updated 4/1/2024
ORES litigation
On June 29, 2021, the Towns of Copake (Columbia Co.), Cambria (Niagara Co.), Somerset (Niagara Co.) Farmersville (Cattaraugus Co.), Malone (Franklin Co.), and Yates (Orleans Co.), and seven environmental organizations (American Bird Conservancy, Save Ontario Shores, Cambria Opposition to Industrial Solar, Clear Skies Above Barre, Delaware-Otsego Audubon Society, Genesee Valley Audubon Society, the Rochester Birding Association) filed suit in Albany County alleging that new regulations governing a siting permit program for large-scale renewable energy projects were illegally created by the Office of Renewable Energy Siting (ORES).
The case is currently pending before the New York State Court of Appeals (Docket No. 534318).
Background
ORES was created by the “Accelerated Renewable Energy Growth and Community Benefit Act”, (2020 N.Y. Laws 58 (Part JJJ)), on April 1, 2020. The Act also created Executive Law, Section 94-c, and charged ORES with implementing the law with a new regulatory program. In doing so, the Legislature insisted that ORES “avoid or minimize, to the maximum extent practicable, any potential significant adverse environmental impacts related to the siting, design, construction and operation of a major renewable energy facility”, (Exec Law §94-c(3)(c)), and administer a process “afford[ing] meaningful involvement of citizens affected by the facility”. Id. § 94-c(5)(g)(ii)(F). This ORES failed to do.
Instead, ORES hired a renewable energy industry consulting firm to draft regulations the industry has been asking towns all over the state to adopt. Many have declined, and the previous siting program under Public Service Law, Article 10, generally applied local laws.
New programs with the potential to harm the environment must be subjected to environmental impact review procedures under New York law. This ORES failed to do.
Both Article 10 and the new ORES program require a final decision on applications within 12 months. However, the industry succeeded in developing a false narrative that the Article 10 Siting Board took too long to review applications. In fact, the Article 10 Siting Board found it necessary to balance several interests, not just the industry's. Moreover, Article 10 applicants were their own worst enemies in this regard. When faced with serious concerns from state agencies and stakeholders, applicants and their consultants would commonly disappear for months only to return with some logical or legal argument for declining to modify their proposals to better protect the local environment. Rarely would a developer decrease the size and adverse impacts of its proposed project.
Predictably, this generated much motion practice and delay. Now ORES has "streamlined" the process by removing most of the opportunities for public participation and agency consultation. The lawsuit alleges ORES did so without taking a hard look at the environmental impacts of the new program. Voluminous public comments detailed the ways in which wildlife and rural communities would be harmed by the new rules. Many reasonable suggestions for changes to the program were identified in comments. However, ORES rejected every recommendation for improving the environmental outcomes of the program.
ORES made no substantive changes to the draft program on which the public commented. And there appears to be no evidence that it looked at well-establish siting guidelines for avoiding the worst impacts when siting large-scale renewables, or the science on which these guidelines are based.
Under the ORES program, a draft permit will be issued soon after an application is accepted. Under Article 10, the Siting Board waited for a record of proof and objections for and against detailed proposals, and made a decision at the end of the 12-month review.
Under the ORES program, stakeholders cannot raise issues challenging industry standards because site-specific conditions warrant a more tailored approach. If the applicant accepts the standards, ORES may disregard such issues and simply issue the draft permit.
