Sierra Club v. Town of Torrey, 75 Misc. 3d 523, 167 N.Y.S.3d 727 (4th Dep’t 2022)
Facts
In 2014, respondent Greenidge Generation LLC (Greenidge) purchased an electric generating facility in the respondent Town of Torrey.1 The plant, which uses water from Seneca Lake to cool turbines and discharges heated water back into Seneca Lake, began operating in March 2017.2 In June 2020, Greenidge sought approval from respondent Town of Torrey Planning Board to construct a bitcoin mining facility using the electricity generated from the Greenidge plant.3
In September 2020, the planning board declared itself the lead agency and the project to be an unlisted action under the State Environmental Quality Review Act (SEQRA).4 In April 2021, the planning board reviewed Greenidge’s application, which included a full Environmental Assessment Form (EAF) and a community noise assessment conducted by a third-party environmental noise consulting company.5 The planning board issued a negative declaration under SEQRA and approved Greenidge’s site plan.6 In July 2021, the Town of Torrey issued a building permit, and construction of the project began in August 2021.7
Procedural History
On May 21, 2021, petitioners filed their First Amended Petition, which challenged the issuance of a negative declaration and alleged that the planning board violated SEQRA by not preparing a full environmental impact statement (EIS) and by not taking the requisite “hard look” at the potential for negative environmental impacts.8 Petitioners consisted of Sierra Club, Seneca Lake Guardian, Inc., The Committee to Preserve the Finger Lakes, and thirty individuals who owned property either on or near Seneca Lake, or near the Greenidge facilities.9
The individual petitioners alleged that due to the Greenidge plant operation, there existed an increased risk of harm to their health due to “harmful algae blooms” caused by the discharge of the heated water from the Greenidge plant into Seneca Lake.10 Some petitioners further alleged that they would suffer increased noise levels from the bitcoin mining operation.11
Respondents Town of Torrey, Town of Torrey Planning Board, and Greenidge raised several affirmative defenses and objections, including that the project was properly considered an unlisted action, no EIS was required, the petitioners lacked standing, the respondents took the requisite “hard look” at environmental impacts, and the decision to issue a negative declaration was supported by substantial evidence.12
On December 3, 2021, petitioners filed a notice of motion seeking a preliminary injunction to enjoin Greenidge from continuing to develop the project.13 Respondent Greenidge cross-moved to dismiss the amended petition.14
Issues
(1) Whether respondent Torrey Planning Board properly characterized the project as an unlisted action; (2) Whether the petitioners had standing; (3) Whether the planning board took the requisite “hard look” before issuing the negative declaration; (4) and whether a preliminary injunction was warranted. 15
Rationale
First, the court ruled that respondent Torrey Planning Board properly characterized the project as an unlisted action under SEQRA, despite petitioners’ argument that the project was a Type I Action.16 The court held the petitioners’ argument was “predicated on a misrepresentation of what the project entail[ed],” which consisted of four building structures, installing computer and networking equipment, and connecting the buildings and equipment to the power grid to use the electricity generated by the plant.17 Notably, the project did not involve any use of water from Seneca Lake.18
Second, the court ruled that none of the individual petitioners had standing, and, thus, the Petitioner-organizations did not have standing.19 The court held petitioners’ concerns regarding the discharge of heated water from the Greenidge plant were “irrelevant,” since the project would not impact the air or water of Seneca Lake.20 Further, while some of the petitioners alleged the operation of the computer equipment and the fans necessary to remove heat would result in excessive noise, the court noted that none of the petitioners lived closer than 2,000 feet to the project.21 Thus, the petitioners “failed to establish that they would suffer an environmental injury different from that suffered by the general public.”22
Third, even assuming the petitioners had alleged sufficient allegations to establish standing, the court ruled that respondent Torrey Planning Board took the requisite “hard look” before issuing the negative declaration for the project.23 Despite the proper classification as an unlisted action, the planning board used the full EAF in assessing the environmental impacts.24 Its members assessed each of the sixteen areas of potential environmental concerns and identified two areas of concern: “impact on energy” and “impact on noise, odor, and light.”25 Regarding the impact on energy, the court held the planning board properly concluded that there would not be a significant environmental impact since the project would not result in an increase in generating capacity at the plant.26 Further, the noise concern led to submission of a revised acoustical study to the planning board, which concluded the predicted noise levels would be below the limits set by the zoning law of the Town of Torrey.27
Fourth, the court ruled the petitioners’ preliminary injunction was moot, and, even if not moot, was unwarranted.28 The court noted that there was unnecessary delay by petitioners in seeking the preliminary injunction, that Greenidge acted in good faith, and that construction—which had proceeded for four months at the time the injunction was sought—had substantially completed.29 Further, even if petitioners had standing, they failed to establish both that the planning board’s determination was contrary to SEQRA and that they would suffer irreparable harm should the project be completed.30 The court again noted the allegation of harm to Seneca Lake due to water discharge was “irrelevant,” and the noise (i.e., only other possible environmental harm) would fall below accepted levels, or else the project would need to cease operations until remedied.31 Lastly, “the balance of equities” favored Greenidge, as a delay in their multi-million dollar investment would have significant financial consequences.32
Conclusion
The court denied petitioners’ motion for a preliminary injunction, granted respondent Greenidge’s motion to dismiss the amended petition, and dismissed the amended petition.33
Diana Waligora
Albany Law School, Class of 2025
Endnotes
1 Sierra Club v. Town of Torrey, 75 Misc. 3d 523, 525, 167 N.Y.S.3d 727 (4th Dep’t 2022).
