While Gov. Kathy Hochul and Attorney Letitia James appeal a judge’s decision to require rules to achieve the state’s climate goals, a Republican Senator has introduced legislation to repeal the regulations.

Sen. Mark Walczyk, R-Watertown, recently introduced a bill (S.8607) to Section 75-0109 of the Environmental Conservation Law, which Walczyk said would effectively end the cap-and-invest program along with repealing the emission mandates placed into law under the Climate Leadership and Community Protection Act. The CLCPA mandates a 40% reduction of greenhouse gas emissions from 1990 levels by 2030 and 85% by 2050, aiming for net-zero emissions economy-wide by 2050. The CLCPA also calls for 100% clean electricity by 2040, with specific goals for offshore wind, solar, energy storage, and directing benefits to disadvantaged communities.

Section 75-0109 of the Environmental Conservation Law requires the Department of Environmental Conservation, no later than 2023, to devise rules and regulations to ensure compliance with the statewide emissions reduction limits required under the CLCPA. The DEC did not meet that deadline, prompting a lawsuit by several environmental groups. A state Supreme Court Judge in Albany ruled in favor of the environmental groups and set a Feb. 6 deadline for the regulations to be released.

“This legislation is in direct response to a ruling by an Albany County judge ordering the Department of Environmental Conservation to issue regulations to cut emissions by February 6 of next year,” Walczyk wrote in his legislative justification. “The judge ruled the state had to issue cap-and-invest regulations to cut emissions by February of next year to come in compliance with section 75-0109 of the Environmental Conservation Law.

By repealing this provision of law, the plaintiffs to the lawsuit no longer have legal justification to require the implementation of a cap-and-invest program. The cap-and-invest program is projected to tax New York companies $10 billion per year. A tax which will be passed down to consumers as higher prices.”

The state has appealed the ruling to the Third Department Appellate Division – which means the February 6 deadline is also on hold while the appeals court hears the case. At the same time, the state is asking the state Supreme Court to relax the February 6 deadline, with the Attorney General’s office arguing in court filings late last week that the state can’t meet the State Administrative Procedure Act’s requirements and the court’s February 6 deadline at the same time.

Lawyers for the state say they can’t propose regulations without modeling and updated assessments based on changes that have taken place at the federal and state governments over the past six years. The state says it will take at least four months to conduct new data analysis and modeling.

“These include anticipated delays in clean energy rollouts, changes in state population and other factors that are significantly different from the assumptions upon which the scoping plan was based,” the Attorney General’s office wrote in a Memorandum of Law filed Dec. 5. “Additionally, the fundamental disruption of national energy and climate policy since the 2022 scoping plan makes it even more imperative that the department use current data and modeling to develop its proposed regulations.”

Lawyers for the environmental groups say they aren’t opposed to a delay, but think the state’s proposed delay is too long – especially considering the delay that will come while the appeal is heard. The attorneys say the state’s filing is a “thinly-veiled effort” to delay the regulations.

“Notably, nowhere in its papers does DEC indicate it has begun any part of the rule promulgation process,” the environmental groups’ lawyers wrote in their Memorandum of Law opposing the DEC’s request. “It thus appears that DEC is asking the court to revise its prior order to adopt a vastly longer timeline for a process that the agency has taken no steps to begin, and that it may not begin until all appeals are exhausted or the stay is lifted.”