Industrial Wind Goes Low in western New York

Editor note: Yesterday’s post described media coverage of an application by Invenergy to construct up to one hundred 600-foot-tall wind turbines in three counties in western New York. Today’s post reproduces remarks given at the hearing on this application (subtitles have been added for clarity).

“Invenergy will … cut corners, skirt obligations, bully oppositional viewpoints and do anything they can to cram this project in, all in the name of alleged green energy. The only think green about this project is the money flowing into Invenergy’s pocket in the form of wasteful taxpayer subsidies.”

My name is Ginger Schroder.  I and my husband own and reside on a working farm that specializes in heritage and exotic breed poultry in Farmersville New York.  My town is a proposed “host” town.

Public Participation Issues

A brief word about public participation.  Invenergy made an intentional effort to suppress attendance at this hearing today by anyone other than leaseholders and non-resident construction workers, who will profit from this project. 

Leaseholders were called from the Invenergy office in Arcade over the past two weeks. We know this because that office shares a wall with another local business that can hear what is said in the Invenergy Office.  Construction workers were asked to come and leaseholders were begged to come.

Yet, yesterday, Farmersville and Freedom United, the citizen groups, received numerous calls, e-mails, texts and posts to their Facebook Page from the actual residents in this project who will be affected by this project every day for the next 40 years. These people received Invenergy’s notice of this meeting in last evening’s mail. Yet, it is dated May 20, 2019.  My husband and I also received ours in the mail last night.  

So, this is intentional or incompetence?  More on that in a minute.  At the minimum, this is a violation of Article 10’s principles of full and robust public participation. 

In addition to farming, I am also a lawyer.  In that role I assisted citizens who wanted to organize around concerns with this project and as a result, Farmersville United, Freedom United and Rushford’s Concerned Citizens were formed.  Those citizen groups and others for Article 10 purposes, are being represented by lawyer Gary Abraham.    

I am a vocal critic of the shortcomings of this project’s design and the shortcomings of Invenergy as its developer.

As a result, Invenergy has taken an inappropriate interest in me, personally.  This is reflected in a few ways. 

First, in Invenergy’s lawyer, Mr. Dax’s mischaracterizations of my role in his March 22, 2019, letter to the Administrative Law Judges here in this case which attacked my complaints to the Attorney General on behalf of the citizens groups and made irrelevant legal arguments. Mr. Dax, and facts, do not mix. We were just informed by the AG that our complaints were vindicated and the AG provided all of the underlying investigative materials regarding Invenergy’s violations to my clients this past Friday.

Second, after success in convincing the Cattaraugus County Legislature to overwhelmingly pass a resolution directing the County’s Industrial Development Agency to fully tax any wind project over 25 megawatts, and after announcing my own candidacy for a seat on the Legislature in 2020, Invenergy sent their public relations and communications firm down to the Board of Elections to pour over my election petitions. 

My candidacy for the Legislature figured also in Mr. Dax’s letter, suggesting a conflict of interest on my part and falsely claiming I am suing a town I would represent and that I am generally threatening “the towns” with lawsuits.   

Mr. Dax’s allegations in this regard demonstrate how woefully uninformed he is about this community and the district I would represent. He seems to have forgotten that lawyers bring lawsuits for clients, and it is my clients, who are citizens, that are suing their town, one town, Freedom, for unlawfully passing a wind law that was requested by Invenergy.  Parenthetically in my role as legislator I would not represent Freedom, as that is in another legislative district.

Third, Invenergy has hired an investigator who specializes in smear political campaigns to research and investigate me.

How do I know this? After a few weeks of receiving varied phone calls from good friends, recent acquaintances as well as adversaries I litigated against years ago, about an individual who contacted them seeking so called “dirt” on me, I became very concerned. After a reporter passed along an e-mail this so-called investigator had written to him, which contained his contact information, I hired my own private investigator to investigate him. That is how the connection was made to Invenergy. 

Is this how things are done in the Article 10 process? Is this where all the money Invenergy should be spending on repairing its horribly poor public participation campaign, is really going, into building a smear campaign against people who express opposition and concerns? 

We have discovered by connecting with other citizen groups across the United States, that it is simply Invenergy’s way to bully the opposition.  Particularly through their lawyers. 

It will not work. We are going to double down on our efforts to expose Invenergy’s failings, incompetencies, mistakes, and inappropriate behaviors that run counter to the mandates of Article 10.

Permit Issues

Today I would like to tell you what the AG’s investigatory probe found and why Invenergy does not deserve to hold a permit for this project in the public trust. 

Citizens in the Towns of Freedom, Farmersville and Centerville have long been complaining of significant conflicts of interests of employees and Town Board Members in their respective towns relating to Invenergy’s proposed Alle-Catt industrial wind project. Frustrated by the failure of Invenergy to make public their financial dealings and land leases with various Town employees, Town Board members and family members, as required, Farmersville United and Freedom United members contacted the New York State Attorney General.

Recognizing the potential for corruption and self-dealing in small towns, the Attorney General prepared the Code of Conduct for Wind Developers (“Code”), As a signatory to that Code, Invenergy agreed to certain contractual commitments with the Attorney General. One need only read the introduction to the Code to understand the insidious practices that made the Code necessary and the need for transparency in wind development. Key was the avoidance of “conflicts of interest, or the appearance thereof.” 

