Article 10 & ORES Concerns
ORES Regulations Finalized March 3, 2021
As outlined below, SOS and various other groups and individuals submitted substantive comments on the draft siting regulations from the Office of Renewable Energy Siting (ORES). Many deficiencies in the draft regulations were noted in the numerous comments but no significant modifications were made in the final version! See the final regulations here. The press release from Gov. Cuomo’s office can be found under “Articles” on this page, if you care to read the state’s spin on this process.
SOS Has Much to Say About New “94-c” Renewable Siting Regulations
SOS submitted a series of substantial comments to the Office of Renewable Energy Siting to address the Draft Regulations and Uniform Standards and Conditions being proposed by the Office. Included was a cover letter signed by several additional stakeholders across upstate and western New York, expressing their support for these comments. Additionally, 8 appendices were included on various topics.
(For background on 94-c: see below, after comments.)
Appendix A comments on the ORES proposal’s potential to result in adverse noise impacts on those who would be living near large-scale renewable energy projects. Two documents comprise Appendix A, one by our legal counsel Gary Abraham, based on his experience in renewable energy project siting proceedings in New York, and the other by Robert Rand, the principal of Rand Acoustics LLC, in Brunswick, Maine. Mr. Rand has extensive experience in renewable energy project siting proceedings throughout the U.S.
Click here to read Appendix A.
Appendix B comments on the potential impacts of the Draft Regulations and Uniform Standards (the “ORES proposal”) on natural resources. Appendix B was prepared by our consultant Karen Schneller-McDonald, the principal of Hickory Creek Consulting LLC, in Red Hook, New York.
Click here to read Appendix B.
Appendix C, prepared by Gary Abraham, comments on the legally questionable use of different health and safety standards for project “participants”, compared to everyone else.
Click here to read Appendix C.
Appendix D includes comments by Gary Abraham on the need for additional protections from shadow flicker, the highly annoying strobing of sunlight through moving wind turbines. Appendix D also included comments on the visual impacts and design drawings (including setbacks) prepared by Kate Kremer, SOS Vice-President.
Click here to read Appendix D.
Appendix E offers a brief comment prepared by Gary Abraham on ORES’s obligations under New York’s State Environmental Quality Review Act (“SEQRA”) when proposing new regulations, and on how the draft regulations conflict with the State’s policies for the preservation of agricultural and natural resources, set forth in the State Constitution.
Click here to read Appendix E.
Appendix F comments on the need to align the siting of large-scale renewable energy projects with the siting of transmission improvements, in order to improve the ability of generation projects to make a meaningful contribution to the State’s policy of reducing greenhouse gas emissions. These comments were prepared by Gary Abraham.
Click here to read Appendix F.
Appendix G, prepared by Kate Kremer, comments on draft regulation procedures and on several application exhibits as proposed in the draft regulations. She enumerates revisions needed to ensure stakeholders who would be asked to host large-scale renewable energy projects can participate in the review of siting proposals.
Click here to read Appendix G.
Appendix H comments on the proposed Uniform Standards, and argues that the need to expedite siting does not require weakening substantive protections for the environment and rural communities developed under Public Service Law, Article 10. These comments address subjects not covered in other appendices and were prepared by Kate Kremer.
Click here to read Appendix H.
Additional SOS Comments:
Many groups and individuals have submitted comments on the draft regulations and Uniform Standards and Conditions.
The Office of Renewable Energy Siting (ORES) has informed SOS that they will not post the comments on their website. In an effort to keep the public informed, SOS posts the comments for Concerned Citizens for Rural Preservation (CCRP), and the American Bird Conservancy (ABC) as well as other citizens below:
The Zoghlin Group submitted the below comments on behalf of Concerned Citizens for Rural Preservation (CCRP):
The American Bird Conservancy (ABC) submitted the below comments that were signed by numerous environmental conservation groups, including SOS:
Many citizens submitted comments and we have compiled some of them below. These are a sampling of the comments and they do not necessarily represent the opinions of SOS. SOS is posting them as a service to the public since the Office of Renewable Energy Siting has informed us that they will not do so.
