Eastern Niagara County municipalities seeking a share of the bounty from Niagara Power Project relicensing were handed a defeat in court last week.
The Appellate Division of State Supreme Court ruled unanimously that the Eastern Niagara Power Project Alliance is not entitled to a hearing challenging a water quality certificate for the Power Project.
The alliance was seeking to challenge the terms of the 50-year relicensing of the project, which includes cash payouts and electricity allocations to Niagara County and the project's host municipalities in western Niagara County.
The New York Power Authority has refused to negotiate with the alliance of 17 municipalities and school districts in eastern Niagara County unless the Federal Energy Regulatory Commission orders it to do so.
The commission is considering the question, since it "stopped the clock" more than two months ago on a deadline for rehearing the license application it previously approved.
Also waiting for a ruling on a rehearing is the Niagara Improvement Association, a primarily African-American civic group in Niagara Falls that seeks benefits from the Power Authority.
Thursday's ruling by the Appellate Division's 3rd Department in Albany threw out all the Eastern Niagara Alliance's complaints against the state Department of Environmental Conservation. The DEC issued a certificate in January 2006 attesting that the Power Authority's use of the waters of the Niagara River to generate electricity is not environmentally harmful.
The alliance asserted in its lawsuit that the DEC was required to hold a public hearing on the water quality certificate; should have given more consideration to environmental questions ranging from the impact of the ice boom to bird mortality; and didn't do enough analysis of the actual water quality.
Wrong, wrong and wrong, the court ruled.
"I am absolutely not surprised by the outcome," said Paul V. Nolan, the alliance's attorney. "It looks like New York is saying, 'We're going to protect our New York agencies.' "
DEC spokeswoman Maureen Wren wrote in an e-mail to The Buffalo News, "We are very pleased with [Thursday's] court decision. It is important because it upheld DEC's interpretation of water quality standards and our adhering to the federal environmental review process for federally regulated hydropower facilities."
Nolan said, "DEC also agreed under the [relicensing] settlement not to entertain any changes unless significantly new information was presented. However, DEC and the court put the cart before the horse by saying, 'Come up with proof of new information, enough to win a hearing,' and at the same time denied any opportunity for a hearing."