First Amendment rights of Amish take center stage in battle over huge New York wind project 

The Swartzentruber Amish community in Cattaraugus County, New York are in danger of having their horse-drawn carriages run into the ditch by Gov. Andrew Cuomo’s all-renewable-energy express train. That train is barreling out of Albany station and aims to plant huge numbers of wind turbines and solar panels across upstate New York, including the 340-megawatt Alle-Catt wind project.

But the Swartzentruber, who are among the most conservative of the Amish, might derail some of Cuomo’s efforts to turn New York into the climate-change promised land. And it may be the Amish sect’s religious devotion and the First Amendment that does the derailing.

Let me explain. Last year, New York passed a law requiring the state’s utilities to be getting 70 percent of the electricity they sell from renewables by 2030 and to be selling 100 percent “clean” electricity a decade later. Thus, Cuomo wants lots of renewable-energy capacity built in New York and he wants it done as soon as possible. That was made apparent last month when Cuomo’s appointees at the New York State Siting Board rendered a quick 5-0 vote to approve the Alle-Catt project, which if built, would be the biggest non-hydro renewable project in the northeastern U.S.

The owner of the Alle-Catt project – Chicago-based Invenergy – wants to build 117 turbines each standing approximately 600 feet high, across 30,000 acres (about 47 square miles) in Allegany, Cattaraugus, and Wyoming counties. Invenergy says the $550 million project will return some $9.1 million per year to local communities.

But the 15 or 16 Swartzentruber families in Cattaraugus County don’t want the giant wind machines built near their homes or churches. On that fact rests a big test for the First Amendment rights – and land rights – of the Swartzentruber.

In a recent interview, Ginger Schröder, a member of the Cattaraugus County Legislature, who lives in Farmersville and is opposed to the wind project, told me that the Swartzentruber take seriously the line in Matthew that says “‘where two or three are gathered in my name, I will be in your midst.’ To them, that means whenever there is a community gathering, God is amongst them, and they don’t need to build a building to the glory of God. So they worship in their homes, they worship in their barns.”

Earlier this month, lawyers representing the opponents of the Alle-Catt project filed petitions for rehearing with the Siting Board in which they claim that the project will violate the First Amendment rights of the Swartzentruber to practice their religion. For more than a decade, rural governments and landowners from Scotland to Hawaii have been fighting the encroachment of wind-energy projects due to concerns about noise, human health, reduction of property values, tourism, and despoliation of ridgetops and viewsheds. The Alle-Catt case marks the first time opponents have used the First Amendment.

The petitions for rehearing seek to overturn the June 3 vote by the State Siting Board. The board members, who include New York Public Service Commission chair John B. Rhodes, and New York State Energy Research and Development Authority chairman Richard Kauffmann, approved the Alle-Catt project despite the objections of several towns, including Freedom and Farmersville.

At issue in the Alle-Catt case are the religious practices of the Amish as well as the home-rule rights of small communities to determine zoning within their jurisdictions. The rural backlash in New York against large-scale renewable projects has been so fierce that earlier this year, Cuomo pushed through a measure that allows the state to override the regulations implemented by local governments when siting energy projects.

In a recent phone interview, Farmersville Supervisor Pete Lounsbury – who was elected last November on an anti-wind platform – told me that when the town passed its law restricting the size and location of wind turbines, “We gave the Amish houses greater setbacks in the town law because they are used as places of worship.” Farmersville’s law required a 2,200-foot setback between wind turbines and the Swartzentrubers’ homes.

Lounsbury said that Cuomo’s appointees are “pushing thru anything that they can and are completely ignoring local opposition” and the rights of the Swartzentruber. If the petition for rehearing on the Alle-Catt project is rejected, he said, “I guess we will have to sue.”

In one of the petitions for rehearing, Gary Abraham, a Great Valley-based lawyer who represents the Coalition of Concerned Citizens, a local group opposed to Alle-Catt, wrote that the Siting Board’s June 3 decision made “no effort to consider a reasonable accommodation” for the Swartzentruber and rejected “the town’s interpretation and application of its own local law.” He added that the Swartzentruber refused to lease any of their land for the wind project and that they believe the 600-foot-high turbines will “adversely affect their ability to continue to live in harmony with the land and with God” and will “disrupt their religious ritual and practice.”

The battle over the Alle-Catt project is also about class. Allegany and Cattaraugus are among the poorest counties in New York. Of the 62 counties in New York, the two rank 59^th and 58^th respectively, in median household income. In Allegany County, the median household income is $47,033. In Cattaraugus County, it is $47,240. For comparison, the New York median household income is $65,323. (Wyoming County ranks 24^th in median household income).

On July 20, lawyers representing the Alle-Catt wind project filed a brief in opposition to the petition for rehearing in which they claim that opponents of the wind project don’t have standing to represent the Swartzentruber and that “there is no proof of an ‘injury in fact’” to the Amish. It continues, saying “The record contains no evidence that members of the Farmersville Amish community have sought to have their properties, or any buildings, declared a ‘church’ or ‘place of worship’ for purposes of the Town’s zoning law.”

There’s no small bit of irony that a handful of Amish families stand in the way of Cuomo’s devotion to renewables. The Swartzentruber don’t vote. They don’t file lawsuits. And they don’t use electricity. Indeed, by nearly every metric that modern society cares about, the Swartzentruber are an anachronism.

But their faith, which requires them to shun modern conveniences, may be the thing that saves them from the encroachment of Big Wind. As Schröder told me this week, “You don’t have to vote to be protected by the First Amendment.”