NY’s Uneven Treatment of Wind Energy vs. Natural Gas Fracking

This is so outrageous we don’t even have words for it. New York State’s highest court, with its judges appointed by Gov. Cuomo, ruled in 2014 that local municipal “home rule” laws to block fracking are just fine (see Shale Drilling in NY is Over – High Court Upholds Town Bans). Yet another group of Cuomo appointees–who sit on the New York State Board on Electric Generation Siting and the Environment–have just ruled that a NY town’s recently enacted wind law was passed too late in the process, so its conditions do not apply to the current wind project developer. This is NOT justice. THIS IS WRONG. We have some advice for other Upstate NY towns (important advice) based on this miscarriage of justice.

Please see our update at the bottom about the home rule issue.

The Town of Sanford, NY (not far from MDN HQ) recently passed a new land use law that lengthens and redefines setback requirements for wind turbines, aimed at stopping a massive 124-megawatt wind farm, called Bluestone Wind. Some 23 of 27 turbines the builder, Calpine Corp., wants to build would be located in Sanford. The other four turbines would be in the Town of Windsor (same township where MDN is located).

Local citizens in Sanford have waged a years-long battle to stop the project. They don’t want to look at and hear the windmills. They don’t want the windmills killing the local, expanding bald eagle population. They don’t want the windmills killing all sorts of other birds and bats. And they don’t want their property values going into the basement. These are all legitimate reasons to not want this project.

Yet Cuomo’s appointees on the Siting Board overruled Sanford. They said Sanford passed its regulations too late in the review process.

We’d like to point out landowners in the towns of Dryden and Middlefield had already leased their land to potential shale drillers long before NY’s Dear Leader, Andrew Cuomo, banned fracking. Only after Dryden/Middlefield landowners had leased, and after drillers sought permits to drill on that land, did those towns (packed with anti-drilling zealots) pass regulations to prevent fracking. And yet the state’s highest court, the Court of Appeals (packed with Cuomo appointees) didn’t find any problems with the timing of the late zoning ordinances to ban fracking.

Yet, when the energy source is wind, another set of Cuomo’s appointees, on the Siting Board, say the ordinance was passed too late. That’s justice?!

Over strong objections by two local members, the New York Siting Board approved a 124-megawatt wind turbine project in eastern Broome County.

In giving the go-ahead, the board also rejected a newly adopted Town of Sanford zoning law that placed severe restrictions on the project, labeling it “overly burdensome.”

The action by the siting board clears the way for Calpine to begin construction of the 27-tower project — four in the Town of Windsor and 23 in the Town of Sanford, measuring 670 feet from base to blade tip.

New York Siting Board Chairman John Rhodes, Public Service Commission chairman, said the project, based on plans, will minimize the environmental impact to the surrounding community. He said the newly adopted Town of Sanford zoning law is effectively a ban, and an undue burden to project sponsors, adding that existing conditions attached to the approval are “thoughtful and protective.”

Two local residents speak out at meeting

Two residents from the towns of Windsor and Sanford, who were asked to participate in the discussions, had a dramatically different view of the project, a major cornerstone in an aggressive state policy to reduce carbon emissions from electric generation.

Barbara Mirch, an ad hoc committee member from Windsor, in impassioned remarks, asked the board to reject the project or at least delay a decision to allow a more extensive review of the impacts on the two communities.

“It’s not appropriate for our area,” Mirch said. “We are being preyed upon” to supply energy for downstate needs.

“This should be a local decision,” said John Mauro, the Sanford representative who was unable to attend Monday’s session, citing health issues.

Mauro’s home community is squarely opposed to the wind towers rising along the forested hillsides, he said in a written statement read during the 40-minute session in Albany.

He called on the panel to seriously consider the critical points residents were raising about the aesthetic, property value and health impacts, in addition to potential harm to threatened bald and golden eagle populations that migrate and nest through the area.

A contingent from the opposition was in attendance at the session, wearing their distinctive yellow T-shirts with the message of no wind farm. While he welcomed the public input, Rhodes said the board would not bend to the wants of special interests, saying the review process was open and transparent with an exhaustive record developed.

He said compromises were reached on bat kill, noise and shadow flicker concerns, and measures are being taken to assure the blade encounters with eagles are minimized.

