Making Noise????

Mr. Wiley at the Cape Vincent JLL blog has a reader contribution connecting influential NY political figures with green investments and campaign contributions.  Interesting piece. Right on, on that part.

However,  as usual the singular tunnel vision conclusion is to write  wind laws and color within the lines of the system's script  that was set up precisely TO REGULATE US...NOT THE WIND INDUSTRY!!!!

Here is are the quotes:

"Thus, one interpretation would be that an outright ban on wind would be shot down very quickly from the top. "

"One must play the game through regulation, raise money for a good defense of article 10, and create enough noise to make this go away to another area of the state where the green lobby can earn their keep." 

This shows a stunning failure to grasp the issue and comprehend reality.

So with these powerful forces, as Wiley's reader accurately points out, what in God's name makes them think their very restrictive wind laws, which are nothing more than defacto bans, are going to hold up any better than a ban?  That alone is both arrogance run amuck, and a failure to recognize astonishingly simple logic slapping them right in the head! 

I get it...a ban that prevents turbines will fail, but our wind law that prevents turbines because it is  nothing more than a defacto ban with lipstick on it will prevail??????  We are so smart and these powerful people, the state, and wind developers are so stupid they will fall right for our defacto ban law!

I wonder what brand of Kool Aid Wiley and his reader are drinking?

But the second quote about the "game'  is museum quality absurd.  Recommending... "One  must play the game through regulation."    I have kept a file of   nutty quotes from the wind battle...and this one will be near the top of the list cuckoo quotes!!!

The "game" as they call it was designed specifically to overcome local laws by removing your community home rule right and create a fast track process for wind developers wanting to site wind farms, and keep YOU  controlled in a tightly defined  box as to what THEY will allow you to do.

Art 10 doesn't regulate wind developers...IT REGULATES YOU!!!  What they are actually suggesting is you play in a high stakes game where the other side has complete autonomy to decided the final score!  That is the best they can come up with to protect our area from wind development.

So I will recommend that you take a look at this video linked below from approx. 33:30 minutes into it, to 1 hour and 17 minutes and it will clearly explain just how ridiculous this "playing in the game statement real is!!!

https://www.youtube.com/watch?v=ilkABR3jVqA

NEWS FLASH - You Don't Have to Wait - Your Wind Zoning Has Already Been Preempted!!!

If you follow the industrial wind debate in our area of NNY you know much of the debate among people concerned about wind energy impacts currently is centered around whether regulating wind development with a zoning law is a better choice than using zoning banning wind outright.

I have always promoted a ban as a more direct approach based on community rights.

 The wind law proponents don’t seem to, or want to grasp, that since 2011 that NYS makes the final decision as to whether your wind law will be upheld … or overridden as too burdensome to the wind developer.  The debate becomes… will a wind zoning law be preempted by the state or not.

But wind law proponents need to grasp,  that even before any local wind zoning law is out of the box, major portions HAVE already been preempted by the state.

The NYS Art 10 law makes it basically illegal for any  municipality  to give or deny a permit or  approvals etc to a major wind complex.  That is entirely in the hands of the state.  In other words the procedural things in a law like reviewing, or giving permits, special use permits, variances, site plan and environmental reviews by planning boards etc.

All now  in the hands of the state.  Here is what the Art 10 law says. 

" Notwithstanding any other provision of law, no state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed…"

If you want to build a wind complex over 25 megawatts you don’t go to the town for a permit.  You now apply directly to the state through the Art. 10 siting process.  That is the whole point of the new Art 10 law.

Yet look at how most local zoning laws are written regarding wind development.  They are written in denial, as if the municipality still has control over those major wind development permitting matters.  They are written as if the wind developer is going to come to the town for approvals and permits.

 Below are two quotes from the Cape Vincent zoning law trying to regulate big and small wind.

 WECS = wind energy conversion systems = wind turbines.

 SWECS = small personal wind turbines. 

The clauses below are similar to many other local wind zoning laws.

