"Never tell me the odds" - Han Solo
This isn't the first time that the Empire has struck at Rush. As we told you in one of our recent posts, the City of Rochester, in league with the Empire State, conspired to dump the City's trash on State property in Rush for 36 months back in 1971.
Rush pulled every trick in the book to try to stop them and was unsuccessful. Old time residents fondly remember the comradery of a battle against the Empire.
Townspeople all came together to fight for a cause. But in the end their efforts were fruitless. The Empire dumped on Rush for the full 36 months of the contract, even when Rush residents laid down in front of garbage trucks. Now the Empire is back. Not with trash like before. This time it's dumping solar panels.
How Are They Getting Away With This?
New York State Public Service Law Article X (10) was originally enacted in 1992 to address the location of electric power plants. It's called "siting" (pronounced site-ing). The Empire made up one set of rules for the whole state. They did this so power plant builders wouldn't need to figure all the different things they had to do in every single different town that they wanted to build in. Simplicity. Efficiency.
The New York State Siting Board was created to pick where electrical facilities would go. Big-important-State-Chairmen-of-already-in-power-departments were on the board, such as the Department of Public Service, Environmental Conservation, Energy Research and Development Authority and the Commissioner of Economic Development. Two "ad hoc" members from the community where the plant was to be located were also on the board.
This law lasted until for 11 years from 1992 until 2003 when it was ended by a "sunset" provision and it wasn't renewed. Then from 2003 until 2011 local and state officials kind of "figured out" where new power facility locations would go using "made up" processes borrowed from the extinct law. But then in 2011, wind turbine and solar projects started to appear. Article X was brought back to life.
How ARTICLE X WORKED (2011 to 2019)
We know you aren't going to read the whole Article 10 Law, so we'll give you the "Cliff's Notes".
The siting board (the real members, not including the "ad hoc" community members) got to decide where power facilities are placed. Using Federal guidelines and a prior check by the Department of Environmental Conservation, the Board approved the plans for building power plants.
When the Board got a correctly filed "Pre-Application" to build a power plant they would go to the "chief executive officer" of both the Municipality (Town) and County where the proposed plant was to be built. Each one needed to propose four (4) possible local people for appointment to the siting board. If there were no two (2) candidates agreed on by the State Assembly within a reasonable time, then the Governor got to pick two. These two people become the "ad hoc" members to represent the community on the siting board. None of them could have any ties to any industry related to electric power production.
No power plant making more than 25,000 Kilowatts could be built unless it got a certificate from this board.
Article 10 didn't apply to Federal Government projects, repairs or upgrades or modifications to existing power stations under the 25,000 Kilowatt level. It didn't apply to power plants built by a company used exclusively for that industry.
If any proposed facility wasn't covered by Article X, a developer could apply to the Siting Board who would decide if that facility could come under the control of the Board and it's rules. Little power plants could then be subjected to the same State approval process as a huge power plant.
A developer wanting the Board to consider a new power plant needed to produce a "scoping statement" that studies the project in detail. They needed to take into consideration people's health; the environment; what happens before, during and after construction; and how to minimize any of the negative effects. Basically, they needed to justify their actions and provide reasons.
When a proposal was submitted, they also needed to supply $350 for each Kilowatt of power that the proposed station will generate to be placed in an "intervenor" account up to $200,000 per project.
(So for example, the proposed Horseshoe Solar Project to be built in and around Rush is planned to generate 180 Megawatts of energy, which is 180,000 Kilowatts. Invenergy -- which is the company proposing the project -- should put $350,000 in the intervenor account for the project, but the maximum amount they had to put in was $200,000.)
A Quick Jolt On Watts 1,000 Watts = 1 Kilowatt (this will toast 160 slices of bread.) 1,000 Kilowatts = 1 Megawatt (this will toast 89,000 slices of bread or run 2 refrigerators for a year.) 1,000 Megawatts = 1 Gigawatt (this will power a few hundred thousand houses.) 1.21 Gigawatts will send you "Back to the Future". Usage of power is in Kilowatt Hours expressed as kWh - (How many Kilowatts used in an hour) The average usage of an American home is 893 kWh per month.
