Local Communities and Environmental Groups Bring Challenge to the New York State Office of Renewable Energy Siting’s Regulations for Siting and Permitting Major Renewable Energy Facilities

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On June 29, 2021, a cohort of New York local governments (including many where large-scale solar projects are currently proposed), community organizations, and avian interest groups filed a lawsuit in the New York State Supreme Court (the State’s trial-level court) against the Office of Renewable Energy Siting (“ORES”).  ORES is required to respond to the allegations no later than 30 days from receipt.

The ORES was created under the Accelerated Renewable Energy Growth and Community Benefit Act, which included Section 94-c of the New York State Executive Law, passed and signed into law in 2020. The statute created a new siting permit authority and process for large-scale renewable energy projects, and required the ORES to promulgate regulations to govern its consideration of project applications. The ORES and Section 94-c process effectively replaced the “Article 10” Siting Board and process, which had been widely criticized as ineffective.

What’s the Complaint About?

In their complaint, plaintiffs make three main allegations, all of which challenge the regulations promulgated by the ORES on March 3, 2021 – specifically the uniform standards and conditions for the permitting of large-scale renewable energy projects.

First, the plaintiffs allege that the regulations violate the State Environmental Quality Review Act (“SEQRA”) because ORES mischaracterized the regulations as an “Unlisted Action” under SEQRA and issued a negative declaration of environmental significance.

Second, the plaintiffs allege that these regulations violate the Home Rule provision of the New York State Constitution because the regulations lack a standard by which ORES may determine not to apply local law.

Third, the plaintiffs allege that ORES violated the State Administrative Procedure Act (“SAPA”) by failing to consider alternatives to the draft uniform standards and conditions that ORES issued on September 16, 2020.

What Do Plaintiffs Argue About SEQRA?

The plaintiffs focus heavily on the allegation that ORES erred in issuing a negative declaration of environmental significance for the draft Section 94-c regulations and should have prepared a full Environmental Impact Statement. In support of this argument, the plaintiffs rely on the directive in Section 94-c that ORES promulgate regulations that “avoid or minimize, to the maximum extent practical, any potential significant adverse environmental impacts related to the siting, design, construction, and operation of a major renewable energy facility.” Plaintiffs contend that ORES’ characterization of its promulgation of the draft regulations as an “Unlisted Action” under SEQRA, and issuance of a negative declaration, fell short of SEQRA’s mandate that the lead agency take a “hard look” at actions triggering environmental review.

In the Short Form Environmental Assessment Form (SEAF) and Amended SEAF, ORES characterized the promulgation of the regulations as an “Unlisted Action” — one which does not necessarily require full SEQRA review — because the regulations themselves do not provide approval to construct or operate a major renewable energy facility. Rather, ORES observed that the environmental impact of each project would be reviewed on a case-by-case basis in the Section 94-c permit review process, and each would be required to avoid or minimize adverse environmental impacts to the maximum extent practicable.

Notably, in its 2021 session, the New York State Legislature amended the Environmental Conservation Law to clearly exclude from SEQRA review those actions requiring a siting permit under Section 94-c. Plaintiffs bootstrap this development into a claim that the ORES-promulgated uniform standards and conditions should have undergone a more robust SEQRA review. They state:

[A]pplications for specific projects under Exec L. 94-c are excluded from SEQRA Review. N.Y. ECL § 8-0111(5)(b). Hence the sole opportunity for SEQRA review under the Exec. L 94-c expedited siting process comes during the establishment of the Uniform Standards and Conditions. ORES cannot shirk its responsibility under SEQRA to prepare a full EAF and an EIS [Environmental Impact Statement] by promising that it will perform its statutory duty to “minimize or mitigate potential adverse environmental impacts” during the highly expedited application process, which is itself exempt from SEQRA.

What Do Plaintiffs Argue About Home Rule?

Plaintiffs’ Home Rule cause of action echoes the complaints of numerous municipalities with respect to both Article 10 and Section 94-c. The plaintiffs allege that ORES violated the New York State Constitution by issuing regulations that allow ORES to not apply local laws on a case-by-case basis if they are deemed “unreasonably burdensome” under certain criteria outlined in Section 94-c, and by issuing standards and conditions that are in some cases less stringent than the plaintiff municipalities’ local requirements. The complaint goes so far as to allege that ORES cannot apply any standard for wind turbine tower height where a town does not have a local wind tower height standard.

Under the Home Rule provision of the New York State Constitution, the legislature cannot pass a law overriding local law unless such law is either generally applicable – that is, that it applies to all towns in the State equally – or is passed by a two-thirds vote of the legislature or an emergency declaration issued by the Governor with concurrence from two-thirds of the legislature. The plaintiffs allege that Section 94-c improperly gives ORES carte-blanche authority to not apply local laws in the interest of state policy and that ORES’ implementing regulations fail to describe the standard ORES must apply in determining whether not to apply local law.

What do Plaintiffs Argue About SAPA?

According to plaintiffs:

ORES received over 5,000 public comments on its draft regulations…. Many public comments identified reasonable alternatives to the specific provisions of the ORES draft regulations. ORES failed to adequately explain why it would not consider alternatives raised in the comments. ORES said only that it ‘made several non-substantive changes’ but otherwise rejected all alternatives without providing any substantive rationales.

Plaintiffs –point to the expedited timeline required by the Accelerated Renewable Energy Growth and Community Benefit Act as the source of the alleged procedural deficiencies:

Speed is important under Executive Law 94-c…. But speed is not everything: in keeping with the CLCPA [(Climate Leadership and Community Protection Act)], the community protection provisions of the law require ORES to ‘ensur[e] protection of the environment’ and consider ‘all pertinent social, economic, and environmental factors’ in the permitting process, and to ‘afford meaningful involvement of citizens affected by the facility.’

Plaintiffs allege that ORES did not (but should have) considered these factors in consultation with the New York State Energy Research and Development Authority (NYSERDA), the Department of Public Service, the Department of Agriculture and Markets, and other relevant state agencies with subject matter expertise, and should not have hired a private consulting company that also works for project developers to assist in drafting the regulations, reviewing and responding to public comments, and reviewing specific project applications.

What are the Plaintiffs Asking the Court to Do?

Plaintiffs ask the court to strike down ORES’ regulations and remand to ORES with direction to promulgate regulations in compliance with SEQRA, SAPA, and the Home Rule provision of the New York State Constitution; enjoin ORES from taking any action on applications under Section 94-c; toll the time period for ORES review under Section 94-c so as to avoid the constructive approval of any pending Section 94-c permit applications due to the passage of time; and allow any entity who filed an application under Section 94-c to transfer the application to the Article 10 Siting Board.

What Does this Mean for Pending ORES Applications?

In the meantime, ORES continues to review three Section 94-c permit applications, two of which involve plaintiffs to the lawsuit. The court will need to analyze in short order how to proceed not only with applications already filed, but also with the numerous project applications expected to be submitted to the ORES in the coming weeks and months. The expedient progression of these applications is widely viewed as crucial to maintaining the state’s pace toward achieving its statutorily-required goal of 70 percent renewable energy consumption by 2030.

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