Petitions to suspend, review, and revoke federal authorizations and ongoing permitting for Alle Catt wind project 

PETITION TO IMMEDIATELY SUSPEND, REVIEW AND REVOKE FEDERAL AUTHORIZATIONS AND ONGOING PERMITTING PROCESSES IN CONNECTION WITH THE ALLE-CATT WIND PROJECT IN WESTERN NEW YORK AND TO ADDRESS CONSTITUTIONAL ISSUES

Dear Attorney General Bondi, Secretaries Wright and Burgum, Administrators Zeldin and Rocheleau, and Biologist Leput and Physical Scientist Rowley:

On behalf of the Coalition of Concerned Citizens, an active party in the state siting proceeding reviewing this wind farm proposal, we hereby submit this letter Petition requesting that your respective agencies take immediate steps to suspend all preexisting authorizations, and to halt all ongoing federal approvals and permitting processes. We request such action pursuant to President Trump’s Executive Order, “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects” (“Executive Order on Wind Projects”), § 2(a) (January 20, 2025), and “Unleashing American Energy” (“Executive Order on Energy”), §§ 2, 3 and 7 (January 20, 2025). Under Section 2(d) of the Executive Order on Wind Projects, the U.S. Attorney General may “seek other appropriate relief consistent with this order”. Accordingly, we also request that Attorney General Bondi take appropriate steps to address constitutional violations presented by New York’s conditional approval of the project.

This matter is timely, requiring your immediate attention, because Alle-Catt, a subsidiary of Chicago-based renewable energy giant Invenergy, has not obtained approval from the State of New York to commence construction of wind turbine pads or wind turbines.

As explained in more detail below, the project would result in serious harm to the regional environment and to rural residents forced to host it, and its costs cannot be justified based on its own stated need and purpose. The project would be the largest wind farm in the state of New York if it is built: Alle-Catt requires 30,000 acres of private leaseholds and its project area would be about 100 square miles. The project must also connect to the nearest utility substation by means of a newly constructed 75-foot-wide nine-mile transmission corridor from the project area, through mostly forested land. This letter Petition requests relief with regard to the following federal approvals or permits:

1. Federal Aviation Administration “No Hazard” Determinations (83 wind turbines)
2. U.S. Fish and Wildlife Service approval for the taking of protected wildlife (cf. 2023-0037807)
3. U.S. Army Corps of Engineers Clean Water Act Section 404 Permit (LRB-2021-00420)

The impacts discussed in the next Section were found in the course of the state proceeding but have been disregarded by the Siting Board. This disregard has been explicitly justified in the name of an ideologically driven but physically impossible state energy policy seeking 70% of the state’s electricity from renewable energy projects like this one by the year 2030, and 100% of the state’s electricity from “zero emissions” sources, including 85% renewables by 2040.

ENVIRONMENTAL IMPACTS

Alle-Catt proposes to site 83 turbines in the heavily forested area of western New York towns of Arcade, Centerville, Rushford, Farmersville and Freedom, across Wyoming, Allegany and Cattaraugus counties. Each turbine would have a maximum tip height of 591 feet and maximum blade diameter of 518 feet. The project would require 82 miles of access roads, and eleven additional non-generating towers, including a 100-foot microwave communication tower, three aircraft detection towers up to 125 feet in height, and seven 98.5-foot tall towers to detect the presence of eagles.

The hearing examiners in the state siting proceeding found that between 480 and 515 birds will be killed annually, (RD, 55-56, 75, 84); at least 41 Bald Eagles will be killed over 30 years, attributed to one active nest within the project area, and there are “six other active breeding nests in close proximity”, (id., 72-73); the endangered Northern Long-Eared Bat will be killed, (id., 58-59, 65); 688 acres of forested bat habitat would be cleared, and even Invenergy acknowledged that local bat populations will not survive the mortality rate;6 the project would clear-cut 1,550 acres of interior forest, (RD, 25-26, 29); and another 1,686 acres of unbroken forest would be fragmented with interconnection lines and access roads, (id., 25). The Siting Board did not dispute these findings.

The Siting Board disregarded the impacts Alle-Catt can be expected to have on the Amish in Freedom and Farmersville. My expert on the Amish from Elizabethtown College, Pennsylvania testified that the 22-family community will migrate out en masse if the project is built. A Constitutional religious infringement claim was brought to New York’s highest court, which declined to hear the claim “upon the ground that no substantial constitutional question is directly involved”.

