WPEG Reply Brief - Final in support of complaint

8/8/2019 WPEG Reply Brief - Final in support of complaint

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF JEFFERSON

_________________________________________________

WIND POWER ETHICS GROUP

Petitioner-Plaintiff,

against -

PLANNING BOARD OF THETOWN OF CAPE VINCENT, andRICHARD EDSALL, TOM RIENBECK,GEORGE MINGLE, ANDREW BINSLEY, andKAREN BOURCY, in their capacities as

planning board members,

Respondents-Defendants, and

ST. LAWRENCE WINDPOWER, LLC,

Respondents-Defendant __________________________________________________

Submitted with this Reply Brief on behalf of Petitioner-Plaintiff:

Affidavit of ALBERT H. BOWERS, III, dated December 22, 2010.

Affidavit of MICHAEL BELL, dated December 22, 2010.

Affidavit of JOHN BYRNE, dated December 24, 2010.

Affidavit of CLIFFORD SCHNEIDER, dated December 24, 2010.

Attorney Affirmation of GARY A. ABRAHAM, dated December 23, 2010.

REPLY BRIEF INSUPPORT OF PETITION

AND COMPLAINT

Index No. 10-2882


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I. PRELIMINARY STATEMENT

The allegations in the petition and complaint (except for the ethics complaint) are

substantiated by the Certified Record and record materials that were omitted from the

Certified Record. Respondents reliance on the length of the review process, the

voluminous nature of the Certified Record, and the length of the Planning Boards 120-

page findings statement is belied by the substance of the record.

The affidavits submitted herewith by Michael Bell and John Byrne demonstrate

sufficiently that Petitioner-Plaintiff Wind Power Ethics Group (WPEG) has s tanding in

this matter.

The size of the Certified Record and the complexity of its organization, its

incompleteness, ( see Abraham Aff.; Schneider Aff.), and the season of the year have

conspired to restrict the ability to fully test Respondent Planning Boards (the board)

findings statement, the basis for the action complained of here, (CR 5920-6033), against

the evidence in the record w ithin the time available. This Brief focuses on the boards

failure to meaningfully consider the magnitude of the noise impacts that would result

from Respondent St. Lawrence Windpowers (SLW) proposed wind farm project, and

the failure of the board to consider any mitigation of those impacts until later, after the

project is fully approved. These facts form the primary basis for WPEGs claims under

the State Environmental Quality Review Act (SEQRA). WPEGs ethics claim is also

briefly outlined. However, respectfully, it is hoped that the Court will see in the facts


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discussed grounds for seeking supplemental briefing from Petitioner-Plaintiff to more

fully explore the record.

II. THE PLANNING BOARD VIOLATED SEQRA

A. The reduction in the size of the SLW project was never designed and in fact fails

to mitigate the substantial adverse impacts of the project, nor is the smaller size of

the project the result of any analysis of alternative wind turbine locations.

There is no ev idence that the reduction in size of the project from 97 to 51 turbines

was imposed by the Planning Board to avoid, minimize, or mitigate any adverse impacts.

To understand why the project size was reduced so dramatically requires a brief excursion

at the outset into the world of New York electric corporation regulation.

The SLW project size was reduced primarily because the rules of the states Public

Service Commission (PSC) changed during the course of the project review, imposing

onerous requirements on wind farms to demonstrate they would not displace hydropower,

natural gas plants or other renewable sources of electric generation, including other wind

farms. PSC, In the Matter of Generator-Specific Energy Deliverability Study

Methodology , Order Prescribing Study Methodology, Case No. 09-E-0497, October 20,

2009, < www.dps.state.ny.us > (Search, Search for Case/Matter Number). The Order

requires new wind farms to demonstrate, as a condition of obtaining a Certificate of

Public Convenience and Necessity from PSC, required to commence operations, that the

project proponent can deliver energy to electricity load cen ters without displacing other


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energy sources.

SLW would have anticipated the October 20, 2009 Order because the Order was

foreshadowed by a previous order in which PSC stated: Where new proposed renewable

generation may result in displacement of other existing renewable generation, or in

forcing a steam hos t to employ auxiliary steam production (with loss of the efficiency

benefits of combined-cycle operation), then those effects should be reasonably qualified

and quantified, and discussed in the context of the balancing of impacts and benefits

resulting from siting the new generation facility. Id. at 1 (quoting PSC, Marble River,

LLC , Order Granting Certificate of Public Convenience and Necessity and Providing for

Lightened Regulation, Case 07-E-1343, June 19, 2008, at 14). As noted in the October 20,

2009 Order, on September 9, 2008, PSC applied the new demonstration requirement for

the first time to an application by wind developer Iberdrola to acquire New York electric

utilities. Id. at 1-2.

According to the PSC Order, renewable generators such as wind fa rms may not be

able to actually deliver their available energy output . . . without displacing other

renewable and/or price-taking generators. Id. at 3. A price-taking generator is an

electricity supplier that cannot control its output to follow schedules as directed by the

System Operator, and are d istinguished from price-setting generators supplying on-

demand energy. Id. 4.n.9. In the extreme, if the only generators dispatched within an area

are price-takers (such as nuclear, hydro and wind plants), the LBMP [location-based


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marginal prices paid for renewable-power energy] may drop to zero or even negative

values. Id. at 4.n.8. In addition, because in New York wind development occurred in a

very small area(s) geographically and these areas depend on transmission facilities that

carry significant amounts of energy produced by hydro and combined cycle [natural gas]

plants, the States goal of achieving 25% of energy consumed to be from renewable

sources by 2013 could be jeopardized. Id. at 5-6. This goal will not be realizable if the

energy from new renewable resources just replaces the energy produced by existing

renewable resources. Id. at 6.

