Removing Administrative and Zoning Barriers to Wind Farm Construction: Re-powering New York State

Shane Egan, Albany Government Law Review Member

          Energy independence is one of America’s most important, if not most illusive, goals.  Today, the United States imports large amounts of energy from hostile governments around the world.[1]  Here in New York, we rely on out-of-state energy for a significant percentage of our energy consumption.[2]  This and other factors contribute to high energy costs inside New York.[3]   With that in mind, New York should implement policies that stimulate the intrastate production of energy.   Enhancing the use of renewable energy in New York will help lower energy costs, create jobs, and lessen our reliance on imported energy.

            Wind power can and should play an important role in meeting New York’s energy needs.  This not a new idea.  New York already has a number of renewable energy goals, including the Renewable Portfolio Standard (RPS), which calls for thirty percent of the state’s energy to be derived from renewable sources by 2015.[4]  These renewable sources include wind power, and several large projects are already underway.[5]

          However, despite New York and Federal efforts aimed at stimulating the construction of wind turbines in the form of grants[6] and tax credits,[7] there are still many obstacles standing in the way of creating sustainable wind energy.  Two such obstacles are zoning regulations and permit requirements.[8]  In order to stimulate the construction of wind farms, New York should enact legislation to break down zoning barriers and streamline the number of permits required to construct wind turbines. 

          This legislation would require every New York municipality to reasonably accommodate wind farms in their zoning ordinance.  In this legislation, reasonable accommodation would require a municipality to amend their zoning ordinance to permit wind farms in at least one designated zoning district.  This ensures that no municipality could have a blanket prohibition against the construction of wind farms.  If it is impracticable for a given municipality to provide this accommodation, the municipality could apply to the Public Service Commission (PSC) for an exemption.[9]  For example, it would probably be impractical for the City of Albany to be required to cite wind farms in its zoning scheme due to its geographic location and population density. The City of Albany therefore should be exempt from this requirement.  However, municipalities located along the shores of the Long Island Sound and the Great Lakes, which are in optimal geographic locations for wind farm construction,[10] should not be exempt from such a requirement. 

          If a municipality disagreed with the PSC’s determination, it would be free to challenge it through a CPLR Article 78 Proceeding.[11]  However, the legislation should state that challenges cannot be based on aesthetic or health concerns.  Aesthetics has been used to derail wind projects in the past[12] and health concerns have also been raised when wind turbines are located close to population centers.[13]  Effective planning can alleviate many of these concerns and public policy should not allow these issues to derail this very important initiative.

          Second, the legislation would streamline the state permits required to construct wind farms.  As of today, New York has no specific permitting process for wind farm construction.[14]  There are currently a number of permits required to site a wind farm in New York State, including the cumbersome and costly SEQR process.[15]  This process can cause delays and cost overruns that discourage the construction of new facilities. By crafting a streamlined application process focused specifically on wind farms, New York will eliminate confusion and stimulate construction.  This will send a clear signal that New York is committed to wind as a part of its energy infrastructure.

          New York should be a leading state when it comes to the generation of wind power.  In 2009, New York was ranked ninth in overall production of wind energy.[16]  New York should make it a policy goal to move within the top five by the middle of the decade.  This proposal will go a long way towards accomplishing that goal by breaking down administrative barriers and streamlining the process of constructing wind farms. 

          The best part of this proposal is that it is revenue neutral.  The proposal does not add to New York’s budget shortfall because it is an administrative reform and not a spending measure.  There will of course be some cost to local municipalities as a result of amending their zoning ordinances and the professional services that this process requires.   This cost could be offset by RPS surcharge funds.[17]  The RPS surcharge is assessed by utilities upon ratepayers to fund New York State Energy Research and Development Authority (NYSERDA) renewable energy programs.[18]

          In 2010, with state revenue tight and unemployment soaring, policy makers must think outside the box to develop programs that create jobs without increasing the deficit.  Administrative reforms such as mandatory wind farm accommodation and permit streamlining are two such policies.  Implementing this policy will help create a sustainable future both economically and environmentally for New York State.


[1] Interactive Map: Where is Our Oil Coming From, Center for American Progress, May 21, 2008, http://www.americanprogress.org/issues/2008/05/oil_imports.html.

