In tentative decisions issued on April 26, 2023 (here and here), the Massachusetts Energy Facilities Siting Board (EFSB) proposes to conclude that it lacks jurisdiction under current laws to review battery energy storage systems (BESS). These decisions were issued in two dockets – Cranberry Point Energy Storage, EFSB 21-02, and Medway Grid, LLC, EFSB 22-02 – both of which involved developers requesting that the EFSB approve construction of energy storage projects under G.L. c. 164, § 69J¼. That statute requires EFSB approval prior to constructing a “generating facility” with a gross capacity of 100 MW or more. The EFSB is accepting public comments on these tentative decisions until May 5 and has scheduled a remote hearing for May 10 – see the notice here. At the May 10 meeting, the EFSB will decide whether or not to adopt the conclusions reached in the tentative decisions.
There is a long history here. Back in 2019, the Cranberry Point project filed a request for a jurisdictional determination on this issue (EFSB 19-01). We posted on the questions raised in that docket at the time (see here and here). While comments were filed in that docket, there was no resolution, and, in 2021, Cranberry Point withdrew its request for a jurisdictional determination and filed a petition for approval. That project went through considerable evidentiary and comment proceedings, in addition to briefing. While that petition was pending, Medway Grid filed a petition for approval in early 2022. It too has gone through significant proceedings.
Assuming the tentative decisions are finalized, this position may surprise many in the industry, who had been watching the Cranberry Point and Medway dockets as they developed over the last 4+ years. The legal issue is whether a battery energy storage system is a “generating facility,” which incorporates both interpretation of dated Massachusetts statutes that have evolved inconsistently over time and complex factual distinctions. In large part, the EFSB’s tentative decision suggests that, while the Legislature has updated other statutes to account for BESS, it has not updated the EFSB’s jurisdiction, leaving the EFSB without clear authority to extend over these emerging and important energy resources.
As a practical matter, the tentative decisions tee up a question of whether energy storage systems benefit from avoiding the sometimes lengthy and intensive EFSB process, or are harmed by losing the associated ability to seek a “certificate of environmental impact and public interest” under G.L. c. 164, § 69K½. That certificate can allow energy facilities to effectively override or supersede other state and local authorities preventing the development of a project.
Importantly, the tentative decisions leave open the possibility that BESS projects can obtain zoning exemptions under G.L. c. 40A, §3. That statute allows a “public service corporation” to obtain exemptions from local zoning upon a petition to the Department of Public Utilities (DPU). For projects also subject to EFSB review, these determinations are frequently combined, and both Cranberry Point and Medway had asked for zoning relief. In the tentative decisions, the EFSB determined that, since it no longer has jurisdiction to review the projects under its independent authorities, the requests for zoning relief will be handled by the DPU. The tentative decisions do not address the merits of the requests for zoning relief.
It will also be interesting to see whether these decisions lead to any efforts to update the statutes governing the EFSB, many components of which, as the tentative decisions note, date back to 1973 and have not been significantly updated since the 1997 Restructuring Act.
