NY Office of Renewable Energy Siting Heritage Wind Decision

On June 4, 2021 the New York Office of Renewable Energy Siting determined that some provisions of local laws were “unreasonably burdensome” in light of the State’s Climate Leadership and Community Protection Act (CLCPA) goals and the environmental benefits of the proposed 185 megawatt Heritage Wind Project. This post discusses the specifics of this ruling.

I have written extensively on implementation of the CLCPA closely because I believe the solutions proposed will adversely affect reliability and affordability, will have worse impacts on the environment than the purported effects of climate change, and cannot measurably affect global warming when implemented.   The opinions expressed in this post do not reflect the position of any of my previous employers or any other company I have been associated with, these comments are mine alone.

Background

In early April 2020, NYS passed the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA) as part of the 2020-21 state budget.  This legislation was intended to ensure that renewable generation is sited in a timely and cost-effective manner.   The law established the Office of Renewable Energy Siting (ORES), housed within the Department of State, that is supposed to “consolidate the environmental review of major renewable energy facilities and provide a single forum to ensure that siting decisions are predictable, responsible, and delivered in a timely manner along with opportunities for input from local communities”.  All large-scale, renewable energy projects 25 megawatts or larger will be required to obtain a siting permit from the Office of Renewable Energy Siting for new construction or expansion. ORES has the authority to issue a single permit for the construction of major renewable energy facilities from both a state and local law perspective, but applicants will still be required to obtain any approvals necessary under federal law, including federally-delegated permits. 

Decision

Heritage Wind originally filed an Article Ten application but transferred it to ORES.  The plan is for construction of a 184.8 megawatt (MW) Wind Electric Generating Facility located in the Town of Barre, Orleans County.  The Town of Barre code for wind turbines included some provisions that the Developer asked ORES to overrule.  I will address these below.

According to the ORES determination, the office “conducted a thorough review of the Transfer Application, including all exhibits, reports and supporting information”, to determine the Facility’s compliance with the ORES regulation and the “potential need for additional site specific terms and conditions to avoid potential significant adverse environmental impacts from construction and operation of the Facility to the maximum extent practicable”  The Office evaluated each of Permittee’s requests against the local laws and ordinances in effect both at the time of the Siting Board’s December 8, 2020 determination of compliance, and at the time of Permittee’s filing of the Transfer Application with the Office on January 13, 2021. The Office “thoroughly reviewed the Transfer Application and considered all applicable New York State law concerning CLCPA targets and the environmental benefits of major renewable energy facilities, and the detailed information in the Transfer Application concerning CLCPA targets and the environmental benefits of the proposed Facility”.

The Permittee requested relief from the Barre wind turbine noise limit which requires that wind turbine noise be limited to 45 dBA measured at a distance 1,000 feet from the base of the wind turbine.  The permittee claimed that “this standard would be technologically infeasible as no available commercial turbine model meets this standard” and argued that recent Siting Board cases used a noise limit of forty-five (45) dBA Leq (8-hour) at the outside of any non- participating residence and a fifty-five (55) dBA Leq (8-hour) at the outside of any participating residence.  ORES found the code to be “unreasonably burdensome in view of CLCPA targets and the environmental benefits of the Facility, and determined that the Office’s uniform standards for wind facility noise at 19 NYCRR

§§ 900-2.8(b) and 900-6.5(a) were applicable”.  These are the Siting Board noise limits listed above.

The Town also has a night time noise standard and has argued that Heritage Wind has not demonstrated compliance with that standard.  Heritage Wind claimed that there was “no scientific basis to support the more stringent 40 dBA night standard.  ORES sided with the developer and no changes to address the night-time standard were accepted.

Clear Skies Above Barre (CSAB) requested party status and submitted a petition with six issues.  One of the issues raised was support of the Town of Barre’s arguments that the proposed facility would not meet the Town Code.  ORES stated that they granted the minimum relief necessary to the alleged burdensome local regulations.  ORES “respectfully submits that CSAB has failed to raise any substantive or significant issues for adjudication or claims for party status with respect to the Office’s determinations and findings and determinations on unreasonably burdensome local laws and ordinances”.

