ROCHESTER — Environmental groups seeking to overturn air permits granted to Greenidge Generation in Dresden have lost another court battle.
On Friday, the Fourth Judicial Department of state Supreme Court’s Appellate Division dismissed an appeal of a lower court decision. The ruling was unanimous.
The five-judge court upheld Judge William Kocher’s June 20, 2017 decision to dismiss the Article 78 proceeding initiated by the Sierra Club, the Committee to Preserve the Finger Lakes and President Peter Gamba, and the Coalition to Protect New York. The appellate court agreed with attorneys representing Greenidge the appeal should be dismissed as moot, ruling that litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would permit the court from rendering a decision that would effectively determine an actual controversy.
The court said other factors on the mootness issue are whether the party challenging the construction sought injunctive relief, whether the work was undertaken without authority or in bad faith, and whether substantially completed work can be undone without undue hardship.
At the heart of the litigation is Greenidge’s $12 million renovation of the coal-burning power plant that began generating power in 1937. The plant went inactive in 2011. Greenidge Generation purchased the facility in 2014 with plans to resume the generation of electricity after switching the power source from coal to natural gas and biomass.
The state Department of Environmental Conservation issued air pollution limit permits to Greenidge June 28, 2016. Less than four months after that, the state Department of Public Service issued a notice to proceed with construction of a natural gas pipeline from Penn Yan to the plant.
The plant resumed production of power in March 2017.
The Sierra Club, the Committee to Preserve the Finger Lakes and President Peter Gamba, and the Coalition to Protect New York filed an Article 78 proceeding against the DEC and Greenidge on Oct. 31, 2016, seeking to nullify the air permits based on alleged deficiencies in the State Environmental Quality Review process.
The court noted that although the petitioners sought to stop Greenidge from taking steps to repower the plant and construct the pipeline, they did not request a temporary restraining order. They waited until Dec. 23, 2016 to seek temporary injunctive relief.
Greenidge moved to dismsss the amended petition on grounds of lack of standing and mootness. Oral arguments were made Jan. 24, 2017.
In March, Greenidge informed the court that construction was completed and the plant had resumed operations.
On April 21, Kocher denied the petitioners’ appeal. His judgment was filed June 20, 2017; the petitioners’ appeal was filed April 17, 2018.
“The primary factor in the mootness analysis is a challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from beginning or continuing during the litigation,” the ruling stated. “The plant has been operating lawfully since March 2017. The failure to preserve the status quo was entirely the fault of the petitioners, who waited until the last possible date 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 file an appeal, spent nine months perfecting the appeal and failed to seek injunctive relief from the court until about a year after the entry of the judgment ‘in a transparent attempt to avoid dismissal of this appeal.’ ”