SEQRA Blowing in the Wind.

Non-renewable sources of energy, such as fossil fuel are in a limited supply and being constantly depleted.[1] Notwithstanding the undeniable fact that fossil fuels will not always be available, the use of them for energy purposes is harmful to the environment.[2] A viable alternative to the use of fossil fuels are renewable energy resources,[3] inter alia, solar energy, biomass, hydropower, geothermal power, tidal energy and wind energy.[4] Wind energy is the world’s fastest growing source of energy; during which it does not produce the emissions that fossil fuels do.[5] In an effort to combat the aforementioned statistics and provide a more sound energy policy, New York State adopted a policy of encouraging an increase in the use of renewable energy.[6]

For the past nine years the challenge has been to meet the policy goal of renewable energy within the confines of, inter alia, the State Environmental Quality Review Act (“SEQRA”) and Article 78 proceedings.  The main purpose of SEQRA is “to declare a state policy [that] will encourage productive and enjoyable harmony between man and his environment.”[7] Furthermore, it aims “to prevent or eliminate damage to the environment and enhance human and community resources.”[8] Concerned citizens—who may have been motivated by NIMBY sentiments[9]—have used SEQRA and Article 78 proceedings, with varying success rates, to combat wind turbine facilities from being raised in their backyards.

There has been recent discussion as to whether or not SEQRA is the best reviewing process for energy producing sites, wind power included.[10] A major predicament is that SEQRA process does not encompass all of the local and state regulations or provide for intervenor funding or a decision making schedule.[11] Governor Andrew Cuomo signed the “Power NY Act of 2011” on August 4th.[12] The “Power NY Act of 2011” will replace the permitting authority of SEQRA within a year of its enactment with “Article X” and its own environmental review process.[13]

Will the Article X process be more efficient in bringing clean reliable energy to New York?  In other words, will it evaluate the environmental concerns in as encompassing manner as SEQRA?  Recent caselaw under SEQRA has balanced the environmental concerns of wind energy with the bearing such matters have on the local communities affected by the wind turbines.[14] The 2009 State Energy Plan credited 1,000 megawatt of energy from wind power being added to New York under SEQRA, in spite of litigation over such matters.  It remains to be seen if Article X will efficiently provide or allow for renewable energy, specifically wind power, to grow in New York more than SEQRA reasonably allowed for.

 


[1] Peter H. Raven et al., Environment 236 (Rachel M. Falk et al. eds. 7th ed. 2011).  The natural process that replaces (creates) fossil fuels occurs over millions of years—not enough time to keep up with the demand for energy around the world. Id.

[2] Id. at 234-250.  Known coal reserves could last over two hundred (200) years at the present rate of consumption according to the Worlds Resources Institute; conversely, the use of coal for energy contribute to environmental problems such as acid rain.  Id. at 236-240.  In the United States coal burning electric power plants produce a third of the airborne mercury emissions.  Id. at 238.

[3] Sean F. Nolan, Negotiating the Wind: A Framework to Engage Citizens in Siting Wind Turbines, 12 Cardozo J. Conflict Resol. 327, 327-9 (2011) (discussing the importance of renewable energy and what stands in the way of obtaining it).

[4] Raven, supra note 1 at 278-291.

[5] Id. at 285.

[6] N.Y. PUB. SERV. COMM’N, No. 03-E-0188 (Sept. 24, 2004).

[7] N.Y. Envtl. Conserv. Law § 8-0101 (McKinney 2005).

[8] Id.

[9] Nolan, at 331, 343-4. See also Michael P. Saint et al., NIMBY Wars: The Politics of Law Use (Saint. Univ. Press 2009).

[10] Eric Garafano, Note, Losing Power: Siting Power Plants in New York State, 4 Alb. Gov’t L. Rev. 728, 735-9, 756 (2011).

[11] N.Y. State Energy Planning Bd., 2009 State Energy Plan, 63 (2009) [hereinafter 2009 State Energy Plan], available at http://www.nysenergyplan.com/final/New_York_State_Energy_Plan_VolumeI.pdf. (SEQRA’s lack of

[12] A08510 Summary, NY State Assembly, http://assembly.state.ny.us/leg/?default_fld=&bn=A08510&term=2011&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y (last visited Nov. 1, 2011);  See also Cuomo Signs Power NY Legislation, Governor’s Press Office,  (Aug. 4, 2011) http://www.governor.ny.gov/press/08042011NYLegislation.

[13] New York Legislature Passes Article X Bill For Siting of Major Electric Generating Facilities

Client Advisory Carter Ledyard & Milburn LLP (June 24, 2011) http://www.clm.com/publication.cfm?ID=337; Michael B. Gerard, New York’s Revived Power Plant Siting Law Preempts Local Control, N.Y. L.J. (Sept. 8, 2011) http://www.law.columbia.edu/null/download?&exclusive=filemgr.download&file_id=6272; Power NY Act of 2011 and the authority to site energy generating facilities, also named “Article X” is a refurbished law that has been in effect to consolidate the power over siting and mandating

[14] See e.g., Brander v. Town of Warren Town Bd., 847 N.Y.S.2d 450 (Onondaga Cnty. Sup. Ct. 2007); Advocates for Prattsburg, Inc. v. Steuben Cnty. Indus. Dev. Agency, 851 N.Y.S.2d 759 (4th Dep’t 2008); Finger Lakes Pres. Ass’n v. Town Bd., Town of Italy Ecogen Wind, LLC, 887 N.Y.S.2d 499, 504 (Sup. Ct. 2009);

 

 

 

 

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