A recent post, New York Solar Siting Travesty, explained why I think the deployment of solar resources exemplifies the poor planning inherent in the Climate Leadership & Community Protection Act (Climate Act) net-zero transition plan. I asked members of the Stop Energy Sprawl coalition for any thoughts on the post and Gary Abraham provided corrections and clarifications that are too good not to share. In fact, he provided enough information for two posts. This post describes how the Office of Renewable Energy Siting (ORES) ignores local stakeholders.
Gary Abraham is a lawyer who has been more deeply involved in the renewable energy siting process than I have. He represented a citizen group under State Environmental Quality Review Act (SEQRA) before Article 10 in the Everpower case (Town of Allegany). He represented municipalities or citizen groups in Article 10 proceedings in the cases of Cassadaga (the first Article 10 proceeding), Lighthouse Wind, and Alle-Catt and the Horseshoe Solar matter (Town of Rush) until it transferred to Office of Renewable Energy Siting under Exec. L. 94-c.
Overview
The Climate Act established a New York “Net Zero” target (85% reduction in GHG emissions and 15% offset of emissions) by 2050. The Climate Action Council (CAC) was responsible for preparing the Scoping Plan that outlined how to “achieve the State’s bold clean energy and climate agenda.” After a year-long review, the Scoping Plan was finalized at the end of 2022. Since then, the State has been trying to implement the Scoping Plan recommendations through regulations, proceedings, and legislation. However, this does not mean that there is a feasible plan that includes milestones, acceptability criteria for targets or boundary conditions that must be met to continue. Climate Act implementation under the Scoping Plan consists of building as many renewable energy resources as possible, as fast as possible without regard to the wishes of those people affected by those resources all the while hoping that it will all work out.
Gary Abraham provided corrections and clarifications to my description of the ongoing solar siting debacle that I described recently. My post explained that the Department of Agriculture & Markets and Department of Environmental Conservation land protection guidance has been ignored by the ORES when making permit decisions. Gary offered his insight into the process.
Public Participation for Renewable Projects
My post noted that ORES was put in place because the existing permitting process was slow. Based on my industry experience I said the process was slow and burdensome because there are extensive public participation requirements. Gary corrected my perception saying, “That’s not only incomplete, as a standalone assertion, it’s not true.” He explained:
Renewables developers are slow and can be burdensome NOT because there are extensive public participation requirements, but because developers commonly submit sloppy applications that require multiple rounds of agency comments identifying items that make the application incomplete, not ready for agency review. Agencies don’t want to and will not do developers’ work for them. Renewable energy developers (alone among industrial developers) think that New York’s generous policies will carry their applications through, even if deficient. They frequently don’t have enough money to do a professional job of planning and designing their projects, because they don’t get lucrative payments from government sources until after operations commence.
Gary described public participation in previous power plant permitting programs, Article X and the unimaginatively named successor Article 10. I spent a lot of time preparing the analyses for permit applications under those programs but never became involved in the subsequent process. Gary explains:
Public participation requirements have been gutted by ORES. Article 10 carried over the public participation requirements for power plants from its predecessor; Article X. Article 10 basically just added renewables and a few procedures tailored to renewables but treated large-scale wind and solar projects as power plants. Articles X and 10 both give local stakeholders intervenor party status as a right and the right to apply for intervenor funds. Article 10 also required the state Siting Board to consider the same range and depth of potential adverse impacts as would be considered under the State Environmental Quality Review Act (SEQRA), making its legal preemption of SEQRA reasonable. ORES has denied party status to all municipalities, even those seeking to defend the reasonability of their local land use laws, as well as most local stakeholders.
The crux of the problem for me is that ORES ignores local stakeholders. Abraham lays out this problem.
The ORES framework represents a fundamental recalibration of state-local power dynamics for renewable energy siting. Municipalities and other local stakeholders no longer have the right to participate in a permit proceeding.
Article 10 requires the applicant to reach out to the local community with activities “designed to encourage participation by stakeholders”. Article 10’s public participation mandate is presumed to require funding for experts and legal counsel both to identify and present stakeholders’ issues, and to prove the issues are real in the hearing. The permitting agency staff generally raise issues too.
Article 10 provides that intervenor funds are available in two rounds. In the pre-application phase where the applicant’s proposal is confronted with issues identified by local stakeholders, and the application phase where a complete application is on the table. In the first phase the applicant, agency and intervenor issues are adjudicated, and applicants must provide $350 per megawatt of design capacity. In the second round the required funding for intervenors is $1,000 per MW. For a 300 MW large-scale renewable project, that’s $105,000 and $300,000 for the two phases of review. Half of those funds must be provided for municipalities, the remainder for non-municipal stakeholders.
Under the ORES regime, stakeholders’ issues now must be supported by evidence and legal argument showing the issues are “substantive” and “significant”, a standard adopted from NYSDEC regulations. I represented municipalities and local stakeholders in NYSDEC permit proceedings and never had a problem meeting this standard for noise, odor and community character impacts. It’s a threshold test for whether to bring issues to an evidentiary hearing, where testimony from experts is heard. A “substantive” issue is one that, if proven, could require additional permit conditions or agency denial of a permit. A “significant” issue is one that is backed by an adequate offer of proof, generally supported by the proposed testimony of an expert about facts that could lead to the same result. An issue is “significant” if, based on the offer of proof, a reasonable person would want to inquire further. Thus, a hearing officer examines issues to decide whether a hearing to test the evidence offered by an intervenor party is warranted.