- Citizen Comments on the Draft Regulations and Uniform Standards (COMING SOON)
In February 2020, after all debate on the New York State budget had ended, Governor Cuomo added an amendment to the budget titled the Accelerated Renewable Energy Act or “94-c”. It proposed replacing the existing large scale renewables siting process (Article 10 under the Department of Public Service) with a new Office of Renewable Energy Siting (ORES) to speed up the approval of these projects, even if it means that local laws are waived and environmental studies are limited.
This Act, along with everything else attached to the budget, was passed in April 2020.
Under the 94-c Act, the newly formed ORES quickly drafted regulations and uniform standards so they can begin to approve large scale renewable projects. These regulations were drafted with such haste and are so heavily tilted in favor of the developers that it was hard to know where to start.
SOS, with six years of participation in the existing siting process and a supportive community, was positioned to respond with substantial comments regarding how the new regulations need to be revised.
More background on the history of Article 10 and the new siting process is contained in our November 7, 2020 newsletter: https://us9.campaign-archive.com/?u=eb5a350ca552b55cc84a08f98&id=38cc7585a6
Environmental Attorney, SOS counsel
To access more information on the Office of Renewable Energy (ORES) click HERE.
NY created an agency to OK wind and solar projects quickly. Upstate towns aren’t happy
Democrat & Chronicle, Thomas C. Zambito
An excellent recap of where New York is at with siting large scale renewables. The link may not be accessible as it is behind a paywall. We offer a few thoughts and quotes: Thomas describes the bind the state was in back in 2020 after passing the Climate Act, “The state deadline for creating an electric grid that relies on renewables for nearly three quarters of its energy was a decade away and large-scale wind and solar projects were having trouble getting approved. In 2020, just six renewable energy projects received permits from the state over the previous nine years and only one was under construction.”
He goes on to explain how New York State Department of Environmental Conservation and Ag and Markets, by doing their jobs, were causing problems for the developers: “Developers were blaming state agencies responsible for protecting New York’s environment and its agriculture for unnecessarily throwing roadblocks in their way. Their enemy was the siting process for renewable projects in the Department of Public Service known as Article 10. It would have to go.”
The article continued to explain how the result of the developer complaints was a state law that consolidated State authority, “State officials agreed. Houtan Moaveni, who headed the DPS department that oversaw siting of electric-generating facilities, said Article 10 “proved cumbersome and inefficient”. In came the Office of Renewable Energy Siting (ORES), created by an act of the Legislature in April 2020. Led by Moaveni, it’s the only agency of its kind in the country dedicated to approving permits for large-scale renewable projects. Since June 2021, it’s approved seven renewable projects.”
And the article describes the impact on towns and how they are fighting back: “Its most powerful tool gives ORES the ability to override local town zoning laws and ordinances considered “unreasonably burdensome” to the state’s ability to achieve climate targets like zero carbon emissions by 2040. And it replaces Article 10’s seven-member board for approving permits with Moaveni. More than two years after the office came into existence, it’s under attack by upstate towns from the Hudson Valley to the Finger Lakes and the shores of Lake Ontario.”
‘Where’s the rural justice?’ Turbine plans for Lake Ontario shoreline hit headwinds in WNY
Democrat & Chronicle, Thomas C. Zambito
After eight years filled with raucous public hearings, lawsuits, debate over the flight path of birds and bats, families divided, and political careers launched, Apex Clean Energy informed state officials it was no longer seeking a permit for its Lighthouse Wind project. James Simon, Yates’ town supervisor, feels New York has failed to create a strategy for its biggest electricity-generating build out in decades, dumping millions of solar panels and hundreds of wind turbines in rural upstate towns. Also the new state agency, Office of Renewable Energy Siting, undermines public input and allows the state to override local zoning laws that protect their communities. Yates and Somerset have joined three others upstate towns and birding groups in a lawsuit challenging the new process, commonly referred to as 94-C for the executive law that created ORES. Apex won’t say whether their decision to pull their permit out of Article 10 means it won’t re-file an application with ORES under the new 94-C process.
