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February 19, 2020

NYS Board on Electric Generation Siting and the Environment Adopts Emergency Rule to Accelerate Renewable Energy Projects

On February 13, the NYS Board on Electric Generation Siting and the Environment released a memorandum and resolution in case 20-F-0067, adopting emergency amendments to Article 10 for siting major electric-generating facilities. The amendments include minor changes to the siting board’s regulations at Parts 1000 and 1001, implementing a new definition of “revision” as well as a reduction in the required area for wetland mapping, which became effective on February 13.

The Article 10 process was initially meant to streamline the application process for developers while also engaging the public and providing a stringent process to ensure environmental and public health laws were followed. However, as Governor Cuomo pointed out in the State of the State address in January, the reality of the Article 10 process is very different––an energy project under Article 10 can take five to 10 years before construction can begin. Currently, none of the certified projects in New York State have started construction. This not only hinders the initial purpose of Article 10 and the goals set forth in New York’s Climate Leadership and Community Protection Act, but also developers looking to invest in New York State’s renewable energy potential. This frustration is evident by the emergency nature of these regulatory changes.

A predominate issue in the siting process, and one which the amendments seek to address, is the burdensome requirements even after a project has been approved and permitted. Currently, under Article 10, when an applicant seeks to amend an approved project due to shifting of project components during construction planning and the amendment is deemed “likely to result in any material increase in any environmental impact of the facility or a substantial change in the location of all or a portion of a such facility,” the regulations require a complete rehearing.

The existing definition of “revision” is included in this provision due to a stringent “bright-line test.” The bright-line test relates to the shifting of any wind turbine, access road, or electric collector line, and any proposed relocation more than 500 feet away is subject to a full rehearing and potential briefing that would likely take many additional months to complete. The rehearing is necessary even if the triggering revision may be environmentally beneficial or is necessary to further mitigate environmental impacts.

The regulatory amendments implement a new definition of “revision” by removing the 500-feet bright-line rule and refocus the definition on whether an amendment is actually likely to result in a significant adverse environmental impact. It also includes the notion of a “modification,” which is a certification amendment that is not a “revision.” The siting board is now required to determine whether a proposed amendment is a revision or a modification within 14 days of an applicant submitting an amendment.

Additionally, the emergency rulemaking also reduces the wetland mapping requirement from 500 feet to 100 feet. This change will make the requirement consistent with the Department of Environmental Conservation’s existing wetlands regulations that are applicable to non-Article 10 projects.

The siting board’s emergency rulemaking is meant to mitigate unintended consequences of subjecting parties and the hearing examiners to costly and time-consuming administrative litigation, incurring regulatory delays that may render renewable energy projects uneconomic and discouraging further renewable energy development in New York State. According to the siting board, the need to immediately adopt this rulemaking is based on the number of projects that have been certificated to date and the fact that the construction season is quickly approaching. The siting board also acknowledged that further regulatory delays could cause developers to miss this year’s construction season, potentially making it more difficult and costly for New York State to meet its clean energy goals set by the recently enacted Climate Leadership and Community Protection Act (CLCPA).

This emergency rule by the siting board quickly followed the address by Governor Cuomo in which he suggested “flip[ing] the whole model” as well as a letter he wrote to the IPPNY––a trade organization group made up of private energy providers and developers––that suggested numerous changes to Article 10 to improve the process. Therefore, these amendments, although minor, are a promising indication that the siting board is listening to developers undergoing the lengthy Article 10 process.

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; Yvonne Hennessey, Environmental Practice Area chair and co-team leader of the Oil & Gas, Linear Infrastructure, and Energy Markets Teams, at yhennessey@barclaydamon.com; Ekin Senlet, partner, at esenlet@barclaydamon.com; or another member of the firm’s Energy Team.

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