To ensure that energy output will be actually delivered and not be lost in

transmission bottlenecks, and will not just displace other renewables, the Order now

requires that a renewable energy generator show that transmission facilities exist between

the generator and an area with sufficient load demand. Id. at 3-4 and n.7. Without such a

demonstration, projects cannot obtain a Certificate of Public Convenience and Necessity,

required from the PSC in addition to any other state and local permits. Importantly, PSC

regulates the siting of electric generating capacity over 80 megawatts (MW); wind

power plants with a lesser capacity are deemed alternate energy production facilities

outside PSCs jurisdiction. PSL 2(2-b), (13). Cf. CR 3412 (PSC corresp.).

Accordingly, to avoid the new deliverability study requirement, wind farms around the

state have reduced their originally proposed size to below 80 M W.

By April 8, 2009, SLW had reduced the number of turbines for the SLW proposal


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For example, it is today uncommon for wind farm proposals to utilize 1.5 megawatt1

(MW) wind turbines. Modern land-based utility-scale wind turbines have capacities of 2.5 MWor higher. For example, a currently proposed wind farm in western New York would utilize 2.5MW turbines, according to the project Draft EIS. See Everpower, Allegany Wind Power Project,

Draft Environmental Impact Statement , , at 1(The Project will consist of approximately 29 wind turbines, each with a maximum or

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to 53, with result that design capacity fell to 79.5 MW, avoiding PSC jurisdiction. CR

3603. The final proposal reduced the number of turbines to 51, but there is no evidence

that this was done to avoid or minimize noise impacts. Indeed, some turbine locations

remain unacceptably close to some Cape Vincent residents, unchanged from the inception

of the proposal, and the FEIS even added one turbine close to the Bell residence that had

not been considered in the SDEIS. Cf. Bell Aff. 7. In fact, the FEIS predicts sound

levels will regularly reach 42 dBA at the Bell property, an excessive increase above the

existing background sound level (which is about 25 dBA), as more fully discussed below.

Finally, there is no evidence to suggest the size of the SLW project was reduced as

the result of an analysis of alternatives to the manner in which the projects individual

wind turbines were sited. See 6 N.Y.C.R.R. 617.9(B)(5)(v) (requiring the FEIS to

include a description and analysis of reasonable alternatives to the action considering the

objectives and capabilities of the project sponsor). While, as discussed more fully below,

according to the Planning Boards environmental consultants the projects potential noise

impacts remain serious and significant, even after all project changes agreed to during the

review process, the record is silent on whether alternative turbine sites, alternative turbine

sizes, or other alternatives for the projects layout are available and feasible.1


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nameplate capacity of 2.5 megawatts (MW), resulting in total generating capacity of approximately 72.5 MW).

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B. The Board did nothing to mitigate significant adverse noise impacts identified in

the course of its environmental impact review.

SEQRA requires more than merely addressing or considering impacts; it imposes

substantive requirements on the lead agency to mitigate identified impacts. N.Y. Envtl.

Conserv. L. (ECL) 8-0109[1], [8]; 6 N.Y.C.R.R. 617.11 (d)(5). In Town of

Henrietta v. Department of Environmental Conservation , 76 A.D.2d 215, 223, 430

N.Y.S.2d 440, 447 (4th Dept. 1980), the court stated: Thus, the regulations in accord

with the statutory provisions of SEQRA, make clear that an agency in approving an action

must make a written finding that it has imposed whatever conditions are necessary to

minimize or avoid all adverse environmental impacts revealed in the EIS [environmental

impact statement]. Cf. 6 N.Y.C.R.R. 617.11(d)(5). Under the proper circumstances,

relocation of facilities should be considered to achieve this goa l. Sun Co. v. Syracuse

Indus. Develop. Auth. , 209 A.D.2d 34 , 625 N.Y.S.2d 371 (4th Dept. 1995) (citing Town

of Henrietta ) (other citations omitted).

The EIS, the heart of SEQRA, is meant to be more than a simple disclosure

statement . . . Rather, it is to be viewed as an environmental alarm bell whose purpose is

to alert responsible public officials to environmental changes before they have reached

ecological points of no return. Town of Henrietta , 76 A.D.2d at 220, 430 N.Y.S.2d at

445. Noise impacts are an element of the environment that must be subjected to a hard


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look by the lead agency under SEQRA. 6 N.Y.C.R.R. 617.2(x). In this case, the

boards environmental consultants concluded that, once the SLW project becomes

operational, residents living in quiet rural areas in and around the project area will suffer

excessive noise impacts. However, the Planning Board approved the Final EIS (FEIS)

without imposing any conditions on the projects ability to create such noise impacts.

Failure to mitigate identified significant adverse impacts is a fundamental violation of

SEQRA.

An extensive correspondence among the engineering consultants for the Planning

Board and SLWs engineering consultants exists regarding noise impacts but only a

portion of that correspondence has been made part of the Certified Record (CR). See

CR 4256-4290 (corresp. beginning May 14, 2010). See Abraham Aff., attachment

(correspondence beginning December 3, 2007) (hereafter cited as Supp __), Supp 16

and following. Taken as a whole, the engineering correspondence shows that serious

objections to the basic approach to noise assessment taken by SLWs consultants were

expressed by the boards consultants from the beginning of the review of the SLW project

and never resolved. Instead, SLWs consultants refused to modify their approach in

response to objections and concerns provided by the Planning Boards consultants. Cf.

