When New York passed its Climate Leadership and Community Protection Act in 2019, it committed itself to one of the most ambitious emissions reduction targets in the nation — 40% reduction from 1990 levels by 2040 and 85% reduction by 2050. 

Among the act’s mandates is that all electricity generation in the state will be zero-emissions by 2040. That means the state will need to build many wind and solar farms to replace natural gas-fired generation, which made up nearly half of New York’s generating capacity in 2023. 

Wind and solar power face a number of economic and regulatory challenges, but the Sabine Center for Climate Change Law, which advocates for the wind and solar industry, has been identifying local opposition as the primary impediment to the rapid buildout of renewable energy since it began studying the issue in 2021. 

While the state regulating authority maintains that the siting of renewable energy projects is open and transparent, allowing for the public to comment on decisions throughout the process, bird conservationists in upstate New York say their concerns about one solar project near the Town of Fort Edward have been entirely ignored. 

Conservationists say more than a dozen bird species at risk

Terry Griffin and Kathy Roome, who serve on the board of the Grassland Bird Trust, told Just the News that the Fort Edwards solar project will negatively impact more than a dozen bird species that rely on the grasslands in a Wildlife Management Area, an area of state-protected grassland, that the solar panels will surround. 

The Grassland Bird Trust was recently denied party status in the siting process for the project. That status would have officially recognized the group as an intervening party, allowing its members to participate in dockets, cases and proceedings before the state’s energy regulators. 

They are appealing the decision, but without it, they will be denied any further input during the process. 

The trust isn’t asking the state citing authority, the Office of Renewable Energy Siting (ORES), to block the project. Instead, they are asking the state to require a 1-to-1 mitigation for the acreage upon which the panels will sit. 

The entire project encompasses approximately 1,800 acres, but the panels will only take up 567 acres. Based on a ratio outlined in state law, the developer is only required to mitigate a portion of those 567 acres — 216 acres — meaning the developer has to set aside those acres elsewhere to make up for the impacted acreage. 

“We are just asking for more mitigation, and we think the mitigation ratio does not provide a net conservation benefit,” Roome said. 

The birds that use the grassland don’t nest in trees, Griffin explained. Instead, they require wide-open spaces where they can see predators coming. So providing 216 acres, she said, isn’t enough for the species’ needs. This includes the short-eared owl of which only 50 breeding pairs, the Grassland Bird Trust estimates, remain in New York. 

“You're not leaving the birds in a better place,” she explained. 

The GBT estimates that it would cost the developer, Canada-based Boralex, another $1.5 million for that acreage based on real estate values for undeveloped grasslands in upstate New York. 

Conservationist: ‘It’s just theater’

When the project was originally filed in 2023, Roome said, everything in the documents that were made available publicly was redacted. This made it impossible for the trust to determine what birds were being impacted by the proposed project. 

They were able to get the state to release unredacted documents in September, which was the first opportunity they had to fully understand the extent of the impacts. Griffin said that communications with ORES over the trust’s concerns have been limited to a formal process. 

“Early on, we reached out to ORES, and then through all our filings. ORES has never come back and asked to discuss it, get an explanation or anything. It's just through this formal document back and forth. So there's really no engagement with ORES,” Griffin said. 

As required by state law, ORES held a public comment hearing in September. Roome says about 100 people came to the meeting and most expressed opposition to the project and support for GBT’s mitigation requests. However, she said, the comments have no bearing on the decisions of the authorities. 

“They record every single comment, and they respond to it in writing. But it’s just theater,” Roome said.

Review process prompts changes

James Denn, spokesperson for the New York Department of Public Service, which houses ORES, said that since the Grassland Bird Trust is appealing the decision to deny the group party status, the agency couldn’t comment on the issue. However, he said ORES is responsive to feedback it gets from the public. 

“The ORES review process prompts changes and redesigns for all projects based on multiple channels of feedback, and as a result there has not been a single example of a project that has gone through the process without changes applied,” Denn told Just the News. 

Griffin said that Boralex moved some panels that were too close to the border of the Wildlife Management Area, but it was a small concession that left the larger issue unaddressed.  

“They act like that was the total solution. It was just one point we made,” she said. 

In its denial of GBT’s request for party status, the ORES administrative judges ruled that the agency was following what the law requires. The impacts of the project that Grassland Bird Trust raised, the ruling concluded, were acknowledged in the application and addressed through the legal process. Effectively, state law was followed and nothing in GBT’s request for party status disputes that. 

Griffin said she thinks that that state should be defending this Wildlife Management Area. Instead, a nonprofit is having to advocate for wildlife conservation on state land. 

Others have similar experiences

The American Land Rescue Fund also applied for party status in the matter of the Fort Edwards solar project, raising the same concerns as the Grasslands Bird Trust. The organization was also denied party status for the same reasons the trust was. The American Land Rescue Fund is also appealing the decision. 

The fund’s founder, Alex Fasulo, told Just the News that, as with the Grassland Bird Trust, ORES has been unresponsive to the concerns of the American Land Rescue Fund. She’s tried to communicate with ORES outside the formal process, she said, and those efforts were stonewalled every step of the way. 

“I tried to make contact with them personally and directly through their phone, through their email and in person, and was denied access to having a conversation with them about it every time I tried,” Fasulo said. 

Gary Abraham, an attorney who has been involved with renewable-energy siting cases for years, agreed with Roome that the public hearings ORES are just checking boxes.

“They just issue permits. Sometimes there are permits with conditions, and sometimes it's just the general permit that's found in the regulations. But that's not process. They don't allow parties,” Abraham said. 

Just the News reached out to Boralex but did not receive a response. The company, however, filed a response to the organizations' appeal, which argues that their concerns are "meritless" and full of "speculative assertions, generalized criticisms, and policy disagreements." These do not meet the statutory requirement for either group to intervene in the siting of the project, Boralex's lawyers argue in the response. 

N.Y.'s Climate Act failing

The renewable energy ambitions of New York’s climate law will likely produce more land-use conflicts. Of all the energy sources, wind and solar are some of these most land intensive. 

According to the Renewable Rejection Database, a project maintained by energy expert Robert Bryce, 81 renewable energy projects have been rejected in New York since Bryce began keeping records in 2013. Of those, 32 were since 2019 when New York passed its climate act. 

Besides land-use conflicts, the state’s climate ambitions are running into other issues. The Progressive Policy Institute, a center-left think tank based in Washington, D.C., released a report in November criticizing the state for failing to balance its climate ambitions with reality. The report found that New York is behind or severely behind on all the goals set forth in the act. The only exception is distributed solar, which is small-scale solar projects such as rooftop solar. 

For its goal of reaching 70% renewable energy generation by 2030, not including potential projects, it’s only halfway there with less than five years remaining.

Even WaPo says N.Y. went too far

The study also pointed out that electricity prices in the state have risen 36% since New York enacted the law, three times higher than the U.S. average in that period. The Washington Post editorial board last week referred to recent actions that New York Gov. Kathy Hochul took to backtrack on the climate law, mostly out of concern for energy affordability. 

In the past, the Post has been a champion of climate action, including articles about how people should feed their pets insects, but its editorial board last week was supportive of Hochul’s efforts to contend with the problems the New York climate act is running into. 

“Symbolic climate gestures please activists, but they become a political liability when the bills come due,” the Post editorial concluded. 

If it’s true that ORES is permitting projects without considering public input, other problems may put the brakes on New York's climate ambitions.