The Siting Board also disregarded testimony by a state Department of Health (DOH) research scientist. New York noise policy classifies a 10 decibel increase over the pre-existing sound level in a community from a new noise source as intrusive, and 20 decibels as very intrusive to intolerable. The Coalition submitted background sound studies conducted in five rural communities in western New York showing that the pre-existing sound levels are about 25 dBA, and lower at night. However, the Siting Board allowed 45 dBA (Leq, or average) of wind turbine noise.

DOH testified that wind turbines generate over 100 decibels of noise, and “health-related effects of audible noise include annoyance, sleep disturbance, cognitive performance reduction, effects on social behavior, cardiovascular effects, and psycho-physiological effects (e.g., noise induced stress reaction)” unless properly regulated. DOH recommended a regulatory limit of 45 dBA Lden (or 39-40 dBA average), and the Department of Public Service recommended 42 dBA average.

Alle-Catt’s project manager (a non-expert) testified that “[t]he global warming crisis” calls for projects that “meet New York’s clean energy goals” to be accommodated with a 45 dBA average limit, even though DOH’s health-protective recommendation “may be technologically achievable. The Siting Board credited his testimony and ordered the noise limit Alle-Catt requested.

Finally, the Siting Board disregarded uncontested evidence from my energy systems expert, that continued siting of large-scale intermittent wind energy facilities in New York progressively destabilizes the grid and cannot deliver electricity to the downstate metropolitan New York City region—where electricity is only 9% carbon-free—without massive investments in new transmission capacity. The Board agreed but speculated that Alle-Catt’s electricity generation will be transported downstate “in the future”. The Board concluded that the project proposal is “consistent with the State’s energy policy and planning objectives.”

COSTS ASSOCIATED WITH THE INTERMITTENT GENERATION OF ELECTRICITY

Under Section 2(a) of the Executive Order on Wind Projects federal agencies must “consider the economic costs associated with the intermittent generation of electricity and the effect of subsidies on the viability of the wind industry.” In addition, under Section 7 of the Executive Order on Energy, “[a]ll agencies shall immediately pause the disbursement of funds appropriated through the [Inflation Reduction Act]”.

The U.S. Treasury’s fiscal year 2026 report puts the 10-year cost of renewable energy tax credits under the IRA at $421 billion, a nearly 7-fold increase since 2021, the year before the IRA became law. This compares to $23.5 billion in tax credits for all hydrocarbons during the same period. The IRA allows these credits to be monetized and transferred to unrelated entities, providing Alle-Catt with over $600 million over the life of the project.

Additional state and local costs of the Alle-Catt proposal should be considered. The project would be spread across three rural counties and Alle-Catt has obtained sales tax and mortgage recording tax breaks and property tax abatement from two of these county’s industrial development authorities. In Cattaraugus County, Alle-Catt is seeking financial assistance in the amount of $51.7 million in return for creating no more than 10 permanent part-time and full-time jobs—that is, an average of $4.3 million in foregone tax revenue for each job.

Although difficult to quantify, modifications to the state’s electric system that would not be needed but for projects like Alle-Catt require substantial additional costs. The state’s independent grid operator has found that large-scale renewables operate within several transmission-constrained “pockets” that occur between western New York and New York City, preventing renewable energy generated upstate from reaching the City. Because they remain bottled upstate for the foreseeable future, NYSIO has had to double the rate that it orders wind projects to curtail operations in order to avoid overloading the system. Thus, to utilize Alle-Catt’s intermittent energy outside western New York, where electricity is today 91% carbon-free owing to nuclear and hydropower, will require costly system changes.

SPECIFIC FEDERAL PERMITS AND APPROVALS REQUESTED FOR SUSPENSION, REVIEW AND REVOCATION

1. Federal Aviation Administration (FAA) “No Hazard” Determinations for wind turbines

On March 10, 2023 FAA issued notices to Alle-Catt that “No Hazard” Determinations for 83 individual wind turbine sites “will expire on 09/10/2024 unless otherwise extended, revised, or terminated by this office.”24 None of these determinations have been extended or revised. Accordingly, “No Hazard” Determinations have expired for Alle-Catt’s wind turbines.

