Since my December 2 blog post on the Act Promoting a Clean Energy Grid, Advancing Equity and Protecting Rate Payers, the Department of Energy Resources (DOER) has issued draft regulations and preliminary drafts of accompanying guidelines[1] governing the consolidated local permitting process for small clean energy infrastructure projects. The deadline for submitting written comments on the draft regulations is October 17, 2025. The Act requires the DOER to issue final regulations by March 1, 2026.[2]
I urge anyone involved in the permitting of small clean energy infrastructure in Massachusetts to scrutinize the draft regulations and guidelines closely. They impose significant new requirements on all “small” projects,[3] with questionable return. For example, applicants will now need to perform a new site suitability evaluation, undergo significant and time-consuming pre-application community engagement processes, and, in many instances, provide mitigation based on a broad set of newly developed criteria. In some instances, a municipality may even compel the applicant to pay the municipality a mitigation fee.[4] For their part, municipalities will be required to implement significant new procedures and provide relevant staffing and expertise under the new regime. Municipalities that lack sufficient resources may request the Energy Facilities Siting Board to perform these functions.
The DOER website contains the following succinct explanation of the Act’s requirements for small clean energy infrastructure projects:
The law establishes a 12-month deadline for municipal permitting and requires municipalities to issue a single permit at the end of their process. It also requires most infrastructure projects to receive a site suitability score and propose mitigation where appropriate. Similarly, state permits will be issued together by the Energy Facilities Siting Board (EFSB) after a 15-month period. Appeals of municipal permits will be directed to the EFSB, ending the years-long appeals process that has delayed vital infrastructure.[5]
The DOER’s brief explanation does not do justice to the incredibly comprehensive and exhaustive set of requirements that an applicant for a small clean energy infrastructure project will now need to satisfy. The draft regulations and guidelines apply to a broad range of small projects from less than 1 MW to 25 MW. The level of detail and effort required for a small project, such as a 5 MW solar array, is significantly higher than that currently required under most local permitting regimes. It is questionable whether a truly small project will gain enough meaningful benefit from the new permitting timelines and appeal provisions to justify the additional work required to comply with the regulations and guidelines.
Among many other interesting new twists are the two following examples: First, the Social and Environmental Burdens section of the draft Guideline on Minimization and Mitigation Measures is designed to outline how municipalities can require applicants to implement measures to “avoid, minimize, or mitigate negative impacts based on exposure to pollution, and additional public health and income criteria.” Rather than rely upon the Commonwealth’s current published criteria and mapping tool to identify overburdened communities and environmental justice populations, the draft guideline directs applicants to determine the impacts using a tool referred to as “MassEnviroScreen.” That is described as “a tool for identifying or prioritizing the most environmentally vulnerable or burdened communities in Massachusetts based on a cumulative burden score that incorporates exposure to pollution and climate risks and the presence of sensitive or vulnerable populations, as well as whether the community meets criteria related to lower household income. It is intended to act as a supplement to the Massachusetts Environmental Justice Population definition.” [6] But it is very unclear who created MassEnviroScreen or what data it uses to rate communities as burdened. Second, as noted above, a municipality may impose a mitigation fee on projects that do not receive favorable site suitability scores. The maximum fee per acre is the mitigation fee rate established by the DOER for solar projects under the SMART program pursuant to 225 CMR 28.09. That fee is currently $50,000 per acre.[7] For small projects that will consume significant acreage, such as a 20-acre 5MW solar array, the fee could be as high as $1,000,000. In the face of high mitigation fees, additional burdens from the new regulatory program, and the loss of federal incentives for renewable energy projects, it appears that the intention to incentivize small clean energy projects may not be realized.
[1] Pre-filing Stakeholder Engagement, Uniform Set of Baseline Health, Safety, Environmental and Other Standards, Common Permit Conditions, Minimization and Mitigation Measures
[2] In addition, the Energy Facilities Siting Board has opened a proposed rulemaking to adopt draft regulations governing the new consolidated state permit process for large clean energy infrastructure projects, which I will explore in a future post. The final deadline for submitting written comments is November 7, 2025. Further information is available at this webpage: EFSB 25-10 – Proposed Rulemaking | Mass.gov
[3] Small projects include: anaerobic digestion, solar and wind generating facilities under 25 MW, storage facilities under 100 MWh, and smaller distribution and transmission infrastructure can be found in section 23 of the act, which adds a new section 21 to M.G.L. c. 25A. Large projects whose local and state permits will be issued by the Energy Facilities Siting Board (EFSB) include: anaerobic digestion, solar and wind projects greater than 25 MW, and large clean energy infrastructure facilities (storage over 100MWh, and larger transmission and distribution facilities). Sections 53-74 of the Act, which amends the EFSB statute at M.G.L. c. 164, § 69G et. seq.
[4] According to the draft Guideline on Minimization and Mitigation Measures: “per 225 CMR 29.07(6) at their discretion, Local Governments may require the Applicant to pay Compensatory Environmental Mitigation Fees if the project’s Total Site Suitability Score is above 15, or any Criteria-specific Suitability Score is a four or above.”
[5] Clean Energy Siting & Permitting Regulations | Mass.gov
[6] MassEnviroScreen – MassEnviroScreen Cumulative Burden Score – A Supplement for Environmental Justice Prioritization
[7] See Section 7 of the DOER Guideline Regarding Land Use, Siting and Project Segmentation Microsoft Word – Land Use, Siting, and Project Segmentation Guideline.docx
