Back to Gary A. Abraham, Esq.
updated 2/27/2022 

Alle-Catt Wind Energy Proposal 

On June 3, 2020, twelve months from the date its application was accepted by the Siting Board, the Board issued a Certificate of Environmental Compatibility and Public Need, with Conditions pursuant to Public Service Law, Article 10. On September 25, 2020, the Siting Board denied petitions for rehearing submitted by intervenor parties, the Town of Farmersville and the Coalition of Concerned Citizens. The intervenor parties then filed suit in the state Supreme Court, Appellate Division (Fourth Department). Oral argument is scheduled for Wednesday, August 11, after 10:00 a.m.

Briefs filed with the Appellate Division and the Court of Appeals are available from the links below. The briefs reference records filed in the Article 10 proceeding, all of which are still available online, on the "Document Matter Master" (DMM) maintained by the Department of Public Service. Specifically, the briefs cite to the DMM "Item No." found in the sixth column of the DMM page. Petitions for rehearing, briefs filed in the administrative proceeding and all other records can be found there. These submissions preceded the civil litigation reported here.

The Appellate Division unanimously dismissed all the Coalition's claims about the factual and legal issues with the Siting Board's September 25, 2020 decision. A motion for reargument was brought, focusing on the Court's erroneous finding that Alle-Catt demonstrated it could deliver its energy to New York City (an impossibility, according to New York's electric system operator, NYISO).

Where there is a unanimous appellate dismissal, the petitioner has no right to appeal unless a constitutional question is raised. The Coalition filed a notice of appeal to the Court of Appeals based on the Siting Board's refusal to accommodate the special needs of the Swartzentruber Amish in Farmersville, where almost half of the 117 600-foot-high wind turbines would be located. The Court responded with a request for arguments about whether that was a substantial question in the siting proceeding. Despite having been awarded intervenor funds from the beginning of the application stage and having put in expert testimony on the subject, the Court concluded this was not a substantial issue in the matter and dismissed the appeal.

Despite the outcome of this litigation, Alle-Catt has not begun its compliance filings to the Siting Board. The Board's June 2020 Certificate Order does not authorize construction to commence until most of some 131 certificate conditions are satisfied. These conditions require approval of numerous planning and mitigation studies, including wildlife surveys and noise protection protocols, each of which is subject to public comments to the Siting Board.

Alle-Catt must also negotiate road use agreements with the host towns and counties, and has not obtained all the agreements needed.

Alle-Catt must also secure the right to use all land needed for its primary electrical connection line to a substation in Yorkshire but has not done so.

Alle-Catt is also contesting which local land use laws are in effect in the towns of Freedom and Farmersville, in separate litigation in Cattaraugus County Supreme Court. A final decision in those cases is expected this summer.

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Town of Farmersville initial brief (January 27, 2021) (Coalition of Concerned Citizens and Dennis Gaffin v. New York State Board on Electric Generation Siting and the Environment and Alle-Catt Wind Energy, LLC, No. OP 20-01405)

Coalition initial brief (January 27, 2021) (Town of Farmersville v. New York State Board on Electric Generation Siting and the Environment, Alle-Catt Wind Energy, LLC, State of New York, John Doe Corporations and John Does, No. OP 20-01406)

Siting Board initial brief in Coalition case (March 30, 2021)

Siting Board initial brief in Farmersville case (March 30, 2021)

Alle-Catt initial brief in Coalition case (March 30, 2021)

Alle-Catt initial brief in Farmersville case (March 30, 2021)

Coalition brief in reply to Siting Board (April 22, 2021)

Farmersville brief in reply to Siting Board (May 6 2021)

Coalition post-brief submission: supplemental authority (July 23, 2021)

Alle-Catt response (July 27, 2021)

Siting Board response (July 28, 2021)

Appellate Division decision (November 12, 2021)

Coalition Motion to Reargue (December 12, 2021)

Appellate Division denial of motion (January 28, 2022)

Court of Appeals request for argument, "whether a substantial constitutional question is directly involved to support an appeal as of right" (January 13, 2022)

Coalition response to Court of Appeals request (January 24, 2022)

Siting Board response to Court of Appeals request (January 24, 2022)

Court of Appeals dismissal (February 10, 2022)