Onondaga Lake, viewed from the shore of Maple Bay. Credit: Mike Greenlar | Central Current

Editor’s note: This is the fourth story in a series explaining how the federal government’s shift in climate change policy could affect New York state’s efforts to deal with the effects of climate change.

Six years since the passage of New York’s ambitious climate law, the state has failed to launch a program that could improve air quality, generate revenue, and keep the state on track to reduce carbon emissions. 

The program, called “cap and invest,” would limit the amount of harmful greenhouse gases polluting corporations could emit. The state would charge a fee for every unit of harmful emissions leaked into the atmosphere. 

That revenue would fund projects that would decarbonize the state’s energy grid. It would also vastly improve air quality and reduce greenhouse gas emissions at a time of worsening climate conditions across New York, advocates say. 

The biggest hurdle left for the program to clear is New York state itself, advocates say. State agencies meant to release operational guidelines for cap and invest have not produced those regulations. 

The state’s inaction has prompted a coalition of four environmental groups and pro bono lawyer groups to sue and demand the state’s Department of Environmental Conservation and Energy Research and Development Agency to release guidance on cap and invest. State lawyers and advocates appeared Friday in court for the case’s first hearing.  

Inaction on cap and invest could have enormous consequences for the future of the planet, advocates say. State regulators found the program could prevent thousands of deaths and emergency room visits that stem from poor air quality. 

Hillary Aidun, a senior attorney at Earthjustice, said the state’s inaction continues to darken the picture of the future of New York’s climate. For Aidun, there is no time to waste.

“We absolutely have no time to waste when it comes to reducing greenhouse gas emissions in line with what the law requires,” Aidun said. Earthjustice represents the advocates suing the state. 

“We are not on track,” she added.

The state’s inability to produce regulations for cap and invest may have put the state out of compliance with the Climate Leadership and Community Protection Act and delay the state hitting its emissions goals. 

An Ulster County Supreme Court judge suggested he would rule the state was violating its own climate law. Justice Julian Schreibman told the litigants past cases would “almost compel” him to side with the advocates, New York Focus reported. 

A spokesperson for Gov. Kathy Hochul did not answer questions about the release of regulations for cap and invest. 

A spokesperson from DEC told Central Current that the agency is reviewing public comments from public hearings hosted in Albany, Syracuse, and New York City throughout the summer. 

The DEC should have finalized regulations by the end of the year, the spokesperson said.  

How would cap and invest work?

Under cap and invest, companies would bid for the amount of greenhouse gases they could emit in one year. 

State officials hope that the program incentivizes companies and consumers to adopt lower carbon emitting alternatives — lowering greenhouse gas emissions. 

The DEC and NYSERDA are modeling the program after similar initiatives in states like Washington and California. 

The proceeds from the program would be reinvested into energy efficiency projects, clean transportation plans, and other low-carbon initiatives that would help New York reach its carbon emissions goals. 

To keep New York on track with the CLCPA goals, a yearly investment of $15 billion from the public and private sectors will be required in the next 25 years, state agencies estimate. 

But one key set of regulations remains unaddressed, said Aidun, the attorney from Earthjustice. State agencies have not yet set tangible accountability measures for companies that violate the theoretical cap and invest regulations. Aidun speculated companies that don’t follow cap and invest could have their operating permits affected.  

She called the regulations required by the CLCPA the “linchpin of the law.”

“Without those, there’s no way to ensure that we will actually hit the greenhouse gas reduction requirements,” Aidun said. 

Read our other stories about climate policy here:

Delaying the issuance of regulations, Aidun added, also affects communities in the state that have historically been ravaged by poor air quality. The DEC and NYSERDA estimated that by 2035 the program could prevent 1,500 premature deaths and 1,800 asthma-related emergency room visits per year by curtailing pollution from motor vehicles and fossil fuel-fired building appliances.

Cap and invest would also create a Consumer Climate Action Account that would each year distribute dividends to New Yorkers to mitigate costs that the companies would kick onto consumers.