Board’s decision reflects Cuomo’s clean energy initiative

Monday’s “decision demonstrates how New York is working to achieve Governor Cuomo’s Green New Deal — the most aggressive climate and clean energy initiative in the nation, putting the state on a path to being entirely carbon-neutral across all sectors of the economy and establishing a goal to achieve a zero-carbon emissions electricity sector by 2040, faster than any other state,” read a statement from the Public Service Commission.

The 5-1 vote in approval represented a sound rejection to the Town of Sanford’s recent attempt to derail the project — more than three years in the planning — with more restrictive tower setback requirements. A Calpine representative said the new land use regulations for renewable energy projects, which more than doubled property setback requirements from the original law, would have quashed the Bluestone plan.

The siting board was precluded from considering the law’s land use code because it was only adopted on Dec. 10, well after formal public hearings on the project, said Administrative Law Judge Sean Mullaney, who presided over the quasi-judicial review process.

Mullaney told the board the Bluestone Wind proposal is “consistent with the state energy policies,” and recommended approval.

‘Home rule’ divides communities as N.Y. increases wind energy

It is unclear whether opponents can launch a legal challenge to the siting board’s decision based on New York’s “home rule” provisions, which defines the “rights, powers, privileges and immunities granted to” local governments.

“This is not the last word,” said Anna Lawrence, a leading voice in the Town of Sanford opposition movement. She noted the decision can be appealed within 30 days, but her group must first consult counsel to determine their new move.

“Even through the most contentious and divisive issues facing our communities, it’s government’s role to listen to the people they serve and work together to find a path forward,” said state Sen Fred Akshar, R-Binghamton, who represents the affected communities. “That didn’t happen today. Once again, bureaucrats in Albany chose to steamroll over local laws passed by the people and local governments they serve in favor of their own political agenda.”

Bluestone is the fourth wind turbine project given the green light by the siting board in the past four months, setting up 577 megawatts of renewable generation to come on to the grid within the next several years. Another four upstate wind farms, with a total capacity of 941 megawatts, are now proceeding through the review process.

Bluestone estimates that the project represents an approximately $200 million investment. Once operational, Bluestone says it will pay over $30 million to local landowners over the life of the project through annual lease payments. The project will receive tax breaks in the form of payment-in-lieu of taxes agreements with the municipalities and school districts in which the project is sited.

“Broome County supports the Bluestone Wind project,” said Broome County Executive Jason Garnar. “It would provide a major capital investment in Eastern Broome with hundreds of construction and operation jobs and the significant payments to host landowners will inject new momentum into our local economy. ”

Much like Sanford, other upstate communities have been ripped apart by wind projects, leading to raucous municipal meetings where police have been summoned to maintain the calm.

Mirch was highly critical of the state’s renewable energy review process, saying it sacrificed a thorough and deliberate review for expediency. She noted the eastern Broome project would reduce New York’s carbon emissions by 0.26%.

“We just want to be left alone and lead our lives,” she said, in encouraging siting board members to consider what she said is the overwhelming opposition in eastern Broome. “Please respect the community’s wishes not to have this forced on us and do not approve this project at this time.” (1)

The Siting Board issued this press release to justify their unjustifiable actions:

wind-pdf

Advice for Upstate NY Towns

We have to deal with the lousy hand we’ve been dealt. We sincerely hope Sanford finds a way to appeal and overcome the decision of the Siting Board. In the meantime, other towns should take note of what the Siting Board said. What they said, its import, is that towns need to pass wind farm zoning ordinances NOW–before other projects get started. That’s the only way to defend against another Sanford from happening again.

We received the following email from independent physicist and founder of the Alliance for Wise Energy Decisions (AWED) website, John Droz, Jr. John has been a member of the Sierra Club and other environmental organizations in the past. He’s certainly not a fossil fuel industry shill–not by any stretch! John gives us wise counsel with respect to wind farm projects and how to prevent/mitigate the harm they can do:

I watched the entire Article 10 Bluestone hearing yesterday. Basically, the Board voted to uphold the Recommended Decision of the earlier Bluestone administrative proceedings.

I’ve already seen feedback claiming that NYS “Home Rule has been undermined” so that there is no point in passing a protective wind ordinance, as the Article 10 Board will discard the good parts due to them being “unreasonably burdensome.”

I’m not an attorney, but that is inaccurate reading of what transpired. There is no part of the Article 10 Board’s rulings* (or the Recommended Decision that they endorsed), that says that in any way!

What they did say was that the town (Sanford) passed their wind ordinance much too late in the game — which then imposed new conditions on the wind developer (after their official application submission, etc.).

