Gov. Andrew Cuomo and the Public Service Commission recently mandated that 50 percent of the state’s power must be generated by renewable sources by the year 2030.
This goal requires up to 370 industrial wind energy facilities to be built across New York within the next 14 years. To achieve this goal, the governor enacted Article 10 of the Public Service Law.
Article 10 became law in 2011 to create a one-stop siting approval mechanism controlled by Albany. The centralized control of siting energy projects is good for alternative energy developers and downstate power consumers but imposes significant hardship on upstate communities.
Article 10 attempts to severely limit a town’s constitutional power to regulate land use and protect the health, safety and welfare of citizens. This constitutional grant of power is called home rule.
Some wind and solar energy developers want to use Article 10 to strip towns of their home rule power to regulate land use. My law firm, Lippes Mathias Wexler Friedman, represents the towns of Clayton and Somerset (Niagara County) and is fighting to ensure that citizens’ interests are not trampled by wealthy out-of-town developers.
The challenge faced by towns like Clayton is that Article 10 seemingly gives a centralized siting board the power to decide where 500- to 700-foot-tall industrial wind turbines can be placed. Wind developers believe the siting board can subvert the will of the community by completely ignoring local comprehensive planning and zoning laws.
The siting board is a seven-member panel where majority rules. The Senate and Assembly appoint two “ad hoc” members from a list recommended by local governments. The other five members are state department heads, appointed by Gov. Cuomo.
Wind developers believe Article 10 gives the state siting board the right to ignore local land use and wind laws. The wind industry’s legal opinion is on full display in a recent, ongoing lawsuit. There, lawyers for Iberdrola argue that Article 10 impliedly pre-empts any local law or ordinance concerning wind energy regulation.
We disagree with this logic and further question the legality of the siting board’s ability to set aside local laws. But if the arguments of the industrial wind developers are accepted, Article 10 gives Albany complete centralized control over local, rural land use.
This change doesn’t just seem wrong; it is wrong. It also flies in the face of legal precedent. If a town in New York can ban fracking, why can’t it ban industrial wind energy?
Nevertheless, a town that chooses to rely solely on a local procedural wind law is setting itself up for failure. The siting board may simply ignore a local permitting law.
Despite this risk, a substantive local law based on a robust and unbiased investigation of the issues is still important. Article 10 requires the siting board to at least consider applying local laws related to wind energy. It is even possible the siting board may choose to apply a local wind law setting forth land use restrictions for wind energy facilities.
But a good local wind law is not an impenetrable shield capable of deflecting the Article 10 process. Unfortunately, there are some anti-wind advocates who wrongly opine that a model wind law, heavily laden with procedural hurdles, will single-handedly prevent the development of a wind project. Such advocates are not lawyers, do not understand New York law and are simply wrong.
The challenge of developing a wind law that protects local citizens while not being totally ignored by the siting board was evident at a public hearing in Clayton on Wednesday. More than 60 residents attended, some criticizing that Local Law No. 5 doesn’t do enough to prevent industrial wind farm development.
On the other hand, Iberdola’s Albany-based attorneys attended to deliver a 25-page criticism of the law for being too strict. A local law designed to create excessive hurdles for the wind industry to overcome only invites costly litigation. The town has already been dragged into court to defend the moratorium enacted in April.
The Town Board has the difficult task of crafting the correct wind law, which protects the town’s interests in the Article 10 process without inviting further costly litigation initiated by the wind developers. If the courts decide that Article 10 pre-empts local laws, enacting a local wind law is one strategy a town can pursue to protect residents.
We will continue to press the proposition that Article 10 is legally flawed. But if we don’t prevail, Clayton needs a local law designed to have a meaningful impact on the siting board decision while protecting the health, safety, and welfare of town citizens. I believe that Clayton Local Law No. 5 accomplishes both objectives.
Dennis C. Vacco is a former state attorney general. He is a partner with the law firm of Lippes Mathias Wexler Friedman LLP. He and his colleagues represent two New York towns actively participating in the Article 10 siting process.