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Second Orangeville wind farm lawsuit dismissed  

Credit:  By Matt Surtel, The Daily News, thedailynewsonline.com 2 March 2012 ~~

ORANGEVILLE – A State Supreme Court judge has categorically dismissed a second Clear Skies Over Orangeville lawsuit.

Judge Patrick NeMoyer found the Town Board’s approval of the planned Stony Creek Wind Farm’s site plan and State Environmental Quality Review were not affected by an error of law; were neither arbitrary or capricious; and did not constitute a violation of discretion.

The Feb. 22 decision marks the second time a CSOO lawsuit has been denied. The group had issued a variety of claims against the town board and Stony Creek Energy in the latest suit.

NeMoyer said the claims boiled down to three main issues. They included town approval of the wind farm’s site plan before mitigation plans were in place; approval of the SEQR without considering the cumulative environmental impact on wildlife, in light of the four other area wind farms; and that the project approval violated town code due to noise.

He dismissed the claims entirely, occasionally noting puzzlement at the CSOO arguments.

NeMoyer said the project’s SEQR addressed “at considerable length” environmental impacts highlighted by the plaintiffs, including mitigation.

“On the basis of the foregoing, the Court concludes the respondents made a thorough examination of potential impacts of the project on natural resources including wetlands, streams and forests,” NeMoyer wrote.

Most critically, he found the major section of the project’s Final Environmental Impact Statement devoted to public comments included 32 pages about birds; 23 pages involving bats; five pages discussing post-construction monitoring of bats and birds; and 20 pages on rare, endangered and threatened species.

“The respondents further thoroughly examined the potential impacts of the project on wildlife, particularly birds, bats and amphibia now claimed by the petitioner to have been insufficiently addressed as part of the environmental review,” NeMoyer wrote.

NeMoyer ruled there is “no merit” to the CSOO allegations the town had acted unlawfully, given the mitigation measures enacted.

He likewise ruled against the group’s claims involving town codes and turbine nose, noting the decibel limits could not be conceivably violated until the wind farm is up and running.

NeMoyer found CSOO’s noise analysis flawed, describing at least one of its positions as illogical.

“Moreover, the respondents have shown that they modeled the wind farm’s expected noise output based on ‘worst case’ assumptions that all of the proposed windmills were simultaneously and constantly operating at their known maximum sound output levels.”

NeMoyer said the town and Stony Creek had demonstrated the wind farm wouldn’t generate noise exceeding 46 decibels from any non-participating site at any time.

“To show that the wind farm would not breach a certain decibel limit during the loudest 90 percent of its operation is of course to show it would never reach that limit,” NeMoyer wrote, emphasizing his point with italics.

“One puzzling aspect of the petitioners’ position in this case is that it seems to laud the DEC for making the comments and suggestions in question, while criticizing the respondents for following them,” he noted shortly afterward.

NeMoyer ruled the noise-related issues addressed in the FEIS generally follow those raised.

“Indeed, the Court is hard-pressed to discern a single issue now being raised by the petitioner in relation to noise that was not addressed the respondents as part of the SEQRA process,” he wrote.

“The Court concludes that the FEIS and SEQRA findings thoroughly analyzed all of the relevant environmental factors, including the potential adverse impacts of the project and their mitigation,” NeMoyer wrote. “The noise impacts of the project and its impacts on wildlife, wildlife habitat and other natural resources were certainly among those matters adequately addressed during the SEQR process.

“The Court thus determines the respondents identified the relevant areas of environmental concern, took the requisite hard look at them, and made a reasoned elaboration as the basis for the determination.”

SEQR use in decision clarified

ORANGEVILLE – Judge Patrick NeMoyer clarified the State’s Environmental Quality Review Act and its use in his Feb. 22 decision.

The requirement has been an issue in Clear Skies Over Orangeville’s latest lawsuit against the town board and Stony Creek LLC, over the planned Stony Creek Wind Farm.

“It is essential for the Court to point out at the outset of its analysis, however, that not every adverse impact of a project as complex as this could possibly be identified, nor does SEQRA even require that,” NeMoyer wrote.

“By the same token, not every negative impact that has in fact been identified in connection with the project could be fully or adequately mitigated, certainly not to the view or satisfaction of the petitioner or other opponents of the project, nor does SEQRA require such absolute mitigation.

“Rather SEQRA requires only that the identified adverse environmental impacts be mitigated to the maximum extent practicable, consistent with social, economic and other essential considerations.”

Source:  By Matt Surtel, The Daily News, thedailynewsonline.com 2 March 2012

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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