Pro Bono Legal Team Helps Farmers and Homeowners Fight for Renewable Energy

by |August 22, 2019

New York City’s Green New Deal grabbed headlines in April with its ambitious $14 billion plan to slash greenhouse emissions by 30 percent during the course of the next decade. One of the bills that was widely applauded states the city should study the feasibility of closing 24 oil and gas plants and replacing them with renewable energy.

However, 133 miles away from New York City, a group of farmers in the Town of Coxsackie have had no reason to celebrate. For the last 15 years, approximately 1500 acres of land owned by these 25 farmers have been lying vacant. In 2015, they decided to sell the land to a solar farm company — only to find the sale blocked by town laws.

Laws like this aren’t just an obstacle in Coxsackie, NY. Across the country, local ordinances are blocking progress on critically needed renewable energy projects. Now, with the help of an initiative based at Columbia University’s Sabin Center for Climate Change Law, farmers and homeowners can push back and press for progress. And that’s exactly what the Coxsackie farmers are doing now.

Solar Power Setback

The solar power setback is the latest in a series of difficulties for the farmers. The land has never been fertile enough to grow any crops on, so the farmers ran dairy farms on it — until they went out of commission and sold out. Then the farmers tried to make clay from the soil. While that worked for a while, two years ago they found their clay-based soil has been rapidly drying out. Nor could they afford to set up expensive irrigation systems.

A part of the farmers’ vacant land in Coxsackie, NY, where they proposed to build a solar farm. Photo Credit: Luciano Agovino

As a last-ditch effort, the group decided to sell the vacant land to Hudson Energy Development. According to the deal they negotiated in 2015, the Flint Mine Solar Project, as it came to be known, would use around 600 acres for installing a 100-megawatt solar farm, and another 250 acres would be set aside for protecting the town’s wetlands. However, the farmers were in for a rude shock when, a year later, the Town of Coxsackie passed a law preventing the installation of solar panels in all zones except for industrial and commercial areas.

“We feel completely powerless,” said Giuseppina Agovino, one of the farmers. “We want to cut down our carbon emissions and also help in protecting our wetlands. It is very sad we’re facing so much opposition from our local board members.”

The group of disgruntled farmers soon formed a group called Friends of Flint Mine Solar. They repeatedly demanded a reason as to why the town’s board members were against having thousands of solar panels being installed in Coxsackie. After all, once complete, the massive solar farm would have the potential to produce power for 21,000 homes — earning the town the distinction of having the largest solar farm in New York State.

Members of Friends of Flint Mine Solar at a local event. Photo Credit: Luciano Agovino

After several attempts to reason with the town’s board members, the farmers learned the board strongly opposed the project out of fear that it would decrease residential property values. “They don’t want to see any solar panels. They view them as an industrial eye-sore,” said Agovino.

“But most of the Flint Mine project will be hidden because of the way the area is landscaped. This misconception that solar panels will decrease property values is a mere theory,” she added.

In April this year, the farmers were finally able to take action. After being put in touch with Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University (affiliated with the Earth Institute), and Laura Cottingham, a senior litigation associate with Arnold & Porter, they are now suing the Town of Coxsackie.

“God bless, we were able to find each other. Laura met all of us several times and informed us about our legal options. The team of lawyers have been of tremendous help,” said Agovino.

A Pro Bono Partnership

In January 2019, Gerrard, who is also a member and former chair of the Earth Institute faculty, teamed up with Cottingham to set up a project called the Renewable Energy Legal Defense Initiative. While working on his book, Legal Pathways to Deep Decarbonization, he came up with the idea to launch the Defense Initiative. Their aim has been to provide free legal help in cases where local opposition is the reason why Americans can’t access renewable energy resources such as solar and wind. “We are happy to take up more cases across the US, and we will be able to connect with local lawyers who can work with new clients in those locations,” he said.

Michael Gerrard, director of the Sabin Center for Climate Change Law at Columbia University. Photo Credit: Columbia Law School

As the senior counsel at Arnold & Porter, where Gerrard previously worked as a partner, the firm agreed to allow Cottingham to spend half of her work hours for a year on the Renewable Energy Legal Defense Initiative. From time to time, junior lawyers from the firm also help.

Their first clients, the Friends of Flint Mine Solar group, were introduced to the duo through a renewable energy advocacy organization. The case is currently ongoing litigation. “We are hoping to hear a decision soon. It has been very frustrating for our clients, who have put a lot of time and energy into talking with the town,” said Cottingham.

“They have done a very good job of organizing an outreach campaign and being advocates on behalf of this project. The town is just not listening to the voices of its constituents,” she added.

When contacted, Patrick Kennedy, one of the board members at Town at Coxsackie, said he is not against the project. Instead, he maintained that he was the only member who had voted against the revised law that prohibited the installation of solar panels. In an email, he declined to comment any further due to the pending lawsuit against the town.

Opposition from Homeowners Associations

Other than Coxsackie, several towns and states in the US have been passing laws that have made it difficult for locals to use wind and solar energy. The reason? As Agovino said, it’s the visual impact. Many people simply don’t want to see wind turbines or solar panels.

When it comes to turbines, there have been reports about the noise and negative impacts on birds. “Although, wind turbines are very low on the list of causes for birds’ mortality. Cats are by far number one, and buildings are number two,” argued Gerrard. “No one says they don’t like renewable energy per se. They say they think we should have renewables, but just not next door.”

For example, in July, Ohio passed HB 6, a highly disputed law that increases the state’s dependence on natural gas and renders the state’s clean energy programs useless.

“We have this phenomenon of utilities lobbying and making large campaign contributions for trying to get legislation against renewables,” explained Gerrard.

 Recently, the Renewable Energy Legal Defense Initiative bagged its second client — a former investment banker from Westchester County in New York.

Daniel Sauerhaft had undertaken several projects at home as a calculated effort to reduce his carbon footprint. He successfully pulled off three projects so far. One included improving the insulation of his house, and the other was replacing his gasoline cars with an electric one. He even managed to let go of the furnaces and air-conditioners in his house and instead started using geothermal heating and cooling.

After installing solar panels on his rooftop, Sauerhaft would have been able to reduce his carbon footprint by around 72 percent. But when he approached his local Homeowners Association to ask if he might need any approvals to install them, he was informed they have a policy of not approving any solar panel installations, so as to keep the appearance of their neighborhood “harmonious.”

“That shocked me,” lamented Sauerhaft. “Not having solar panels impairs your ability to have electric cars or geothermal energy because both will increase my electricity consumption by over 100 percent.”

When he did look up the Homeowners Association documents, he realized solar panels were not one of the items that were officially restricted. However, the local members refused to budge from their stance that residents can install solar panels only on the side of the roof that is not visible from the street.

Dissatisfied with the response he received and regretting his decision to approach the association in the first place, Sauerhaft decided to seek help from legal experts. He was able to get in touch with Gerrard through his sister, who works in the sustainability field.

“Saying no to solar panels because it is not aesthetically appealing is similar to someone declining brain surgery because they refuse to shave their head,” said Sauerhaft. “I’m excited to work with the lawyers from the Renewable Energy Legal Defense Initiative and see how things go in the next month or so.”

Both Gerrard and Cottingham are hoping to resolve the case without litigation.

Meanwhile, in Coxsackie, the farmers are determined to sell their land to make space for solar energy. When it comes to such strong opposition to renewable energy projects, Cottingham observed, “A lot of it comes back to the fact that many people don’t like change. They would rather look at empty spaces.”

 

 

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The only greenhouse gas that has a significant effect on climate is water vapor, and it is self-limiting.