Renewable Energy Vs. The Environment

The leading tory about why renewable energy projects were not being built quickly places the blame on rural opposition. The theory is that the projects were good but uninformed people caused problems. But what if there were flaws with the projects? What if there are legitimate environmental concerns with the locations and impacts that caused these projects to grind to a slow crawl? What if these projects’ ability to help the environment is far less than we’ve been led to believe? Is the answer to squelch public participation?

New York is not Arizona or California with wide open, unforested, non-agricultural spaces. Many areas in New York are a migration corridor for birds, bats and raptors. The New York Constitution calls for preserving farming and natural resources. And New York’s rural towns have higher population density than western states. Large sprawling projects do not fit here.

The Article 10 power plant siting law was developed with broad stakeholder input over several years as a way to reasonably approve renewable projects. Article 10 created early opportunities for public and municipal input and developer provided “intervener funds” up to 50% to citizen stakeholders (an effort to give citizens a voice when town board members had signed land leases with the developer). A mandated evidentiary hearing allowed presentation of developer and State agency data and gave municipalities and citizens opportunities to present evidence and testimony on all issues.

The unexpected result of Article 10 is that Department of Environmental Conservation (DEC) and Department of Agriculture and Markets (DAM) staff who reviewed the projects documented and testified to the large environmental impacts on wildlife, wetlands, woodlands, farmland and residents. These agencies along with citizen groups presented evidence and expert testimony at the hearing that often contradicted the developer. Hearing officers found the case for the project put on by developers was often not credible. Agencies recommended that conditions be placed on projects that the developers did not want to comply with. Projects were approved but the environmental conditions in the permit were not what developers wanted.

State agency staff, experts doing their job, were causing problems for developers in the hearings. And citizens with intervenor funds were presenting substantial evidence about adverse effects on the character of the community. Developers complained to the Governor’s office. In November 2019 Invenergy (parent of Alle-Catt wind Energy) presented its proposed changes to Article 10 to members of the executive staff that included a change in “tone” among agency staff and a reduction of funding to citizen groups. In February 2020 an Invenergy lobbyist expressed concern that DEC and DAM were handling impacts from renewable projects with submissions that “read like they are opposing a coal plant”. Developers wanted agency staff to be managed.

The Governor, not one to be interested in public processes for major legislation, in late February 2020 included in his 30 day budget amendment the Accelerated Renewable Energy Siting law. This law creates the Office of Renewable Energy Siting (ORES) and a renewable energy czar to replace the Article 10 Siting Board and hearing officers, decreases public involvement, makes project approval automatic if deadlines are not met, strengthens the overriding of town laws, reduces funding for public participation, and most importantly, makes an evidentiary hearing discretionary, leaving no public forum for agency and citizen experts to question and refute developers’ data.

Budget amendments are not an open and transparent manner to create policy. Politicians are pressured to pass the budget on time. Major legislation having nothing to do with the budget gets through Congress the same way. To please developers, Article 10 had to be replaced.

To implement the replacement, NYSERDA approved 1 million dollar contracts to two private companies working for developers, Tetra Tech and Arcadis, to assist the ORES office in drafting the new regulations and then reviewing project applications and issuing draft regulations.

Governor Cuomo has “fixed” the siting process to make it faster. But the problem was never with the process; it is with the projects. Article 10 documents show how approved projects sacrifice thousands of acres of forests, thousands of acres of farmlands, migratory birds, bats and raptors and the rural character of communities that must host them. According to the hearing officers, Invenergy’s Alle-Catt Wind Energy proposal alone would kill 41 Bald Eagles and 26,000-39,500 bats, among them the Northern Long-Eared Bat now on the verge of extinction, and remove 1,550 acres of mature forest (which could absorb carbon forever). For that we get (according to Alle-Catt) about a one percent reduction in power sector emissions (less than a third of all emissions in the economy) in the first year, and (as our energy systems expert showed) declining reductions in every year thereafter.

Where the energy from 600 foot turbines (newer proposals are for 725 turbines) and millions of solar panels in upstate New York to be used? Upstate now has 90% of electricity generated emissions-free (mostly nuclear and hydropower, with 6% wind power), and the transmission system prevents any of that from being transported downstate. There is no evidence that these projects are reducing emissions with anything like the speed climate scientists say we need. Indeed, the rate of growth of greenhouse gases in the atmosphere has recently started to climb, beyond the steady increase of the last 100 years.

Climate change advocates say that we have to act now. There is no time to wait. Certainly the developers agree: the message makes them lots of money. I say that there is no time to get things wrong. The Governor’s Accelerated Renewables Act is leading us down an uncertain and costly road, bypassing other ways to reduce emissions that may be much more effective, and much less destructive.

Gary A. Abraham is an attorney specializing in state and local government, land use, and environmental law across upstate New York, and based in the Olean area.


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