Hard on the heels of decision upholding the Illinois "zero-emission credit" program to prop up nuclear plants in that state, Judge Valerie Caproni of the South District of New York has now upheld a similar ZEC program in New York. There's definitely a trend here. So long as state programs do not directly interfere with wholesale markets, it looks as though they will be affirmed.
(Renewed caveat: This firm represents, in unrelated matters, a number of the generators who challenged the statute. We also represent numerous renewable energy firms generally supportive of state authority to provide incentives to renewable energy. This post is definitely agnostic about the New York statute. It is the broader question of state authority that interests me here.)
The reasoning of the New York decision was very similar to that in Illinois (as well as the Allco 2nd Circuit decision upholding Connecticut statutes supporting renewable energy generation). I note only two points from the New York decision that were not discussed, at least with the same directness, in the prior cases.
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