Young/Sommer Secures Win For Niagara County Solar Project
Posted on June 27, 2024
On June 14, 2024, the Fourth Department upheld a New York Office of Renewable Energy Siting (“ORES’) determination confirming the waiver of certain Town of Cambria (”Cambria”) local laws and denying Cambria both party status and an adjudicatory hearing on its issues presented. Cambria commenced the Article 78 proceeding seeking to annul and vacate the Hearing Examiners’ determination in the Bear Ridge Solar 100 MW project application.
ORES had presented its Bear Ridge Solar draft permit which included recommendations regarding whether certain local laws, known as Cambria’s Solar Law, should be waived. Cambria filed a request with ORES seeking party status and an adjudicatory hearing to determine whether there were issues of fact regarding ORES’s determination that their local laws were unreasonably burdensome to the Bear Ridge project. The Hearing Examiners denied Cambria’s arguments, finding that Cambria had not met the standards of a “substantive and significant issue” as defined by the regulations to trigger adjudication, and confirmed ORES’s waiver of specific provisions of Cambria’s Solar Law. On appeal, ORES’s Executive Director confirmed the decision of the Hearing Examiners.
In its Article 78 proceeding appealing ORES’s determination, the Town of Cambria argued it raised substantive and significant issues, therefore, ORES acted arbitrarily. Cambria claimed that Bear Ridge failed to show in its application how its facility would produce renewable energy that replaced fossil fuels instead of other renewable energy sources and that Bear Ridge failed to show any environmental benefit from the Project. Additionally, Cambria argued that ORES based its decision to grant a permit on the “conclusory determinations” of Bear Ridge’s application and failed to apply its own regulatory framework to support waivers of local law. Cambria also argued that ORES’s determination to allow a waiver of certain decommissioning provisions was arbitrary.
In rejecting Cambria’s claims, the Fourth Department initially cited the Climate Leadership and Community Protection Act’s (“CLCPA”), “rigorous schedule to achieve zero emission of electrical energy by 2040,” as well as the Accelerated Renewable Energy Growth and Community Benefit Act (“AREGCBA”). The AREGCBA requires that ORES permit projects in a “timely and cost-effective manner” and gives ORES mechanisms to override certain local laws that are found to be “unreasonably burdensome” in light of the CLCPPA’s goals and the proposed facilities environmental benefits.
The Court first noted that the burden to show significant and substantive issues with whether the project would result in environmental benefits had shifted to the Town after ORES approved a draft permit. The Court found that Cambria failed to raise a substantive and significant issue that the project would not result in environmental benefit. The Court, quoting the regulatory language, found that a substantive issue is one in which there is sufficient doubt of the applicant’s ability to meet statutory or regulatory requirements, and a significant issue is one that has the potential to result in a denial of a permit or a major change to the facility. The Court found there was in fact substantial evidence in the record to establish Bear Ridge’s ability to replace fossil fuels and create an environmental benefit. Additionally, the Court found that Bear Ridge supported its request for waivers with evidence that complying with the Town’s local laws would make the project unfeasible, the technology to comply with the laws does not exist, and compliance with the decommissioning provisions would be unnecessary. Therefore, ORES did not base its determination on Bear Ridge’s “conclusory determinations,” instead it complied with its own regulations of using facts and analysis in granting a siting permit to Bear Ridge.
The Court unanimously confirmed the Hearing Examiners’ determination and dismissed Cambria’s petition. Young/Sommer’s attorneys on the 94-c permit and litigation were Steven Wilson and Jim Muscato.