenidge sued the state Department of Environmental Conservation last week over the agency’s final denial of its application for a Title V air emissions permit for the 107-megawatt plant, which has powered a Bitcoin mining facility since 2020.
On Tuesday the company filed a motion for the temporary injunction.
The DEC had warned the company in a June 4 letter: “Please advise when and how Greenidge will cease operations of all air contamination sources at the facility and render such … sources inoperable, and relinquish the Title V air permit.”
In its motion for the injunction, Greenidge argues that its Article 78 lawsuit against the DEC “is likely to succeed on the merits” because the agency’s denial of the air permit renewal “is riddled with arbitrary and capricious decision making.”
DEC granted Greenidge a five-year air permit in 2016 and extended it when the company applied to renew.
The agency first denied the renewal in June 2022 on the grounds that the plant’s vastly increased electric generation to service Bitcoin mining had driven up its greenhouse gas (GHG) emissions to levels that conflict with the state’s 2019 Climate Leadership and Community Protection Act, or CLCPA.
DEC argues that the climate law requires state agencies to assess whether their permitting decisions are consistent with the law’s emission limits: cutting statewide GHG to 60 percent of 1990 emissions by 2030 and 15 percent of 1990 emissions by 2050.
After the DEC asked Greenidge to show how it could comply, then-DEC Commissioner Basil Seggos said in a September 2021 Tweet that he was not satisfied with the company’s response.
So far the case pits Greenidge against the state agency and its acting commissioner, Sean Mahar. They will be represented by New York Attorney General Letitia James.
Meanwhile, the four environmental groups petitioned Judge Cook to allow them to intervene because they claim to be “uniquely vulnerable to the outcome of the proceeding.”
Seneca Lake Guardian, the lead group, is represented by the Albany law firm of Whiteman Osterman & Hanna and Earthjustice, which also represents Committee to Preserve the Finger Lakes, Fossil Free Tompkins and the Sierra Club.
“Proposed intervenors’ members and volunteers that live, work, and recreate near the plant and in the surrounding community are directly harmed by the increased air, noise, and water pollution that arises from Greenidge’s constant, around-the-clock operation,” the Albany firm’s Philip H. Gitlen wrote in an Aug. 20 filing.
As of early this afternoon, Cook had not responded to the potential intervenors’ request for a hearing on Aug. 28. They face a brief time window to file objections to the preliminary injunction even if he grants their request promptly. If the judge grants their request between Aug. 29 and Sept. 3, they will miss the filing deadline but will still be eligible to participate in a virtual hearing Cook has set for Sept. 3.
The company is represented in its lawsuit by Yvonne Hennessey of the firm Barclay Damon, which has employed at least half a dozen attorneys in a host of Greenidge regulatory and court matters spanning a decade.
Hennessey argued for the injunction in an Aug. 20 court filing, which was supported by a sworn affidavit from Dale Irwin, Greenidge’s president.
She argues that DEC’s intent to close the power plant “usurps” authority vested in the state Public Service Commission and the New York Independent System Operators (the electric grid) to determine whether the state needs electric generating facilities.
In his affidavit, Irwin states the NYISO has “directed” Greenidge to constantly provide 7 megawatts to the state electric grid. At other times — including Feb. 3, 2024 — NYISO “called upon Greenidge to deliver full load to the grid … for the purpose of ensuring system reliability,” Irwin wrote.
But on average, a far larger share of the electricity generated by the plant powers the Bitcoin mining machines.
Hennessey also argued that shuttering the plant would cause “astronomical” harm to the Yates County community. In 2023, Greenidge paid $2.93 million in taxes to the county, which amounted to 7.7 percent of the rural county’s annual revenue, up from 4.4 percent 2022, Irwin wrote in his affidavit.
Greenidge also filed affidavits from several company employees who said their livelihoods depended on the plant.
But emissions and other environmental harms from the Bitcoin operation jeopardize the entire Finger Lakes region and its $3 billion agriculture and tourism economy, Yvonne Taylor of Seneca Lake Guardian said during a virtual press conference today held by the representatives of the potential intervenors and their attorneys.
“Our climate laws are only as strong as their enforcement,” said Roger Downs, conservation director of the Sierra Club’s Atlantic Chapter. “Dirty fossil fuel plants like Greenidge, used to power energy-hungry Bitcoin mines, continue to undermine our goals for an emissions-free grid and breathable air for all New Yorkers.
“It has been more than two years since New York correctly rejected Greenidge’s cryptomine air permit,” Downs added, “but the plant still continues to operate, profit and pollute while it exploits the state’s appeals process.”
The intervenors noted that state court judges have previously dismissed efforts by Danskammer Energy in Newburgh and the Astoria Generating Station in Queens to overturn DEC’s denials of their air permits based on CLCPA requirements.
Judge Cook’s decision on the preliminary injunction may be appealed by either side.
Water Front- Peter Mantius 