State and Local Solar Laws

Hecate Energy is seeking New York State approval to build a 255-acre, industrial-size solar facility in Craryville and Copake, which violates the Town of Copake’s zoning laws, and is in direct conflict with the Town of Copake’s 2011 Comprehensive Plan and 2014 Agriculture and Farmland Protection Plan. On October 28, 2020, the Copake Town Board unanimously passed a resolution strongly opposing the solar project, and to date more than 1,200 residents have signed a Change.org petition in opposition.

What is Article 10?

Article 10 – also known as the Power New York Act – is part of the New York State Public Service Law, §160 - §173, and provides for the siting of major electric generating facilities. A major electric generating facility is defined as having a nameplate capacity of 25 MW (megawatts) or greater per year. The law also applies to existing major electric generating facilities that are proposing to increase capacity by more than 25 MW. Examples of major electric generating facilities include but are not limited to fossil-fueled power plants, hydroelectric projects, and solar and wind energy installations.

Article 10 was originally signed into New York State law in 2003, and revised in 2011. The revision places the siting authority in the control of the Siting Board (Board on the Electric Generating Siting and the Environment), which consists of five members from state government agencies and two ad-hoc members from the locality in which a facility is being proposed. Prior to the enactment of the revised Article 10 in 2011, and following the expiration of an earlier version of Article 10 in 2003, the siting of large facilities was subject to any regulations of the local municipality, as well to the SEQR (State Environmental Quality Review) regulations. The shift of approval authority from local governments back to the state is a significant aspect of Article 10, and has raised concern among local governments and supporters of “home rule.” Also significant is that the generating capacity of a proposed facility that is subject to Article 10 has been reduced from the previous 80-megawatts to 25-megawatts.

Article 10 Review Process

Step 1: Public Involvement Program

Developers are required to implement public involvement programs in their respective host communities at least 150 days before submitting their preliminary scoping statement and official applications to the Siting Board.

Step 2: Preliminary Scoping Statement

The preliminary scoping statement is a written document informing the Siting Board, other public agencies, and the community about the project. Information provided in this step includes a description of the proposed facility, potential environmental and health impacts, proposed studies to evaluate those impacts, proposed mitigation measures and reasonable alternatives to the project.

Step 3: Formal Application

After the public involvement program and preliminary scoping statement are filed, developers must then submit a formal Article 10 application to the Siting Board, which includes the same information as the preliminary scoping statement but in greater detail.

Step 4: Siting Board Decision

The Siting Board must make its final decision about whether to issue or deny the certificate within 12 months of the date that a developer’s application is deemed complete.

Home Rule – Copake’s Prohibition on Utility-scale Solar Installation

Although New York State Municipal Home Rule Law affords local governments broad authority to regulate their own affairs, including the option to prohibit most types land uses through zoning, there are several instances where state law either partially or totally preempts this local government authority. Reasons for state preemption of local home rule authority include “matters of state concern”.

The extent of preemption under Article 10 is broad. Under § 172, Powers of Municipalities and State Agencies, the law clearly states that “Notwithstanding any other provision of law, no state agency, municipality or any agency thereof may, except as expressly authorized under this article by the board, require any approval, consent, permit, certificate or other condition for the construction or operation of a major electric generating facility with respect to which an application for a certificate hereunder has been filed...” It is clear that authority to issue approvals (or authorize other permits) is retained by the Siting Board. Less precise is the role of local regulations in the siting process. Standards are applied by the Siting Board who then exercises some discretion in deciding the extent of applicability of a local law to the proposed facility.

Sensible Solar for Rural New York
P.O. Box 305
Craryville, NY 12521
General inquiries:
info@sensiblesolarny.org
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