Paper looks at NY state authority on climate rules
ALBANY--Columbia Law School's Sabin Center for Climate Change Law has published a new paper titled, "A Pause on Proof-Of-Work: The New York State Executive Branch's Authority to Enact a Moratorium on the Permitting of Consolidated Proof of Work Cryptocurrency Mining Facilities."
The paper analyzes the legal authority of Gov. Kathy Hochul to impose a moratorium on issuing air permits for proof-of-work crypto mining and concludes that the executive branch has the authority to do so. Environmental advocates, including Seneca Lake Guardian, EarthJustice, Sierra Club, the National Resources Defense Council, NYPIRG, and Food and Water Watch, endorsed the report. The DEC is expected to make a decision about the permits at Greenidge Generation on Seneca Lake before March 31. According to Jacob Elkin at the Sabin Center, the state is in a strong legal position to put a pause on air permits for fossil fuel-burning cryptomining plants and withstand any legal challenges.
The paper gives momentum to months of advocacy from officials, environmental advocates, and local business owners across the state who've been calling on the governor to impose a moratorium on Bitcoin mining. New York now hosts 20 percent of the U.S.'s Bitcoin mining.
Drawing on the precedent established in 2010 when the executive branch signed the fracking moratorium, the paper describes the governor's authority to stop new proof-of-work cryptomining operations by enacting a moratorium on the permitting of these facilities.
The DEC already has the authority to hold off on issuing new permits until a thorough Generic Environmental Impact Statement (GEIS) has been conducted.
When the fracking moratorium was established in 2010, the executive order directed the DEC to revise an existing GEIS and pause all permitting in the meantime, pointing to the fact that the State Environmental Quality Review Act (SEQRA) prevents issuing permits prior to the completion of a GEIS. That moratorium was later extended, and an indefinite ban was eventually imposed. Similarly, because of the environmental impacts of digital mining, "there is a strong argument for DEC to develop a GEIS to study mining's environmental effects," the paper says.
A moratorium and a GEIS would support pausing new permits and permit renewals for cryptomining facilities pending the development of a GEIS. Even though permit renewals are typically exempt from the need for an environmental impact statement under the Environmental Conservation Law and DEC regulations, when a plant makes significant changes to its operations, issuing a GEIS would be supported. The paper adds "In the case of applications for permit renewals for newly-converted consolidated mining operations like Greenidge, there are strong arguments for DEC's authority to treat those applications as applications for new permits that require the development of a new EIS."
Additionally, new grounds for a moratorium have been developed since 2010 under the Climate Leadership and Community protection Act (CLCPA). As the paper states, DEC has previously relied on section 7(2) of the CLCPA, which broadly gives state agencies the authority to consider whether a permit, license, or other decision would interfere with attaining statewide greenhouse gas emissions goals. The CLCPA itself and several supporting documents "suggest that the CLCPA grants the executive branch authority to deny permits for consolidated mining operations due to their climate impacts."
The paper later describes possible challenges to a moratorium, saying they would not "carry particularly strong legal weight." Legal challenges to the fracking ban in state and federal court were dismissed, and "a moratorium on permitting of consolidated mining operations would likely pass constitutional muster."
The paper suggests the state legislature could pass new legislation that would require all mining facilities to be permitted by DEC or another state agency, and require that permits follow the CLCPA's greenhouse gas emission limits.
The author of the paper, Jacob Elkin, is a Postdoctoral Research Scholar at Columbia Law School and Climate Law Fellow at the Sabin Center for Climate Change Law.