December 4, 2012
Wind farm project heads to court
Judge to hear arguments Wednesday over county’s environmental review
As Cortland County legislators consider the merits of United Kingdom-based wind firm TCI Renewables’ latest environmental study revisions, a judge on Wednesday is scheduled to hear arguments in a lawsuit TCI filed against the county.
TCI sued the county Nov. 21, arguing that the Draft Environmental Impact Statement should be declared adequate for public review. The county had found the document inadequate after it was submitted in September, and urged TCI to clarify several areas before the county would hand it to the public.
On Nov. 17, TCI submitted responses to areas in the document the county had highlighted as insufficiencies. Now the county has until Dec. 16 to determine whether the revised DEIS is ready for public review.
In the meantime, Supreme Court Justice Phillip Rumsey will decide whether TCI presents a compelling argument that the county must turn the document over to the public, regardless of whether legislators find it adequate.
Pat Snyder, the attorney for the county, said Monday that he could not get too specific because he was still drafting the legal paperwork. But he said that he will argue the county was not arbitrary or capricious in finding the document inadequate and that TCI was premature in filing the lawsuit.
He expected to file his memorandum of law and affidavits in the case by late this morning.
Snyder said TCI should have waited until the county made a decision on the revised DEIS, presented Nov. 17. He cited a legal doctrine of “ripeness,” which he said means an agency has to make a final decision on a matter before it can be brought to court.
“The county’s decision was based on the original draft EIS submitted in September. There’s a more complete iteration submitted mid-November the county has not even passed on yet,” Snyder said.
He said the county had valid reasons for declaring the document inadequate, such as environmental concerns and the potential for the project to interfere with the county’s planned $14 million emergency communications upgrade.
TCI lawyer Kevin Bernstein, of the Syracuse law firm Bond Schoeneck and King, did not return a phone call for comment by press time.
TCI has argued that it has fulfilled its obligations under State Environmental Quality Review laws and that the questions that remain about the document should be addressed in the public comment portion. TCI faults the county for prolonging the process and not handing the document to the public, an important step in the environmental review process.
Because TCI failed to meet an Oct. 9 deadline for making the DEIS public, it was removed from the state interconnection queue, which would allow the project to eventually connect to the power grid.
TCI applied for a waiver Nov. 1, seeking to be placed back on the queue and wants the DEIS to be turned over to the public as it seeks to regain standing in the queue. Reapplying for the connection would take two years and likely kill the project, say TCI officials.
Legislator Kathie Arnold (D-Cuyler, Solon and Truxton) said she thinks TCI’s latest revisions have still not addressed the county’s concerns.
Arnold said that the county and TCI have a major difference of opinion.
TCI thinks the public comment period is the time for answering the questions the county has raised and the county wants the document to address those questions before it is handed to the public, she said.
For example, Arnold said TCI’s draft DEIS did not recognize the fact that bald eagles are nesting in the county, something Arnold wanted corrected.
But TCI’s solution is that this issue should be addressed in the public comment portion, she said, when the U.S. Fish and Wildlife Service would comment on the document.
“But to me they need to be providing up-to-date information in the DEIS, not waiting for everybody to show their information is outdated and incorrect,” Arnold said.
Arnold said she does not expect Rumsey to rule that the county should declare the document ready for public review, since the county has carefully documented its reasons for not turning the DEIS over to the public yet.
“But if he does, I guess our work is done,” Arnold said.
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