New York State Office of Renewable Energy Siting Sets Precedent in Section 94-c Permit Proceedings: When Major Renewable Energy Projects Need Not Comply with Local Laws

Foley Hoag LLP - Energy & Climate Counsel

Foley Hoag LLP - Energy and Cleantech Counsel

In its first such determination, on June 4, 2021, the newly formed New York State Office of Renewable Energy Siting (“ORES”) determined that several provisions of the Town of Barre’s (Orleans County) local law are “unreasonably burdensome” in light of the State’s Climate Leadership and Community Protection Act (CLCPA) goals and the environmental benefits of the proposed 185 megawatt Heritage Wind Project, and therefore declined to apply them. This determination sets a precedent under the State’s Executive Law Section 94-c permitting regime for major renewable energy facilities, enacted in the 2020 legislative session, providing an example for how ORES may subject such projects to local zoning requirements and standards – or not – and what showing an applicant must make in order to support such an ORES determination. As Anne Reynolds, executive director of the Alliance for Clean Energy – New York (“ACE-NY”) stated when the law was enacted, “[Section 94-c] improves the process and will hopefully get people to work, building wind and solar projects.” ORES’s determination is the next step in that process.

Similar determinations were issued for pending solar transfer applications (that is, transferring from the previously required “Article 10” permitting process to the new 94-c process) earlier in the week. ORES’s determinations mean that the applicants must construct their projects in accordance with ORES’s regulations and site-specific conditions in lieu of certain local standards that would otherwise apply to the construction and operation of the projects.

In its original Article 10 application, Heritage Wind requested that the New York State Siting Board not apply certain provisions in local laws or ordinances to the project. In January 2021, Heritage Wind opted into the Section 94-c permitting process by filing a Transfer Application with ORES, thereby subjecting the request to a different standard. Under Article 10, the Siting Board could elect not to apply local law if it found that the local requirement was unreasonably burdensome “in view of the existing technology or the needs of or costs to ratepayers whether located inside or outside of such municipality.” Like the Article 10 Siting Board, ORES may issue a permit only if it finds that the project would comply with applicable laws and regulations; however, it may elect not to apply local law if its finds that the local requirement is unreasonably burdensome in “view of the CLCPA targets and the environmental benefits of the proposed renewable energy facility.” This shift from technology and cost to state climate goals and environmental benefits left many stakeholders wondering when and what type of local standards may be deemed inapplicable.

ORES agreed with Heritage Wind that eight (8) provisions of local law are unreasonably burdensome and should not apply to the project, even where changes in local law from the time of application submission resulted in new local standards. These provisions pertain to wind turbine noise standards, a prohibition on the use of guy wires, shadow flicker requirements, wind turbine height limitations, the extent of required forest restoration, permitted timing of construction activities, burying of turbine foundations, and decommissioning timelines and related requirements. For each local standard or requirement, Heritage Wind provided testimony or analyses asserting the technological infeasibility or environmental impact of complying with the local standard. Several provisions, the applicant noted, would in fact have a negative impact on the community or the environment, or raise security concerns, as compared to the applicable 94-c standard.

With regard to local wind turbine noise standards, which required that turbine noise be limited to 45 dBA measured at a distance of 1,000 feet from the base of the turbine, the applicant pointed to the unavailability of a commercial turbine model that would meet that standard and provided comprehensive noise studies showing that the proposed project is designed to meet the same noise standards imposed by the Article 10 Siting Board, which informed the standards applicable under Section 94-c. Further, the applicant showed that it appropriately avoided or minimized adverse noise impacts to the extent practicable by designing the project in accordance with existing state standards and it could not implement other measures to meet the local requirement.

Pursuant to ORES’s 19 NYCRR Part 900 regulations, local municipalities are required to submit a statement as to whether the proposed project complies with local law. The Town’s and County’s joint statement asserted that the applicant’s request was moot due to recent local law amendments that repealed the noise standard. The Town further maintained that substantial and significant issues requiring adjudication existed due to the project’s noncompliance with the Town’s new wind turbine standards. Despite testimony and findings from the Town’s engineer asserting the reasonableness of the new standard, and party petitions in support of the Town’s findings, ORES elected to not apply either local standard and instead imposed a permit condition requiring that the applicant submit updated noise modeling as a pre-construction compliance filing. In making this determination, ORES leaned on established precedent in Article 10 wind facility proceedings that was developed over seven years of Siting Board decisions. ORES also rejected the Town’s late filed assertion that the applicant’s request raised an issue for adjudication.

ORES’s determination provides several key takeaways for 94-c applicants and those looking to acquire projects seeking 94-c permits. First, ORES may be willing not to apply local standards that lack scientific basis and do not align with the 19 NYCRR Part 900 uniform standard or conditions where an applicant can demonstrate technical infeasibility, economic infeasibility, or detriment to consumers from complying with the local requirement, while demonstrating the ability to comply with the 19 NYCRR Part 900 standards (or Article 10 precedent for transfer applications). Second, where ORES determines not to apply local law, one can expect to see a site-specific permit condition requiring compliance with a 19 NYCRR Part 900 standard or the submission of additional compliance filings. Third, ORES will take a hard look at whether municipalities’ statements of compliance and party briefs raise substantive and significant issues for adjudication. A change in local law, without a showing of the scientific basis for the new standard or why the applicant’s inability to comply is unreasonable, will not be enough. Party briefs that merely support a municipality’s position will likely not suffice either. Lastly, a determination that the project complies with ORES’s regulations and Section 94-c is a condition precedent to ORES’s recommendation to issue the draft permit. Where ORES determines that local laws are unreasonably burdensome, the applicant will be required to meet any imposed site-specific conditions in order for the project to be deemed in compliance with the ORES regulations and Section 94-c.

While ORES’s determinations to date have been limited to projects that transferred into Section 94-c from Article 10, and thus have the benefit of a more developed record, ORES’s determinations shed light on when a local standard may be deemed to stand in the way of the project’s environmental benefits and contribution to the State’s CLCPA goals. Project developers and acquirers should take note as they set their course for working with local jurisdictions and ORES to develop the State’s large-scale renewable energy fleet.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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