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Wind Cable Suit Dismissed

Thu, 03/03/2022 - 12:42

A complaint brought by Citizens for the Preservation of Wainscott against the East Hampton Town Board and developers of the South Fork Wind farm has been dismissed.

The citizens group was formed in opposition to the plan to land the South Fork Wind farm’s export cable in that hamlet and last year tried unsuccessfully to force a vote to incorporate a 4.4-square-mile expanse of the hamlet in order to thwart the cable’s landing there. Its complaint asserted that the board failed to comply with the New York State Environmental Quality Review Act by failing to prepare an environmental impact statement prior to granting an easement early last year to Orsted U.S. Offshore Wind and Eversource Energy that allowed the cable to land in Wainscott and travel underground to the Long Island Power Authority substation in East Hampton.

The project also calls for concrete vaults to be buried at intervals between the landing site, the ocean beach at the end of Beach Lane, and the substation.

Authorization of the easement was conditioned on the developers obtaining all required federal and state permits. In exchange for the easement and permission from the town trustees, who have jurisdiction over the beach in question, the developers will pay the town and trustees a community benefits package worth around $29 million over the project’s anticipated 25-year life span.

The citizens group argued in its complaint that the easement constituted “preparation of a site” in contravention of the State Public Service Law, which requires the developers to obtain a certificate of environmental compatibility from the P.S.C. before such action can be taken for construction of a major utility transmission facility. The certificate had not been granted or denied at the time of Citizens for the Preservation of Wainscott’s filing, but was issued nine days later. 

The group argued that onshore construction, which began last month, would result in long-term obstruction and disruption of the residential roads including the digging of trenches, construction equipment on roads, and the narrowing of streets for ingress and egress of vehicles and pedestrians. They also raised concerns about the environmental impact of drilling under sensitive dunes and the potential for construction activity to cause migration of perfluorinated chemicals, known as PFAS, that were detected in nearby groundwater.

In granting the easement, they argued, the board was motivated by money and set aside the community’s concerns. They sought an order to vacate and annul the January 2021 resolution authorizing the easement agreement, or the agreement itself.

Justice Vincent J. Martorana in New York State Supreme Court issued a decision last Thursday. In dismissing the complaint, he wrote that “it is not at all clear to this court that acquisition of land rights constitutes ‘preparation’ of a site for construction.” The certificate’s issuance nine days after the easement agreement was signed rendered moot the argument that the town had acted capriciously, he wrote.

“It is clear from the record that extensive environmental review was undertaken and that the easement grant was contingent upon P.S.C. approval,” Justice Martorana wrote. The citizens group “failed to establish that the decision to grant the easement was made without regard to the facts or without reasonable basis.” Their cause of action for relief based on a violation of SEQRA “must fail because there was no such violation,” he added.

Michael McKeon, a spokesman for Citizens for the Preservation of Wainscott, told The Star that the case had addressed the town board’s “flawed and illegal process in granting the South Fork Wind’s easement for a cash payment but was rendered academic by the subsequent Public Service Commission approval.”

Justice Martorana’s decision, he said, is being appealed in the State Supreme Court’s Appellate Division, “where we are confident of demonstrating that the P.S.C.’s agenda-driven decision made serious errors with respect to the risks of PFAS contamination and viable route alternatives that are safer and less burdensome on the community.”

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