 “Site Plan Review:

WECS, SWECS, or Meteorological tower shall be constructed, reconstructed, modified, operated, or replaced in the Town by first obtaining a Special Use Permit from the Zoning Board of Appeals and Site Plan approval of the Planning Board. “

 “Specific Site Plan Review Application Requirements:

A complete Site Plan Review application for a WECS or SWECS, shall include:” 

So where do the towns think they are going with this?    The state with its article 10 law clearly says you no longer have this permit/ approval power like CV attempted above in their law. Yet towns like Cape Vincent and many other move forward as if they still have home rule on this matter…THEY DON”T!!!

  It is like the drafters of these laws are operating in some complete alternate reality.

So essentially when you write wind zoning regulations like this you have already been preempted before your law even sees the light of day!

In this case there is NO argument as to whether your wind  law will be preempted by the state or not.   A MAJOR PROCEDURAL PORTION OF YOUR ZONING LAW ON WIND HAS ALREADY BEEN PREEMPTED.  In fact it was being preempted right as you were drafting it, if it was drafted after the 2011 Art. 10 was passed!

One more example of how the wind law promoters simply deny reality!

 

Article 10 - Judicial Review - Stacked to Ensure the Art 10 Decision Sticks Legally

Since Clayton, NY is considering a ban on industrial wind energy development, a major part of the debate has been whether a wind law, or wind ban, would better withstand a legal challenge.

However, in the Art. 10 process before a legal challenge could happen, any  aggrieved party on either side could ask for a rehearing before the Art. 10 siting board.

Beyond that it could go to court.  However, in the process the court challenge is immediately kick up to the NYS Court of Appeals skipping the lower court.

If you read the Art. 10 law regulations for a judicial review it becomes pretty clear that it seems stacked to ensure the Art 10 Siting Board decision will prevail.

The wind law people are convinced that their wind law can withstand this legal challenge.  They base this on that fact that the have the "science" that is irrefutable and will thus prevail in a court challenge.

However, this presumes the "science" itself as related to the local law and the negative wind impacts the science would supposed prove would ever get before the court at all!

The Art 10 regulations for judicial review confine the court to very specific and narrow areas of review.

I am not a lawyer, but as I understand it and have researched it the court may never even have to really consider the science as related to the law.  Instead the court is pretty well restricted to the process itself. 

In other words did the Art 10 Siting Board follow the process as outline in the law and is the final decision constitutional for example.  Did they make a "reasonable" deliberation of the facts by considering all the evidence on BOTH sides.

There is the legal idea of the  "Substantive Evidence Standard" which basically says when the siting board makes a decision did they actually carefully consider all the evidence in their decision and could any "reasonable" person come to a similar conclusion.

BUT!!!!  It does not say the court has to even decide whether the siting board decision was right or wrong, or the evidence itself was faulty.  In fact if you look at legal information regarding this standard, it says that a decision may be technically WRONG, as long as the administrative agency agencies "looked at the evidence."

Therefore it is highly likely the court will defer to the agency decision.  As long as all the process was followed and all the t's were crossed and the i's dotted etc.

And ironically there are two court cases in the wind issue right here in Cape Vincent where you can see exactly how this standard was applied and the wind opposition lost both cases.

Those cases are:

WPEG vs. The Town of Cape Vincent Zoning board of Appeals

WPEG vs The Town of Cape Vincent Planning Board

Here is what the court said in its opinion on the last case above.

"The 'hard look" standard does not authorize the Court to conduct a detailed de novo (new) analysis of every environmental impact or alternative to a proposed project which was included in,  or omitted from. an environmental impact statement" 

The Court also says:

The issue is whether the administrative agency made a thorough investigation of the problems involved and reasonably exercised its discretion.

Now the point of this is that the planning board did NOT do a hard look and WPEG had tons of evidence to that point. Not to mention the conflicts of interest of planning board officials that dominated the process.  However, the Court still deferred to the planning board decision.  None of the "science" to support the WPEG case ever got before the court. 

In fact the insidious part of this is that apparently the court thought that all the 'science" and research put before the planning board by WPEG was in fact evidence that the PB had made a "reasoned decision within its discretion!!!

So if you are a wind law supporter, and you think you are ultimately going to be successful by getting your irrefutable science before a court...you better reconsider how the Art 10 judicial review is regualted!!

It would be interesting if a lawyer could weigh in here about this issue!