[2] See New York State Energy Research and Development Authority (NYSERDA), patterns and trends–New York state energy profiles: 1994–2008, Jan. 2010,  http://www.nyserda.org/publications/patterns_trends_1994-2008.pdf (showing New York imports 14% of its net electricity consumption).

[3] Max Schulz, NY Unplugged? Building Energy Capacity and Curbing Energy Rates in the Empire State 1, Manhattan Institute, Mar. 2008, available at http://www.manhattan-institute.org/pdf/sr_06-08.pdf.

[4] New York State Energy Research and Development Authority (NYSERDA), The New York Renewable Portfolio Standard, http://www.nyserda.org/rps/index.asp.

[5] New York Power Authority (NYPA), Great Lakes Offshore Wind Projects, http://www.nypa.gov/NYPAwindpower/GreatLakesWind.htm.

[6] New York State Energy Research and Development Authority (NYSERDA), On-site / Small Wind Incentives, http://www.powernaturally.org/Programs/Wind/incentives.asp (discussing NYSERDA grants).

[7] See Economic Stimulus Extends Renewable Energy Tax Credits, EERE Network News, Feb. 18, 2009, http://apps1.eere.energy.gov/news/news_detail.cfm/news_id=12247 (discussing tax credits provided by the federal government); see also Rochester Solar Technologies, Solar Tax Credits and Incentives, http://www.solarrochester.com/new_york.asp (last visited June 12, 2010).

[8] See J. Green & M. Sagrillo, Zoning for Distributive Wind Power–Breaking Down Barriers 1–2, Aug. 2005, National Renewable Energy Laboratory, available at http://www.engr.colostate.edu/ALP/Zoning_for_Distributed%20Wind.pdf (discussing zoning barriers); see also New York State Department of Environmental Conservation (DEC: Review of Wind Energy Projects), July 16, 2009, available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/decwindprojrev.pdf (listing the permits required for wind farm construction in New York State). 

[9] See New York State Public Service Commission, About The Public Service Commission, http://www.dps.state.ny.us/New_aboutdps.html (last visited June 12, 2010) (discussing the role of the PSC in regulating energy production in New York).

[10] See U.S. Department of Energy, New York Wind Map and Resource Potential, http://www.windpoweringamerica.gov/wind_resource_maps.asp?stateab=ny (last visited June 12, 2010) (to access source, click on state map.  The map shows that generally wind turbines located both on Long Island and in the Great Lakes region would generate the most energy).

[11] N.Y. CPLR §§ 7801–7806 (2008). 

[12] Save Our Sound: Alliance to Protect Nantucket Sound, http://www.saveoursound.org/site/PageServer (last visited June 12, 2010).

[13] Save Western NY, Health and Safety, http://www.savewesternny.org/health.html (last visited June 12, 2010).

[14] New York State Department of Environmental Conservation (DEC): Review of Wind Energy Projects, July 16, 2009, available at http://www.dec.ny.gov/docs/permits_ej_operations_pdf/decwindprojrev.pdf. 

[15] Id.

[16] American Wind Energy Association, Annual Wind Industry Report: Year Ending 2008, 8 available at http://www.awea.org/publications/reports/AWEA-Annual-Wind-Report-2009.pdf.

[17] New York State Public Service Commission, Case 03-E-0188: NY RPS Proceeding Home Page, http://www.dps.state.ny.us/03e0188.htm.

[18] Id.

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11 Comments

Filed under Energy Law, Land Use

11 responses to “Removing Administrative and Zoning Barriers to Wind Farm Construction: Re-powering New York State

  1. Ken Empey

    I fully understand that wind energy “sounds” good. It is not. Wind turbine projects DO NOT replace any form of generation currently used because they CANNOT due to the fact that fossil-fueled generating plants must keep operating so they are ready when the wind stops blowing, and the wind DOES stop blowing. So wind turbines are an ADDITIONAL generating entity on top of what we are already using. Can someone please tell me how that makes our electric utility rates decrease? Can you tell me how that reduces our dependence on foreign oil? Can you provide production figures for wind projects that are in operation, such as Maple Ridge?
    Wind project development is being driven by corporate lobbyists and sold to a gullible public. Do your homework and you will find that the big Wall St investment banks are making a killing by financing these projects and getting huge tax cuts due to the accelerated double declining balance depreciation given to these projects. It’s highway robbery.

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