New York Passes Sweeping Renewable Energy Siting Reform

By By Kristina Magne | Posted on April 22, 2020

The Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”) has recently been passed as Part JJJ of Governor Cuomo’s 2020-21 enacted state budget. The Act adds a new section 94-c to the Executive Law, titled Major Renewable Energy Development (the “94-c Process”), which is intended to establish an expedited review process with uniform permit standards for New York State renewable energy projects in place of the procedures set forth in Article 10 of the Public Service Law (“Article 10”).

The Act creates a newly-established Office of Renewable Energy Siting (“ORES”), within the New York State Department of State, as part of the 94-c Process to provide a single forum for the environmental review and permitting of proposed major renewable energy facilitates, which includes renewable energy systems with a nameplate generating capacity of 25,000 kilowatts or more, co-located energy storage systems, and electric transmission facilities less than 10 miles in length. Additionally, while Article 10 applications that have received a completeness determination will be deemed complete under the new 94-c Process, the Act allows projects currently undergoing the Article 10 siting process to either remain in Article 10 or opt-in to the new expedited process established under Executive Law Section 94-c. The rules and regulations adopted by the ORES will include an expedited permitting process to account for matters and issues already presented and resolved in the alternate Article 10 proceedings.

Under the 94-c Process, the ORES will “establish a set of uniform standards and conditions for siting, design, construction and operation of each type of major renewable energy facility.” The Act further provides that where site-specific environmental impacts cannot be addressed by the uniform standards and conditions, ORES will draft site-specific conditions to address environmental impacts; and where the uniform and site-specific conditions do not completely address the environmental impacts, and ORES determines that mitigation may be achieved off-site, ORES may require payment of a fee by the applicant to achieve such off-site mitigation. The Act also authorizes the ORES to conduct hearings and dispute resolution proceedings, issue permits, and adopt any necessary implementing rules, regulations and procedures regarding the same.

The Act also adds a new Title 9-B to Article 8 of the Public Authorities Law to establish a Clean Energy Resources Development and Incentives Program, which empowers NYSERDA to establish programs to “foster and encourage the orderly and expedient siting and development of renewable energy facilities,” particularly at difficult to develop sites; “incentivize the re-use of previously developed sites”; support provision of benefits to host communities; and “protect environmental justice areas from adverse environmental impacts.”

Additional provisions of the Act include requiring DPS, in consultation with NYSERDA, NYISO, utilities and others, to conduct a comprehensive study to identify, and prepare plans to facilitate development of, necessary distribution upgrades, local transmission upgrades and bulk transmission investments needed or appropriate to timely achieve New York State Climate Leadership and Community Protection Act (“CLCPA”) targets; requiring the PSC to commence a proceeding to establish a host community benefit program under which renewable owners will fund programs to provide a discount or credit on utility bills to customers in a renewable host community or a compensatory or environmental benefit to such customers; and establishing an Endangered or Threatened Species Mitigation Bank Fund for purposes of implementing a DEC-approved endangered or threatened species mitigation plan to facilitate the achievement of net conservation benefits to endangered or threatened species potentially impacted by major renewable energy facilities.

For more information on the Act and its implications, contact Jim Muscato, Head of the Firm’s Energy Practice Area.