We believed that Invenergy was operating in significant violation of the Attorney General’s Code for many months, if not more than a year, and we were not getting anywhere complaining to our compromised Town Boards about their personal conflicts of interests, so we turned to the New York Attorney General for help. We were certain that because required disclosures were not made, residents did not know about these conflicts and that if proper disclosures were made, the wind law activities of the Town employees and Town Board members might be seen in an entirely different light—the light of inappropriate influence and self-dealing.   

In early October of 2018, these groups asked me to connect with the Attorney General to make their complaints known and to provide evidence of Invenergy’s violations of the Code. On October 10, 2018, I submitted a lengthy e-mail, with relevant documents and links to websites and videos on Youtube. Over the following months, I continued to supplement these submissions with new evidence of Invenergy’s additional and continuing violations of the Code. These subsequent submissions were made on November 16, 2018, December 17, 2018, February 6, 2019 and February 18, 2019.”  

It was only after the AG contacted Invenergy to ask for their defense to the charges that Invenergy’s Town official financial disclosure list immediately went from one person to ten!  OVERNIGHT! Then twelve and then thirteen, where it is today.  Meanwhile, the harm to the public had been done—Freedom and Centerville had already passed their respective local wind laws at Invenergy’s request without disclosure of the financial interests of various town employees and Board members in the Invenergy project.  Farmersville drafted their law with Town Board Member Richard Westfall actively participating in the drafting work session. 

Westfall has a lease with Invenergy for the project. Westfall was also the Board member who suggested the noise decibel limit in the proposed law be increased from 42 decibels, which was under Board consideration to 50 decibels, the level that Invenergy wanted.” All of the actions have been captured on videotape.

 During the AG’s investigation, incredibly, Invenergy first accused the complaining residents of raising ‘false claims of inappropriate conflicts’ and then Invenergy stated that the “same attorneys” (presumably me) made “similar claims in other communities.” 

This is patently and demonstrably false. I have never represented any other clients in any project like this.  However, later in the investigation, notably upon receipt of the AG’s initial assessment of Invenergy’s Code violations, Invenergy changed its tune. 

Caught with its hand in the cookie jar, it now claimed that the ‘sheer magnitude of [its] activities in New York’ and ‘the burden that places on our development staff’ was to blame for its shortfalls and stated that it ‘resulted in not fully documenting and notifying the public as required…. it is simply the reality of the situation—we missed some things….’” 

So again, either intentional malfeasance or abject incompetence.  Nether bodes well for a developer hoping to get a nod for a permit in the public trust. 

The investigation of the Attorney General has concluded and its final findings were just released to the residents.  The Attorney General stated: 

Invenergy has failed to meet its obligations pursuant to the Code of Conduct.  The Code of Conduct establishes these procedures in order to avoid conflicts of interest, or even the appearance of conflicts of interest. 

By entering  into lease agreements with municipal officers  without  first securing  commitments from the municipal officers  to recuse themselves from any official  duties  in connection with wind farm development; by failing, upon learning  an individual is a municipal officer  or relative of a municipal officer, to provide written notice to town attorneys  and to the municipal officer of their potential obligation to recuse themselves from official  duties in connection with wind farm development; by failing to update and publicly disclose its financial  disclosure by posting it on the Alle-Catt website, submitting it to the Town Clerk, publishing it in the local newspaper and providing it to the Attorney General’s Office; and by failing to post a copy of the Code in its Arcade office, lnvenergy created the appearance of undisclosed conflicts of interest.

Based on the Attorney General’s investigation, including information provided to this Office by lnvenergy, it is determined that a preponderance of the evidence establishes that lnvenergy violated the Code of Conduct in a material respect. 

As set forth above, the Attorney General has considered the relative severity of: and relative harm to the public integrity occasioned by such violation, and hereby assesses a penalty in the amount of $25,000.”

For a billion-dollar-company that is seeking a permit in the public trust to build a massive industrial project in our community, Invenergy’s excuses for its lack of compliance with the simple nature of the Code, does not inspire any confidence that they are capable of doing the right thing and adhering to the many intricate local laws and Siting Board permit conditions that will be involved in this project, spanning three counties and five towns and affecting thousands of citizens.      

We are profoundly grateful to the Attorney General’s Office for vindicating our concerns and for penalizing Invenergy. Unfortunately, great damage has already been done and it needs to be undone by this Siting Board. 

Invenergy’s application before you presents these local laws as supporting the project’s design. Of course they do. They were bought and paid for by this Developer without proper disclosures. It is this Siting board’s public duty to assure transparency and accountability in the Article 10 process.

Green … as in Money

Invenergy will not change. They will cut corners, skirt obligations, bully oppositional viewpoints and do anything they can to cram this project in, all in the name of alleged green energy. The only think green about this project is the money flowing into Invenergy’s pocket in the form of wasteful taxpayer subsidies.

Quite simply, Invenergy is a bad actor that should be denied a permit to build this project by this Siting board.  I am submitting relevant documents from the AG’s investigation in this binder. I will also place them on the site.