State beats locals on wind project siting in Washington state supreme court

Nice write-up from the attorneys of Stoel Rives who handled the Washington State Supreme Court case, Residents Opposed to Kittitas Turbines v. Energy Facility Site Evaluation Council, No. 81332-9 (Wash. Nov. 20, 2008). Renewable Energy World, 12/15. The case was a (9-0) victory for wind developers who saw vindicated the state law allowing state oversight of energy project siting even over municipal objection.

Such an energy project siting law does not currently exist in New York state. (New York’s state-oversight law, known as Article X (“Ten”), expired a few years ago.) Whether Washington state’s law will be modeled here or elsewhere remains to be seen. In New York the issue is a political hot potato, as supporters of municipal autonomy view such laws as an abominable encroachment on local authority (called “home rule” in New York), while many developers would tend to prefer an overarching state oversight scheme to the existing patchwork of (potentially inconsistent) local regulation.  As of today, a majority of respondents to the highly unscientific poll question posed by this blog favor mandatory state oversight.

As the Stoel Rives attorneys note, the case also may stand for the proposition that an appropriate turbine setback from non-participating land owners is four times the maximum vertical blade height. Such a setback in New York state, home to landholdings generally smaller than those commonly seen in the western United States, would clearly inhibit the siting of large wind farms.

Albany Law’s Patty Salkin also blogged the case. The opinion is available here.

New study examines rural landowner concerns regarding wind energy production

While abundant, wind resource locales on land in the United States are finite. The location of these resources is relatively easy to determine. With the push to develop green energy alternatives such as wind, it is perhaps not a surprise that a rush by developers over recent years has attempted to shore up these resources. If anything it seems there will be even more pressure to develop as the Obama administration comes into office with its green agenda.

The “rush” undeniably has produced some controversial if not questionable practices. Where the line is between unscrupulous development activity and unreasonable landowner expectations will need to be drawn by someone else. What developers and landowners alike can do, however, is get educated about the other side’s position.

In this context, a new academic study coming out of Iowa cites concerns that landowners may have regarding the leases and agreements necessary to develop a large scale wind project on rural landholdings.

The study concludes that:

From a landowner’s perspective, many wind energy leases and/or easements are inadequate, unfair and offer limited economic benefits when compared to the revenues generated (and tax subsidies received) by large-scale wind energy developers. The most common shortcomings of such agreements include: (1) contractual terms extending too long into the future; (2) contractual language that binds landowners to unilateral amendments; (3) inadequate compensation clauses (and compensation clauses that are difficult to understand); (4) provisions that are the result of unequal bargaining power. While some landowners are reporting better experiences in recent months – better contract terms and compensation levels – that may be the result of greater competition among wind energy developers, greater education on the part of landowners and lawyers, and increased oversight by state regulators (the vast majority of wind energy developers are not subject to the regulatory rules that most utilities are subject to).

Clearly, wind farming has the potential to provide significant economic benefits for rural landowners. However, substantial peril exists that landowners who don’t carefully evaluate proposed agreements with developers can be taken advantage of significantly. Landowners should have any proposed agreement evaluated by legal counsel and attempt to negotiate any unfavorable terms. Failure to do so could result in many years of dissatisfaction for landowners.

The study also discusses various state and federal wind siting court cases. “Wind Energy Production: Legal Issues and Related Liability Concerns for Landowners in Iowa and Across the Nation“, by Roger McEowen, was released by the Iowa State University Center for Agricultural Law and Taxation in October 2008.

As an addendum, it is worth noting that the New York Times reported last week that some rural landowners in Wyoming are forming groups to increase bargaining power while negotiating agreements with wind developers.  It will be interesting to see the extent to which such a model may replicate elsewhere, including New York state.

More information on the landowner – wind developer relationship and leasing may be found here.

