Court Requires DEC To Promulgate Regulations In NYS Climate Regulation Case

On Oct. 24, 2025, the New York Supreme Court, Albany County, issued a decision and order in Citizen Action of New York et al v. New York State Department of Environmental Conservation, directing the New York State Department of Environmental Conservation (DEC) to issue final regulations establishing economy-wide greenhouse gas emission (GHG) limits under Environmental Conservation Law (ECL) § 75-0109 on or before Feb. 6, 2026.

Background

In 2019, the Governor enacted into law the Climate Leadership and Community Protection Act (CLCPA or Climate Act), which includes provisions intended to significantly decrease GHG emissions in New York. A predominant feature of the CLCPA is ECL § 75-0107(1), which establishes two statewide greenhouse gas emissions limits with associated dates: (1) 60% of 1990 baseline emissions by 2030; and (2) 15% of 1990 baseline emissions by 2050. At issue in Citizen Action of New York was the precise meaning of ECL § 75-0109(1), which provides that "[n]o later than four years after the effective date of this article [i.e., by January 1, 2024], the department . . . shall, after no less than two public hearings, promulgate rules and regulations to ensure compliance with the statewide emissions reduction limits" established under § 75-0107(1).

Early in 2023, when the program development was just kicking off, Greenberg Traurig released a podcast episode: Review of New York's Cap-and-Invest Program to Reduce Emissions and Achieve Climate Goals, which gave an overview and early foreshadowing of the State's plan to implement the statewide emissions limits established under ECL § 75-0107(1). As explained in the podcast, DEC and the New York State Energy Research and Development Authority (NYSERDA) kicked off the rulemaking process to establish a Cap and Invest (NYCI) Program in 2023, conducting extensive education and outreach with stakeholders to gather input on the regulations. In December 2023, DEC and NYSERDA issued a pre-proposal outline, laying out the framework and key elements for the NYCI rulemaking's three components – the GHG Reporting Rule, the NYCI Program Rule identifying compliance obligations for the regulated community, and the Auction Rule. In March 2025, DEC ended up issuing only the GHG Reporting Rule, indicating that public comments on the rule would help guide the development of the remaining two components.

On March 31, 2025, a group of environmental advocates filed a petition pursuant to CPLR Article 78 alleging, among other things, that DEC had failed to comply with the timeframe under ECL § 75-0109(1) to promulgate rules and regulations by no later than Jan. 1, 2024, and seeking an injunction directing DEC to issue the specified regulations by Feb. 6, 2026. On Oct. 24, 2025, the Supreme Court, Albany County, issued a decision and order granting the petition and directing DEC to issue the full Climate Law-compliant regulatory package by Feb. 6, 2025.

Decision and Order

The Court focused its decision on the plain language of the statute. The Court started its analysis by pointing to ECL § 75-0109(1), which it noted "required the DEC . . . to issue regulations that would actually achieve the mandated emissions reductions." The court next cited the "very next subsection of the Climate Act," finding that it "reinforces this obligation [by] stating that the regulations to be promulgated by DEC 'shall: Ensure that the aggregate emissions of greenhouse gases from greenhouse gas emission sources will not exceed the statewide greenhouse gas emissions limits" established in the first phase of the law's implementation.'" (citing ECL §75- 0109(2)(a) (emphasis in the original)). Accordingly, the court held that, because "18 months have elapsed since that statutory deadline passed [and] it is undisputed that DEC has not issued regulations that comply with the foregoing terms of the Climate Act[,] . . . Petitioners have established a right to mandamus relief."

In so ruling, the Court cited to what it termed as the "[n]umerous cases, including from our highest court, [that] have awarded relief in analogous circumstances." For example, the Court cited to NRDC v New York City Dept. of Sanitation, 83 N.Y.2d 215 (1994), where the "Court of Appeals upheld an award of mandamus to correct the City's failure to implement a local law requiring the establishment of a city-wide recycling program," based on the finding that the language of the law at issue in that case "created a clear right to enforcement of its terms." The Court noted that, like the statute at issue in NRDC,ECL § 75-0109(1) used the verb "shall" throughout the pertinent provisions, "illustrat[ing] the mandatory nature of the duties contained therein." (Quoting NRDC, at 220).

Notably, the court rejected DEC's apparent argument that promulgating Climate Act-compliant regulations is "infeasible" to the extent that "achieving the law's targets 'would require imposing extraordinary and damaging costs upon New Yorkers[.]'" The court stated in this respect that "the Legislature could, and in other contexts probably has, instructed the DEC (or other agencies) to pursue certain goals through regulation and in so doing authorized the agency to make cost/benefit determinations regarding how best to advance those goals. But that is not what the Climate Act did." Relying on the language of ECL §75- 0109(1), the court restated that "[t]he Legislature has already decided that the Climate Act's goals 'shall' be achieved."

Next Steps

As noted by the court, DEC has but two options to pursue at this point: (1) "issue compliant regulations anyway, and let the chips fall where they may for the State's political actors"; or (2) "raise its concerns to the Legislature so that the State's elected representatives could make a determination about what costs their constituents can or cannot bear in the pursuit of reining in climate change." Left unsaid is the specific content of the regulations and how DEC could be expected to meet that court-imposed deadline of Feb. 6, 2026 – a little over three months away.

It would be virtually impossible for DEC to comply with this deadline. All regulations are subject to State Administrative Procedure Act § 202, which specifies that draft regulations are subject to a minimum 60-day public comment period. Additionally, it takes the Department of State at least two weeks to publish draft regulations in the State Register after being provided with the same by an agency. Finally, there would likely be thousands of public comments to which DEC would be required to respond.

All of this may be rendered moot, however, if DEC appeals the decision – a viable option given Gov. Hochul's public statement following the decision – and appropriate amendments are made to ECL § 75- 0109(1) in the next legislative session. Pursuant to CPLR § 5519(a)(1), the State would be entitled to an automatic stay of the directive to issue the regulations upon the filing of a notice of appeal or an affidavit of intention to move for permission to appeal. In this respect, a decision on an appeal may take more than six months to be issued from the date of the filing made under CPLR § 5519(a)(1). The timing of an appeal may coincidently provide the Hochul administration with time to include amendments of ECL § 75- 0109(1) in the Governor's Executive Budget Proposal, which is issued in January of each year. Although in recent years it has taken well into May for the final budget to be enacted, there is a strong chance that an appeal would not be heard and decided prior to that time, allowing for sufficient time to change the statutory language upon which the Citizen Action decision was based if there is the political will to do so.