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New York Energy Siting Law Needs Protection Measures  

The New York Legislature is debating re-enactment of Article 10 of the Public Service Law. This Article governs siting of most electrical power plants in New York, all except nuclear and garbage-fired steam plants. Versions have been passed by the Assembly and Senate and Gov. Spitzer has submitted his version. The new versions include language specific to wind turbines and the law contains many positive, as well as alarming provisions. The bills are now in the NYS Energy and Telecommunications Committee to undergo finalization.

Article 10 includes many favorable features not included in other industrial, commercial or sub-division site reviews. It includes mandatory inclusion of comprehensive evaluation of not only health and safety but cultural, aesthetic, noise, historic, wildlife, habitat and other impacts by state agencies. It also creates an Intervener account providing funds for interveners to hire legal and technical expertise. Intervener status is liberally granted and there is and exhaustive review procedure through the permitting process and judicial system. A 7 person siting Board makes a permit decision. Two members are appointed local citizens at the municipality and county level. The other 5 members are from the NY PSC, DEC, DOH, NYSERDA and Economic Dev.

A group of citizens representing Cohocton Wind Watch and the Environmental Compliance Alliance met yesterday with NYS Senator George Winner, a member of the 12 person Energy and Telecommunications Committee currently debating the final content of the legislation. The group wanted to dialog with the Senator about our experiences and knowledge about the proposed widespread placement of large wind turbines throughout upstate, particularly the Finger Lakes, which he represents.

Concerns were raised to him about inappropriately close setbacks, locations in scenic corridors, long term real estate decline, inappropriate town environmental reviews, and the poor energy production, which will not materially aid demand nor reduce emissions.

Relating to Article 10, the group wanted feedback about its two objections, grandfathering of existing applications, and the Board’s power to over-ride local laws controlling turbine placement. The group felt that with so many turbine facilities now in progress that they should come under the Article 10 regulations, providing construction has not begun. Unless construction has begun a developer generally has no vested rights to prevent retroactive adherence to newly enacted laws. This is of great concern because of the widespread poor environmental reviews performed for virtually all wind facilities. With the comprehensive review provisions of Article 10 the review process would vastly improve and give much better public assurances.

Sen. Winner stated that grandfathering was always part of Article 10, it was not and will not be debated.

The law grants the Board power to avoid adherence to local laws, which Sen. Winner acknowledged. The section is below, common to all versions of the bill and was contained in the original Article 10 as well:

Assembly A08697, Senate S5908, Governor S6178:
§ 168. Board decisions.
2(e) That the facility is designed to operate in compliance with applicable state and local laws and regulations issued thereunder concerning, among other matters, the environment, public health and safety, all of which shall be binding upon the applicant, except that the board may refuse to apply any local ordinance, law, resolution or other action or any regulation issued thereunder or any local standard or requirement which would be otherwise applicable if it finds that, as applied to the proposed facility, such is unreasonably restrictive in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality. The board shall provide the municipality an opportunity to present evidence in support of such ordinance, law, resolution, regulation or other local action issued thereunder;
(emphasis added)

It was pointed out that this conflicts with NY’s strong “home rule” legacy. And specifically it conflicts with NYS Town Law that says “Among the most important powers and duties granted by the legislature to a town government is the authority and responsibility to undertake town comprehensive planning and to regulate land use for the purpose of protecting the public health, safety and general welfare of its citizens.” When creating wind turbine ordinances many NY towns have sought to preserve their character. Is there any language that could be inserted in the new Article 10 that could protect town rights? In reply Sen. Winner stated that this is an important provision, “Without this no power plant could be sited in New York.”

The Senator realizes that wind facilities will not alleviate the need for backup generating capacity. He stated our concerns “did not fall on deaf ears”, and that his committee is embroiled with debate, centered on conventional power plants. Wind power hasn’t entered yet.

Although the law has many positive aspects it removes the ability of local government to protect its citizens. Large wind facilities dominate a landscape and cause significant environmental alteration to rural areas, where they are most often sited. It does nothing to protect real estate values nor remove the onus of improperly assessed wind facilities already permitted by local governments. We believe these deficiencies should be remedied prior to enactment.
###

Contact Information:
Cohocton Wind Watch, James Hall (585) 534-5581
Environmental Compliance Alliance, Richard Bolton (585) 554-3809

PRESS RELEASE
August 13, 2007
For immediate release

Cohocton Wind Watch

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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