Litigants tell energy agency to do ‘hard work’ now
Lockport Union-Sun & Journal, Benjamin Joe
An appeal has been filed in the case against the New York State Office of Renewable Energy Siting (ORES) Regulations in an effort to stop large-scale solar and wind energy facilities across the state until regulations are reshaped. The original suit was dismissed in October of 2021. The 11 petitioners include the Towns of Copake, Malone, Somerset and Yates, as well as groups, Save Ontario Shores, Cambria Opposition to Industrial Solar, Clear Skies Above Barre, the American Bird Conservancy, Delaware-Otsego Audubon Society, Genesee Valley Audubon Society and the Rochester Birding Association. Litigants claim the regulations were actually written by a consultant group called Tetra Tech, which has designed renewable energy facilities in New York, leading to accusations of a conflict of interest,; that ORES did not do “the hard work” required to ensure that regulations do not miss potential environmental impacts; and that “home rule”, the control local governments have on projects within their boundaries, has been removed.
State OKs industrial wind facility in Orleans County
Lockport Union-Sun & Journal
The New York State Office of Renewable Energy Siting on Jan. 13 issued a siting permit for Apex Clean Energy to build the 184.8-megawatt, 33-turbine Heritage Wind energy facility in the town of Barre. It was ORES’ first decision on a large-scale wind energy project through the new “94-c” process. Significantly, the decision by ORES director Houtan Moaveni pushes Apex Clean Energy to remove or relocate six wind turbines who’s siting presently is planned within two miles of the Oak Orchard Wildlife Management Area, on the Iroquois National Wildlife Refuge, to remove “a potential significant elevated risk of fatality to nighttime migrating birds flying into and out of the Iroquois complex.” For more about how Moaveni agreed with the US Fish & Wildlife Service, the American Bird Conservancy, Clear Skies Above Barre, and local birding organizations see SOS January 18th newsletter.
Suit against state utility siting office tossed
Lockport Union-Sun & Journal, Benjamin Joe
Supreme Court Justice Pete Lynch dismissed the petition filed by numerous towns and activist groups against the New York State Office of Renewable Energy Siting (ORES) and its acting director, Houtan Moavenni, on Oct. 7. The lawsuit was filed on June 29. The petitioners were six towns including Cambria, Somerset and Yates, and advocacy groups including Cambria Opposition to Industrial Solar and Save Ontario Shores. Lynch was not persuaded that ORES was trying to comply “after the fact” with the State Environmental Quality Review Act (SEQRA), which judges whether a proposed development may affect the environment on a variety of levels such as noise, appearance and archaeology.
Rural towns, community and conservation groups to sue state over siting process for large-scale renewable energy
Orleans Hub, Press Release
Local governments, community organizations and conservation and public interest groups across New York State are set to file a lawsuit against the NYS Office of Renewable Energy Siting (ORES) asserting a violation of NYS Environmental Quality Review Act (SEQRA). The lawsuit is filed on the grounds that ORES failed to meet the legal requirements of SEQRA to take a “hard look” at the environmental impacts that could result from their permitting standards prior to adopting their regulations. The suit will seek a temporary restraining order (TRO) and a preliminary injunction to invalidate the ORES regulations, and to require ORES to adopt new regulations based on performance of a full environmental impact statement. The suit also seeks an order shifting all current and potential ORES applications to the already existing state Siting Board for review of applications under Article 10 which employs a well-established process for reviewing, mitigating, and avoiding the environmental impacts of renewable energy projects.