Under the Executive Order on Wind Projects, Section 2(a), President Trump directs “the heads of all” federal agencies not to “issue new or renewed approvals … for onshore or offshore wind projects pending the completion of a comprehensive assessment and review of Federal wind … permitting practices.”

2. U.S. Fish and Wildlife Service (USFWS) approvals for the taking of federally protected wildlife

The Northern Long-eared Bat (Myotis septentrionalis) (NLEB) listed as endangered under Endangered Species Act (ESA), occurs within the Alle-Catt project area and is on the verge of extinction.

The Bald Eagle, protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Act, occurs within the Alle-Catt project area. The Project area is a USFWS Category 1 – High Mortality Risk to Eagles. One nest would be surrounded by five wind turbines one mile or less from the nest, resulting in the taking of 41 Bald Eagles during the projected 30-year life of the project.

To mitigate the loss of 41 Bald Eagles, and another 41 eagles at a second Invenergy wind project in the region, the Siting Board approved a compensatory mitigation proposal under which Invenergy would make a payment of $1,997,000.00 to a wildlife hospital at Cornell University. However, the mitigation plan makes no provision for developing or protecting Bald Eagle habitat, nor does it estimate how many rehabilitated eagles are likely to be returned to the wild.

There is no indication that USFWS has ever considered Alle-Catt’s proposed taking of protected wildlife species.

Pursuant to the Executive Order on Wind Projects, USFWS has ceased to issue permits for the incidental taking of eagles for wind energy facilities. In light of the absence of any consultation with USFWS regarding Alle-Catt’s projected takings of protected wildlife species, USFWS should suspend the state Siting Board’s approval for the takings.

3. Clean Water Act Section 404 Permit (U.S. Army Corps of Engineers, Project No. LRB-2021-00420)33

On November 14, 2024, the U.S. Army Corps of Engineers, Buffalo District, (USACE), issued a conditional Section 404 Permit for the proposed Alle-Catt project. The Section 404 Permit may be suspended and revoked where significant new information surfaces that was not considered in reaching the original public interest decision “at the request of … a third party”.

Because the Alle-Catt project proposal is not dependent on access to wetlands and streams—it is not “water dependent”—the Army Corps was required to deny a permit under NEPA and the U.S. Environmental Protection Agency’s Clean Water Act Section 404 (b)(1) Guidelines. According to the Army Corps’ Alternatives Analysis Framework, “[u]nder NEPA, the Corps must evaluate a ‘no action’ alternative”, which results from project modification that fully avoids stream and wetlands impacts—thus obviating the need for a permit—or from the Corps’ denial of the Section 404 permit. The Framework clarifies that an applicant’s self-serving description of need precludes permitting where the description is so narrow as to preclude alternatives, or where the described need is speculative. Both grounds for permit denial are present here, as Alle-Catt stated that no alternative sites exist that would advance New York’s renewable energy policy, but as noted above, the project’s energy cannot be utilized downstate and is not needed in upstate New York.

Purpose and need for a project must be in the public interest to support issuance of a Section 404 permit. Here, the project purpose—to contribute to New York’s “clean energy” goals—is clearly inconsistent with the Executive Orders invoked in this letter Petition. Accordingly, the Army Corp should immediately suspend Alle-Catt’s Section 404 Permit and, upon review, revoke the Permit.

CONSTITUTIONAL ISSUES

In the absence of a “compelling” governmental interest, the Constitution’s Free Exercise Clause protects citizens’ right to practice their religion as they please. U.S. Const. § 1. Here, the state Siting Board’s interest in ignoring the right to practice the Amish religion, discussed previously, is based on a speculative and ideologically motivated interest in achieving a “net zero” electric system, which falls far short of a compelling governmental interest.

The 14th Amendment to the Constitution provides that no state can “deny to any person within its jurisdiction the equal protection of the laws.” Here, although they are similarly-situated residents, the state Siting Board ordered different health-based standards for any “participant 6 residence”, defined as a residence whose owner contracted with Alle-Catt, compared to a “non- participant residence”, defined as a residence whose owner did not so contract. Thus, the Siting Board allows any participant residence to be exposed to up to 55 dBA of wind turbine noise, compared to 45 dBA for a non-participant residence, and unlimited exposure to shadow flicker, compared to 30 hours per year allowed for “non-participants”. Differentiating residents by their contract status lacks any rational basis, and the state Siting Board offered none.

