Preempting Local Zoning Codes Fuels Opposition to Renewable Energy in New York

Preempting Local Zoning Codes Fuels Opposition to Renewable Energy in New York

2.2.2022

By Frederic M. Mauhs

By now, many New Yorkers are aware that their state has adopted ambitious plans to lead the nation in the fight against climate change and global warming. The objectives established for New York’s electric grid in the Climate Leadership and Community Protection Act (CLCPA)[1] – to increase renewably generated electricity to 70% of total in-state production by 2030 and generate 100% emissions-free electricity by 2040 – are now entering our vernacular as the “70 x 30” and “100 x 40” goals, as stated in the Draft Scoping Plan and the NRDC website.

Perhaps less well understood, however, is the enormity of the effort it will take to achieve these goals. The New York Independent System Operator estimates that 39,262 megawatts (MW) in nameplate capacity[2] must be sourced from grid-connected solar, as opposed to behind-the-meter solar (such as residential rooftop panels), to meet the 100 x 40 goal.[3] To put 39,262 MW into perspective, consider that the largest operating solar facility in New York State is the Long Island Solar Farm, a 32 MW nameplate capacity facility[4] that consumes 200 acres of land. If NYISO’s prediction is correct, then the equivalent of 1,227 more LISFs will need to be constructed in New York by 2040. This is in addition to the 35,200 MW capacity that New York’s onshore wind farms will need to furnish.[5]

However, the burden of hosting renewables facilities, especially solar farms, will not be distributed evenly throughout the state. Rather, they will be concentrated in those areas where it is easiest and least expensive for energy companies to build. This means that developers will choose sites where population density and land prices are low, the ground is level, the soil contains no rocks or roots, and transmission lines are close – typically within two miles. These also happen to be the very places where New York’s prime agricultural soils are located. In other words, the necessary solar and wind farms might well end up on New York’s most valuable farmland, in particular the areas encircling the Adirondacks, the horizontal belt just south of Lake Ontario from Buffalo to the Capital District, and the Hudson Valley between Albany and Poughkeepsie.[6]

Between 2011 and 2020, the process of permitting all “major” (over 25 MW) power facilities in New York, including renewable facilities, was governed by Public Service Law Article 10 and presided over by the New York State Board on Electric Generation Siting and the Environment.[7] In 2020, however, the Legislature passed a new law governing the siting of wind and solar facilities only, containing provisions to “streamline” their siting process and accelerate their build-out, called the Accelerated Renewable Energy Growth and Community Benefit Act.[8] This act contains the “Major Renewable Energy Development Program,” codified in a new Section 94-c in New York’s Executive Law.[9]

The new siting law requires that developers of major wind and solar projects obtain a permit from the Office of Renewable Energy Siting, which resides in the Department of State.[10] As before, “major” is defined as projects with a nameplate capacity of 25 MW or more.[11] Smaller projects will still be governed by local siting procedures. Projects of 20-25 MW capacity may elect to opt out of local law and into the Section 94-c process.[12]

The Office of Renewable Energy Siting (ORES) promulgated regulations under Section 94-c on March 3, 2021.[13] The industry is closely watching ORES’s process to determine whether the new law will facilitate wind and solar farms in the numbers and with the speed required to achieve the CLCPA’s goals.[14] Many renewable energy supporters have high hopes for the new law, claiming that the prior law was too solicitous of local opposition to get the job done.[15] However, most of the streamlining provisions of 94-c already existed in Article 10. These include a one-year time-limit for each siting proceeding,[16] preemption of environmental review[17] under the State Environmental Quality Review Act (SEQRA)[18] and preemption of local laws, mainly municipal zoning codes, considered “unreasonably burdensome” for siting a project.[19]

The latter preemption is the most significant and controversial of all these provisions in both Article 10 and Section 94-c. When invoked, it denies towns and villages the land use authority granted them under enabling statutes almost 100 years old.[20] This power is reflected in the state constitutional authority for local governments to regulate matters pertaining to “[t]he government, protection, order, conduct, safety, health and well-being of persons and property therein,”[21] and thwarts expectations that local matters can be decided locally. [22]

It is true, however, that Article 10’s record for siting renewable energy facilities was for many years abysmal, despite its provisions for preempting local laws and SEQRA.[23] By 2019, five wind farm developers had withdrawn their applications from the siting board due to local opposition,[24] and no solar project had yet been approved.[25] In February of that year, the discovery of an empty eagle’s nest near another proposed wind project pending before the siting board focused local opposition and led to withdrawal of that application, too.