NYS ORES Sets Precedent in Section 94-c Permit Proceedings: When Major Renewable Energy Projects Need Not Comply with Local Laws
In its first such determination, on June 4, 2021, the newly formed NYS Office of Renewable Energy Siting (ORES) determined that several provisions of the Town of Barre’s (Orleans County) local law are “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, and therefore declined to apply them. This sets a precedent for how ORES may subject such projects to local zoning requirements and standards – or not – and what showing an applicant must make in order to support such an ORES determination. ORES agreed with Heritage Wind that eight provisions of local law are unreasonably burdensome and should not apply to the project, even where changes in local law from the time of application submission resulted in new local standards. These provisions pertain to wind turbine noise standards, a prohibition on the use of guy wires, shadow flicker requirements, wind turbine height limitations, the extent of required forest restoration, permitted timing of construction activities, burying of turbine foundations, and decommissioning timelines and related requirements.
State adopts new regulations to speed up renewable energy projects
Orleans Hub, Press Release Gov. Cuomo’s Office
The new Office of Renewable Energy (ORES) has adopted regulations that will shorten the social, economic, and environmental factors in permitting of renewable energy facilities to one year of the date on which an application is deemed complete and within six months if the facility is proposed to be located on brownfield, former commercial or industrial, landfill, former power plant, and abandoned or underutilized sites.
The Cuomo Administration is proposing to remove local taxing authority over large-scale renewable energy projects from municipalities.
SOS Position Paper
New York State Executive Law Section 94-C, passed in the April 2020 budget vote, establishes the new process which allows ORES to overrule municipal laws and to rule on industrial wind and solar projects within one year after a developer’s application is considered complete. If a decision on a project application is not made by ORES within one year, approval is automatically given. The State has almost complete control over the size, location, local setbacks and almost every aspect of large-scale renewable energy projects –except for local tax payments. Those are still determined locally. The governor has proposed to end this in his 2021/22 Executive Budget and will take away local governments and IDA’s ability to negotiate PILOTs for large-scale renewable energy projects. It is a further erosion of Home Rule in New York State and prevents local governments from determining not only where in their communities large-scale solar and industrial wind projects should be located, but also the ability to determine the fair value to compensate local taxpayers to host these projects.
Save Ontario Shores calls on state to extend deadline for implementation of draft regulations
SOS News Release
The president and vice president of Save Ontario Shores (SOS) testified at New York’s Office of Renewable Energy Siting (ORES) virtual public hearing on Monday (Nov. 30), regarding draft regulations that would make it easier to develop large-scale industrial wind and solar projects in New York State. Noting that the state has extended unemployment insurance, the tax filing deadline and the deadline for COVID-related residential and commercial evictions, SOS is calling on New York State to extend the deadline for implementation of the green energy regulations. Also an environmental expert engaged by SOS concluded “The proposed regulations do not reflect an understanding of environmental science and now conventional methods to review and mitigate environmental impacts. Many sections read like they are written by someone with little or no understanding or experience with wetland science, watershed management, ecology, and best practices for stream protection. This does not serve the best interests of the people of New York State and protection of our water resources.”
NY renewable siting hearings end on mixed note
RTO Insider, Michael Kuser
New York officials on Monday concluded two weeks of public hearings on draft regulations for the siting of renewable energy resources, with comments ranging from impassioned pleas to save the planet to skepticism that the state even cares what people think about its plans to speed up development of wind and solar. Kate Kremer, vice president of environmental advocacy group Save Ontario Shores (SOS), criticized the constant noise produced by wind turbines in quiet rural areas and quoted a study her organization commissioned by Rand Acoustics that found the proposed numerical standard would not protect people from the adverse health effects of the sound.
New York proposes rules to speed renewable projects, but local control, other issues could be contentious
Utility Dive, Robert Walton
New York on Wednesday issued proposed regulations for the siting of large-scale renewable projects and “fill out the picture of what a complete permit application will require, and how municipalities may participate in the process”. “Some stakeholders will surely voice concerns around local agencies’ ability to manage project development in their communities”. Office of Renewable Energy Siting (ORES) will accept comments on the proposed regulations through Dec. 7, and has scheduled five public hearings and a pair of virtual meetings to hear concerns about the new rules.
