Local Advocates, Earthjustice, AM Kelles Celebrate Court Rulings Directing NY State Agencies to Uphold CLCPA

NEW YORK, NY (11/19/2024) (readMedia)-- This morning, impacted community members, Earthjustice attorneys, and Assemblymember Dr. Anna Kelles held a press conference celebrating recent legal victories against Digihost International and Greenidge Generation LLC. On November 14, 2024, two New York State Supreme Court judges issued landmark rulings that reinforce the state's authority to limit harmful pollution driving climate change and safeguard the health and well-being of New Yorkers.

These two decisions hold greenhouse gas-emitting cryptomining companies Digihost in North Tonawanda and Greenidge Generation near Seneca Lake accountable to oversight and regulation under the CLCPA. Upholding New York State's authority to enforce its climate law-and the responsibility of state agencies to comply with the climate law's mandate-is particularly significant given new legal and regulatory restrictions at the federal level.

Watch a recording of the press conference here.

"Both the Digihost and Greenidge decisions are significant wins for New York and the climate. They reaffirm that New York's regulatory bodies can and must ensure that significant climate and local air polluters abide by New York's climate law. The communities near Greenidge and Digihost have been sounding the alarm on the disastrous impacts of these facilities on their water, air, and climate," said Mandy DeRoche, a deputy managing attorney in the Clean Energy Program at Earthjustice.

"I applaud the decisions in the Digihost and Greenidge cases as victories for New York and our commitment to combating climate change. These rulings underscore New York's imperative to hold any energy producer that generates significant greenhouse gasses accountable to our climate laws. This includes fossil-fuel polluting cryptomining operations that purchase entire power plants and consume enormous amounts of energy for their profits. This decision reaffirms the state's statutory authority to hold these companies accountable to our climate law, as we always intended for New York's nation-leading climate law to do," said Assemblymember Dr. Anna Kelles.

On Thursday, the Supreme Court of Yates County confirmed that the New York State Department of Environmental Conservation (DEC) has the authority to deny air permits and permit renewals for fossil-fueled operations, like the Finger Lakes based Greenidge Generation cryptomine powered by a 106-megawatt fracked gas-fired power plant, that violates the CLCPA. The Court also agreed with DEC's finding that Greenidge's emissions were inconsistent with the CLCPA. The judge nonetheless gave Greenidge the opportunity to return to the administrative proceeding before DEC to attempt to show that its continued operation is justified notwithstanding the inconsistency under the CLCPA.

"Our climate law is only as strong as the State's ability to enforce it," said Lisa Perfetto, a senior attorney in the Clean Energy Program at Earthjustice. "Thursday's ruling confirms what we've known all along: that the DEC has the statutory authority under New York's climate law to deny Greenidge the air permit that allows it to power its cryptomine."

"While I'm relieved by the precedent set by Thursday's decision, I'm disappointed that Greenidge can continue to operate while the case goes back to administrative court. The cryptomining operation has been sucking up millions of gallons of water a day from Seneca Lake and dumping it back in at dangerously hot temperatures," said Yvonne Taylor, vice president of Seneca Lake Guardian, which was a petitioner represented by Earthjustice in this case. "For years, Greenidge has been polluting local air and spewing climate-warming greenhouse gasses into the atmosphere. It's absurd that Greenidge is still operating, and we will keep fighting until the facility is shut down."

Also on Thursday, the Supreme Court of Albany County vacated a previous decision to approve the transfer of ownership of Fortistar North Tonawanda, a 55-megawatt gas-fired power plant, to Digihost International, which uses the plant to power its cryptomining operation on site. The Court ordered the NYS-Public Service Commission (PSC) to analyze the transfer under the CLCPA. Though the decision does not undo Digihost's purchase of the power plant, it sends the approval back to the PSC, which now must consider how to either mitigate or undo the effect of its failure to consider the emissions consequences of the purchase.