Supp 46 (attaching a summary of CTAs chief objections and major concerns). By

the time a final EIS was presented to the Planning Board, the two sides consultants

remained fundamentally at odds regarding their conclusions about how much noise the


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project would make. Despite their own consultants conclusions that noise impacts would

remain significant even after changes to the size of the project, and that SLWs

conclusions to the contrary are based on flawed assumptions and methods, the Planning

Board decided to rely on SLWs conclusions. Cf. CR 6009-6014.

The Planning Boards lead consultant Kris D. Dimmick, P.E. of Bernier Carr

Group (BCG) subcontracted with acoustic engineers Cavanaugh Tocci Associates

(CTA), while SLW relied on its acoustic consultant Hessler Associates and its principal

David M. Hessler. Cf. Supp 13-18. It is important to note that CTAs and BCGs

criticisms of Hessler identify methodological flaws in Hesslers approach to noise

assessment. Generally, CTA and BCG find that Hessler improperly elevates the estimated

background level at the locations where existing sound levels were measured on the one

hand, and improperly discounts his estimate of the sound levels that would be generated

by SLW project. Understanding the consultants differences regarding these two sides of

the noise assessment equa tion is crucial because the level of noise impact, both sides

agree, is determined by comparing a proper baseline, existing sound level to the expected

project operational sound level.

It is also important to note that, notwithstanding their differences over the proper

approach to noise assessment, both sides agreed to abide by NYSDEC guidelines,

defining a significant noise impact as an increase of 6 decibels or more above existing

background sound levels. See Respondent Planning Board, Memorandum of Law (PB


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MOL), Ex. B, at 14. See also Supp 40 (noting the applicants previous commitment to

develop their project within that guideline. This guideline recommends less than 6db over

background.). Such increases, like any other potentially significant impact, call for

affirmative mitigation measures under SEQRA. ECL 8-0109[1], [8]; 6 N.Y.C.R.R.

617.11(d)(5). However, the board elected to require a post-operational noise complaint

program, as yet undefined, in lieu of mitigation measures identified prior to project

approval. See CR 6012. Compare the lengthy and detailed plans in the FEIS to mitigate

impairment of wetlands, CR 4463-4488; invasive plant species, CR 4489-4450;

stormwater pollution, CR 4501-4533; bird and bat mortality, CR 4534-4671; interference

with TV broadcast signals, CR 5031-5032; and protection of water wells disturbed during

construction, CR 3625.

1. Dispute 1: background sound levels as a function of wind speed

The Planning Board consultants specific criticisms of Hesslers approach show

how significant expected noise impacts of the SLW project could be.

First, CTA disputed Hesslers theory that wind-generated noise at ground level,

caused by the rush of air through trees and brush for example, would normally mask the

sound of wind turbines. CTA advised that when measuring background sound, if the

microphone is installed in a tree, the microphone should be located away from branches

or twigs that when excited by a breeze might make noise. . . It is our preference that

microphones also be located away from transient noise sources such as walkways and


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driveways. Supp 16. The reason for these methods, as CTA later explained, is that the

background sound leve l reflects the constant sound level occurring between transient

sound events. Supp 80 (comment 4).

Hesslers approach to noise assessment relies on a fundamentally different view of

background sound. Hessler believes the objective of a background study is to establish

ambient levels within the site area as a function of wind speed. Supp 87 (comment 7).

This objective was ultimately judged not appropriate by CTA, which advised that

Hesslers assumption that wind speed is tied to background noise have lead [ sic ] to poor

correlation between the two, and recommending that wind velocity be ignored. Supp

49 (comment 2). See also Supp 37 (Dimmick: The data presented [by Hessler] does not

support the conclusion of a relationship between wind speed and ground noise); and

Supp 99 (There is no conclusive relationship between the L90 [background] sound level

and wind speed, and at any rate an elevated background level may be attributed to a

wind-induced event at a given wind speed only about 50% of the time.); and CR 4288

(Hesslers use of an average of measured sound level values underestimates background

sound levels in qu ieter area.). Cf. New York State Dept. Envtl. Conserv. (NYSDEC),

(90) Assessing and Mitigating Noise Impacts (2001), PB MOL, Ex. B, at 12 (L is often

used to designate the background noise level).

These objections to Hesslers methods had been expressed by CTA from the very

beginning of its review. On February 6, 2008, CTA commented on the noise assessment


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in SLWs draft EIS (DEIS), noting that research by van den Berg concluded that at

night, compared with the day, the upper elevation wind speeds are skewed higher than

wind speeds at lower elevations and therefore by relying on wind speed measurements

taken at 60 meters above grade and then adjusted to 10 meters above grade, Hessler

had obscured a greater difference between the wind turbine sound and background

corresponding to a higher noise impact than estimated . Supp 23 (emphases in orig.).

Based on Hesslers raw data, CTA found at Hesslers measurement locations there are

times when there is almost a reverse correlation between wind speed and background

sound. Supp 23. CTA concluded on the basis of the raw da ta that an estimation

procedure that assumes a positive correction should not be used because it does not

account for background sound . Supp 24 (emphases in orig.).

Much later, following a series of exchanges in which Hessler and SLW resisted

changing their modeling approach , CTA elaborated on this objection, finding that even

Hessler acknowledged that wind shear at night can be expected to increase the impact

of project noise compared to his estimation results. Supp 103-104. Wind shear occurs

when the elevated air mass at wind turbine hub he ight moves at wind speeds sufficient to

operate the turbines, but is detached from the ground level air mass which remains still.

The phenomenon is associated with the cooling of the elevated air mass at night,

compared to the ground level atmosphere. In that circumstance, background sound levels

at ground level are very quiet because there is neither wind-induced noise nor are ambient


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This was an important criticism of Hesslers approach voiced by WPEG early in the2

review process. In comments submitted to the Planning Board on February 9, 2010 (omitted fromthe Certified Record), WPEG member Clif Schneider discussed van den Bergs research basedon half-hour measurements at a German wind farm over the course of an entire year showingwind shear occurs about half the time in the temperate zone around the world, and more often atnight. See Schneider Aff.

