Board of Supervisors
Canandaigua, New York 14424

Supervisor Luckern offered the following resolution and moved its adoption:

RESOLUTION NO. 600 – 2011

WHEREAS, New York State recently enacted legislation known as the Power of NY Act of 2011; and

WHEREAS, Said legislation amended the public service law by adding a new article 10, which establishes a New York State Board of Electrical Generation Siting and the Environment; and

WHEREAS, Said Board will have the authority to permit the siting of electrical generating facilities in the State which have a nameplate generating capacity of twenty-five thousand kilowatts or more; and

WHEREAS, Previously, while various state agencies had regulatory oversight for such facilities, as a home rule state, New York’s local municipalities, by virtue of decisions made by locally-elected representatives, could ultimately decide whether such development was in their residents’ best interests; and

WHEREAS, The Power of NY Act of 2011 removes said decision making from local municipalities, and puts that authority into the hands of a bureaucratic State board which will have nominal representation from affected communities, and even that representation cannot be from elected representatives of those communities; and

WHEREAS, The new Board will have the authority to ignore “any local ordinance, law…or any local standard or requirement…if it finds that…such is unreasonably burdensome…on ratepayers whether located inside or outside of such municipality”; and

WHEREAS, The new law further states that “no…municipality…may require any approval, consent, permit, certificate or other condition for the construction of operation” of such facility; and

WHEREAS, While the law provides for the set-aside of funds for pre-hearing research on behalf of the affected communities, said funds are controlled by the Board and will be allocated as it sees fit; and

Read the entire resolution

Editor’s Note: COAX NY representative addressed the following issue at this meeting. However, the questions as stated is not reported correctly, nor are the challenges to the responses from Senator Tom O’Mara and Assemblyman Phil Palmesano reported.

Q How is home rule affected by the Power New York Act that streamlines energy plant siting?

A O’Mara cautioned against the “not in my back yard” mentality and said the act sets aside funding for municipalities that challenge energy plant sitings. In addition, two local parties are appointed to siting committees as voting members.

Palmesano added that power companies must follow local ordinances, unless they are deemed unreasonable. Further, there is an appeals process. He said the challenge is that as much as two-thirds of the state’s energy production capacity could go offline with new state and federal regulations. However, no major plants have been sited in more than seven years.

“This was important to meet our stat energy needs,” Palmesano said. “We need to have a statewide energy plan.”


Following the lead of other Counties and Towns, the Town of Hammond in St. Lawrence County passed a resolution 3-2 opposing Article X. Councilors James E. Langtry and James C. Pitcher opposed the resolution. Their families hold lucrative renewable energy leases, placing their personnel gain ahead of Home Rule. Some would argue these ethics issues will no longer be a problem with Article X in place. COAX contends that by inserting Albany bureaucrats to manage siting standards “backroom deals” will be the norm, and the public will have no input, nor ability to self-regulate through the voting polls as we do in Towns and Counties. It is important to keep municipal home rule.


October 12, 2011 in Albany, NY on the Capitol steps, COAX addressed statewide media personnel on the perils of Article X as yet another tax which the state can levy. The Renewable Energy Standards, Regional Greenhouse Gas Initiative, FERC’s Order No. 1000 and Article X are all converging in a perfect storm to drive up commodity costs of wholesale electricity through the collection of various taxes imposed on ratepayers. The increase in energy costs will also only serve to drive business away from New York State, which Governor Cuomo claims is “Open for Business”.

The ill-conceived government control of energy siting and technologies hasn’t proven to work at the Federal level, nor is it expected to work at the State level. Article X will prove to be too costly for New Yorkers due to subsidies and Industrial Development Authority tax breaks. Governor Cuomo’s re-enactment of Article X equates to taxation without representation.

Robert E. Aliasso, Jr. – Member COAX
+1 (315) 771-9753

It was just a single bullet point in a giant omnibus energy bill.

Tucked between energy efficiency initiatives in the Power NY Act, Article X (pronounced “article ten”), had support from advocates for green power, who wanted to make it simpler to site new power plants in New York.

But now that single bullet point has blossomed into something else: a fight.

Streamlining the siting process

Article X provides a uniform, statewide review process for power projects that would generate 25 MW and up. It’s supposed to help power projects overcome the sometimes complex web of local reviews and regulations.