The Barre Town Code included restrictions on the use of guy wires.  Apparently that provision was modified and ORES did not have to over-rule the provisions.

The Barre Town Code included a provision that “the Facility  be designed such that shadow flicker from an individual wind turbine will not fall on any specific are of a roadway or any portion of a residential structure in excess of 25 hours per year.  In support of its argument, “Permittee noted the lack of basis for the Town standard and that the Siting Board has reviewed the available science and other considerations on shadow flicker and adopted a 30 hour per year shadow flicker limit in recent Siting Board cases”.   ORES sided with Heritage Wind and the shadow flicker requirement is 30 hours per year.

The Barre Town Code includes a restriction that limits the height of wind turbines to 500 feet.  The Permittee claimed that “changing manufacturing standards and available turbine heights, technological needs, CLCPA targets and the environmental and ratepayer needs for affordable renewable energy in New York State”.  ORES sided with Heritage Wind.  ORES “determined not to apply this provision of the Barre Town Code, on the condition that overall turbine tip height shall not exceed 675 feet as limited and requested by the Permittee”.  However, the Town Code was modified to put a limit of 700 feet on turbines making all this moot.

The Barre Town Code includes a requirement for 40% reforestation but Heritage Wind argued that was not feasible or reasonable because open spaces are needed to operate the facility.  ORES “elected not to apply this provision of the Barre Town Code and determined that the Permittee’s proposed landscaping and restoration mitigation measures shall comply with 19 NYCRR §900-10.2(e)(4), which requires Permittee to provide a pre-construction compliance filing consisting of a comprehensive Vegetative Management Plan that will be subject to prior review and approval of the Office before a Notice to Proceed with Construction is granted”. 

The Barre Town Code limited construction to 9:00 a.m. – 8:00 p.m. daily with exceptions for emergencies.  ORES “elected not to apply this provision of the Barre Town Code in the limited circumstances requested by Permittee”.   The discussion suggests that Heritage Wind and the Town worked out a compromise that made this finding moot.

The Barre Town Code required that “the foundation top of each wind turbine shall be buried to a depth of four feet below ground, or to the specifications of the New York State Department of Agriculture and Markets guidelines, whichever is greater”.  Heritage Wind argued that burying the foundation top below grade would cause corrosion.  This is another provision of the Town Code that was subsequently revised making the arguments moot.

The Barre Town Code specified decommissioning timelines and related requirements that Heritage Wind argued did not cover all the reasons why a facility might shutdown other than retirement.  ORES danced around the rationale when decommissioning requirements should kick in.  ORES claims there are no substantive or significant issues requiring adjudication of the Office’s finding but I think applicability is still ill-defined.

A number of other minor issues were mentioned.  None were substantive enough to discuss.

Discussion

For the most part this determination over-ruled the Town of Barre Code when it was more stringent than recent Siting Board decisions.  For example, the Siting Board set a limit of 30 hours of shadow flicker and the Barre Town Code had a limit of 25 hours, so ORES set the limit at 30 hours.  I agree with the concept that there should be consistent requirements across New York.

There is one issue however.  The basis for recent Siting Board decisions and the ORES requirements supposedly represents the “science”.  I described the comments I submitted on the ORES implementing regulations and raised one technical issue on setback distances that is relevant to the rulings described above.  ORES established the setback requirement for non-participating residences in 19 NYCRR §900—2.6(b): (1) 1.5 times turbine tip height from non-participating property lines, public roads, aboveground transmission lines and substations; and (2) 2.0 times turbine tip height from non-participating residences and non-participating  commercial buildings.  In my comments I showed that the ORES wind turbine tower setback is less than the predicted throw distance of material, such as ice shards, from several examples.  I argued that while the American Wind Energy Association claims that no member of the public has ever been injured by a turbine, I believe that is in no small part due to the relatively small number of turbines currently in use.  If New York has to install thousands of turbines, then I believe that the likelihood that a turbine will be close enough to cause damage or injure the public is so high that the ORES setback distances are unacceptable. I recommended a more nuanced approach that considered site-specific considerations and the number of turbines proposed.  Setback distances were not mentioned in the ORES response to comments submitted.  According to the response “ORES reviewed all remaining comments and concluded that no changes were warranted.”

