New York State wants to get 70 percent of its energy from renewable sources by 2030, up from about 30 percent now, and that means a lot of wind and solar energy plants will have to be built over the next few years.
But where to put those plants, especially when not all towns love the idea?
That’s where the state power plant siting board comes in, Benjamin E. Wisniewski, a partner with the Zoghlin Group in Rochester, told a panel on local government issues at the 2020 annual meeting of the New York State Bar Association (NYSBA).
The board – formally, the Board on Electric Generation Siting and the Environment – has sweeping powers to expedite siting of power plants, and can override local laws and regulations to do it.
“New York State and local governments are overseeing a major change in rural land use around the state,” Wisniewski said to an audience that included many attorneys doing work for municipalities.
“We have to build a lot of power plants and have to do it very quickly if we want to meet the state’s renewable energy goals,” said Wisniewski, whose firm represents towns, public interest groups and individual intervenors in plant siting cases. “The siting board’s first goal is to expedite siting of power plants, and they’re taking decision-making authority from local governments.”
It takes five to 10 years to construct a new energy project, a timeline that Governor Andrew Cuomo recently said is too slow if the state is to meet its energy goals.
More than 50 renewable power plant projects are in the pipeline, mostly in sparsely populated areas of upstate and Western New York; Steuben County is a hotbed of activity, Wisniewski said.
Five wind plants have been approved in the last two years. In those cases, Wisniewski said, the state siting board waived local laws to get the plants sited. Sometimes the towns were in favor of the plants, but sometimes the siting board overrode objections.
“They have done it with the consent of the towns, and without consent,” Wisniewski said.
The municipal laws and regulations in question involve matters such as the size of turbines and the hours that construction can take place. In one case, the siting board sided with the town, rather than the power plant, on the town’s requirement for well testing near the turbines. In another case, a town passed a moratorium on wind power plants, but the siting board overrode that, Wisniewski said.
Under the state law, known as Article 10, the siting process automatically overrides local laws that are considered procedural; but substantive laws, such as zoning and flood zone regulations, still apply. However, if any local law is considered unreasonably burdensome, it can be waived in furtherance of the state’s energy goals, Wisniewski said.
So far, none of the disputes over waivers of local laws have made their way into court, Wisniewski said.
He said that it’s possible that two of the five cases decided so far by the siting board could be appealed – Number Three Wind in Lewis County and Bluestone Wind in Broome County. Both were approved in late 2019.
“As more cases are approved, I anticipate more final decisions will be appealed to the court. The court, in turn, may further refine the siting board’s powers relating to local laws,” Wisniewski said.
Wisniewski expects the pace of renewable power development to pick up over the next couple of years; he anticipates four projects could be approved this year, with more in 2021 and 2022.