Under the 5th Amendment to the Constitution, adjacent property owners’ ability to command setback distances for neighboring property by ordinance is an unconstitutional delegation to private parties.

The Coalition urges Attorney General Bondi to pursue these Constitutional claims, in an appropriate federal court, to enjoin New York State and its agencies from finally approving the Alle- Catt project, and to consider similar action to enjoin New York from advancing any wind farms.

CONCLUSION

Alle-Catt would cause the “grave harm” to wildlife;44 would impose “economic costs” that cannot be justified by providing “intermittent energy”, including the need for staggering subsidies to ensure “the viability of the wind industry”, such as “funds appropriated through the Inflation Reduction Act of 2022”;46 and is “unduly burdensome” on reliable “domestic energy resources” including low-emissions natural gas and nuclear power. Under the Executive Orders, and for the reasons provided in this letter Petition, you should take immediate action to ensure that the Alle-Catt project is not built.

Respectfully submitted,

Gary A. Abraham, Esq.
Attorney for the Coalition of Concerned Citizens
March 5, 2025

[ENDNOTES available in original]

[TO:]
Attorney General Pam Bondi, U.S. Department of Justice
Secretary Chris Wright, U.S. Department of Energy
Secretary Doug Burgum, U.S. Department of the Interior
Administrator Lee Zeldin, U.S. Environmental Protection Agency
Administrator Chris Rocheleau, Federal Aviation Administration
David Leput, Biologist, and Joseph Rowley, Physical Scientist, U.S. Army Corps of Engineers, Buffalo District

Download original document: “Petition to immediately suspend, review and revoke federal authorizations and ongoing permitting processes in connection with the Alle-Catt wind project in western New york and to address Constitutional issues”

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PETITION UNDER APRIL 8, 2025 EXECUTIVE ORDER

Dear Attorney General Bondi:

On behalf of the Coalition of Concerned Citizens, an association of well over 100 landowners opposed to state siting approval for wind farms, please accept this letter Petition pursuant to President Trump’s Executive Order, “Protecting American Energy From State Overreach” (April 8, 2025) (hereafter, the “EO”). We request that you seek preliminary and permanent injunctive relief in an appropriate federal court to halt the application and enforcement of New York’s unconstitutional distinction between wind farm “project participants” and “non-participants”. By contract with the developer, the former waive generally applicable setbacks and health and safety protections to facilitate the siting of wind farms. Their neighbors who have not agreed to waive these protections suffer the consequences. This differential treatment, (hereafter, the “Unconstitutional Distinction”), violates Section 1 of the 14th Amendment guaranteeing equal protection of the laws.

The Unconstitutional Distinction is applied pursuant to New York’s police power and New York’s policy to reduce “greenhouse gas” emissions, and to facilitate wind farms. The Unconstitutional Distinction has never been applied to other types of power plants. The Unconstitutional Distinction must be declared by a court to be unenforceable, (see (EO, sec. 2(a)), and is therefore the type of state law the EO directs you to “expeditiously … stop”. EO, sec. 2(b).

This matter is timely, requiring your immediate attention, because proposals for commercial wind farms in New York are being fast-tracked in order to evade new federal policies based on energy realism. By seeking a federal court injunction against the application and enforcement of the Unconstitutional Distinction, your Office would be implementing Section 2(a) of the EO, which directs you to:

identify all State and local laws, regulations, causes of action, policies, and practices (collectively, State laws) burdening the identification, development, siting, production, or use of domestic energy resources that are or may be unconstitutional … [and to] prioritize the identification of any such State laws purporting to address “climate change” or involving … “greenhouse gas” emissions …

BRIEF BACKGROUND

Wind energy developers in New York (and other states) consistently site their projects by offering leases to property owners that require the property owner to waive restrictions in local or state law on wind turbine setbacks, noise and visual impacts, and otherwise agree not to oppose the proposed projects regardless of impacts that come to light later. Using the Unconstitutional Distinction, New York siting regulations and practice enforce such private waivers.

