Opposition to Renewable Energy Projects in New York Continues to Present Challenges for Project Developers

January 14, 2022
Stephen D. Daly, Esq.
MGKF Special Alert - New York Forecast 2022

In 2019, New York State passed the Climate Leadership and Community Protection Act, committing the State to 100 percent zero-emission electricity by 2040.  Since then, proposed solar and wind energy projects have sprung up across the State, particularly in Upstate and Western New York.  Despite the State's ambitious agenda, however, many of these renewable energy projects have been bogged down or even stopped by local opposition. 

Opponents of these types of projects have often borrowed from the playbook of environmental organizations and public interest groups that have used environmental and administrative laws, in particular the Federal National Environmental Policy Act (NEPA) and its New York equivalent, the New York State Environmental Quality Review Act (SEQRA), to slow and sometimes stop fossil fuel or other types of development projects.  The opposition often takes many forms, including submission of public comments, participation in public hearings, running internet campaigns and petitions, and filing lawsuits against government decisionmakers and developers.  Local and municipal governments have also banned, placed moratoria on, or significantly restricted wind and solar energy development in response to renewable energy project proposals. 

While local opposition can be challenging to the siting of solar and wind farms, some of the largest fights concern the siting and development of transmission lines that are needed to move renewable energy from upstate to downstate, a crucial component of plans to transform New York's energy economy.  Opposition to such major infrastructure projects is often broad and varied depending on the trajectory of the proposed line, and can include environmental groups, local municipalities, and Native American tribes, among others.

Some innovative approaches are being used by lawmakers and others to reduce the delays for renewable projects that have plagued the development of other types of infrastructure.  In 2020, New York passed the Accelerated Renewable Energy Growth and Community Benefit Act, Executive Law § 94-c, which created the Office of Renewable Energy Siting to streamline the permitting process for large scale renewable projects.  The Office must complete its review of most types of projects within one year of a complete application.  Executive Law § 94-c also restricts the ability of local governments to regulate or prevent the siting of these projects.  New York courts have so far rejected challenges to Executive Law § 94-c and its implementing regulations, see Town of Copake v. NY State Office of Renewable Energy Siting, No. 905502-21 (N.Y. Supr. Ct. Oct. 7, 2021). 

Elsewhere, courts have turned to mediation as a tool to resolve litigation disputes regarding the proposed development of renewable energy projects.   For example, in Hawaii this past year, a solar farm and neighboring residents reached an agreement through mediation that included a legally enforceable $1.375 million community benefits package for local groups.  This type of an agreement could serve as a model for future disputes over renewable energy projects. 

If New York State is truly committed to transforming its energy economy by 2040, lawmakers and developers will have to continue to generate innovative ways to reconcile local concerns with large-scale infrastructure development.