New York takes initial actions required under data center moratorium; issues scope of proposed generic environmental impact statement

The New York State Public Service Commission has issued a draft scope for the Generic Environmental Impact Statement (“GEIS”) required under New York’s moratorium on data center development. The public comment period on that draft scope is now open with written comments due on October 20, 2026. Clients developing or planning energy or data center projects in New York should review the draft scope and consider submitting comments before this framework is finalized.

Background

On July 14, 2026, New York Governor Kathy Hochul issued an executive order (Executive Order No. 62) imposing a moratorium on state-level permitting for data centers. The Order placed on hold all applications for discretionary permits or approvals from the New York State Department of Environmental Conservation (“DEC”) for the construction of new data centers until the NYS Department of Public Service (“DPS”) prepares a GEIS pursuant to the State Environmental Quality Review Act (“SEQRA”). Thus, under the Order, no DEC permits can be issued for any new data centers in the state until the GEIS has been issued.

Before the moratorium was issued, the NY Public Service Commission had already begun a proceeding to address interconnection reforms for large loads.¹ That proceeding was intended to address reliability and affordability issues associated with the anticipated proliferation of data centers and other large loads in the state. The Governor’s Executive Order directed DPS to issue the GEIS through this proceeding.

A GEIS is a distinct instrument authorized under SEQRA. It is broader and more general than a site- or project-specific environmental impact statement and is used where an agency is evaluating an entire program, plan, or category of action involving common or cumulative impacts. The first step in the preparation of a GEIS under SEQRA is to establish the scope of the review in the environmental impact statement. The purpose of this “scoping” is to focus the GEIS on potentially significant adverse impacts and to eliminate consideration of impacts that are irrelevant or insignificant.

The draft scope addresses the environmental impacts typically associated with development projects, including (but not limited to) land, surface water and groundwater resources, air quality, noise, consistency with the state's Climate Leadership and Community Protection Act and disproportionate impacts on disadvantaged communities. But the scope also notes that it will be considering potential mitigation measures to address interconnection and cost issues, including capacity-based charges, bring-your-own-generation or storage models, grid flexibility and curtailment measures and tariff modifications to manage financial risk.

Conclusion

DPS is taking public comments on the draft scope until October 20, 2026. Following the public comment period, the Commission is expected to adopt a final scope and proceed with preparing the GEIS, which is anticipated to take up to one year. We recommend that clients developing energy or data center projects in New York review the draft scope carefully and submit comments as appropriate. This is important, as we expect that the final scope will play a role in determining the frameworks and mitigation requirements applicable to individual projects once the moratorium is lifted.

We will continue to monitor developments in Case 26-E-0045, including the final scope and the draft and final GEIS, and will advise clients of any material developments as they arise. 

^{1 See Proceeding 26-E-0045.}

Peter C. Trimarchi (Partner, New York); Vicente Palma (White & Case, Latin America Fellow, Miami); Derek B. Johnson (Senior Manager, Business Development, Finance) contributed to the development of this publication.

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_{This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.}

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