Wind Farms in New York

Wind has long been a source of energy, mechanical or electrical, in various parts of the world. In the United States, however, wind energy has struggled to gain mainstream acceptance. In part, this is due to the lack of a comprehensive Federal government policy. While the current administration has a strong energy production bent, the emphasis has been mainly on the long-established fossil fuel sources with some discussion of returning emphasis to nuclear power as a clean alternative. An even more restrictive factor, however, has been the lack of State policies that promote or even discuss wind energy. Especially in New York, where municipalities have strong land-use powers, there has been difficulty formulating a wind power policy framework and agreeing on how to site wind energy turbines.

In 1996, the Federal government enacted the Telecommunications Act. In part to promote the technological sector and in part supporting the wireless networks that were booming in urban areas, the Federal government made siting a priority. The result of this act was the prevalence of cellular phone towers that we see today. It would be absurd to draw a direct parallel between cell towers, which are larger passive structures that provide a previously nonexistent benefit, and wind turbines. Turbines have long been criticized for their active nature. In some cases, there have been allegations of excessive noise. In others, the spinning blades have been held to be either a distraction or a hazard via “ice throw.” However, the response to tower siting seems similar whether the proposal is for cellular towers or wind farms. The lessons of the FT Act might then have some application to the growing push for wind energy turbine development.

The difficulty in New York lies in an aspect of local law that is usually hailed by developers, the Home Rule Law. Article IX of the New York State Constitution grants significant powers of self-governance to the various municipalities of the state. Further, the State legislature directly granted zoning and planning authority, by use of Home Rule local lawmaking, to the various municipalities of the state (1). State regulation under the police powers is not completely trumped. For example, Department of Health Regulations set a baseline for septic system safety and design throughout the State. Localities may pass stricter laws, but cannot waive out of the regulatory scheme completely. Under the Home Rule provisions, the State can only act via general laws, which affect all municipalities equally, or by special legislation requested by 2/3 vote of the local government body (2). There has never been a successful effort to enact a statewide zoning scheme or any state office with land-use oversight. Even the infamous Adirondack Park Agency, with the regional zoning plan that has been reviled by local government and property rights advocates (3), can be trumped should towns and villages adopt their own zoning plans (4).

To date, there have been no successful zoning proposals related solely to siting wind energy turbines in New York. In 2003, State Senator James Seward introduced a bill (5) which would subject wind projects in or near historical landmarks to review by the Commissioner of the State Office of Parks, Recreation and Historic Preservation (OPRHP or “Parks”). As reported in the Cooperstown Crier, the Senator stressed he is “a great believer in Home Rule, but thinks the state ought to be more involved in the siting process – in setting the rules of the game.(6) ” This earnest thought met with little response in the Senate, where S.1898 garnered no cosponsors in 2003 and languished in committee. The Assembly version was more successful in drawing cosponsors, yet also died in committee. Both versions of the bill were reintroduced since the initial action, yet still sit in Senate and Assembly energy committees.

1. General City Law �§20, Town Law �§261, Village Law �§7-700.
2. NYS Const. Art IX Ã?§2(b)(2) (McKinney’s 2003).
3. http://www.prfamerica.org, http://www.aatvny.org
4. http://apa.state.ny.us
5. S.1898/A.6452 (2003)
6. “Legislation would involve state in wind turbine siting.” Cooperstown Crier. Thursday, March 27, 2003. www.coopercrier.com/news/stories/2003/03/27/ccwind.html.

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