The Siting Board cannot issue a Certificate unless it makes specific findings and determinations pursuant to Section 168 of the Public Service Law. These findings and determinations are described here. In a recent case, one wind energy developer argued that intervenor, municipal, and agency parties bear the burden of proving that a Certificate should not be granted. Will this argument prevail? And if so, how would the shift in burden of proof change the conduct of Article 10 proceedings?

The burden shifting argument is unlikely to prevail because both the State Administrative Procedure Act “SAPA” and Article 10 regulations place the burden of proof squarely an applicant for a Certificate. See State Administrative Procedure Act (“SAPA”) § 306(1) (“Except as otherwise provided by statute, the burden of proof shall be on the party who initiated the proceeding.”); 16 NYCRR 1000.12(b)(1) (“The applicant has the burden of proof to demonstrate that all findings and determinations required by section 168 of the PSL can be made by the board, and after the board’s jurisdiction has ceased, that all determinations required by the commission may be made.”). And legality aside, it would violate fundamental principles of fairness and due process for the Siting Board to simply presume a facility should be built unless other parties to the proceeding can prove otherwise.

But if the burden is in fact shifted, the impact on Article 10 proceedings would be dramatic. If state agencies or intervenors fail to identify potential problems early in the Article 10 process, would the case be disposed of via settlement without any testimony or cross-examination of witnesses? Would the initial review of an application for compliance with PSL 164 gain additional rigor, and would extended public comment be welcomed? Would Presiding Examiners entertain dispositive motions made by applicants and aimed at knocking out intervenor issues without the need for a live hearing and follow-on briefing? The answers to these questions are unknown, but if the burden of proof is shifted, Article 10 practitioners may soon know them all too well.

For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact The Zoghlin Group. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.

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