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April 3, 2020

NY State Legislature Passes Budget and Includes Major Changes for Siting of Renewable Energy Projects

On April 2, 2020, the New York State Legislature passed the state budget, and it includes the Accelerated Renewable Energy Growth and Community Benefit Act (the Act). Enacted in the wake of the Climate Leadership and Community Protection Act (CLCPA) with its ambitious renewable energy goals, the Act primarily seeks to streamline and expedite the siting process for renewable energy projects. 

The Act’s first major component - the Major Renewable Energy Development Program -- effectively overhauls the existing siting program for major renewable energy facilities, divesting the New York State Siting Board of such authority and endowing a newly -- created the Office of Renewable Energy Siting (the Office) with plenary siting jurisdiction.

Housed in the New York Department of State, the Office will have exclusive “siting permit” authority over all proposals for major renewable energy projects (25 megawatts or greater) in the state. Projects with a capacity between 20 and 25 megawatts are allowed to opt in, as are renewable energy projects currently pending before the Siting Board.  The Act simplifies the current siting process under Article 10 of the Public Service Law by eliminating several of its most time-consuming elements, including many pre-application procedures and documents, such as the Public Involvement Plan, Preliminary Scoping Statement, and the stipulation process. By contrast, the new law imposes only one pre-application requirement: consultation with the local government(s) where the project is located. And while the Act provides intervenor funding enabling public participation by both local governments and community groups, evidentiary hearings will be held only if an intervenor can establish a “substantive and significant issue” warranting adjudication. 

To expedite the process further, the Act requires the Office to establish uniform standards and conditions applicable to each type of major renewable energy facility, although project-specific conditions may be imposed if warranted, and empowers the Office to waive any local law if it finds it to be “unreasonably burdensome in view of the CLCPA targets and the environmental benefits” of the project.  The Act mandates that the final permitting decision be made within twelve months from the date the application was deemed complete, but accelerates this timeline to six months if the project is sited on “an existing or abandoned commercial use,” such as a brownfield site, landfill or former electric generating property. 

Beyond creating a new siting process, the Act also establishes a “Clean Energy Resources Development and Incentive Program,” under which NYSERDA will pursue “build ready” sites for renewable development and utilize a competitive solicitation process to transfer projects to private developers.

Additionally, the Act includes a “State Power Grid Study and Program to Achieve CLCPA Targets,” requiring the Department of Public Service to complete the power grid study within nine months, and to open two new dockets -- one, to establish a capital expenditure plan for local utility upgrades, and another to develop an investment plan for bulk transmission upgrade. The Public Service Commission is further directed to identify “Priority Transmission Projects” that the Power Authority of the State of New York (NYPA) can pursue. NYPA is required  solicit interest from potential co-participants prior projects and to assess whether joint development would provide significant additional benefits in achieving CLCPA targets. NYPA may also choose to develop projects on its own

Lastly, other provisions of the Act address a host community benefit program, new deadlines for the Article VII permitting process for transmission, and the creation of an  Endangered and Threatened Species Mitigation Bank Fund to support the net conservation benefit plans associated with major renewable energy projects. The Act takes effect immediately and sunsets on December 31, 2030.

Barclay Damon will be taking a deeper dive into each of these new programs and laws developed by the Act in future legal alerts coming soon.

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.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates on non-trademark-related COVID-19 matters and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com

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