“It’s really hard to understand how the current, lame-duck town administration pushed beyond what is, really, reason to accommodate this project,” asserted Phil Gitlen, senior counsel at Whiteman Osterman & Hanna LLP. “The good news is, I guess, that has been rectified at the polls. Our democratic process which is criticized and in doubt so much, hopefully has worked.”

Gitlen proceeded his statements to the group with a disclaimer that his views and opinions should not be construed as legal advice. Rather, he offered suggestions on how the residents could encourage the town board to reverse course on the Biochar project.

“Having prevailed at the local political level…that’s where I’m going to suggest the first set of opportunities arise,” he said. “The first concept I want to mention is simply enforcing the existing…code requirement that site plan approvals expire unless actual on-site construction commences within one year.”

In August 2022, the Moreau Planning board approved the project. Since then, the project has been under scrutiny delaying any on-site construction from taking place.

Gitlen suggested that the town board could send the project back to the planning board to be reapproved. He said he reviewed the “extraordinarily tortured analysis” of the site plan approval made by the planning board attorney. In that analysis the attorney claimed that the multiple conditions in the site plan document, make it a conditional site plan approval, and therefore not subject to the one-year construction deadline.

“Her opinion is interesting. I didn’t see any legal citations in it… because quite frankly, I don’t think that there are any legal precedents,” Gitlen said. “So I would urge a serious consideration of that issue by the new town administration.”

Gitlen also suggested that the town board could invoke Article 92 of the town code which prohibits the disposal or processing of certain waste in the town; or vote to adopt a moratorium to at least hit a pause button to allow for more discussion or research.

“Moratoria are used all around the state and other states when projects are proposed in the community, and the community doesn’t feel ready to deal with it,” he said.

While Gitlen illustrated some measure that could be taken by the town board to stymie the project, Todd Ommen, a Pace University Law School professor, and Sam Pine, a Pace law student updated the crowd on the current state of the group’s Article 78 lawsuit against the planning board’s initial approval.

“The town planning board went ahead and gave a negative declaration (of environmental impact), which is why this lawsuit was able to come into existence,” Pine explained. A negative declaration says that a project will not hurt the environment.

Pine added, “We argued that it was arbitrary and capricious, meaning … that the decision was a kooky decision.”

The group lost that lawsuit but is in the process of appealing that ruling.

Earthjustice attorney Michael Youhana provided an overview of the Department of Environmental Conservation application process Saratoga Biochar is working through for its solid waste and air permits, a condition they must meet before the project can move forward.

If the company can complete the application to the DEC, the state agency will then issue a notice of completed application, which initiates a period of public comment. The public comment period could last anywhere between 30 to 90 days, followed by a public hearing, if the DEC sees the need for one. Youhana said that it is unclear exactly where the permit process is at this time but it has not yet reached the stage for public comment.

Toxics expert Denise Trabbic-Pointer explained at length the potential pollution threat and public health threats she gleaned from reviewing Saratoga Biochar’s permit application.

Trabbic-Pointer maintains that despite Saratoga Biochar’s claims that its processes would eliminate all PFOS (Perfluorooctane sulfonic acid) from its final product, that is just one of approximately 15,000 other PFAS (Perfluoroalkyl and polyfluoroalkyl substances), which are not accounted for in its monitoring.

“PFAS compounds, they break down under high heat and they recombine into other compounds and there’s only a requirement to test for (PFOS), but there might be hundreds of different compounds being released and they all might have similar cancer-causing properties,” she said.

All of this information provided a blueprint for people who are standing against the project.

Moreau Town Board member John “J.D.” Donohue attended the meeting on Thursday, and said he took note of Gitlen’s suggestions. Donohue, along with other members of the “Moreau United” ticket won in a landslide victory in last week’s election, including in the race for Town Supervisor, where Jesse Fish defeated incumbent Todd Kusnierz. The bi-partisan ticket ran heavily on the campaign trail against the Biochar project.

“We didn’t promise that we were going to stop this, because we don’t know if we can. But what we promised is we will fight like Hell to stop this thing,” Donohue said. “Phil touched on some things, I took the notes. We’re going to look into all these things, we’re going to look into everything we can do to stop this from coming into our community. We don’t need it.”