My other comments addressed three shortcomings in the proposed regulation.  Unless a cumulative impact analysis is done by the Office of Renewable Energy Siting the public welfare and environment will be threatened. I believe that is particularly necessary to address concerns related to avian species especially bald eagles.  It may be a misunderstanding on my part but I did not see any provision to require applicants to provide capability information in the applications.  I don’t think it is appropriate to short-change local participation and environmental issues for renewable facilities that will not provide renewable energy credit to New York so I recommended that if a facility cannot prove that the renewable energy credits generated by the facility will be used to meet New York’s goals that they be required to go through the existing Article Ten process.   ORES did not respond to any of these comments.

The greatest deficiency of the Climate Leadership and Community Protection Act (CLCPA) and the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA) is the failure to consider the cumulative environmental impact of the wind and solar resources necessary to replace the fossil-fired electric generating capacity of New York. It can be argued that on an individual or even facility basis that most environmental impacts are acceptable. It is clear that applicants should not be required to address cumulative impacts.  Nonetheless, cumulative environmental impacts are a concern and should be considered with respect to these regulations so ORES should provide that analysis. 

In order to assess the potential impacts on power system reliability in 2040 when meeting the CLCPA target for 100% zero-emissions electric generation, the New York Independent System Operator (NYISO) contracted with ITRON and the Analysis Group to develop estimates of the necessary resources.  On October 8, 2020 Kevin DePugh, Senior Manager for NYISO Reliability Planning, made a presentation to the Executive Committee of the New York State Reliability Council that summarized their work and provides an estimate of the Generation Capacity resource mix (Table A).  The resource mix for the climate change phase II, CLCPA case is extraordinary.  At the end of 2019 the total New York State wind nameplate capacity was 1,985 MW but this case projects that 35,200 MW will be needed which is the National Renewable Energy Lab (NREL) projected total technical potential land-based capacity.  Governor Cuomo has announced offshore wind targets totaling 9,000 MW by 2035 but this case projects a need for 21,063 MW by 2040 which is another technical potential estimate limit.  There is a goal for 6,000 MW of solar by 2025 in the CLCPA targets but this projection estimates that 10,878 MW of behind-the-meter solar and 29,262 MW of grid connected solar will be needed. 

Table A: Generation Capacity – Climate Change Phase II Analysis, CLCPA Case

Most concerning to me is that an analysis done for NYSERDA on wind power and biodiversity found that: “5,430 square kilometers (1.3 million acres) of land in New York that are both suitable for wind power development and avoid areas that are likely to have high biodiversity value. Using an estimate of 3.0 MW/square kilometers, this translates to a megawatt capacity estimate of 16,300 MW (± 9,000 MW) for New York’s terrestrial landscape.”  The difference between this number and the NYISO projections suggests that wind turbines will have to be sited within the areas of high biodiversity value.

Conclusion

Based on this first ORES determination it appears that the emphasis is on consistency with previous Siting Board decisions and the ORES standards and requirements.  I agree that is appropriate.

However, the ORES standards themselves were pushed through on an expedited schedule.  Comments inconsistent with the State’s agenda were ignored.  In other words, I don’t accept all their standards and requirements.  As a result, I predict that there will be seriously impacted neighbors when all the solar and wind facilities necessary to meet the CLCPA targets are built.

I also maintain that there will be serious cumulative environmental impacts because the State has not evaluated the cumulative impacts for the enormous number of facilities projected in the last year.  The described disparity between the areas suitable for wind power development not located in areas of high biodiversity value and the total area needed for the projected wind power developments seems to be a prescription for unacceptable cumulative environmental impacts.