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!