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noises associated with daytime natural or man-made activities present. Supp 23 (CTA,

comment 3). The result, acknowledged by SLW, is an increase in operational noise and

ability to propaga te through the a tmosphere increasing its relative perceptibility. Supp

103. The Planning Boards consultants concluded: Acknowledging that [i.e., wind2

shear] is the critical sound condition but not using it seems to be a tough position for

Dave [Hessler] to defend. Supp 104.

Hessler nevertheless persisted in orienting the sound assessment presented in the

FEIS in terms of background sound levels as a function of wind speed. CR 4675-4676.

Even then, however, when there is little or no wind speed at a height of 10 meters, the

FEIS concludes that background sound levels can be expected to be around 25 dBA. CR

904676 (Fig. 2.2.1, reporting the L measure). See also Supp 72 (table); Supp 72-73

(CTA, analysis of Hesslers raw data results in a background sound level of 25 dBA,

compared to Hesslers conclusion of 37 dBA).

More particularly, CTA found that background sound level was related to wind

speed at the locations measured by Hessler only between 39% and 52% of the time. Supp

82 (table). In other words, about half the time, there is no relationship between wind

speed (measured a t a height of 40 m [meters] and normalized to a height of 10 m, as


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Hessler elected to do), (Supp 84), and background sound level. See Supp 47 (CTA,

commenting on SDEIS page 3-162). This is consistent with an earlier criticism by CTA:

The analysis method employed by Hessler Associates would underestimate wind turbine

sound impacts half the time on average, and considerably more often at quieter receptor

locations. Supp 72.

2. Dispute 2: averaging measurements from w idely scattered monitoring locations

CTA also found fault with Hesslers reliance on an average background sound

level across the entire project site, advising instead that background sound levels be

determined at each monitoring location on the expectation that measurements at some

locations would be quieter, some less quiet, leading to a more refined assessment. Supp

49. SLW was directed to eliminate the assertion in the SDEIS, that sound levels at points

between measurement locations can be expected to be substantially the same as the

average among the locations. Supp 43. Hessler nevertheless persisted in asserting that

measurement values from a ll monitoring locations should be combined to calculate a

single project area background sound leve l, and this calculated sound level should be

relied upon for the baseline against which project sound emissions would be assessed.

Supp 87 (comment 7). In the FEIS Hessler reported only mean values from all monitoring

locations, consistent with this approach. CR 4686.

Clearly, the consequences of accepting CTAs advice would have included a hard

look at the siting of individual wind turbines w ithin the project area, restrictions on


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operations of some turbines closest to residential locations or other mitigations available

to offset unavoidable noise impacts at certain very quiet locations. However, none of

these things were ever considered. See Supp 40 (Dimmick: Several areas [of the SDEIS]

talk about potential mitigating efforts in the future, however there was limited discussion

of options to mitigate noise in the future without permanently eliminating operation of

specific turbines, and noting SLW has provided no response to this concern). Even the

FEIS recommends that, for receptors who would experience a cumulative increase in

noise from more than one turbine greater than 6 dBA, some form of mitigation should be

investigated. CR 4680

3. Dispute 3: Project impact sound levels

CTA a lso found fault with the manner in which Hessler calculated the sound level

that would be emitted by turbines. Specifically, CTA found that Hessler had employed a

modeling program (Cadna/A) inappropriately by turning on a modification factor that

reduces the modeled sound level by assuming the ground would attenuate or reduce the

sound over distance. Supp 36 (CTA comment 3, they should have turned ground effect

off). See also Supp 39 (Dimmick, noting no response to this comment from SLW).

Nevertheless, the sound study in the FEIS continues to apply a ground attenuation factor

to model the calculated impact sound level. CR 4684-4685. Even then, the model shows

mean noise levels at residences would be as high as 45 dBA. CR 4685 (Fig. 3.4.1). See

also CR 4686 (the Project sound level under normal circumstances is likely to have a


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variance of +/-5 dBA from the mean predicted level); and Supp 44 (directing the SLW

to eliminate from the final version of the sound study the following: Field experience

indicates that these unavoidable and inevitable excursions are infrequent, and short-lived.

For the vast majority of the time, sound levels will be close to the mean predicted

value.).

Even crediting Hesslers conclusion, that sound levels at residences will reach 45

dBA, results in clearly excessive impacts according to the Planning Boards consultants.

As noted previously, CTA found that background sound levels in the project area are

about 25 dBA. Supp 73. NYSDEC guidelines classify impacts descriptively according to

the degree of increase over background. See PB MOL, Ex. B, at 15 (Table B). According

to NYSDEC, while an increase over background of 5-10 dB would be experienced as

intrusive, an increase of 20 dB would be very objectionable to intolerable. Id. Thus,

introducing project noise levels of 45 dBA into an area characterized by a background

sound level of 25 dBA could be intolerable. Id. Even increases of 10 decibels would be

considered under NYSDEC guidelines to be very noticeable. Id.

