What’s at Stake in the Lawsuit against the Pulvers Corners Solar Project

Since 1:03 p.m. on Dec. 27, 2023, when Preserve Pine Plains filed a lawsuit to block construction of the Carson Power solar project in Pulvers Corners, there have been just a few developments. 

On Dec. 29, the judge originally assigned to the case, Christi Acker, recused herself because she is married to Steve Patterson, a member of the Pine Plains Planning Board (PPPB), which is named in the lawsuit. The case was reassigned to Thomas R. Davis. On Jan. 3, Judge Davis recused himself, giving no reason. The case was then assigned to Edward McLoughlin, who will likely set a new court date. (The date assigned in the original filing was Jan. 31.)  

While the lawsuit was filed with the Supreme Court of New York, papers were not served on the town until Jan. 10. The planning board has named the town’s attorney, Warren Replansky, to represent it; Replansky told the Herald that it is his policy not to comment on pending litigation. The issue will be taken up by the town board at its regular meeting on Jan. 18. Town Supervisor Brian Walsh, Town Board member Matt Zick and PPPB chair Michael Stabile have also declined to comment. Mindy Lee Zoghlin of the Zoghlin Group in Rochester, N.Y., is representing Preserve Pine Plains.  

Here are some of the issues raised by the lawsuit, and its potential consequences. 

What Preserve Pine Plains seeks  

In a press release, Preserve Pine Plains described itself as an unincorporated association of neighbors and landowners in the hamlet of Pulvers Corners. While only four residents joined the suit— Pavan Gattani, Anna Maria Gattani, Kathleen Vuillet Augustine and James Pinto—the release said that “a large group of neighborhood supporters participated enthusiastically in the effort to produce the 41-page petition and its 35 exhibits for review by the State Supreme Court.”  

Known as an Article 78 proceeding, which allows the state Supreme Court to review administrative actions, the suit asks the court to nullify the special use permit the board issued to Carson Power because it conflicts with both Pine Plains zoning laws and the town’s Comprehensive Plan. The suit also alleges that the board incorrectly decided that a full environmental review was not required (a “negative declaration”) before it issued the permit. That environmental review—the State Environmental Quality Review (SEQRA or SEQR)—would have delayed the project by months or more than a year.  

As Kathleen Augustine, one of the litigants, wrote in an email to the Herald, “There should have been a SEQRA review, and the Special Use Permit should never have been issued. That is our position.” Zoghlin further clarified: “This lawsuit is not about money. It is asking to annul and vacate the planning board’s decision.” 

Litigation around solar developments 

While town officials are not yet in a position to comment on the lawsuit, Andrew Gordon, director of development at Carson Power, was eager to defend both the project and the process that led to its approval. In the other roughly 20 projects that the New York City-based company and its partners have in the pipeline, he said, “We haven’t had any other litigation. I think litigation with these projects is fairly uncommon. Article 78 is challenging that there was an error in the process. I think we’ve been very careful to make sure that we’re going through the process and all the steps correctly, and that is exactly what happened here. Typically, these lawsuits are not filed because they’re not successful.”  

Carson Power, he said, is a renewable energy developer founded in 2021 to “develop assets such as solar farms to aid in the energy transition.” The majority of its business is in New York state. One major driver of these projects, he said, was the state’s passage of the Climate Leadership and Community Protection Act in 2019, which mandates that 70% of the state’s electricity come from renewable sources by 2030.  

Because nuclear power and hydropower are not expanding, nearly all that growth must come from solar and wind, according to Matthew Eisenson, a senior fellow at the Sabin Center for Climate Change Law, an academic center at Columbia University Law School. Currently, only 6% does, he said. Local and state restrictions, as well as lawsuits, are a national issue, Eisenson said. In a May report, he found “at least 228 local restrictions across 35 states, in addition to 9 state-level restrictions, that are so burdensome that they could have the effect of blocking a project.”  

In New York state alone, Eisenson said, “We’ve cataloged at least 30 projects [that have been sued]. In many instances, the plaintiffs will file lawsuits to try to stop the projects. Sometimes the lawsuits succeed, sometimes they don’t. But even when the lawsuits don’t succeed on the merits, the cost of litigation and the delay might lead the developer to abandon a project. So litigation is a very serious obstacle.”  

A highly contested project nearby  

The Shepherd’s Run Solar Farm, in Copake, was first proposed in 2017 by Hecate Energy of Chicago. It’s much larger than the Pulvers Corners project—roughly 255 acres of panels (on 880 acres) versus a little over 40 acres (on 172 acres) for Pulvers Corner—and would provide enough power to run 15,000 houses, as opposed to 1,500. It’s also largely visible from Routes 23 and 7, while the Carson Power project can’t be seen from the roadside and is barely visible to nearby homes at elevation.  

 As the national investigative nonprofit podcast Reveal said in a Jan. 6, 2024, report, Sunblocked: Resistance to Solar in Farm Country, the Shepherd’s Run project motivated opposition from the town as well as local landowners almost from the beginning. Even a 2022 attempt by local opponents and proponents of the solar project to create a working group to negotiate changes with Hecate failed. A May lawsuit against the project was unsuccessful, and the state granted approval in November. (Because it’s a large project, town approval isn’t required under New York law.) But in the first week of 2024, a local opposition group  announced it had bought nearly 60 acres of the proposed project’s land, causing additional issues with its progress.  

 In the Reveal report, Doug Bessette, a community sustainability professor from Michigan State University, noted that local communities were more supportive when they were consulted about potential projects. Bessette wrote, “They really liked it when a developer came to their house, and even if they didn’t necessarily have a friendly engagement with that developer, they really liked having an opportunity to influence what the project would look like.” 

What is likely to happen in court?  

Carson Power’s Gordon is confident that the current lawsuit will not be successful, partly because he has worked so closely with the town, the planning board and individuals near the proposed site for the last year.  

“We had our first meeting in January of 2023, and it became apparent that several folks felt they would be impacted by the project in a negative way,” Gordon said. “We made a really substantial effort to engage with these folks individually. We hired a firm, Saratoga Associates, who specializes in visual impacts. We sent a photographer to everyone’s house. We found that one home had a very partial view from about a mile and a half away, so we went ahead and made site adjustments to minimize any part of the system that they would have visibility to. And we enhanced our plantings as a visual buffer. The result is nearly zero visibility, and once the plantings grow in within a few years, zero visibility.” 

But those efforts to engage neighbors opposed to the project have not swayed them. Nor have the dozens of meetings, including many public meetings, held over the last year by the planning board. As Augustine said via email, “You may add that the Plaintiffs were deeply troubled by the appearance of favoritism towards the out of state applicant (Carson), over the serious concerns voiced repeatedly by the residents surrounding the project.” 

The other major point of contention, besides visibility, is the clear-cutting. According to Gordon, it needs to be done to reduce visibility. “The perfect solar project avoids farmland, avoids visibility and avoids tree clearing,” Gordon said. “But there are very few parcels that check all three boxes.” The forested areas to be cleared, he added, “were selectively logged within the last several years, so they’re already thinned out. It was not mature forest. So, it made sense for us to look at tree clearing there.”    

This project, Gordon said, “has an incredibly low impact. There’s no noise, no light, no odor, and it requires very little maintenance. Plus, an important part of the project is the perpetual conservation of the entirety of the project area, 172 acres. It’s being donated into a conservation easement with Scenic Hudson. That will preserve open space and the bucolic vistas that make Pine Plains a wonderful place to live.”  

Gordon said that Carson Power, whose lawyers are reviewing the filing, will “support the town in whatever way we can.” When asked what effect the lawsuit will have, he quickly responded, “No effect.”