But there is no pre-application funding under ORES, and issues are consistently rejected in the application phase. As a result, stakeholders are almost always denied party status, and never given an opportunity to prove their issues have legs.
In denying party status, ORES has refused to apply the “reasonable person” standard required by its own regulations. Instead, no matter how much evidence the public provides in support of legitimate concerns, ORES routinely denies there are any issues because the Applicant and ORES Staff have their own experts with different conclusions. In any other litigation, barring opposing parties from putting on their case would be a fundamental denial of due process.
Examples
Abraham gave some examples and explained how ORES ignores local interests:
For example, in a recent case in Montgomery County, ORES held a site-specific visual impact report prepared by an independent consulting firm at a cost of nearly $60,000 did not raise a single issue warranting further review. In another case 650-foot-tall wind turbines visible from Cayuga, Otisco, and Skaneateles Lakes were proposed, ORES held that actual measurements by a town’s retained engineer demonstrating non-compliance with applicable standards were “speculative”, “conclusory”, and “mere opinion”. And even when expert input isn’t required, such as when a local stakeholder group recently demonstrated a developer was unable to obtain an interest in multiple parcels of land necessary for construction of the project, ORES refused to hold a hearing because landowner affirmations are not “expert reports”.
There is no hearing and a “general permit” (unknown under Article 10 or NYSDEC permitting practice) is granted, occasionally (but not always) accompanied by a few site-specific conditions. Applicants engage in the bare minimum of community outreach in advance of submitting an application, and therefore host municipalities and residents often find out about the project proposal too late to adequately present their issues. Even when municipalities attempt in good faith to raise issues before an application is due, developers are empowered by ORES to simply ignore local concerns. This contrasts with Article 10, where outreach plans are required, and often go through multiple rounds of comments from DPS Staff before accepted.
Perhaps the most egregious example of ORES’s over-reliance on “uniform standard conditions” (the general permit) is an ongoing case in Washington County. There, ORES recently issued a Draft Permit holding the “standard” mitigation requirement for impacts to grassland birds is appropriate. However, the project is not proposed to be sited in a standard location. The project surrounds a New York State DEC owned Wildlife Management Area for grassland birds. Furthermore, it is in the center of the New York State designated Washington County Grassland Bird Concentration Area, an Audubon designated Important Bird Area, and Raptor Winter Concentration Area (“RWCA”) designated under the New York Natural Heritage Program. A local conservation group raised concerns that the “standard” mitigation provisions are not appropriate here and sought the assignment of a mediation judge. To date, ORES has failed to respond in any way. This sequence of events would never have occurred under Article 10, as the now-abandoned mandatory preapplication scoping would have prevented an agency from failing to appreciate such exceptional and unique local circumstances.
Both Article 10 and the ORES regime require a final decision within 12 months of receiving a complete application. But under Article 10 (and under NYSDEC permitting practice for industrial facilities), completing the application is a process subject to public participation. The application must comply with the regulatory requirements for applications. Under ORES, completing the application is a process shrouded in mystery, controlled by the agency outside the public’s eye.
Going Forward
Abraham also has a recommendation for arguing for changes in these policies.
It won’t do to just identify the consequences of New York’s energy policy on farmland. The basis for the policy must be questioned. The Intergovernmental Panel on Climate Change (IPCC) recent sixth Assessment Report (see Work Group 1, chapter 12, Table 12.12) concludes that evidence with reasonable confidence does not exist that global warming (which has occurred: about 1.5ᴼF since ~1850) has caused any change in the frequency or intensity of most extreme weather events. Only heat waves and milder winters can be shown to have increased–with a net benefit to humanity, since more people die of cold than of heat.
IPCC has also said the extreme future scenario that powers the modeling of global temperature change out to 2100 in previous ARs (RCP8.5) is now implausible, not just unlikely. IPCC now says that the most likely future will see temperatures reach 2-3ᴼC over 1850 levels in the second half of this century and begin to decline by 2100. But NYSDEC’s sea level rise guidance (and most its projections for the future) is based on RCP8.5 projections.
We can implement measures to protect people and property from extreme weather (which isn’t new), but it is highly uncertain that we can change the climate. Nothing humanity has done so far (including substantial decarbonization in the last 50 years as new efficiencies have been adopted across the economy) has had any effect.
Climate alarmists in and out government need to be confronted with IPCC’s report on the state of the science, as well as the energy engineers who say “climate policy” is taking our electric systems off a cliff.
I often argue that New York’s emissions are only a half a percent of global emissions and global emissions are rising by more than that every year as proof we are on the wrong track. Abraham’s rationale is more comprehensive and eviscerates all the counter arguments. Very well said!
Conclusion
Although my experience with environmental permitting is extensive, it also is incomplete because it was limited to air quality assessments, and I was the specialist responsible for just that component. Air quality permitting is like a cookbook where every input, analytical step, and result is consistent with well-established guidelines and checked by the Department of Environmental Conservation. The results are compared against specific standards and acceptability is based on quantitative results. In that world, public participation is mostly explanation of the process and results. If the standards are met, then local communities have little say in the outcome.
On the other hand, wind and solar permitting projects deal almost exclusively in qualitative terms. It is extremely frustrating to me that the few quantitative limits developed by state agency staff have been cast aside by ORES. For example, in the Alle-Catt case, the NYS Department of Health testified that the 45-decibel limit on wind turbine noise now found in the ORES standard permit would put the public health in the host communities at risk. That’s five towns across three counties. Based on the best research available, the Health Department recommended a limit that is 6 decibels lower. When ORES excludes all community input then the process is out of control and must be changed.
Pragmatic Environmentalist of New York 