4. Failure to resolve differences among the consultants

The objections to Hesslers methods stated by CTA, BCG and the Planning

Boards special counsel remained the same up to the end of the environmental review, as

reflected in those portions of the correspondence included in the Certified Record. Thus,

on July 15, 2010, CTA reiterated its opinion that Hesslers methods fail to provide a basis


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for determining the near-minimum background sound levels both sides agreed should

be used as the baseline for evaluating project sound impacts. CR 4287. While Hessler

persisted in employing an approach based on the mean value of measured background

sound levels, tied to wind speeds under an assumption that background sound increases

with 40-meter wind speeds modeled down to 10 meters, (CR 4275-4285, 4672-4697),

CTA continued to recommend to the Planning Board that ambient levels be determined

90 based on Wintertime L data without regard to wind-induced sounds, an approach that

recognizes low community background sound levels above which the NYSDEC impact

threshold [for intrusive noise] of 6 dBA is assessed. CR 4287. Using this approach,

CTA concluded that project noise would actually exceed the threshold by as much as 6.1

decibels. Id. (table). This is in accord with the Planning Boards ultimate findings: This,

of course, would mean that the [ sic ] were Hesslers estimate of turbine sound at a specific

location to just meet the NYSDEC recommended criterion, Hesslers estimated turbine

sound levels would exceed the 6 dBA NYSDEC criterion by 5.9 and 4.3 dBA

respectively. CR 6011. However, the boards findings proceed to discount the obvious

conclusion of these numbersthat 6 + 5.9 = 11.9 decibels above background, an impact

NYSDEC classifies as very noticeable, (PB MOL, Ex. B, at 15)by concluding without

any basis, that total noise from Project operation, even during the wintertime condition

at the 6 m/s cut-in speed, should generally remain below levels which could be

considered unacceptable for a rural nighttime environment (45 dBA). CR 6011


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The only possible basis for this conclusion is this passage from the NYSDEC3

guidelines:

Calculations should be performed for each point of reception in all directions being careful to evaluate the worst case noise impact potential by consideringactivities at the point where they would be closest to a receptor. The sound levelcalculated for the point of reception should be related to ambient sound levels.Ambient sound levels can be either measured or assumed based on establishedreferences for the environmental setting and land use at the point of reception. For estimation purposes, ambient SPLs [sound pressure levels] will vary fromapproximately 35 dB(A) in a wilderness area to approximately 87 dB(A) in ahighly industrial setting. A quiet seemingly serene setting such as rural farm landwill be at the lower end of the scale at about 45 dB(A), whereas an urbanindustrial area will be at the high end of this scale at around 79 dB(A) (EPA550/9-79-100, November 1978). If there is any concern that levels based onreference values do not accurately reflect ambient SPL, field measurements

should be undertaken to determine ambient SPLs.

PB MOL, Ex. B at 20 (emphases added). As the discussion above makes clear, the differences between the Planning Boards and SLWs consultants revolved entirely around the evaluation of field measurements made by Hessler.

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(emphases added). 3

This conc lusion clearly adopts uncritically Hesslers early decision to combine

sound measurements from all background sound monitoring locations, and introduces an

additional finding that baseline, existing sound is 45 dBA, a finding clearly at odds with

the measurement data. Since wind turbines are a no ise source that operates at night, the

most serious concern is the effect of turbine noise in a very quiet setting, when

background sound is about 25 dBA. Supp 23, 63, 103.

5. The complaint resolution proposal

Based on its analysis of Hesslers measurements, CTA concluded that complaints can be

expected during operation of the completed facility, and suggested the Planning Board


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consider a complaint resolution process that would involve methods of noise abatement

as necessary. Id. In response to CTA, SLW acknowledged the difference of opinion

between SLWs sound consultant and CTA with respect to the determination of

background noise levels, proposed a no ise complaint resolution procedure, and

asserted that the complaint procedure fully resolves the comments that have been made

by CTA. CR 4289. This was the position the Planning Board finally adopted, as stated in

its SEQRA Findings Statement. CR 6012.

The Planning Boards consultants did not suggest that a complaint resolution

procedure would mitigate noise impacts. To the contrary, the consultants told SLW that

reliance on such a procedure for mitigation . . . seems to open a pandoras box.

Considering the two years of correspondence among the engineers for the Planning

Board and SLWs engineers about the proper approach to assessing noise, and the serious

criticisms the boards engineers expressed about Hesslers conclusions, it is remarkable

that the board devoted little time r to discussing noise issues themselves. The meeting

minutes of the board throughout this period, up to an including their final meeting

adopting findings based on the FEIS is devoid of any indication that noise impacts were

ever discussed for more than a few minutes. Cf. Schneider Aff.; CR 33-99. Nevertheless,

in the end the board elected to rely on Hessler, to reject its own engineers criticisms of

Hesslers methods and results, and to forgo any discussion of mitigation measures save

for a post-approval complaint resolution process.


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6. WPEGs comments

There was broad agreement with the criticisms of Hesslers noise assessment

methods made by the Planning Boards consultants and both WPEGs acoustic engineer

and WPEG members, one of whom had presented a technical paper on the effect of wind

shear on background noise presented at a professional acoustic society that was submitted

to the board. See CR 5888-5899.

In the interests of economy, the level of detail in WPEGs comments to the

Planning Board on noise impacts will not be recounted in the same degree as the account

above has done for the Planning Boards comments. The comment letters of WPEGs

former attorney Thomas Fucillo, (CR 5673-5764), and WPEG member Clif Schneider,

(CR 5879-5887), in particular, speak for themselves, and state criticisms of Hesslers

methods and conclusions that are nearly the same as those stated throughout the review

process by CTA and BCG. The agreement between the body of comments on noise

impacts submitted by WPEG and those submitted to SLW by the boards consultants was

specifically noted in the engineering correspondence, where WPEGs views are identified

as the NGO position (i.e., non-governmental organization). Supp 96, 103-104 . Apart

from SLWs efforts to defend Hessler, there are no comments in the record by anybody in

support of Hesslers noise assessment for the SLW project, and thus no credible evidence

to support the Planning Boards findings crediting Hesslers conclusions.

