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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

April 8, 2020

Deep Dive: New Accelerated Process for NYS Renewable Energy Siting

Last Friday, we issued a legal alert announcing that the NYS Legislature had passed the Accelerated Renewable Energy Growth and Community Protection Act to expedite siting renewable energy projects.

Critics of the existing siting process for major electric generation facilities—Article 10 of the Public Service Law—insisted that Article 10’s complex and costly requirements were hindering the development of renewable energy projects essential to the realization of New York State’s aggressive clean energy goals under the Climate Leadership and Community Protection Act. The new Act carves “major renewable energy” facilities out of the Article 10 process, but leaves the Siting Board’s jurisdiction under Article 10 in place for other types of energy projects, such as gas-fired generation facilities.

Defining Major Renewable Energy Facilities

Under the Act, the Department of State will house a newly created Office of Renewable Energy Siting, which will have the exclusive authority to issue siting permits for major facilities (25 MW or more) that generate electricity or thermal energy through any one of a wide array of renewable and sustainable technologies, including solar thermal, photovoltaics, wind, hydroelectric, geothermal electric, and tidal energy, among others. 

The Siting Office’s authority extends not only to a facility’s generating component, but also to any co-located energy storage system and transmission lines less than 10 miles in length that are necessary to integrate the new renewable energy facility into the state’s bulk transmission grid. The Act does not apply to facilities that are subject to exclusive federal siting jurisdiction (certain offshore wind facilities) or to the regular maintenance, repair, or non-material improvements to any facility performed in the ordinary course of business. 

New Uniform Standards and Conditions 

One of the Act’s principal mechanisms to expedite the siting process consists of uniform standards and conditions applicable to each type of major renewable energy facility. Within the next 12 months, the Siting Office must promulgate these uniform standards, holding public hearings, soliciting public comment, and consulting with state agencies in the process. As conceived, the uniform standards will address the significant adverse environmental impacts typically associated with each type of renewable facility. Also in the first year, the Siting Office must promulgate rules and regulations governing the siting process. Until such time, applications before the new Siting Office will continue to be governed by the Article 10 application requirements.

New Fees and Mitigation Fund

The Siting Office must also address a facility’s potential environmental impacts on a case-by-case basis. The Act requires the Siting Office to consult with the NYS Department of Environmental Conservation to identify site-specific environmental impacts not addressed by the uniform standards and to draft permit terms and conditions addressing those impacts, including provisions for avoidance and mitigation. The Siting Office has broad authority to determine whether a project’s impacts may be accomplished through off-site mitigation and, if so, may require an applicant to pay a fee for those purposes. The amount of this fee is not disclosed in the Act. The Siting Office may also order the payment of fees into the Endangered and Threatened Species Mitigation Fund, also established by the Act, to mitigate impacts to those species. Finally, the Siting Office may charge an application fee to cover its costs of application review and processing.

New Expedited Timeframes

The Act imposes stringent timelines on the Siting Office’s decision-making process with consequences for its failure to act within the applicable time period:

  • The Siting Office must determine whether an application is complete within 60 days of its receipt of the application. The Act eliminates the mandatory filing of both the public involvement plan and preliminary scoping statement, although intervenor funding ($,1000 per MW) is still required. 
    • If the Siting Office fails to make a determination within 60 days, the application is deemed complete as long as there is proof that the applicant consulted with the local municipalities. 
  • Within 60 days after the application is deemed complete and following consultation with relevant state agencies, the Siting Office must publish draft permit conditions for public comment, and the comment period will be open for 60 days.
  • The Siting Office must make a final decision on a siting permit within one year from the date that the application is deemed complete.
    • This timeframe is shortened to six months if the project is proposed to be sited on an existing or abandoned commercial use site (e.g., brownfields, landfills, former commercial or industrial sites, dormant electric generating sites, and abandoned sites)
  • If the Siting Office fails to make a final permitting decision within these mandatory time frames (unless the applicant has agreed to an extension of not greater than 30 days), the siting permit is deemed granted. 

Local Law Analysis

The Act also attempts to harmonize issues that arise due to conflicts between a proposed project and local laws. Any municipality that has received notice that a siting application has been filed must submit a statement to the Siting Office within 60 days after issuance of the draft permit indicating whether the proposal is in compliance with local laws. If the municipality indicates that the proposed facility does not comply, the Siting Office can decide to hold an adjudicatory hearing on the application. If it chooses not to, a non-adjudicatory public hearing will be held in the affected municipality. 

Additionally, if comments on the draft permit—whether made by the public or the host municipality—raise a substantive and significant issue requiring adjudication, the Siting Office will hold an adjudicatory hearing. The Siting Office will define the term “substantive and significant” in the new regulations it adopts.

Also, any party aggrieved by the issuance or denial of a permit by the Siting Office may seek judicial review of the decision in the appellate division of the proposed project’s location. All proceedings will receive expedited treatment by the courts.

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Area co-chair and co-team leader of the Renewable Energy and Energy Markets Teams, at bcolella@barclaydamon.com; Patty Naughton, partner, at pnaughton@barclaydamon.com; Ekin Senlet, partner, at esenlet@barclaydamon.com; or Angela Sicker, law clerk, at asicker@barclaydamon.com.
 

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