Group blocked from seeing full enviro report on solar farm drafts its own, only to have it rejected

The American Land Rescue Fund (ALRF) has been raising concerns about the impact of a solar project on critical bird habitat in upstate New York. The group filed Freedom of Information requests with the state for the records, hoping to get unredacted versions of the environmental assessments the developer had submitted as part of the permitting process. The company argued that the information was proprietary and could be legally withheld from the public. 

After exhausting all other avenues, Alex Fasulo, president of the ALRF, decided to hire independent ecologists to perform an assessment of the project’s impacts. The report the ecologists produced shocked her. 

“My jaw kind of dropped when I did a first scan of it,” she told Just the News. 

The state and the developer are now fighting to get the report excluded from the administrative record, arguing it was filed past the period allowed for public input.  

New York State set plans for a renewable grid

New York’s 2019 Climate Leadership and Community Protection Act set the state on a course to achieve 70% renewable electricity statewide by 2030 and 100% zero-emission electricity by 2040. 

The plan requires an extensive buildout of solar projects all across the state, and that has generated land-use conflicts with the residents of rural upstate New York, where many of these projects are being built. 

Fasulo runs a pollinator farm near Fort Edward, which is a type of farm that produces a productive habitat for pollinators, such as bees and butterflies, with diverse native plants, water sources and nesting areas. She’s concerned about the encroachment of solar on the rural farmland of her community. 

She founded the ALRF as a nonprofit, and she has been fighting to stop the construction of the Fort Edward Solar project. The 530-acre project is planned to be built on top of state conservation land that was set aside for bird habitat. 

The Grassland Bird Trust, which advocates for bird conservation in New York, requested the developer purchase land in upstate New York to provide a 1-to-1 replacement for the land the project is taking up. The request was denied. 

Public process with limited information, barrier to participation

Both the Grassland Bird Trust and ALRF say the state has not given them any sincere opportunities to engage in the process and have their concerns heard. The lack of transparency has been a primary barrier to their participation, they say. 

The developer, Fort Edward Solar LLC, a subsidiary of Canada-based Boralex, requested nondisclosure of information it says is proprietary and would be used by its competitors to put the company at a disadvantage. This includes information related to endangered, threatened or protected species. 

The request for nondisclosure was granted, and its assessment of the impacts of endangered species is heavily redacted. This includes the names of the species that are threatened or endangered within the project boundaries. 

The document discusses the modifications the company made to the project in order to protect species, but with the names of the species and other information redacted, groups like the Grassland Bird Trust and ALRF say they have no way to independently verify the modifications are adequate. 

ALRF does its own assessment

Fasulo said she made multiple attempts to get unredacted copies. She said her attempts to speak to anyone at the Office of Renewable Energy Siting (ORES) through calls, emails and in-person visits failed to result in any responses. She also filed Freedom of Information Law requests, which were rejected. 

That’s when she decided to commission her own ecological assessment of the project's impacts. She selected Hudsonia, which has four decades of experience doing these kinds of assessments. Dr. Erik Kiviat, Hudsonia executive director, led the assessment. 

The report notes that the area where the project is being constructed is “known for high-species diversity,” including endangered and threatened species, and it explains that grassland-dependent birds won’t nest on a solar facility. “Installation of the solar project would fragment habitat with a serious negative impact on the assemblage of grassland birds,” the report explains, and the state’s requirements for mitigation aren’t adequate. 

The report also found that the local bedrock, including a geologic fault along the edge of the facility area, might be unsuitable to support the project. The reflections on the panels may result in birds colliding with the panels. 

The redacted documents the developer filed, the Hudsonia report explains, are “obfuscating and foreclosing the ability of the public and other scientists to understand the project and its potential impacts.” This is at odds with the state’s commitment to public engagement, the authors state. 

The siting of the project in the area “would create intense conflicts with the biodiversity of the area,” the report concludes, and it calls on ORES and other stakeholders to work together to identify ways to minimize the impacts. 

Fasulo said that she expected that the report would find problems, because the developer wouldn’t be redacting the information if it wasn’t potentially harmful to the project. However, she was surprised by many of its findings. 

“I was kind of shocked at all the things it touches on,” Fasulo said. 

Boralex says the Hudsonia report is speculative

Boralex called the report a “late-stage, advocacy-driven document that misrepresents both the science and the established permitting record for Fort Edward Solar.”

In Fort Edward Solar’s formal response submitted to the docket, the company argues that Hudsonia had stated in a separate report that a different solar project in a different location improved conservation outcomes for wildlife and plants of concern. Fort Edward Solar maintains that this is a contradiction of the report commissioned by ALRF about the Fort Edward project. 

The company also said that unredacted materials were available if ALRF would enter into a protective order process and that ALRF acknowledged this process in a filing in November. However, in that filing, ALRF explains how execution of the order effectively prevents them from communicating publicly anything they discovered in the documents, which would undermine their advocacy efforts. 

Fort Edward Solar also maintains that Hudsonia presents speculation as science. The report advances claims that are unsupported by site-specific data or regulatory standards, including references to species not observed at the project site and hypothetical environmental risks that are not grounded in the project’s actual conditions or analysis, according to the developer. 

Developer wants the Hudsonia report excluded

The American Land Rescue Fund motioned to have the report included in the administrative record, and the Grassland Bird Trust filed a letter in support of the motion. 

“We believe the applicant and the agencies are concealing critical biodiversity information to expedite approval of the solar project. It is our opinion, as biologists with more than 60 years of collective experience studying rare wildlife and plants, that this case requires public discussion of rare species information, and that little of this information is actually sensitive enough to merit concealment (presumably) in the name of protecting endangered and threatened bird species,” the trust stated in their letter. 

Fort Edward Solar is asking the motion to be denied. The developer argues it would set a precedent in which “opposition groups can ignore prior opportunities to participate in the proceeding and fund additional environmental studies after all administrative remedies have expired.” This would effectively allow opponents to ignore deadlines without facing any ramifications, Fort Edward Solar argues in its filing. 

The Office of Renewable Energy Siting, opposing the environmentalists, also argues the motion should be denied. “It was already determined that ALRF did not meet the regulatory criteria necessary to file a late petition, having failed to show good cause for its late filing or that its participation would materially assist in the determination of adjudicable issues raised in the proceeding,” ORES wrote. 

Report will inform the public on the impacts

Fasulo knew that the assessment would be filed late in the process, well past the period for public input, but she said even if it had been filed on time, it wouldn’t have likely impacted any siting decisions. She points to the experience of Montgomery County, New York, which objected to a 2,666-acre solar farm — five times larger than the Fort Edward Solar project. 

The county commissioned an economic study, which found the project would have substantial impacts on the county’s tourism industry. The state approved the project despite the county’s objections, WRGB Albany reported. 

“I don’t think any of this is ever going to change how ORES operates. Something is going to have to come from the outside to fix this, because internally, it’s just not working,” Fasulo said. 

Though it will likely be excluded from the record, she said she commissioned the study mainly to inform the public on the impact of the project since Fort Edward Solar wasn’t providing the information voluntarily. And as an independent study, Fasulo is free to disclose its findings. 

The Department of Public Service, under which ORES is housed, maintains that its processes for siting renewable energy projects are transparent and engages the public in its decisions. 

“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,” a DPS spokesperson told Just the News in December. 

Kevin Killough is the energy reporter for Just The News. You can follow him on X for more coverage.