The debacle became the subject of a New York Times article that questioned whether the CLCPA’s goals were at all achievable given the difficulty in siting renewable energy facilities.[26] Notably, after the article was published, the Article 10 process improved suddenly and became dramatically more effective. The Article 10 Siting Board began approving both wind and solar projects of considerable size[27] in quick succession, overruling virtually all local objections. Between Aug. 20, 2019, and March 11, 2021, eight wind and four solar projects were approved. No application in this time frame was rejected.

In three of the four solar cases, involving projects in the towns of Coeymans,[28] Florida[29] and Sharon,[30] intervenors unsuccessfully objected to the projects on the grounds that the developers had not sufficiently considered alternative siting locations that might have resulted in reduced environmental harm. Alternatives analysis is an important part of normal environmental assessments, such as those required under SEQRA[31] and (with respect to federal agency action) the National Environmental Policy Act.[32] However, both Article 10 and Section 94-c exempt energy projects from compliance with SEQRA.[33] In Article 10’s own, more cursory environmental impact regulations, developers are still required to analyze the environmental impacts of alternative siting possibilities, but a private developer need not consider alternative locations on land in which it currently has no legal interest: “[A] private facility applicant may limit its identification and description to sites owned by, or under option to, such private facility applicant or its affiliates.”[34]

In the Coeymans case, the siting board narrowed the Article 10 alternatives assessment requirement even further. In that case, the New York Department of Agriculture and Markets had objected to the siting proposal because 86% of the solar arrays would cover prime agricultural soils[35] as defined in its land classification system – far in excess of AGM’s recommended 10% limit.[36] AGM argued that the developer’s affiliates had obtained leases on several other properties nearby. Therefore, it contended, the developer was required under Article 10’s regulations to undertake an alternatives analysis to determine, for example, if less prime soil would be sacrificed in those other locations. The siting board, however, disagreed because, “although [the developer’s] affiliates have other sites under their control, those sites are all slated for development of other solar facilities, and are not available alternative locations for the [proposed] Facility.”

In the Florida and Sharon cases, the proposed solar projects violated provisions of the towns’ zoning codes: 11 provisions[37] of the Florida code, including setback provisions for solar installations,[38] and the Sharon code’s limitations on converting agricultural land and clearcutting forested land.[39] Both towns argued that the respective developers should have analyzed alternative sites for their projects that would not have violated the zoning codes. The siting board in both cases rejected the argument with little or no discussion of the issue,[40] resulting in the preemption of the relevant zoning code provisions.[41]

Unfortunately, the significance of the siting board’s preemption of local zoning ordinances is not well understood by many commentators on New York’s renewables siting laws. Many renewable energy proponents insist that the siting board and the Office of Renewable Energy Siting would respect a responsibly drafted, renewables-friendly zoning code, and would not preempt it. But Article 10 does not explicitly give the siting board, and Section 94-c does not explicitly give ORES,  the authority to require a developer to relocate its project to land it does not own or lease.[42]

Indeed, although both siting authorities have the ability and even the obligation to consider zoning code provisions on how to site a solar facility, neither has the explicit ability to consider zoning code provisions on where to site it.[43] The developer decides the location. The siting laws require the developer only to mitigate environmental harms to the extent possible on whatever land it proposes to build the facility. Both Article 10 and Section 94-c state that the “unreasonably burdensome” test for preempting local law relates only to the facility as proposed,[44] not to the local zoning law itself. Section 94-c could have explicitly made responsible zoning codes relevant to the siting decision had it stated: “[ORES] may elect not to apply, in whole or in part, any local law or ordinance which would otherwise be applicable if it makes a finding that such local law is unreasonably burdensome to achieving the CLCPA targets.” Instead, the process makes local law and knowledge about where best to site the facilities irrelevant.