Lacking substantial support in the record, the potential severity of noise impacts


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Segmentation is discouraged but not prohibited under SEQRAs regulations, so long4

as the lead agency demonstrate[s] that such review is clearly no less protective of theenvironment than a full review. See 6 N.Y.C.R.R. 617.3(g)(1).

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for some residents in and around the SLW project required meaningful mitigation, but the

board elected to forgo any mitigation relying instead on the promise of a complaint

resolution procedure to be developed some time in the future.

Such deferral of environmental considerations clearly violates the mandate of

SEQRA to incorporate environmental considerations into the governmental decision-

making process at the earliest possible time. Eggert v. Town Board of the Town of

Westfield , 217 A.D.2d 975, 977, 630 N.Y.S.2d 179, 181 (4th Dept. 1995) (citing ECL

8-0109[4]; 6 NYCRR 617.1(c)). See also Matter of Scenic Hudson, Inc. v. Town of

Fishkill Town Board , 258 A.D.2d 654, 656-657, 685 N.Y.S.2d 777, 779-780 (2nd Dept.

1999) (in a challenge to a towns SEQRA review of impacts of a gravel mine, failure to

propose mitigation measures until specific land uses [were] proposed on the property

is improper segmentation; the initial rezoning of the property . . . should be viewed as

part of a comprehensive plan to facilitate the commencement of mining on the site);

Matter of Defreestville Area Neighborhoods Association, Inc. , 299 A.D.2d at 634, 750

N.Y.S.2d at168 (a 2002 3rd Dept. decision that holds, declar[ing] that no determination

would be made on issues that will arise only when an actual construction project is

proposed . . . is a form of segmentation requiring a statement of reasons supporting

segmentation). 4


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Supreme Court, Onondaga County, Hon. Donald A Greenwood has applied these

principles to a wind farm case under circumstances that mirror those here. Brander v.

Town of Warren , 18 Misc. 3d 477, 847 N.Y.S.2d 450 (Onon. Co. 2007). Judge

Greenwood annulled the Town of Warren town boards approval of a wind project FEIS

because, regarding alternative project sites or location, alternative turbine size,

alternative project size, alternative project design/layout, alternative project scale and

magnitude or technologies, alternative construction phasing and the alternative of no

action whatsoever, there were no field studies or expert reports to provide the requisite

quantitative and scientific basis for the board's approval; as such, the approval of the

FEIS was improper. Id. , 18 Misc. 3d at 481, 847 N.Y.S.2d at 454 (citing Matter of

Pyramid Co. of Watertown v Planning Bd. of Town of Watertown , 24 A.D.3d 1312, 807

N.Y.S.2d 243 (4th Dept 2005)). In addition, [w]ith respect to noise, the record shows

that the Town of Warren Town Board, as the lead agency, was provided with credible

scientific information concerning the shortcomings of the noise study and expected noise

impacts from the projects submitted by [the applicant], but elected to require the

developers to submit a plan in the future to the town to mitigate noise impacts and to

provide a complaint resolution procedure for residents. Id. , 18 Misc. 3d at 484, 847

N.Y.S.2d at 456. Judge Greenwood held, The reliance on such tentative plans for future

mitigation is improper, since the purported mitigation would be prepared and approved

clearly after the completion of the SEQRA process. Id. (citing Pyramid ). The deferral


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at that meeting was to receive the proposed FEIS and to provide public notice of its

receipt; no decision to take any action on the FEIS was made at that time. Edsall Aff., ,

37-38. Cf. Schneider Aff., Ex. E. Once received by the board on August 18, members of

Planning Board and the Planning Boards consultants began undertaking a review of the

[proposed] FEIS to determine whether the [proposed] FEIS was complete within the

meaning of 6 N.Y.C.R.R. 617.9. CR 93 (preamble to resolution of September 15,

2010). As noted in the referenced SEQRA provision, it was now up to the board (not

SLW) to prepare or cause to be prepared and . . . file a final EIS, within 45 calendar days

after the close of any hearing or within 60 calendar days after the filing of the draft EIS,

whichever occurs later. 6 N.Y.C.R.R. 617.9(a)(5). Cf. also 6 N.Y.C.R.R. 617.2(n),

(p) (regarding draft and final EISs).

Thus, the document proposed by SLW as an FEIS did not and could not, as a

matter of law, become the FEIS until the board took further action; instead, it remained a

draft EIS rather than a final EIS. 6 N.Y.C.R.R. 617.2(n), (p). Approval and

adoption of the then proposed FEIS d id not take place until the Planning Board meeting

of September 15, 2010. CR 93. Only then did the proposed FEIS become final. At the

same meeting, the board adopted and issued its Findings Statement. Edsall Aff. 39.

This procedure does not comport with the SEQRA regulations, which require at

least ten days for consideration of the FEIS before a findings statement is issued:

(a) Prior to the lead agency's decision on an action that has been the

subject of a final EIS, it shall afford agencies and the public a reasonable


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time period (not less than 10 calendar days) in which to consider the final

EIS before issuing its written findings statement. If a project modification or

change of circumstance related to the project requires a lead or involved

agency to substantively modify its decision, findings may be amended and

filed in accordance with subdivision 617.12(b) of this Part.

(b) In the case of an action involving an applicant, the lead agency's

filing of a written findings statement and decision on whether or not to fund

or approve an action must be made within 30 calendar days after the filing

of the final EIS.

(c) No involved agency may make a final decision to undertake, fund,

approve or disapprove an action that has been the subject of a final

EIS, until the time period provided in subdivision (a) of this section

has passed and the agency has made a written findings statement. . . .