"This decision is not only a victory for the North Tonawanda community, but also a significant win for New York's climate law. Today's ruling confirms that every state agency and official must fully consider and uphold the CLCPA in all its decisions, safeguarding both our climate and the well-being of the public. The court's decision reinforces that New York must prioritize the health and safety of its communities, setting a critical precedent for climate action," said Dror Ladin, senior attorney at Earthjustice.

"The PSC is not exempt from New York's landmark climate law. All agencies are required to consider how their decisions contribute to the climate crisis and the plight of disadvantaged communities already impacted by regressive energy policy," said Roger Downs, conservation director for the Sierra Club Atlantic Chapter, which was a petitioner represented by Earthjustice in this case. "We applaud the court for ordering the PSC to reevaluate their role in reviving an energy-hungry cryptomine in a community already disproportionately burdened by power plant pollution. When the PSC fails to carefully consider the environmental impacts of its decisions it violates the intent of the climate law and the justice it seeks to advance. We hope this ruling is an appropriate wake-up call for the PSC to do better."

"The CLCPA was championed and passed into law not only to protect our climate and environment but also to shield vulnerable New Yorkers from environmental harm. Last week, the New York Supreme Court stood up for us. For years, North Tonawanda has suffered from increased emissions and constant high noise levels from the Fortistar plant, which is now used by Digihost for bitcoin mining. This ruling ensures that the needs of our community are prioritized and that our climate laws are upheld," said Deborah Gondek, Chair of North Tonawanda's Climate Smart Communities Task Force.

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BACKGROUND:

About Cryptomining at Greenidge Generation

Greenidge Generation is a former coal plant, now gas-fired, power plant that previously did not operate for 6 years, and then operated to provide power to New York's grid in times of peak demand. Now, it burns fracked gas 24/7/365 to mine Bitcoin. In its first year of operations, Greenidge quintupled its air pollution. It's doubled its emissions since then. These are just direct CO2 emissions-the numbers are even more staggering adding in upstream emissions and local air pollutants.

On June 30, 2022, the New York State Department of Environmental Conservation issued a Notice of Denial of the air permit renewal for Greenidge Generation. Greenidge appealed that decision, and on September 26, 2023, an Administrative Law Judge found again that Greenidge Generation's operations are inconsistent with the greenhouse gas emissions limits of New York's Climate Law (the CLCPA). And again on May 8, 2024, the DEC denied Greenidge its air permit renewal. At that time, the DEC also found that there were no further reasons for adjudication. Greenidge appealed that decision to state court.

About Cryptomining at Digihost/Fortistar

After Digihost purchased the Fortistar fossil fuel plant, it began operations 24/7/365 to mine Bitcoin. Before Digihost took over Fortistar, the gas plant operated only rarely: it occasionally provided energy to the electric grid, at 0.9% to 4% of its annual capacity. Digihost informed the DEC that they plan to emit 312,000 tons of greenhouse gas emissions annually, equivalent to the energy use of more than 165,000 homes. That's more than double the total amount of emissions in one year than from 2016-2023 combined.

This drastic increase in operations is making the facility a major source of local air and climate pollution, while the rest of the state focuses on reducing greenhouse gas emissions in order to meet the mandates of New York's climate law. When it is operating, the facility-in the middle of a residential community-is also a constant source of health-harming noise pollution for the people who live near the plant.

Communities surrounding the gas plant in North Tonawanda have been designated as "disadvantaged communities" under state law, and include census tracts that the state has assessed as bearing an environmental burden greater than that borne by 90% of the state. The increase in operations from cryptomining at Digihost/Fortistar harms an already environmentally overburdened community, in violation of New York's CLCPA.

In July 2024, the North Tonawanda City Council approved a two-year moratorium on cryptomining in response to concerns over the Fortistar facility's increasing greenhouse gas emissions and the noise pollution that negatively impacts the daily lives of residents. Like the state-wide moratorium, it exempted previously-operating facilities like Digihost.

About Earthjustice

Earthjustice is the nation's leading environmental law organization. As a nonprofit, our attorneys fight for everyone's right to a healthy environment, because we believe the earth needs a good lawyer.