To be sure, Section 94-c contains many provisions that should speed the permitting process even faster than Article 10 did. For example, if any case before ORES is not decided within 12 months, it is deemed automatically approved.[45] The regulations under Section 94-c also contain a set of default “uniform standards and conditions”[46] for mitigating environmental harm so that the developer and the community need not spend time negotiating them, as under Article 10. But perhaps the most important factor in accelerating the process will be the political establishment’s expectation that ORES will use its discretion to move toward positive siting decisions more expeditiously than the siting board and with even less respect for local laws.[47] In other words, ORES will be under an enormous reputational burden to prove itself more capable of avoiding delays and less deterred by local opposition.

ORES, as well as the energy companies themselves, would be well advised to respect rural communities’ legitimate land use concerns, regardless of the local law preemption provision of Section 94-c. Past failures to protect politically powerless communities from having to host a disproportionate share of New York’s fossil fuel-driven power plants led belatedly to a recognition that those communities were victims of a grave environmental injustice. ORES should therefore muster the political will to respect local zoning codes that provide ample opportunity for the siting of utility-scale solar and wind facilities. It can do so by interpreting the “unreasonably burdensome” preemption provision as requiring a determination that the local law, in its entirety, unreasonably burdens the state in achieving its CLCPA goals before preempting that law.

Land use regulation belongs to those powers that New York municipalities have long considered to be theirs under “home rule.”[48] Eliminating it entirely to promote green energy could exacerbate New York’s ever-present upstate-downstate, rural-urban divides. Indeed, some upstaters who may otherwise be well-disposed to green energy appear to be already turning against what they view as a renewables infrastructure that serves mainly downstate energy demands but burdens mainly upstate communities and their local foodsheds. As one town supervisor in Schoharie County stated, “This ‘streamlining’ of green energy siting has toxified the political middle.”[49]

In addition, an upstate community land use planner said, “There isn’t a town yet that I have worked with that isn’t already resentful against Albany ­– even very liberal, Democratic-oriented communities who otherwise would do everything they could to protect the environment.”[50] The political repercussions have also begun. For example, an upstate New York town recently swept out of office the public officials who had approved a wind farm there and is now seeking to reverse the approval.[51]

The New York Legislature should be applauded for establishing itself as a leader in the nation and even the world[52] in addressing climate change and global warming. But state government should redouble its efforts to involve rural communities in energy siting decisions on their land, lest upstate support for green energy goals begin to erode. By reducing the risk of a political backlash or litigation against New York’s siting laws, we can continue to build renewable energy facilities at the scale and speed that sensible climate mitigation requires.

Frederic M. Mauhs is a New York environmental lawyer from Schoharie County now living in Westchester County. He holds an LL.M. degree in environmental law (energy and climate change) from the Haub School of Law at Pace University. This article also appeared in the NY Environmental Lawyer (2021, vol. 41, no. 2), a publication of NYSBA’s Environmental & Energy Law Section. For more information about this section, please go to NYSBA.ORG/EELS.

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[1] New York State Climate Leadership and Community Protection Act of 2019 N.Y. Laws ch. 106 (July 18, 2019), codified at N.Y. Environmental Conservation Law §§ 75.0101–75.0119.

[2] “Nameplate capacity” is the maximum output of a power plant when built, expressed in terms of megawatts.

[3] Paul J. Hibbard et al., Climate Change Impact and Resilience Study – Phase II: An Assessment of Climate Change Impacts on Power System Reliability in New York State, 9, Table ES-1 (2020), https://www.nyiso.com/documents/20142/15125528/02%20Climate%20Change%20Impact%20and%20Resilience%20Study%20Phase%202.pdf/89647ae3-6005-70f5-03c0-d4ed33623ce4.

[4] See BNL Interdisciplinary Science Department, Long Island Solar Farm at https://www.bnl.gov/lisf/ (last visited Apr. 15, 2021).

[5] Hibbard et al., supra note 3.

[6] In 2015, the N.Y. Public Service Commission estimated that 70% to 84% of the development of utility-scale solar facilities would occur in the west, central and capital regions of the state. NYPSC Case 15-E-0302, Proceeding on Motion of the Commission to Implement a Large-Scale Renewable Program and a Clean Energy Standard, Order Adopting a Clean Energy Standard, Appendix G at 19 (Aug. 1, 2015).

[7] N.Y. Public Service Law Article 10 (hereinafter Article 10).