“It’s been tough – I think it’s been very tough,” is how Matt Nelligan describes the process of siting a power plant in New York. Nelligan is legislative director for the office of state senator George Maziarz, who chairs the Senate’s energy committee.

“It’s been very expensive,” he notes further. “And what [Article X] does is provide a streamlined process.”

But 25 MW isn’t a lot of power, which means that the state now has control over some very small scale, very local projects – projects that tend to kick up local opposition.

“Dictating their destiny”

Opponents to Article X maintain they’re as concerned about local home rule as they are about some of the small wind projects that the law will apply to. But when you map proposed wind projects that are garnering local opposition, they line up closely with a recently spate of local resolutions opposed to Article X.

Here’s an example. In its resolution expressing opposition to the legislation [DOC], the scenic North Country town of Henderson’s town board registered its concern that:

Despite the effort the Town has put into protecting its scenic resources, there is a real possibility that the Town of Henderson will be forced to accept the construction and operation of 230 kV extra high voltage power lines right through the heart of the Town.

Henderson lies in the 50-mile long transmission corridor that would connect the proposed wind project for Galloo Island to the state’s power grid. But the town itself has an outright ban on commercial wind turbines.

Town Supervisor Ray Walker says the ban, which came after a series of public meetings, seems to be what his town wants.

“When we made the decision to ban [wind turbines], no one said we did wrong. I don’t know what you knew about town of Henderson but it’s very vocal,” he says.

The same transmission line from the Galloo project would run through Oswego County, which also voiced opposition to the project. Oswego County, along with Jefferson County, have both stated their opposition to offshore wind in Lake Ontario. And both counties have offered anti-Article X resolutions. Both were written using language from the Coalition on Article X, or COAX.

John Byrne is a spokesman for COAX and hails from another town facing wind development: Cape Vincent. In September, anti-wind candidates swept the local elections with a wave of absentee votes coming from seasonal residents.

Byrne says municipalities “don’t want Albany dictating their destiny … And when [Albany takes] over that power plant siting, it’s got to make somebody wonder ‘what’s next?’”

Byrne declined to provide names of other towns considering Article X resolutions, saying he’d prefer to wait until they’re closer to passage.

An evolving statute

Article X replaces a similar, older state statute on power siting, which lapsed a decade ago. According to Nelligan, it was rewritten with new renewable technologies in mind – which is why it applies to smaller projects.

Nelligan says the new process brings technical expertise to all power projects, but leaves room for local input. He says the new process also requires developers to create what’s called the “intervenor fund” – money that will pay for local technical and legal inquiries into projects.

Given that Article X has been already been written into state law, the resolutions against it are unlikely to have much effect, according to Nelligan. But that doesn’t mean that the outcry will die down. The legislation is now being written into regulations – and that comes with a public comment period.


Read Article X – Nuts and Bolts

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Read the Article X Overview on COAX NY

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On August 4, 2011 municipal Home Rule was stripped away when the “Power NY Act” was signed into law. Also known as Article X, this swiftly passed law was prompted by separate bills in the Senate and Assembly. The combined bill passed with very little public input, late at night behind closed doors.

Coalition On Article X (COAX) was formed to preserve and regain our municipal Home Rule rights. New York State has always prided itself on the fact that it is a Home Rule state.

Article X allows the State to intercede on all energy production facilities of 25 mW or greater. This replaces local municipal laws and SEQRA. A committee appointed by the Public Service Commission will include five (5) Albany bureaucrats to determine the fate of all Statewide municipalities.

It is no secret that Governor Cuomo’s strong desire to close Indian Point Nuclear facility requires that other energy sources be developed and sited. He has criticized municipalities in moving slowly on several projects, slowing job development. He has placed considerable interest and State resources to allow renewable energy (wind and solar) and gas refining to be the job growth stimulator. However, looking at the bigger picture, gas refining and renewable energy have a greater cause – base load power replacement for the Indian Point nuclear facility.

The greater cause can only be realized if ‘fracking” is stimulated, while transmission line build out is debottlenecked. It should be considered no coincidence that Federal Energy Regulatory Commission (“FERC”) and the Department of Energy (“DOE”) have placed considerable interest in interstate and intrastate transmission line build out and smart grid.

“Fracking” will produce the much needed gas required to run newer gas turbine power plants. These power plants will be sited by New York State under Article X, and the required transmission lines will be developed under Federal auspices. As a by-product Governor Cuomo would be credited with job growth stimulus and tax revenue increases for gas drilling, power plant construction and transmission line erection, all while he merely checks off a campaign promise to close Indian Point Nuclear facility.

