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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

July 7, 2021

New York State Office of Renewable Energy Siting Regulations Challenged by Host Communities and Local Interest Groups

New York State Executive Law Section 94-c, enacted under the Accelerated Renewable Energy Growth and Community Benefit Act, charges the New York State Office of Renewable Energy Siting (ORES) with both reviewing permit applications within 60 days and rendering a final permitting decision within 12 months of a complete application. To facilitate this, the legislature also directed ORES to promulgate regulations outlining the procedures for this permitting process and setting forth uniform standards and conditions designed to avoid or minimize significant adverse environmental impacts. These regulations were promulgated and became effective on March 3, 2021.

On June 29, 2021, multiple municipalities and interest groups challenged these regulations in an Article 78 petition brought against ORES, its acting director Houtan Moaveni, the New York State Department of State, and several unnamed persons. Petitioners include the Towns of Cambria, Copake, Farmersville, Malone, Somerset, and Yates, all of which are locations for proposed solar or wind energy facilities to be sited and approved either through Article 10 of the Public Service Law or the new ORES framework at issue. The municipalities are joined by several environmental interest groups, including the American Bird Conservancy, the Delaware-Ostego Audubon Society, Inc., the Genesee Valley Audubon Society, Inc., and the Rochester Birding Association, Inc. The petitioners also include not-for-profits organized to participate as opposition parties in the Article 10 and Section 94-c proceedings, including Cambria Opposition to Industrial Solar, Inc., Clear Skies Above Barre, Inc., and Save Ontario Shores, Inc.

The Article 78 petition makes several allegations, namely that:

  1. ORES improperly relied on a consulting firm which, according to the petition, had a conflict of interest in that it had provided or continues to provide project design and siting services to several renewable energy project developers in New York State as well as having drafted the wind siting guidelines for the American Wind Energy Association (now part of the American Clean Power Association) which, the petitioners argue, impacts the consulting firm’s ability to objectively consult on the sufficiency of the environmental safeguards.
  2. ORES did not adequately consider and address public comments. As part of this allegation, the petitioners claim that well over 5,000 public comments were submitted to ORES during the public comment period, yet ORES failed to make any substantive changes to the draft regulations before finalizing them in March.
  3. ORES mischaracterized its rulemaking under the State Environmental Quality Review Act (SEQRA) and failed to conduct a sufficient environmental review, specifically preparation of a robust environmental impact statement (EIS). The petitioners contend that the ORES regulations should have been classified as a “Type I” action as opposed to an “Unlisted” action, as they will permit projects to physically alter 10 or more acres of land, authorize wind turbines more than 100 feet tall, change the permitted use in certain zoning districts, and authorize nonagricultural use of lands in agricultural districts.
  4. Section 94-c of the NYS Executive Law and ORES’s regulations promulgated pursuant to Section 94-c violate the state constitutional local lawmaking power of host communities by enabling ORES to waive substantive requirements of local laws. Specifically, the petitioners argue both the legislature and ORES erred in creating the ability to waive substantive local law requirements on a case-by-case basis, as the law is not generally applicable “in both terms and effect.” They argue that doing so would violate the so-called “home rule” provision of the state constitution, which otherwise grants lawmaking power to local governments over matters of local concern.

The petitioners request that the court invalidate ORES’s existing regulations and require ORES to promulgate new regulations that are more protective of the environment and conscious of the interests of host communities.

To date, neither ORES nor any of the other state respondents have responded to the Article 78 petition. It is expected that they will do so and raise a number of procedural objections and substantive responses urging the court to dismiss the Article 78 petition in its entirety. In the meantime, there is no injunction that would prohibit ORES from proceeding to act in accordance with its currently effective regulations.

Barclay Damon’s attorneys will continue to monitor the lawsuit as it progresses and provide updates accordingly.

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Group Leader and Regulatory Practice Area co-chair, at bcolella@barclaydamon.com; Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Ekin Senlet, Regulatory Practice Area co-chair at esenlet@barclaydamon.com, or David Solimeno, associate, at dsolimeno@barclaydamon.com.

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