In other words: it was not the conditions of Sanford’s wind law (e.g. their weak setbacks) that are unreasonably burdensome, but rather the law’s timing that the State said was unreasonably burdensome.

The number one strategy for the NYS wind lobby is to propagate misinformation so that NYS citizens do not promptly and fully defend their own rights. Do NOT get fooled by such propaganda, which will tell you that passing a protective wind law is a waste of time. That is simply not so!

The clear takeaway here is that it is URGENT to QUICKLY pass a well-written protective wind law in all NYS communities that even have a whiff of a possibility for a wind project. This should not be a problem as:

a) we’ve spelled out how a NYS wind project will almost certainly be a net financial liability to the host community, and

b) we’ve drafted up a superior protective model NYS wind ordinance, so getting it passed should take no more than two months, max, and

c) as this case proves again, citizen’s chances of succeeding in a wind fight at the State level are extremely low. By FAR the best chance for success is to pass a timely, protective local wind law.

Even if your community has no pending wind project: QUICKLY PASS A PROTECTIVE WIND ORDINANCE! What’s the downside of protecting your community?

After the horrifically bad energy law that the Governor and Legislators passed in 2019, there will soon be dozens of new upstate NYS onshore wind projects. (Here is a reasonable assessment of that onerous law.)

At this point your community’s chance be being unscathed by wind energy, is very small. Forewarned is forearmed!

Thank you for your support.

John Droz, jr.
physicist
WiseEnergy.org
Brantingham Lake, NY

PS — For the full set of the Bluestone project documents, see here.

PPS — Please pass this onto other NY citizens who are trying to defend their rights against a wind energy threat.

*If you want the details regarding the “unreasonably burdensome” matter, the Article 10 Board’s Bluestone Filing (posted yesterday, December 16, 2019) said these two things:

1 – On the page numbered as 76, they define the legal phrase “unreasonably burdensome” as it applies to content local wind laws. The key parts are highlighted in red:

The Siting Board, however, “may elect not to apply, in whole or in part, any local ordinance, law, resolution or other action or any regulation issued thereunder . . . which would be otherwise applicable if it finds that, as applied to the proposed facility, such is unreasonably burdensome in view of the technology or the needs of or costs to ratepayers whether located inside or outside of such municipality.”

2 – On the page numbered as 82 they use the same phrase, for a different situation (the timing of Sanford’s wind moratorium and their subsequent local wind law).

In this case, the Town (of Sanford) had a full and fair opportunity to explain why a local law more narrowly tailored could not have addressed any perceived negative impacts associated with the Project, which would have given Bluestone an opportunity to address those impacts while the record remained open. The Town, however, did not and still has not articulated what those negative impacts might be, much less make a case for why it would not be possible to address them with a less burdensome local law. Further, the Town was a party in the case and did not object to the siting of the Project prior to the record being closed. Given these circumstances, it is clear that the Town’s moratorium is “unreasonably burdensome” within the meaning of PSL § 168(3)(e).

The bottom line is that “unreasonably burdensome” in this case appears to refer to the timing of Sanford’s wind moratorium and subsequent wind law (passed just last week) — and NOT to the content of their wind law (e.g. setbacks, etc). (2)

As John says, you are now forewarned if you live in an Upstate township. Get to work, NOW, in drafting and passing ordinances to protect your citizens against gigantic wind farms. He’s even given you a model ordinance. Start with that!

(1) Binghamton (NY) Press & Sun-Bulletin (Dec 16, 2019) – New York board OKs wind farm project in eastern Broome County

(2) John Droz (email received Dec 17, 2019) – Subject: Lessons from Yesterday’s Article 10 Wind Decision

UPDATE:

John gave MDN editor Jim Willis a call following publication of this post to gently chide him that the title for the post is not accurate. So we changed it. It was “NY Home Rule Means Towns can Ban Fracking but Not Wind Farms.”

John says New York’s home rule law is fine–and is strong enough to block wind energy facilities like the one now coming to Sanford. The problem for Sanford is that the town delayed far too long, passing their law literally at the last possible moment. That’s what the Siting Board said. John says if Sanford had passed their law a year ago (as they were encouraged to do at the time), the ordinance would have stood up during the Siting Board review process.

John’s point, which is excellent and cannot be stressed enough, is that Upstate towns must pass wind ordinances NOW. As in the next few months, or risk losing out as Sanford has.