The money in the intervenor account was to be distributed by a "hearing examiner" to municipal and local parties for expert witnesses, consulting and administrative fees. The money couldn't be used for lawsuits (judicial review or litigation) by a municipality against the developer or the State.
After the money was given out, any person could propose a condition or requirement of the preliminary proposal for the construction of a power plant. The stipulation needed to be looked at and approved by the board. There needed to be time allowed for comments and a public hearing and meetings and debate about the initial scope document.
Then The Applicant Files The Application
And yes, you know how detailed that had to be. Read the whole law, but as you must guess, the requirements were lengthy and extensive. Each and every aspect of all impacts to humans, animals, plants, water, air earth, atmosphere, insects, and "anything else that is relevant" had to be in the application.
A copy needed to be sent to any organization in the Empire that might have been affected. Everybody needed a place where they could read it. The developer needed to pay an application fee of $100,000 per every Kilowatt (not more than $400,000).
Within 60 days of the application, the Board decided if it is was correct, and fixed a date for a Public Hearing. The Department of Environmental Conservation also had to approve the application during the same 60 day period. Public comments could continue for up to 45 days from the Public Hearing, and within that time there was a "back and forth" to deal with any issues. If there were any issues that couldn't be resolved, an extension of no more than six months could be applied, unless the applicant says it could go longer.
There were rules on what happens if there are changes there were time lines for how long changes need to considered before approval or the need for more public hearings.
At a hearing, any person could make a limited appearance by filling out a statement of their intent.
It's was possible for a municipality or other person to "join forces" in making an appearance when one had failed to supply the notice of intent within the time required.
Testimony at a public hearing could have been in writing, or spoken. State agencies could require official sworn statements of Official Agencies. There was a public record and the rules of evidence didn't apply.
If a bunch of people showed up that all wanted to say the same thing, the Hearing Officer could choose to "consolidate" the group to a single spokesperson. This was done to exclude irrelevant, repetitive, redundant or immaterial evidence.
The board might have decided that a project may have concurrent jurisdiction with the Federal Government, and the rules would change (but not to harm the people.)
At a hearing people could testify as to an alternate site for any facility not less than 30 nor more than 60 days after a hearing.
The Board then made a final decision if to approve a certificate for the facility and if the project could move forward. Their decision was final.
Anyone who disagreed had to apply for a rehearing within 35 days. The application for a rehearing would be considered and decided on within 90 days. If there was still no satisfaction, the issue could go to court for judicial review within 30 days after the rehearing and subsequent deliberation and decision of the Board.
The court's decision is final, but they were limited to consider if:
Did the Board work within the Constitution?
Did the Board make it's decision based on the facts in evidence?
Did the Board work within it's jurisdiction?
Did the Board follow all the rules of Article X?
Did the Board act in an arbitrary, capricious or abusive way?
Did the Board discriminate against anyone?
Article 10 Protected People SO Well THAT In the time that IT was in place (2011 to 2019) EXACTLY ZERO (0)
LARGE SCALE RENABLE ENERGY PROJECTS
WERE BUILT IN NEW YORK STATE
This means that no wind farms and no large scale solar energy plants were built under Article 10 from 2011 until 2019, and the Empire wants 70% of the power in the state to come from renewables by 2030. Article 10 was initially created back in 1992 (and resurrected in 2011) to regulate the building of coal, gas fired, and nuclear power plants -- not solar or wind farms. The Force was strong with Article 10.