[8] The Accelerated Renewable Energy Growth and Community Benefit Act of 2020, 2020 N.Y. Laws ch. 58, pt. JJJ.

[9] N.Y. Executive Law § 94-c.

[10] Exec. Law § 94-c (4)(a).

[11] Exec. Law § 94-c (2)(h).

[12] Exec. Law § 94-c (4)(g).

[13] The regulations are codified at N.Y. Comp. Codes R. & Regs tit. 19 §§ 900-1.1–900-15.2 (N.Y.C.R.R.).

[14] See, e.g., Michael Gerrard, founder and director of the Sabin Center for Climate Change, acceptance speech for the 2019 New York State Bar Association Environmental and Energy Law Section Council Award at the Section Annual Meeting (Jan. 2020), in 40 N.Y. Envtl Law. No. 1, 5 (2020) (A “breathtaking program of construction of onshore and off-shore wind farms, utility-scale and rooftop solar . . . and much else” must be accomplished “at a much faster pace and much larger scale than ever done before, except during the Second World War, and the existing structure of meticulous and protracted environmental review and permitting may not work.”).

[15] See, e.g., Michael B. Gerrard and Edward McTiernan, New York’s New Statute on Siting Renewable Energy Facilities, N.Y. Law J. Vol. 263–93 (May 14, 2020) (“[Article 10] has been a miserable failure.”).

[16] Article 10 § 165(4)(a).

[17] Article 10 § 173(13); N.Y. Envtl. Conserv. Law § 8-0111 (ECL).

[18] ECL §§ 8-0101–8-0117.

[19] Article 10 § 168(3)(e); Exec. Law § 94-c (5)(e). For the sake of clarity, this article uses the word “preemption” to describe the ability of the siting board and ORES to set aside local substantive law found to be “unduly burdensome” under the two sections previously cited.

[20] See, e.g., N.Y. Town Law § 261 (A New York town board is empowered to enact zoning codes “[f]or the purpose of promoting the health, safety, morals, or the general welfare of the community. . . .”).

[21] N.Y. Const. art. IX § 2(c)(ii)(10).

[22] See, e.g., Wallach v. Town of Dryden, 23 N.Y.3d 728 (2014) (upheld local zoning law that prohibited hydrofracking). See also Sarah J. Fox, Why Localizing Climate Federalism Matters (Even) during a Biden Administration 1, Tex. L. Rev. Vol. 99 (2021), https://texaslawreview.org/online_edition/volume-99 (“Early home rule provisions often took the form of providing local governments with a strong core of authority over ‘local’ matters, coupled with immunity from state actions in that realm. This approach had the benefit of offering a sense of where local governments would be allowed to act, and where they had no authority to do so.”).

[23] Gerrard and McTiernan, supra note 16.

[24] Joseph Goldstein, A Climate Conundrum: The Wind Farm vs. The Eagle’s Nest, N.Y. Times, June 25, 2019, https://www.nytimes.com/2019/06/25/nyregion/ny-clean-energy-law-wind.html.

[25] Id.; Gerrard and McTiernan, supra note 15 (no solar approved as of May 14, 2020).

[26] Goldstein, supra note 24.

[27] The two largest solar projects approved in this period (those in the towns of Canajoharie/Minden and in Florida) each have nameplate capacities of around 90 MW and will cover over 500 acres in solar arrays; the largest wind project approved in this period (in six townships in Steuben County) will produce 340 MW with 116 turbines.

[28] See NYPSC Case 17-F-0617, Application of Hecate Energy Albany 1 LLC and Hecate Energy Albany 2 LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for the Construction of a Solar Electric Generating Facility Located in the Town of Coeymans, Albany County, Order Granting Certificate of Environmental Compatibility and Public Need, with Conditions (Jan. 7, 2021) (hereinafter Coeymans Order).

[29] See NYPSC Case 17-F-0597, Application of High River Energy Center, LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Florida, Montgomery County, Order Granting Certificate of Environmental Compatibility and Public Need, with Conditions (Mar. 11, 2021) (hereinafter Florida Order).

[30] See NYPSC Case 17-F-0597, Application of East Point Energy Center, LLC, for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility in the Town of Sharon, Schoharie County, Order Granting Certificate of Environmental Compatibility and Public Need, With Conditions, 71 (Jan. 7, 2021) (hereinafter Sharon Order).