His Departments of Conservation and Environmental Protection have been stripped and remain powerless to persevere the lands of New York State. Governor Cuomo with the sharpest tool in his box (Article X) can now place steel tubes above ground (wind turbines) and below ground (fracking wells) throughout New York State.

The future of fracking and transmission line build out is dependent on Article X’s success. The legislation passed on August 4, 2011, without public discussion, in the dead of the night, was no coincidence; it was a well-executed power grab, typical of Albany.


The author, Stephen E. Herrmann of this opinion viewpoint, was a former Special Assistant to the General Counsel of the United States Environmental Protection Agency. He is part of the law firm Richards, Layton & Finger. His bio states that he has 30 years’ experience in advising boards of directors on corporate governance issues.

From the offset, it should be emphasized that sound energy policy must be based upon actual need, effective cost, efficient generation and balanced environmental protection. Mr. Herrmann’s revealing admission that Article X’s true purpose is to override local zoning and land use authority is clearly stated, “new law hopefully will create a one-stop siting decision-maker”. The elimination of SEQRA compliance and discarding the principled legal standard of Home Rule, has been a main objective of foreign developers, as they rush to site ill-conceived projects, especially over the strong objections of local community representatives.

Absent in Mr. Herrmann’s advocacy for corporate interests is that the two local residents to the new board do not have a vote in the decision and that the five permanent members are NYS bureaucrat appointees that have no accountability to the general public, much less the residents where the project will be fast tracked.

The insignificant amounts for “intervener funding” and limited time for filing, actually creates a major profit center savings for single-minded developers. With a 25 megawatts trigger for jurisdiction, the conclusive result is that siting can and will be forced upon any location that benefits the developer.

In addition, absent in his analysis is that objecting groups or municipalities are prohibited from litigating decisions under Article X in NYS court. So much for representative government under the corporate governance scheme that Mr. Herrmann favors.

The Power NY Act of 2011 is a windfall for industrial wind factories that have a destructive environmental record that fails to generate useful and reliable electricity, while needing obscene public subsidies for development.

At a recent public forum, Assemblyman Phil Palmesano, a sponsor of Article X, stated that local zoning and comprehensive plans, if deemed to be unreasonable or onerous, by the New York State Board on Electric Generating Siting and the Environment, can be superseded by Albany.

The *Citizen Power Alliance strongly condemns the current version of Article X. The only applause for this one sided legislation, comes from companies and proponents that want more central planning, at the expense of local government. Level-headed environmentalism does not reside in the legal firms that ignore the factual reality that crony capitalism is bad for every taxpayer.

James Hall for CPA

*The Citizen Power Alliance is a coalition of independent groups organized to promote sound energy and environmental policy. CPA holds public officials and regulators accountable, while seeking the protection of the public interest.

Read the original article – NEW YORK’S POWER PLANT SITING SOLUTION

NPR Radio Report on Article X raises local concerns

Credit:  North Country Public Radio,
September 29, 2011
The New York Power Act signed this summer includes an item called Article X. Article X creates a state-run process for siting large power plants. The Innovation Trails’s Emma Jacobs reports how the law meant to streamline new power generation has some local people upset.

The legislature passed Article X because it’s pretty hard to build a power plant in New York State. “It’s been tough. I think it’s been very tough,” says Matt Nelligan, legislative director for State Senator George Maziarz. His boss chairs the State Senate’s energy committee. “I think it’s been very expensive,” Maziarz said. “And what this does is provide a streamline process that allows plants to be sited.” Article X gives the state regulatory authority over power generators 25 megawatts and up—that’s small enough that some municipalities will lose oversight of some wind farm projects.

Opposition to Article X has bubbled up in places where wind developments have come under fire, including the Town of Henderson in the North Country, which registered its opposition in a letter to the state this month. Local resolutions like these have been championed by the Coalition on Article X. Spokesman John Byrne is from another windy town, Cape Vincent, but says the campaign’s not all about wind: “They don’t want Albany dictating their destiny,” he says of its supporters. “And when [Albany takes] over that power plant siting it’s got to make somebody wonder ‘what’s next?’”

Legislative director Matt Nelligan says the new process will make room for local input. There will be another chance to comment even sooner. The law’s now being turned into regulations and that comes with a public comment period.


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