6 N.Y.C.R.R. 617.11(a)-(c).

Failure to afford agencies and the public a reasonable time period (not less than

10 calendar days) in which to consider the final EIS before issuing its written findings

statement, 6 N.Y.C.R.R. 617.11(a), was in this case prejudicial for several reasons.

First, WPEG members and the public had sought to comment on changes to the project,

and importantly changes to noise assessment (which u ltimately fell far short of what the

boards and WPEGs consultants had requested), as well as the adequacy of the proposed

complaint resolution procedure as a resolution of the noise issues for some time after the

close of the formal comment period on May 30, 2010. See Schneider Aff., 5-11.

Secondly, the Town of Lyme Planning Board as an interested agency had never

been given proper notice that a p roposed or, ultimately finalized EIS was received or


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approved by the Cape Vincent Planning Board. Bowers Aff.

Moreover, actual notice of acceptance of the FEIS was required to be filed with

the Town of Lyme Zoning Board of Appeals (ZBA) because the Lyme ZBA is an

involved agency. Bowers Aff., Ex. C. It is not sufficient that the notice was published and

available to the general public. 6 N.Y.C.R.R. 617.12(b)(3). According to NYSDECs

SEQRA guidance, if a known involved agency is not given an opportunity to participate,

there may be grounds to nullify any approvals subsequently made regarding the action

because of failure to comply with SEQR procedures. NYSDEC,

. However, there is no evidence the Cape

Vincent Planning Board ever filed an actual notice of acceptance of the FEIS with the

Lyme ZBA.

Thus, while there may not be a requirement under SEQRA for a formal public

comment period following the acceptance by the lead agency of a FEIS, there must be an

opportunity afforded to agencies and the public to comment on the FEIS before it is

approved under a statement of the lead agencys findings. 6 N.Y.C.R.R. 617.11(a). In

other words, interested agencies and citizens, as well as involved agencies, must be given

an opportunity to identify any deficiencies in the FEIS before the SEQRA review process

finally concludes. By failing to afford this opportunity, the Cape Vincent Planning Board

violated SEQRAs procedures, which require strict compliance. King v. Saratoga County

Bd. of Supervisors , 675 N.E.2d 1185, 89 N.Y.2d 341 (1996), cf. id. , 675 N.E. at 1188


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(the requirement of strict compliance ... insure[s] that agencies will err on the side of

meticulous care in their environmental review. Anything less than strict compliance,

moreover, offers an incentive to cut corners.)). See Taxpayers Opposed to Floodmart,

Ltd. v. City of Hornell Industrial Dev. Agency , 212 A.D.2d 958, 624 N.Y.S.2d 689 (4th

Dept.1995) (literal rather than substantial compliance w ith SEQRA is required).

Because the board failed to comply with SEQRAs procedures by failing to solicit

comments considering the adequacy of the FEIS before issuing its findings, and failed to

afford any time for such considerations to be communicated to the board, its findings

must be annulled and remanded to allow adequate time for such consideration.

III. THE PLANNING BOARD VIOLATED THE COMMON LAW OF

IMPERMISSIBLE CONFLICTS OF INTEREST

It is well settled that a court, as a matter of common law, may take action to stop or

undo municipal action taken in spite of bias rooted in an expectation of beneficial interest.

In so doing, the court must use a case-by-case approach and examine all relevant facts

and circumstances to determine whether an impermissible conflict of interest exists. See

Matter of Byer v. Town of Poestenkill , 232 A.D.2d 851 (3d Dept. 1996); Matter of Parker

v. Town of Gardiner Planning Board , 184 A.D.2d 937 (3d Dept. 1992). It is critical that

the public be assured that their officials are free to exercise their best judgment without

any hint of self-interest or partiality, especially if a matter under consideration is


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particularly controversial. Matter of Byer , 232 A.D.2d at 852-853 (citing Matter of

Zagoreous v. Conklin , 109 A.D.2d 281 (2d Dept. 1985)). Notably, however, no specific

violation of a statute need be presen t for an impermissible conflict of interest to exist. See

Matter of Zagoreous , 109 A.D.2d at 287; Matter of Tuxedo Conservation and Tax Payers

Association v. Town Board of Town of Tuxedo , 69 A.D.2d 320 (2d Dept. 1979); Matter of

Conrad v. Hindman , 122 Misc.2d 531 (Onondaga County Sup. Ct., January 17, 1984).

In this case, the deciding vote of the Planning Board in approving a certification

that SEQRA had been complied with and all identified adverse impacts have been

adequately mitigated was made by the boards chairman Richard Edsall. However, Edsall

had, by the time of the vo te, for some time leased land to BP Alternatives to site a portion

of BPs proposed wind farm in Cape Vincent. Schneider Aff. 22. The Planning Board

directed SLW that the two projects utilize a common transmission line through the town.

CR 57-59, 3699-3700, 3851, 4332. See also CR 3749 (Byrne comment 70), 3760

(Doctuer comment 1). Advancing the SLW project would thus result in a beneficial

interest to Edsall by facilitating the transmission of energy from a future BP wind farm.

Cf. schneider Aff. 24-28.

