Court Dismisses Challenge to ORES Regulations for Large-Scale Renewables

On October 7, 2021, the Supreme Court, Albany County, dismissed a challenge that sought to vacate the final regulations promulgated in March 2021 by the Office of Renewable Energy Siting (ORES) pursuant to Executive Law § 94-c. The regulations create new streamlined procedures for the siting of large-scale renewable energy projects in New York. The SPR Blog previously covered the development of the draft ORES regulations and the promulgation of the final regulations.

In this Article 78 proceeding, the petitioners—a coalition of local governments, community groups, and environmental organizations—argued that the final ORES regulations violated the State Environmental Quality Review Act (SEQRA), the State Administrative Procedure Act (SAPA), and the home rule provisions of the New York State Constitution and the Municipal Home Rule Law.

The court found in favor of ORES for each of these categories of claims:

SEQRA – The petitioners raised numerous SEQRA claims, such as the Office’s alleged failure to consider scientific evidence concerning potential noise impacts from wind turbines. They also claimed that the ORES regulations would “inevitably” have at least one potentially significant adverse impact on the environment, thereby requiring a positive declaration and the preparation of an Environmental Impact Statement (EIS).

The petitioners took particular issue with the “default approvals” that they alleged were “anticipated” and “likely” to occur if ORES could not complete its review of permit applications within the one-year timeframe imposed by Executive Law § 94-c. The court stated that a default approval “in the absence of uniform standards” would fail the SEQRA “hard look” test, but noted that ORES did in fact establish uniform standards to address and mitigate potential impacts. Moreover, the court determined that petitioners’ claims that default approvals do not account for necessary site-specific conditions failed to recognize that upon a default, all of the uniform standards and the site-specific measures imposed in the draft permit would be transferred to the final permit.

The court did agree with the petitioners in one instance, stating that ORES’s reliance on prior Generic Environmental Impact Statements (GEISs)—which did not consider siting—would be inadequate. But ORES did not merely rely on previous GEISs; rather, ORES conducted its own, supplemental environmental review in accordance with the SEQRA regulations. Thus, the court found that ORES met its “hard look” obligations under SEQRA even though the negative declaration incorporated prior studies by reference.

SAPA – The petitioners alleged that the public input regime in the regulations was “illusory” and “designed to eliminate public input.” The court disagreed, holding that the claims of “illusory” public participation were belied by the regulations, which by design require extensive public input, including during a mandatory pre-application public comment period.

Petitioners also alleged that ORES did not take a hard look at public comments on the regulations, claiming that the Office “did not credit a single comment.” The court held that ORES did in fact provide substantive and reasoned responses to comments. Responses by ORES deferring the evaluation of specific public concerns to the future reviews of individual permit applications simply reflected the fact that “no specific project is at issue” in this facial challenge to the adoption of the regulations.

Home rule – The petitioners claimed that ORES’s statutory ability to grant waivers from local laws on a case-by-case basis was a special law violative of municipal home rule power and an improper delegation of authority to the Office. In dismissing the claim, the court first distinguished the authority to issue a waiver and the implementation of that waiver power. The court noted that ORES’s statutory authority to issue a waiver of incompatible local laws was granted by a general law applicable to all municipalities enacted by the Legislature, and therefore was not violative of home rule principles. The court also recognized that the Office’s implementation of that waiver power must necessarily be made on a case-by-case basis. The court held that the ORES regulations did not violate the Article IX, § 1(a) of the New York State Constitution nor the provisions of the Municipal Home Rule Law, as the State had preempted the siting of major renewable energy facilities through the enactment of a general law in Executive Law § 94-c.

The court ultimately concluded that “while the development of solar and wind farms as a source of electricity may have its challenges, the regulatory structure to review these renewable energy projects is reasonable.” The petition was summarily dismissed in a final decision on the merits. Subsequently, on November 5, 2021, the petitioners timely filed a notice of appeal to the Appellate Division, Third Department. The SPR Blog will continue to provide coverage of further developments in this litigation.