ENVIRONMENT

Judge: Riverkeeper wrong to challenge Danskammer restart

John Ferro
Poughkeepsie Journal
The Danskammer power plant, in this view looking south, is located on the Hudson River in the Town of Newburgh. A state Supreme Court judge has dismissed a lawsuit filed by the environmental nonprofit Riverkeeper that had challenged the approvals for Danskammer’s reactivation.

A state judge has dismissed a lawsuit that challenged the restart of the Danskammer power plant in the Town of Newburgh.

Acting Supreme Court Justice Roger McDonough of Albany County ruled in a March 25 decision the environmental nonprofit group Riverkeeper did not have legal standing to bring the lawsuit to court.

In dismissing the case on technical grounds, McDonough did not rule on Riverkeeper's contention that Danskammer's reactivation never received the full environmental review required by law.

"By definition, this is not a decision on the merits," Riverkeeper attorney Mark Lucas said, "since the state and Danskammer never had to answer our claims."

Riverkeeper claimed the state Public Service Commission had failed to conduct a full environmental review when it approved the plant's transfer of ownership in 2014.

The PSC declined to comment. However, the agency has said no such review was necessary, primarily because Danskammer was switching from dirtier coal to cleaner natural gas as its power source.

In between that switch, the plant, which sits along the Hudson River, was shut down for more than a year.

This view of the Danskammer power plant looks south along the Hudson River in the Town of Newburgh. The entire property is about 180 acres but the part of the facility east of the railroad tracks that generates power, pictured, is 52 acres.

Riverkeeper said regulations require comparisons of environmental impacts be made against Danskammer's status as a nonoperational plant.

Riverkeeper argued that because the potential impacts of a revived plant must be weighed against a plant that had been doing nothing, a comprehensive review should have been triggered — a view that was supported by other environmental groups and the state attorney general's office.

McDonough never considered those arguments. Instead, he granted a PSC motion to dismiss the suit on the grounds Riverkeeper never met the standard for bringing the case to court in the first place.

That standard requires plaintiffs to demonstrate, among other things, that someone has suffered a specific and concrete environmental injury. That negative impact cannot be based on speculation or conjecture.

McDonough ruled the environmental nonprofit never provided enough evidence of "specific and real environmental impacts to air quality (or) aquatic resources" that could be directly attributed to the PSC's actions.

Riverkeeper's claims of those impacts, McDonough wrote, were "far too speculative and conjectural."

Larry She, president of Danskammer Energy LLC, declined to comment on the lawsuit.

He said the power plant, which employs about 40 full-time and contract positions, has been fully operational ever since the last of its four turbines went online on Jan. 1.

Danskammer operates on standby, producing electricity only during times of peak demand, which typically are during the summer months.

Eric Holveg, 56, monitors the flows, temperatures and switches inside the control room at the Danskammer electric-generating power plant in the Town of Newburgh. A state Supreme Court judge has dismissed a lawsuit filed by the environmental nonprofit Riverkeeper that had challenged the approvals for Danskammer’s reactivation.

When it operated as a coal-fired plant, Danskammer consistently rated among the state's top producers of air pollution.

But in 2012, the plant was flooded by Superstorm Sandy. Its former owners declared bankruptcy and announced plans to sell it for scrap.

New owners stepped in, bought the facility and began the process of repairing the damage and switching to natural gas.

Riverkeeper said the lawsuit was never meant to keep Danskammer from coming online.

Rather, it sought to hold the restart accountable to existing regulations. That, the group said, could potentially result in a plant that would be even better for the environment.

Lucas, the Riverkeeper attorney, said the group is evaluating its options, including whether to appeal.

Riverkeeper has a similar lawsuit pending against the state Department of Environmental Conservation.

John Ferro: 845-437-4816; jferro@poughkeepsiejournal.com; Twitter: @PoJoEnviro