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IN APPROVING A WIND TURBINE INSTALLATION THE STATE BOARD ON ELECTRIC GENERATION AND SITING AND THE ENVIRONMENT PROPERLY REFUSED TO CONSIDER LOCAL LAWS ENACTED BY THE TOWN AFTER THE EVIDENTIARY HEARING WAS CLOSED; THE LOCAL LAWS SOUGHT TO IMPOSE A MORATORIUM ON THE PROJECT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the State Board on Electric Generation Siting and the Environment (siting board) had properly approved the Bluestone Wind Farm Project. The siting board properly ignored local laws enacted by the town after the evidentiary hearing was closed which attempted to impose a moratorium on the project to allow further study:

The legislative history and intent fully support this decision. In enacting the predecessor to Public Service Law article 10, the Legislature acted with the express purpose of providing “‘for the expeditious resolution of all matters concerning the location of major steam electric generating facilities presently under the jurisdiction of multiple state and local agencies, including all matters of state and local law, in a single proceeding'” … . In its current iteration, article 10 “was enacted in 1992 to provide ‘a comprehensive framework for developing and implementing sound energy policy for the [s]tate that integrates energy planning with consideration of environmental quality and [to provide] a one-stop process for the siting of major electric generating facilities'” … . “One goal of the legislation was to permit comprehensive review of the benefits and impacts anticipated from proposed facilities without unreasonable delay [and,] . . . [i]ndeed, the expeditious resolution of siting applications is a goal noted throughout documents submitted in support of the legislation” … .

This goal was manifested in the 12-month deadline imposed on the Siting Board to issue a final determination on each application before it … . … Public Service Law article 10 requires the inclusion of all substantive local laws in the record by way of a specific exhibit to be incorporated into each application … . Any disputes as to whether a proposed facility complies with a local substantive law are thus intended to be resolved by way of evidence presented during the hearing to the Hearing Examiners, and the statute explicitly places the burden on the municipality to present evidence in support of enforcement of the local law in question … . “Thus, the history and scope of article [10], as well as its comprehensive regulatory scheme, . . . would be frustrated by” last minute laws such as Local Law No. 4 … . Matter of Broome County Concerned Residents v New York State Bd. on Elec. Generation Siting & the Envt., 2021 NY Slip Op 05903, Third Dept 10-28-21

 

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