Our source for the information that Edsall leased land for BPs project casts a

further cloud over Edsa lls failure to recuse himself from the SLW matter after insisting

that the two project share a common transmission line, as the information grows out a

state-wide investigation to potential corruption of local officials by their ties to wind farm


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developers. See Schneider Aff., Ex. F (BP disclosures of financial interests with Cape

Vincent local officials under the New York State Office of the Attorney General

(NYSOAG) Code of Conduct Agreement with New York wind project developers). On

July 15, 2008, NYSOAG announced the launching of an investigation into two

companies developing and operating wind farms across New York state amid allegations

of improper dealings with public officials and anti-competitive practices. NYSOAG

Press Release, July 15, 2008,

. In 2009,

all New York wind developers were prodded over the summer to sign an ethics code

barring gifts to public officials, a standard developed by the office of the state attorney

general, Andrew Cuomo, who a lso created a task force to monitor development of the

industry. Doreen Carvajal, WithWind Energy, Opportunity for Corruption , T HE N EW

Y ORK T IMES , December 14, 2009, attached hereto. By the end of the year, wind

developers operating in New York provided disclosures of their dealings with town

officials or their families in the six years prior to signing the agreement, and posted the

disclosures on their website, as required under NYSOAG ethics code agreement. It is

from BPs disclosure under the agreement that information can be found establishing

Edsalls direct interests in wind energy facility development. Schneider Aff, Ex. F.

Edsall thus clearly has a direct financial interest in the BP wind project in Cape

Vincent. By participating in, and in fact leading the Planning Board to issue a directive to


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SLW to utilize a common transmission line with BP, (CR 57-59), he created an indirect

financial interest in the specific design of the SLW project ultimately approved by his

board. He also created a serious appearance that his role as an agent of BP, under the

terms of his lease (which requires that he assist in advancing the BP project), results in

bias in his review of the SLW project, since under the transmission line directive the two

projects are now linked. This appearance of bias has been w idely noted in public

comments and in the local press. Schneider Aff., 24-27.

Actual bias by Edsall has been evidenced by his participation in 2005 in a pro-

wind project citizens group. Schneider Aff. 24. In 2006 Edsall appeared before the Cape

Vincent Planning Board to lobby for pro-wind interests. Id. , 27. This is very similar to

the situation in Matter of Schweichler v. Village of Caledonia , 845 N.Y.S.2d 901, 2007

N.Y. App. Div. LEXIS 11560 (4th Dept. 2007), where three members of a village

planning board appeared to have impermissibly prejudged an application for rezoning for

the development of a multifamily project inasmuch as the members signed a petition in

favor of the rezoning and the project; thus, the site plan approval had to be annulled based

on the appearance of bias.

Finally, Edsall has shown actual bias in his review of the SLW project, as shown in

detail above, regarding his arbitrary disregard for the opinions of his own environmental

experts about the potential for significant noise impacts of the project as designed and

finally approved.


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It is submitted that Edalls recusal from the SLW review process is required by the

Planning Boards decision to require the project share a transmission line with BP Wind,

and by the extent of the financial interests at issue ( see Matter of Byer , 232 A.D.2d at

852-853; Matter of Parker , 184 A.D.2d 938), and to assure that the individual

Respondents, who are public officials, avoid a circumstance which might compromise

their ability to make impartial judgments solely in the public interest. Matter of Dowd ,

1993 N.Y. Op. Atty. Gen. (Inf.) 1060, 1993 WL 255345; Matter of Geldenhuys , 1993

N.Y. Op. Atty. Gen. (Inf.) 1001, 1993 WL 179302; Matter of Kline , 1986 N.Y. Op. Atty.

Gen. (Inf.) 112, 1986 WL 223114.

Where

one Board member and the spouse of another were employees of [project

developer] Cornell [University], these affiliations presented no conflict of

interest under General Municipal Law 801 since neither individuals

employment duties involved the preparation, procurement or performance of

any part of the [project], nor was their remuneration d irectly affected by the project ( see, General Municipal Law 802 [1] [b] ). Furthermore, neither

of the two remaining Board members in question had any impermissible

interest in Cornells application for a zoning change; one was a graduate

student whose tuition and stipend were paid by a foundation unrelated to

Cornell and whose studies did not involve participation in the [project], and

the other was married to a Cornell retiree whose pension benefits were

similarly outside its control. And while violation of a specific section of the

General Municipal Law is not critical to a finding of an improper conflict of interest ( see, Matter of Zagoreos v Conklin, 109 AD2d 281, 287) , we are

satisfied that none of these four Board members had any direct or indirect

interest, pecuniary or otherwise, in the [project] such that their vote could

reasonably be interpreted as potentially benefitting themselves. Given the


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absence of any actual conflict of interest, or the significant appearance

thereof, Cornells acknowledged failure to comply with the disclosure

provisions of General Municipal Law 809 is not a defect requiring

invalidation of the Town Board vote.

DePaolo v. Town of Ithaca , 258 A.D.2d 68, 72, 694 N.Y.S.2d 235, 239 (3rd Dept. 1999).

It is submitted that, by participating in the Cape Vincent Planning Boards decision to

require the BP and SLW wind projects to share a common transmission line, the boards

action advancing the SLW project can reasonably be interpreted as potentially

benefitting Edsa ll and his wife, thus triggering the requirement that Edsall recuse

himself from the SLW project review. Id. Had Edsall not insisted on linking the two

projects, a reasonable inference of bias in advancing the SLW project could be deflected.

Based on the foregoing, a declaration must be made pursuant to CPLR 3001 that

Edsall had a conflict of interest at the time of the September 15, 2010 Planning Board

vote approving the SLW FEIS, and had a duty to recuse himself from engaging in any

discussion, vote, or other action with regard to the SLW project from the beginning of the

environmental impact review. Further, given the failure of Edsall to recuse himself,

which constitutes a failure to perform a duty enjoined upon him by law, annulment of the

boards findings and approval of the SLW FEIS is an appropriate remedy pursuant to

CPLR 7803 (1).

Because the circumstances taken as a whole, which include an ongoing NYSOAG

investigation into improper dealings between loca l officials and wind farm companies,


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Documents

WPEG Reply Brief - Final in support of complaint