As New York pushes green energy, localities bristle at loss of control
Buffalo News, Thomas Prohaska
A new law gives New York State government more authority than ever over approvals for large-scale wind and solar energy projects. It states any local law can be overridden if the new office considers it “unreasonably burdensome in view of the targets and the environmental benefits of the proposed major renewable energy facility.”
New York’s Accelerated Renewable Energy Act Poses Risks to Birds
Joel Merriman, American Bird Conservancy
“We have concerns about how this will be implemented,” says Joel Merriman, ABC’s Bird-Smart Wind Energy Campaign Director. “A combination of aggressive timelines and the potential for automatic approvals at key steps in the process leaves the door open for wind energy facility plans to inadequately address risks to birds.”
Renewable Energy Act Panned by Local Activists
Benjamin Joe, Lockport Journal
‘Norris said on the floor of the Assembly, “It is critically important to the character of that community for them (local residents) to determine whether or not they want to have a massive, large wind turbine factory in their community, or a massive solar energy facility in their community.
“The locals need to have a voice, a substantial voice. This bill takes away from the individuals to serve on the local siting board. It just tramples on local control.”
Ensuring Procedural Justice with Renewable Energy Development
River Residents Against Turbines
Critical Perspectives and Recommendations on the New York State Article 10 Siting Process based on recent events in Albany. At the core are three internationally-endorsed sustainability principles associated with renewable energy development and large-scale project siting: Social License, Procedural Justice, and Resource Localism. Until these principles are incorporated into Article 10, the process will be criticized and project opposition and delays will continue across New York State.
Governor Cuomo Proposes Faster Article 10 Process
Zoglin Group, Ben Wisniewski
Article 10 is not the only reason it takes 5-10 years to build power plants in New York. Developers spend much of that time acquiring land rights. In addition, applicants control the duration of pre-application negotiations, a significant source of delay in many Article 10 proceedings. Having gained substantial first-hand experience with the Article 10 siting process, I am well aware of its flaws. But the slow-pace of the proceedings is not one of them. If anything, additional time is needed to develop a complete record relating to the many local environmental and economic impacts associated with large-scale renewable energy development.
Commentary: Energy report has many flaws
Albany Times Union, Gary A. Abraham, Attorney for SOS and other citizen groups in the state.
Mr. Abraham addressed the flaws contained within a recent statement from the New York League of Conservation Voters pertaining to siting renewable energy projects in New York. See his complete response to the League’s recent statement, including an executive summary and detailed analysis HERE.
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APEX will provide the argument and evidence in favor of the turbines.
This website will provide a thorough presentation of arguments against the turbines, inform people of important dates and provide a forum for discussion. Our task is to provide balance, openness and clarity.
APEX is an out of state corporation that has the potential to gain enormous profits from placement of industrial turbines in Niagara and Orleans Counties. It is not affected by changes in the quality of life or health of local citizens, or the effect on local businesses once binding contracts have been signed. Landowners who agree to lease their land stand to benefit financially and, in addition, towns will be offered financial incentives to move forward with the development. However, ongoing payments will likely not be guaranteed and potential gains are certain to be offset by the loss of substantial rights by individual landowners, loss of tax revenue caused by a decrease in the value of properties including lake properties, and the possible loss of revenue for local businesses as people avoid this industrial zone.
The voice of concerned citizens is crucial to ensure that the well being of all the residents and landowners are protected and that the towns clearly understand the health risks, lifestyle changes, and transformation of the character of the entire area prior to making decisions and signing contracts. Information that is gathered without influence from APEX, and open information about who will profit, will be essential to the integrity of the decision.
… ongoing payments will likely not be guaranteed and potential gains are certain to be offset by the loss of substantial rights by individual landowners, loss of tax revenue caused by a decrease in the value of properties including lake properties, and the possible loss of revenue for local businesses as people avoid this industrial zone.