Modern wind turbines generate highly annoying noise and light strobing (“shadow flicker”) at distances over a mile. A “participating” lessor cannot contain these health and safety harms within his or her own property. A contract waiving protections from such harms necessarily imposes the same harms on “non-participating” neighbors, destroying the quiet use and enjoyment of their property. In addition to the destruction of landscapes, modern wind turbines emit pulsating low- frequency noises at over 100 decibels, requiring about one mile to degrade to the pre-existing sound level in a rural community (which is about 25 decibels). Rural residents are exposed to shadow flicker, caused by moving wind turbine blades interfering with sunrise and sunset, at distances of several miles. Excessive wind turbine noise and shadow flicker are serious public health harms.

The Fourteenth Amendment, Section 1, prohibits governments from approving private landowner waivers of health and safety protections when those protections are afforded the public in the exercise of the state’s police power. Where “[t]here is no provision for review under the ordinance” and the neighbors’ determination as to land uses in the areas “is final … [and t]hey are not bound by any official duty, but are free to [act] for selfish reasons or arbitrarily and may subject [their neighbor] to their will or caprice”, … [t]he delegation of power so attempted is repugnant to the due process clause of the Fourteenth Amendment.”

In 2019, then New York Governor Andrew Cuomo signed into law the Climate Leadership and Community Protection Act (CLCPA), which purports to reduce the “severity of current climate change and the threat of additional and more severe [climate] change”, in alignment with the 2015 Paris Agreement “to limit global warming to no more than 2°C and ideally 1.5°C, and thus minimize the risk of severe impacts from climate change.” The CLCPA created Section 66-p of New York’s Public Service Law (PSL), which directs the New York State Public Service Commission (PSC) to require electric utilities that serve “end-use customers in New York [S]tate” (“jurisdictional load serving entities”) to secure adequate amounts of renewable energy to serve at least 70% of load in 2030 (the 2030 Target or “70 × 30” Target), and by 2040 to achieve zero emissions electricity statewide. In addition, the CLCPA directs the establishment of programs to increase reliance on specific “renewable” technologies, including the deployment of 6 GW of photovoltaic solar generation by 2025, 3 GW of energy storage resources by 2030, and at least 9 GW of offshore wind by 2035.

In 2020 the “CLCPA targets” of “70 × 30” and zero emissions by 2040 became the basis for the “Accelerated Renewable Energy Growth and Community Benefit Act”, a new state siting program specifically for the approval of large-scale wind and solar projects. This Act created the Office of Renewable Energy Siting (ORES), supplanting the previous power plant siting law, PSL Article 10. Article 10 preempts local zoning and land use laws and requires a state Siting Board to apply local laws it determines are not “unreasonably burdensome” in light of the type of energy technology proposed. The successor Act requires ORES to apply local laws unless they are “unreasonably burdensome in light of the CLCPA targets”.

Differential treatment of “project participants” and “non-participants” is applied by both New York’s Article 10 Siting Board (but only to wind energy projects) and by regulation, by ORES. The Unconstitutional Distinction prohibits municipalities and residents from raising differential impacts as an issue for adjudication in an ORES proceeding. Even if local laws provide reasonable uniform protections, they will be waived as “unreasonably burdensome” in light of state’s renewable energy targets. It is the intent of the Unconstitutional Distinction to accommodate the development of a checkerboard of “project participants” within a residential community of mostly “non-participants” by enforcing the participants’ lease contracts at the expense of their neighbors. This amounts to constitutionally prohibited regulation of the public’s health and safety by contract.

CONCLUSION

Millions of acres of upstate rural land will be ruined in pursuit of New York’s renewable energy goals and targets, and energy security and affordability will be eroded without action to stop the state’s program. However the program is vulnerable to challenge on constitutional grounds because the siting of land-sprawling wind projects relies on the ability of “project participants”- who are agents of the wind energy developer-to vary by private contract the basic health and safety protections that should be generally applicable. This outcome is driven by “burdensome and ideologically motivated ‘climate change’ or energy policies that threaten American energy dominance and our economic and national security”, (EO, sec. 1), an energy policy identified under the EO as “unconstitutional” and “unenforceable”. EO, sec. 2(a).

Respectfully submitted,

Gary A. Abraham, Esq.
Attorney for the Coalition of Concerned Citizens
April 11, 2025

[ENDNOTES in original]

[TO: Hon. Pam Bondi, U.S. Attorney General, U.S. Department of Justice]

Download original document: “Petition under April 8, 2025 executive order”