New York wind energy siting updates

Iberdrola carries out purchases of Energy East Broome County real estate as part of acquisition transaction. Binghamton Press & Sun Bulletin, 11/22

Setbacks and sound issues examined by Town of Cape Vincent (Jefferson County) wind committee. Watertown Daily Times, 11/21

Towns of Clayton and Orleans (Jefferson County) forming wind committees to propose draft siting regulations. Watertown Daily Times, 11/20

Village of Fair Haven (Cayuga County) considers local law regulating wind energy conversion systems. Auburn Citizen, 11/21

Anti-wind development group grows in Town of Hammond (St. Lawrence County). Watertown Daily Times, 11/24

North Harmony (Chautauqua County) resident obtains zoning approvals, raises 100kw wind turbine for home use. Post-Journal, 11/21

Towns in Orange County confronting small scale wind projects without zoning in place. Times Herald-Record, 11/20

General-interest wind stories

Generic article on how economic challenges are impacting wind development in New York state. Associated Press, published in Newsday, 11/23

Ithaca Journal editorial favors more state, county guidance in wind energy facility siting. Ithaca Journal, 11/18

GE ships its 10,000th wind turbine, capacity sold through 2010. Bloomberg News in Albany Times Union, 11/18

The American Wind Energy Association has announced a New Wind Agenda for the new President and Congress. It includes a plank on siting (with an emphasis on federal issues):

Policy recommendation: Proposals for responsibly-sited renewable energy projects on federal lands (including offshore waters) should be prioritized and federal agencies should create review processes that are streamlined, transparent and timely, with permitting and review capabilities that are scaled up as needed to meet demand.

Federal agencies have a key part to play in developing our renewable energy potential because of their role in the siting of wind projects and new transmission lines, especially on federal lands. Proposals for responsibly-sited renewable energy projects on federal lands (including offshore waters) should be prioritized and federal agencies should create review processes that are streamlined, transparent and timely, with permitting and review capabilities that are scaled up as needed to meet demand. In addition, the President should direct the Department of Defense, the Federal Aviation Administration, and the Department of Homeland Security to adopt a cooperative approach to resolving possible conflicts between wind projects and radar operations. Each federal agency should be asked to plan how it will use its authority to facilitate the growth of wind power and other renewable energy sources.

Town of Howard wind court case: Local official not removed from office

While New York Attorney General Andrew Cuomo considers allegations of impropriety in the context of wind farm siting, the courts are addressing the issue as well.

In an appeals court decision, a member of the Town Board of the Town of Howard (Steuben County) was not removed from office after a resident alleged improper behavior in the approval of an Everpower wind project.

The case, In The Matter of Gerald S. Hedman, et al. v Town Board of Town of Howard, Howard Wind, LLC, Everpower Global Corporation, Town Planning Board of Town of Howard and William O. Hatch (1393 Tp 08-00986, Nov. 21, 2008), was decided by the Supreme Court of New York, Appellate Division, Fourth Department.

Petitioners in the case commenced an Article 78 proceeding seeking, among other things, removal of William O. Hatch as a member of respondent Town Board of Town of Howard (Town Board) pursuant to Public Officers Law § 36. According to petitioners, Hatch had attempted to conceal his relationship with respondent Everpower Global Corporation (Everpower) and disregarded a conflict of interest that arose when he voted to approve a wind energy facility proposed by Everpower that included a wind turbine on Hatch’s property.

The Supreme (trial) Court transferred to the Appellate Division that part of the petition seeking Hatch’s removal from the Town Board and dismissed the remainder of the petition. The lower court’s dismissal was not before the appeals court.

The appeals court noted that

removal of an official from office under Public Officers Law § 36 “generally will not be granted absent allegations of self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust[,] . . . [and a]llegations of minor neglect of duties, administrative oversights, or violations of law . . . do not, in general, warrant removal.”

The court determined that the sole remaining petitioner, Gerald S. Hedman, failed to establish that Hatch had an actual conflict of interest that would warrant his removal as a Town Board member.

Hedman’s evidence had consisted solely of Everpower’s proposal for a wind energy facility identifying Hatch as a proposed participating landowner on whose property a wind turbine would be located. Hatch, in contrast, established that he had not entered into any agreement with Everpower with respect to the wind turbine at the time of his vote on the proposal, and petitioner presented no evidence to the contrary. The court found, then that on the record before the court it cannot be said that Hatch was affected by a conflict of interest by virtue of his vote in favor of Everpower’s proposal for a wind energy facility.

The court also concluded that petitioner’s allegation that Hatch intentionally concealed his relationship with Everpower was based on pure speculation and so entitled to no evidentiary weight.

Lastly, the court found that the alleged impropriety of Hatch in failing to make a public disclosure of the potential conflict of interest did not warrant his removal as a Town Board member (see Public Officers Law § 36).