The account is key because Central New Yorkers are already struggling to pay their gas and electric bills, said Ethan Gormley, a climate action organizer for Citizen Action New York. The arrival of Micron could also reshape the utility rate paradigm, Gormley said. 

The region is likely to see rate increases over the next three years based on a new deal inked this month between National Grid and the state’s Public Service Commission.

Albany’s ‘anticipatory compliance’

As environmentalists advocate for greater climate action from Hochul, President Donald Trump and his allies are pushing to block New York’s cap and invest program.

The president in April put California’s cap and trade in the crosshairs of an executive order aimed at “protecting” climate polluters from “state overreach.” 

Trump wrote that California punishes carbon use by adopting untenable caps on emissions, with companies paying hefty sums to trade carbon credits to meet the state’s strict standards.

The executive order also hit at New York’s climate initiatives. 

California’s cap and trade program has so far weathered Trump’s storm. California Gov. Gavin Newsom has pushed on with his climate initiatives despite Trump’s rhetoric.

New York in court defended its lack of progress on cap and invest by pointing at the Trump administration’s hostility toward climate regulations and green energy. Environmental advocates have pushed back against New York’s characterization

“DEC is unilaterally blocking progress on a critical policy priority and upending half a decade of statewide planning,” Aidun wrote ahead of the hearing. “The state must implement our climate law now.”

Schreibman, the judge hearing that case, lambasted the state’s logic in defending the DEC’s delays, and has signaled he will rule that New York is defying its own climate law.

Caroline Chen, the Director of Environmental Justice at the New York Lawyers for the Public Interest, said that the lawsuit only came after environmental groups had exhausted their options to compel New York State to abide by the CLCPA’s goals.

NYLPI also represents the coalition of organizations suing the state.

Chen thinks the governor’s concerns regarding energy affordability — which Hochul has cited while delaying climate initiatives — are genuine as energy rates have risen around the state. But Hochul’s commitments to reaching the climate goals outlined in the CLCPA don’t align with her and her DEC’s actions, according to the partners suing the state.

“Rates are going up, and it is a real problem for a lot of New Yorkers,” Chen said. “Whether they’re using that as a reason to do less than they could do is — I think it’s another question.”

Chen and the NYLPI believe that the DEC may also be putting too much stock in Trump’s threats, which legal experts say are unlikely to succeed. Delaying progress on New York’s climate initiatives out of fear of federal retribution amounts to “anticipatory compliance,” Chen said. 

The state passed the CLCPA in 2019 under Trump’s first administration and had four years of federal support for its climate initiatives under former President Joe Biden. 

Chen believes the DEC’s federal fears are misplaced and hypothetical. Instead, the environmental coalition suing New York wants to see bold defiance.

“Yes, the federal administration is doing anti-climate things, just trying to destroy everything nonprofit, climate-oriented, civil rights-oriented,” Chen said. “But that should mean that now is the time for the state to step up, because that’s the next level of government that can make a difference.” 

As the state’s action stalls, the climate consequences only grow more dire. Chen characterized the cost of climate inaction as an utter failure whose cost will ultimately be borne by future generations.

Chen thinks Trump’s threats on New York’s climate plans are empty, and thinks New York has the chance to seize on a leadership role in pro-climate legislation — if New York’s leaders dare to.

Other advocates say New York should step up and rise above the uncertainty that the federal government is sowing.

“[The governor] can generate real revenue for New Yorkers, for New York’s clean energy economy, and get money back into utility rate payers pockets by doing a strong cap and invest system,” Gormley said, “but she’s holding it back.” 

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Eddie Velazquez is a Syracuse journalist covering economic justice in the region. He is focused on stories about organized labor, and New York's housing and childhood lead poisoning crises. You can follow...

Patrick McCarthy is a staff reporter at Central Current covering government and politics. A graduate of Syracuse University’s Maxwell and Newhouse Schools, McCarthy was born and raised in Syracuse and...