A Win for Wind Power: Court Affirms Decision to Forgo Supplemental SEQRA Review of 600-Foot Wind Turbines

Farrell Fritz, P.C.
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The controversy in Matter of McGraw v Town Board of Town of Villenova (4th Dept Docket No CA 19-01362, Aug. 20, 2020) arose from the environmental review conducted on a proposed wind farm in upstate New York. The developer of the project sought a local code amendment and special permit from the Respondent Town Board for 29 wind turbines up to 492 feet in height. As part of the mandatory environmental review process pursuant to SEQRA, the developer prepared a draft environmental impact statement, and later, a supplemental draft impact statement, both of which the Town Board accepted. The Town Board accepted a final environmental impact statement for the project in November 2016.

More than a year after it received its approvals, the developer returned to the Town Board with an application to increase the height of the wind turbines another 100 feet for a maximum height of 599 feet. The developer submitted a full environmental assessment form (FEAF) as part of its application.

Based on the information contained in the FEAF, the Town Board declined to order a second supplemental environmental impact statement; adopted a negative declaration of environmental significance, and approved the developer’s amended application. The Petitioners sued alleging that the Town Board failed to comply with SEQRA by not taking the requisite “hard look” at the environmental issues associated with increasing the height of the turbines, particularly with respect to how the project might impact the endangered bald eagle. The lower court agreed.

The Fourth Judicial Department on appeal reversed the lower court’s decision finding that the Town Board had properly exercised its discretion when it declined to conduct further environmental review. The Court wrote:

During the SEQRA process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project (6 NYCRR 617.9 [a] [7] [i]). A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” (6 NYCRR 617.9 [a] [7] [ii]). “A lead agency’s determination whether to require a SEIS–or in this case a second SEIS–is discretionary” (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d 219, 231 [2007]), and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” (id. at 232).

. . . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence. The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles.

(Memorandum and Order, p. 2). Thus, the Appellate Court rejected the Petitioners’ contentions in favor of the reasoned discretion of the reviewing agency and dismissed the petition in its entirety.

A copy of the Court’s decision can be accessed by clicking the following link: Matter of McGraw.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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