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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.

January 22, 2024

Proposed NYS Budget Includes Major Changes to ORES and Transmission Siting

As we previously reported, NYS Governor Kathy Hochul recently announced several clean energy initiatives for 2024 in her annual State of the State Address, including the proposed Renewable Action Through Project Interconnection and Deployment (RAPID) Act. Now that the budget bill language has been released, the proposed provisions of the RAPID Act have been made available for review.

Transfers ORES From Department of State to Department of Public Service

The RAPID Act seeks to facilitate more efficient siting of major renewable energy and transmission facilities. Recognizing the synergies of combining the New York State Department of Public Service’s (DPS) “long-standing expertise” in “transmission siting, planning, and compliance with environmental and reliability standards” with the expertise of the Office of Renewable Energy Siting (ORES) in “the siting of renewable energy resources,” the RAPID Act provides for the transfer of ORES from its current home within the Department of State to the DPS. Upon the transfer, all current ORES employees would also transfer to DPS. Further, all applications pending before ORES on the Act’s effective date will be deemed to have been filed under the RAPID Act as of their original ORES filing date. Section 94-c of the Executive Law will also be repealed once the RAPID Act is enacted, but all existing functions, powers, obligations, and duties granted to ORES by Section 94-c will remain with ORES after the transfer together with any new functions, powers, duties, and obligations set forth in the Act. The Section 94-c regulations that are in effect at the time of the transfer to DPS will continue as rules and regulations of DPS until modified or repealed to reflect the transfer without the need for additional proceedings under the State Administrative Procedure Act. 

Transfers Jurisdiction for Major Electric Transmission Facilities Permitting From the Public Service Commission to ORES

The RAPID Act also proposes to repeal the current Article VIII of the Public Service Law, which formerly governed the environmental review and permitting of major steam electric generation siting, and to create a new Article VIII that provides for a one-stop shop for the environmental review and permitting of both major renewable energy generating facilities and major electric transmission facilities by ORES within DPS. Currently, major electric transmission facilities are certificated by the Public Service Commission (PSC) under Article VII. With the creation of a new Article VIII of the Public Service Law, the Act transfers jurisdiction of that permitting regime to ORES, which is likely to result in changes to how the permitting process works. The RAPID Act makes clear that certain aspects of the permitting regime will remain similar to what is currently provided for under Section 94-c and Article VII. For instance, procedural requirements (i.e., the issuance of permits and approval processes) that would otherwise be required under applicable local laws and state law (unless part of a federally delegated or approved process) would be preempted by the new Article VIII, and ORES will have the authority to waive substantive local laws that are demonstrated to be unreasonably burdensome for either major renewable energy facilities or major electric transmission facilities in light of certain factors. 

The RAPID Act also requires ORES to adhere to the same timelines for permitting transmission facilities that it follows for renewable energy facilities under Section 94-c—with one notable difference. Under the current version of the RAPID Act, ORES will have 60 days from receipt of an application for major renewable facilities to determine its completeness; however, for major electric transmission facilities, ORES would have double that timeframe—120 days—to determine application completeness. For both types of facilities, once applications are determined complete, ORES would have another 60 days to issue a draft permit for public comment and one year from the initial application completeness determination to issue a final permit decision. It should be also noted that these timelines can be extended with the consent of ORES and the applicant and that, with the pre-application and post-permit compliance phases included, the overall permitting timeframe can extend well beyond one year. 

How the new Article VIII process for transmission facilities may otherwise differ from the Article VII permitting regime will remain unknown until ORES promulgates its regulations under Article VIII and establishes a uniform set of standards and conditions for these facilities. ORES will have 18 months from the date of the Act’s passage to establish those new regulations. Until then, applicants seeking to build major electric transmission facilities must continue to follow the state’s Article VII permitting regime. Once the Article VIII regulations are established, applicants grandfathered in under Article VII may also choose to opt into the Article VIII process. 

It is also important to note that under the current version of the RAPID Act, major electric transmission facilities proposed to be constructed “substantially within existing rights-of-way” would be exempt from the requirements of Article VIII. The Act, however, does not define what it means to be “substantially within existing rights-of-way” nor does it indicate whether those transmission facilities would continue to be certificated under the existing Article VII or otherwise permitted.

Creation of Farmland Protection Working Group

The RAPID Act also proposes to create a new Farmland Protection Working Group (Working Group), consisting of the Commissioner of the Department of Agriculture and Markets, the Commissioner of the Department of Environmental Conservation, the Executive Director of ORES, the Chief Executive Officer of the DPS, the President of the New York State Energy Research and Development Authority, local government officials or representatives from municipal organizations, and representatives from at least two county agricultural and farmland protection boards. 

The Working Group will recommend strategies to encourage and facilitate input from municipalities in the siting process as well as develop recommendations to recognize the value of viable agricultural land and methods to minimize adverse impacts to agricultural land. As proposed, the Working Group would release its recommendations no later than one year after the RAPID Act’s passage.

Ultimately, as proposed, the RAPID Act consolidates the environmental review, permitting, and siting of both major renewable energy facilities and major electric transmission facilities under the purview of ORES within DPS “as a single forum for the coordinated and timely review of such projects,” signaling a revamped renewable energy and electric transmission facility permitting regime in New York State that is designed to meet the state’s energy goals while also ensuring the reliability of the electric transmission system and protecting the environment. 

Barclay Damon’s attorneys will continue to monitor any modifications that may be proposed to the RAPID Act and provide updates accordingly once it is passed and ORES promulgates its new regulations.

If you have any questions regarding the content of this alert, please contact Brenda Colella, Regulatory Practice Group leader and Regulatory Practice Area co-chair, at bcolella@barclaydamon.com; Yvonne Hennessey, Environmental Practice Area chair, at yhennessey@barclaydamon.com; Ekin Senlet, Regulatory Practice Area co-chair, at esenlet@barclaydamon.com; Patty Naughton, partner, at pnaughton@barclaydamon.com; Dan Krzykowski, associate, at dkrzykowski@barclaydamon.com; or another member of the firm’s Regulatory or Environmental Practice Areas.

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