Empowering Engagement by Saying “No” to NIMBY

While much (though not enough) of the engagement between developers and communities takes an informal context, the fact remains that all discussions about project planning and possible alterations or mitigations of impact have the force of law hanging over them. Embodied in zoning ordinances, linkage laws, environmental justice requirements, and other land use principles, communities have legal and administrative tools at their disposal not only to delay projects, but also to require anything from infrastructure investment to cash remediation – depending on the jurisdiction.

Renewable energy project developers need to be aware of what requirements apply. Be careful to note that the requirements may be different – or in flux – depending on your technology. For example, Massachusetts is currently considering a wind energy zoning siting reform proposal that would bypass local zoning controls, which usually contain the mitigation requirements.

The presence of these statutory requirements is all the more reason for you to begin engagement early and take the discussion seriously. Given that communities have recourse to legally enforce some remediation or mitigation, your best position is to be at the table, rather than leaving the determination of that package to a local zoning commission.

That means being prepared to compromise: scaling back plans, offering alternative configurations or locations, even ponying up some dough. But, how do you distinguish engagement from extortion? ::continue::The land use and zoning principles apply, and you should be on the look out for two key indicators of good faith on the part of a community: nexus and necessity.

Is there a nexus?

In the 1980’s, mitigation for development began to take the form of linkage payments, required as part of zoning approval in some jurisdictions. Most models still follow the same guiding principle, exemplified by California’s environmental justice law, requiring “mitigation of the adverse social, economic, cultural, environmental, and public health impacts” of the project.

That’s a high bar and a very community-friendly approach. But, it still serves as a guide for developers. Where a community is making demands for mitigation that are totally unrelated to the impacts posed by your project, you are under no obligation to undertake serious consideration of those proposals. It may be that you decide to fund a pet program or help build a new ball field. All the better. But, you should feel free to steer the discussion back to an analysis of your project, its impacts (and benefits!) and realistic mitigation that exists in that context.

Necessity and the Submarine Ploy

EnergyWorks encourages engagement. Early, vigorous, and open. Be ready to discuss community proposals and – most importantly – keep an open mind to incorporating their suggestions or needs. You may wind up with a better project for everyone.

But, there are times where a community opponent or group is out for something different. They are not interested in discussing your proposal; they just want to tank it. At all costs. If you have managed your engagement well, these are groups that you should be able to carve out and marginalize. These are NIMBYs.

For example, if there are components of your project that are integral, a “submarine ploy” might play out as opposition to that particular impact, knowing that a victory in that battle is a death notice. 

Let’s use the NYC sanitation building case I cited last week. There, the community opponents certainly agree that trash pick-up is an essential service, but they oppose the added truck trips.   Clearly, the truck trips are related to the facility – they are the raison d’etre. And, they will exist no matter where the lot is ultimately built. You have used your consensus-first approach, so it is already in the record that this community recognizes the need for the service. As such, the burden is now shifted to the opponents to prove that they just do not want those increased truck trips in their neighborhood.

Maybe they take up that burden and propose an alternative where the trips would not pose the same level of risk or propose a way to mitigate the risk. So be it. It may make for a better project.

The key is to remember the basis on which linkage and EJ laws rest: good faith mitigation of the actual impacts. You should never let a NIMBY get traction by working too far outside of this box, nor can you allow yourself to be painted with the “greedy developer” brush by refusing to engage on unreasonable remediation requests made in bad faith.

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An award-winning energy and environmental law scholar, Joe combines professional experience in utility sector government, community and regulatory affairs with a background in security clearance-required military intelligence and offers unique insight and complex analysis of energy infrastructure, technology and policy in national security, international trade and climate change and carbon-restrained economics contexts.Joe was awarded the Suffolk University Jurisprudence Award for Outstanding Scholarship in Environmental Law for his work analyzing the pathways and obstacles to adoption of renewable energy in state, federal and international energy policy. ”Home Rule on the Ropes,” his paper on renewable energy zoning in Massachusetts is on SSRN’s Top Ten lists for the Journal on Urban Economics & Public Policy and the Journal of Public Policy. And, he was awarded Suffolk Law’s 2009-2010 McCormack Scholarhship in recognition of excellence in research and writing, including his paper – ”Coming up ACES?” – on the NAFTA and WTO implications of the national renewable portfolio standard limitation proposed in the Waxman-Markey energy bill.A research assistant on Westlaw’s definitive energy regulation reference, ”The Law of Independent Power,” Joe is also a former state legislative aide and US Army linguist who tested at professional profiency in Russian and Spanish.His writing on law, politics and policy is also featured on the blog at www.RedGreenandBlue.org and www.CleanTechies.com.Joe lives in Boston with his wife and two young children. In his spare time, Joe is the founder and curator of the corporate social responsibility network on LinkedIn, and is an avid runner who recently posted a personal best in in the Walt Disney World Half-Marathon in Orlando.

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