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updated 4/23/2024 

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. (PSC Case No. 17-F-0282). 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) which denied all claims.

The Alle-Catt Wind Energy proposal offers a critical window on the feasibility of New York's energy plan. The plan seeks to achieve a state-wide electric grid powered 70% by wind, solar and batteries by 2030, and a 100% zero-emissions grid by 2040.

The Siting Board and Alle-Catt agreed with the Coalition that insufficient transmission capacity exists to utilize Alle-Catt's energy, and specifically with our contention that Alle-Catt's energy cannot be transported downstate where it is needed. However, the Siting Board disagreed that this is a basis to deny approval for the project. The Siting Board reasoned that if Alle-Catt is sited, transmission developers will come.

One year later Alle-Catt petitioned and was granted a five year extension to put the project into operation by the Siting Board, extending the deadline for operations from 2025 to 2030. Alle-Catt based its request on the inability of National Grid, to which it would interconnect, to handle its power without additional upgrades to the local distribution transmission system.

Alle-Catt has also advanced a separate application for approval from the Public Service Commission of a 10-mile transmission connection from the wind farm to National Grid's substation in Yorkshire, New York. (PSC Case No. 21-T-0059).

In 2016 NYISO told the Public Service Commission that transmission congestion preventing upstate renewables from benefiting downstate needs exists at three levels: the local distribution system, inter-regional transmission lines, and long-distance bulk transmission lines. Alle-Catt's extension of time addresses only the first of these transmission congestion problems. Without addressing all transmission congestion problems, according to NYISO, continued siting of large-scale renewables in western and northern New York will require the transmission operator to progressively curtail operations (or instruct wind facilities to limit their output)In 2022, NYISO reported that 161.7 GWh of electricity generated by wind farms had to be curtailed, up from 70.5 GWh in 2019. NYISO also reported that wind projects in New York in 2022 generated at between 23% and 26% of their rated (or design) capacity. (Slides 9, 17). Compare this to the efficiency rating (or capacity factor) for hydro- and nuclear power, which exceeds 90%. These are "baseload" power sources, always on and highly reliable. Intermittent wind and solar generators require "ancillary energy services", i.e., natural gas-fired backup plants known as "peaker" plants, which are very inefficient (high carbon emitting). This why James Hansen as said that a 100% wind and solar energy system is a "fantasy": the more intermittent renewables on the grid, the more natural gas is needed. See also Grid Brief, Deep Dive (April 5, 2024).

This is why nuclear power is experiencing a resurgence. Nuclear power plants are carbon-free, they operate 24/7, and they form the backbone of a reliable electricity grid.

In order to advance its emission goals--a 70% hydro, wind, solar grid by 2030, and a 100% emission free grid (which would allow nuclear) by 2040--New York has said peaker plants must be removed from the grid. However, in November 2023, NYISO informed the Public Service Commission that at least four peaker plants must be maintained in New York City in order to comply with reliability standards imposed by the Federal Energy Regulatory Commission. It does not appear that state planners were aware that eliminating peaker plans could threaten the reliability of the grid.

The Fourth Department Appellate Division, without any record evidence, "found" that Alle-Catt had proven that it could deliver its energy to New York City. If the contrary finding of the Siting Board was not enough to dispel that assertion, (see discussion at pp. 81-81 of the June 3, 2020 Certificate Decision), Alle-Catt's need for an extension of time confirms that even local transmission capacity to utilize its energy is lacking.

NYISO's Power Trends 2023 reports that 91% of upstate's electricity is already carbon-free, owing to upstate's nuclear and hydropower (wind remains in the single digits), compared to downstate where carbon-free electricity is less than 10% (owing to the recent premature shutdown of nuclear reactors at Indian Point serving New York City and Westchester County--replaced by two large gas-fired power plants). 

There is very little carbon-emitting power that Alle-Catt (or any other large upstate wind or solar project) could displace. The report also emphasizes that, unlike nuclear, hydropower, and low-emission high-efficiency gas-fired power plants, intermittent wind and solar undermine the reliability of the grid--the ability of NYISO to keep the lights on. Regional transmission operators across the country are now warning that the removal of reliable sources of electricity without replacing them with comparable sources risks blackouts. The North American Reliability Council has called for a demonstration project to show that grids with a high proportion of renewables will not break.

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To date, Alle-Catt has not obtained authorization from the Siting Board to commence construction. 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 has completed only a handful of its required compliance filings to the Siting Board. Noticeably missing to date are its turbine foundation plans (which require a seismic risk analysis, as the project is located within an seismically active zone and must install some foundation in bedrock); noise compliance demonstration (meeting the 45 dBA Leq-8 hr. and 65 dBZ L(1-hour) low frequency noise limits); and shadow flicker exposure limit (30 hrs./yr.) demonstration.

In post-approval filings in 2023, Alle-Catt convinced the Siting Board to impose its proposed road use agreement on Cattaraugus County, even though negotiations were in progress with the county and the neighboring Allegany County. Cattaraugus County has petitioned the Fourth Department Appellate Division for further review of the Siting Board's decision.

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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 regarding 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). The Court rejected the motion without comment.

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 (Old Order) 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 to support our representation of the Amish, and despite having put in expert testimony on the subject concluding that the Farmersville Amish settlement of 22 families would be forced, based on their religion, to migrate out of the area if the project is built, and despite briefing the issue before the Siting Board, the Court found that a religious freedom claim was raised for the first time on appeal, and the Court refused to consider the appeal.

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Article 10 Siting Board, Certificate Order (June 3, 2020)

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)