[31] 6 N.Y.C.R.R. §§ 617.8(e)(5), 617.9(b)(1) and 617.9(b)(5)(v).

[32] 40 C.F.R. § 1502.14 (“This section [on alternatives analysis] “is the heart of the environmental impact statement.”).

[33] The Article 10 preemption of SEQRA is found at Article 10 § 172(1). The enabling legislation for Article 10 also amended SEQRA to include an exemption for Article 10 proceedings. See ECL § 8-0111(5)(b). Exec. Law § 94-c’s SEQRA preemption is found at § 94-c(6)(a).

[34] 18 N.Y.C.R.R. § 1001.9(a).

[35] Coeymans Order, supra note 28 at 15–16.

[36] Coeymans Order, supra note 28 at 17.

[37] Florida Order, supra note 29 at 107.

[38] Id. at 104–06.

[39] Sharon Order, supra note 30 at 67.

[40] Florida Order, supra note 29 at 107–10; Sharon Order, supra note 20 at 68–70.

[41] See also Case 18-F-0087, Application of Flint Mine Solar, LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 for Construction of a Solar Electric Generating Facility Located in the towns of Coxsackie and Athens, Greene County, Order Granting Certificate of Environmental Compatibility and Public Need, with Conditions 66 (Aug. 4, 2021).

[42] See 16 N.Y.C.R.R. § 1001.9; and PSC Case 17-F-0617, Application of Hecate Energy Albany 1 LLC and Hecate Energy Albany 2 LLC for a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Coeymans, Albany County, Order Granting Certificate of Environmental Compatibility and Public Need, With Conditions 29 (2021) (“A ‘private’ facility applicant may limit identification of reasonable alternatives to sites owned by, or optioned to its or its affiliates.”).

[43] See NYPSC Case 17-F-0597, In the Matter of the Application of High River Energy Center, LLC For a Certificate of Environmental Compatibility and Public Need Pursuant to Article 10 of the Public Service Law for Construction of a Solar Electric Generating Facility Located in the Town of Florida, Montgomery County, Order Granting Certificate of Environmental Compatibility and Public Need, with Conditions 103 (Mar. 11, 2021).(rejecting a municipality’s argument that, because a developer was able to comply with local setback requirements by simply leasing additional land, the siting board should not preempt those requirements).

[44] Article 10 § 168(3)(e); Exec. Law § 94-c (5)(e).

[45] Exec. Law § 94-c(5)(f) (If ORES does not render a decision within the statutory time frame, “then such siting permit shall be deemed to have been automatically granted for all purposes set forth in this section.”).

[46] Exec. Law § 94-c(3)(b).

[47] See, eg, DMM Matter Number 21-00026, Application of Heritage Wind, LLC for a Permit for a Major Renewable Energy Facility Pursuant to Section 94-c of the New York State Executive Law to Construct a 184.8 MW Wind Energy Facility Located in the Town of Barre, Orleans County, Ruling on Issues and Party Status, 52–53 (July 8, 2021. The intention by ORES staff to disregard, or “waive,” local law on such matters as nighttime noise levels and wind turbine flicker was not even “adjudicable” – i.e., not subject to review by the ALJs or the commissioner), aff’d, id., Interim Decision of the Executive Director (Sept. 27, 2021).

[48] N.Y. Const. art. IX § 2(c)(ii)(10).

[49] Telephone interview with Donald Airey, supervisor of the Town of Blenheim (Schoharie County) and chair of the Schoharie County Energy Committee (May 7, 2021).

[50] E-mail from Nan Stolzenburg, principal planner and founder of the consulting firm Community Planning & Environmental Associates, to author (May 9, 2021).

[51] Gregory Meyer, The U.S. and Climate: New York’s Bold Green Plans Hit Opposition, Fin. Times, Sept. 2, 2020, https://www.ft.com/content/61a07f4f-1622-4bea-a71d-f927cf113636.

[52] Id. (quoting Peter Fox-Penner, director of Boston University’s Institute for Sustainable Energy: “Compared to most other states – and to most other countries – New York’s efforts truly are much more thorough and comprehensive.”).