The Empire is not tolerating any more Rebel interference in it's plans. It needs to build more large scale solar fast to meet its goals. The Horseshoe Solar project across the river in Caledonia and partly in Rush is just one of many projects that were "stuck" in Article 10 and were waiting to be built. What's the solution to get them built faster? Change the law:
On September 16, 2020 the newly created Office of Renewable Energy Siting (ORES) issued a draft of the new rules that replaced Article 10. The rules were finalized in March of 2021. ORES is the replacement to the New York State Siting Board which was established in April of 2020 by an act of the New York State Legislature. The passage of Section 94C replaces Article 10.
If you want to really "geek out" and read the whole story on the Empire's power plant siting and Article 10 and Section 94C in great detail, read this. It's a reprint from the Columbia Law Journal by a Doctor of Law who graduated from Columbia University in 2021 named Alexander Fields. It's an excellent article. It was written in 2020 before the ORES Rules came out.
Section 94C gets rid of much of the stringent application and review process of Article 10. Timelines are shortened. Requirements are loosened. The new law says that a renewable energy developer needs to submit an application and within 60 days ORES decides if it is complete.
Within 60 days after the approval, any effected municipality needs to reply if the application meets its local laws. If the municipality or the public finds "significant issues" then there needs to be a hearing and a final report.
Within one year of the application, ORES has to decide if the project gets a permit. ORES can issue a permit only if the project meets all the applicable standards and any site specific conditions. ORES can decide if it does or does not want to follow any local laws when granting the permit.
This has been one of the biggest problems in getting renewable energy projects built. Local municipalities have created laws to make developers "jump through hoops" to slow solar projects.
A good example of "hoop jumping" in the Town of Rush is the Helios solar project. Helios isn't controlled under Article 10, so the developer has to do whatever the town says to do based on the local law. It's been going on for four years with a constant revision and reapplication process with no end in sight. If Helios was being developed under Article 10 they could appeal to New York State and accuse Rush of, "... an arbitrary and capricious [behavior] or an abuse of discretion". Maybe the State would set aside the Rush law and the project would proceed. But Helios has no such luck, and instead would need to sue the Town of Rush if they feel adversely affected. Then a judge would sort it out. So far, Helios is still spending time and money to make the town happy. We'll keep this page updated. Bookmark this and come back and see how it turns out.
The Empire saw that slow process at the local level wasn't producing any new power plants. Especially the large scale wind and solar projects that are needed to reduce dependency on foreign petroleum. They purpously designed section 94C for the state to get around local laws.
If the permit is not specifically issued within the one year of it's approval, the permit is automatically issued.
If anyone doesn't like the decision of ORES, they can be taken to court.
Any project that was already under Article 10 control is expedited.
The details in the ORES Application Process are extremely detailed and tailored specifically to renewable energy projects. Article 10 did not contain these details because it was written before wind and solar were the mainstay.
Like in Article 10, there is a provision for intervenor funds to cover the expenses of organizations that need to prepare defense against a project being forced on them. The developer needs to put in $1,000 for every Megawatt of energy. The State can adjust the number for inflation. The developer also needs to pay $1,000 per Megawatt for a permit. There is a big long set of rules and requirements for who can get funding and how they can use it and account for the spending of it.
All of the 94C process is new and evolving. As of this writing, there are 12 applications under review and 3 permitted ones. Time will tell how quickly the new process will get solar projects rolling in New York.
There is one other big difference with the passage of Section 94C. The Empire is now going to actively help developers get projects going. If a developer has assistance from the Empire, the timeline for approval is shorter for the approval and development of the project.
The New York State Energy Research and Development Authority has a program called the "Build Ready" program, where they go out looking for developers and landowners and pair them up. Because this is Empire organized and sanctioned, the development and approval process is more efficient. This is also new, so time will tell if it's intent is effective: to reach the 70% renewable energy production goal in New York State by 2030.
In my opinion, Rush should do something to stop to the Empire's efforts to build more solar farms on open vacant farmland. Unless there are talented Rush Rebels with money and the power of the Force, the Empire will strike back again and again to build more solar energy facilities.
National Grid has a big substation over on Golah Road where the solar panels will connect to the grid. If you see them making it bigger, you know more solar is coming.
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