As expected, the Clean Air Action Network has filed an Article 78 lawsuit against the Moreau Planning Board and Saratoga Biochar Solutions in an effort to stop, or slow down, Saratoga Biochar’s approved plans to build a carbon fertilizer manufacturing facility in the town’s industrial park. Article 78 is short-hand for the law that allows people to challenge the decisions of government agencies.
The environmental group, based in Glens Falls, said in a press release that it was filing the lawsuit “in response to the town planning board’s failure to follow the State Environmental Quality Review Act (SEQRA) in green-lighting the biochar factory.”
The Clean Air Action Network is represented by Pace Environmental Litigation Clinic, which is part of Pace University’s School of Law.
"Ensuring that state and local government agencies abide by the New York State Environmental Quality Review Act [SEQRA] is crucial in preventing hasty and unsupported approvals of industrial facilities like this one. We hope that filing this Article 78 Petition will be the first step in holding the Town of Moreau Planning Board accountable and in keeping the community safe,” said Megan Gaddy in the statement. Gaddy is a third-year Pace University law student and student intern at the Pace Environmental Litigation Clinic.
Some town residents have fought the proposed plant, creating the Facebook group “Not Moreau,” posting signs around town and packing planning board meetings. They urged the Planning Board to slow down the process and seek expert guidance as it dealt with the complex plans.
But in March, the Planning Board ruled that the facility would have no significant environmental impacts. Under the SEQR environmental review, the local ecology is considered, but so is the neighborhood environment, and the effect on quality of life.
For instance, those arguing against the plant often spoke of the tonnage of sewage that will be hauled from other parts of the state to the industrial park and the number of trucks that will roll down local streets to do it. The planning board has maintained that they considered that in their environmental review.
The lawsuit hopes to reverse that decision and require more strict oversight.
Clean Air Action Network chair Tracy Frisch said in the press release that discussions with the planning board led her to believe that they had not completed an Environmental Impact Statement in decades.
“Such a track record suggests that the planning board has not been using all the tools at its disposal to protect the best interests of the community. Not only is the planning board failing the people of Moreau; it is also breaking the law.”
The town would not respond to comment asking for clarity on the Environmental Impact Statement.
"The matter is in litigation and we are not at liberty to discuss it further," a representative in the town's Building Department said. A late attempt to reach Planning Board Acting Chair John Arnold was unsuccessful.
Saratoga Biochar wants to use a process called pyrolysis. The process superheats pre-dried waste and burns the gases that form without burning the solids that remain. It would convert up to 720 tons per day of the dried product of wastewater treatment plants — not the raw sewage, but the solids created after the sewage is processed — into a type of charcoal that it would then sell to farmers. They have maintained that not only is it safe, the process removes harmful chemicals, such as PFAS, from the solids making them very safe for the environment.
Documents filed by Saratoga Biochar say its plant would emit carbon dioxide and nitrogen oxides, among other greenhouse gases. The Clean Air Action Network says in a revised air permit application submitted to the Department of Environmental Conservation in June, Saratoga Biochar said the facility would release PFAS chemicals, known as “forever chemicals.”
Contacted for comment this afternoon, Saratoga Biochar CEO Raymond Apy said, “I can tell you that the complaint is simply a delay tactic that is severely flawed in logic and law and will be readily defeated. None of the claims made are remotely accurate.
“What is really unfortunate in this is that a group that self describes as ‘environmental’ has filed a complaint that will only delay a project that has tremendous environmental and human health benefits. This does not change our plans for the Moreau Industrial Park at all.”
Last month, Apy said in response to our email, “We believe the Moreau Planning Board's handling of our application was very thorough and that they followed the correct, legal process, leaving little or no room for a complainant to find material fault. If Tracy Frisch decides to proceed with a lawsuit, we believe she will have a long and very expensive uphill battle with little chance of winning.”
Editor's Note: We misspelled Tracy Frisch's name at one point in the story. We have corrected it and apologize for the error.