New York Takes Action to Expedite Renewable Energy Siting and Development

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On April 1, 2020, Gov. Andrew M. Cuomo and the Legislature agreed to adopt the Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”) to expedite and streamline the regulatory review process for siting major renewable energy projects, including wind, solar, and energy storage. The Act is intended to remove cumbersome barriers to development in order to help the New York achieve emissions targets in the Climate Leadership and Community Protection Act (the “CLCPA”), which requires New York to obtain (1) 70 percent of its electricity from renewable energy by 2030, (2) 100 percent emissions-free electricity by 2040, (3) 9,000 Megawatts (MW) of offshore wind capacity by 2035, (4) 6,000 MW of solar energy by 2025, and (5) 3,000 MW of energy storage capacity by 2030.

The Act establishes a new Office of Renewable Energy Siting (the “Siting Office”) located within the Department of State that will be responsible for overseeing the permitting process for all renewable energy projects greater than 25 MW in size, as well as any project of at least 20 MW that elects to opt-in. Importantly, the Act eliminates the need to obtain any other State or local approvals, meaning projects greater than 80 MW will no longer need to obtain a separate approval under Section 68 of the Public Service Law. In addition, projects that propose to connect to the electric grid via transmission lines less than 10 miles in length will also be included as part of the streamlined review process and will no longer need to go through the lengthy and costly Article VII approval process.

To implement this new siting process, the Siting Office must adopt uniform standards and conditions for each type of major renewable energy facility within one year of the effective date of the Act. These standards and conditions will be developed only after consultation with other state agencies and local municipalities, including holding a series of four public hearings across the state for local input. The uniform standards and conditions, as well as any site-specific conditions that may be required, must achieve a net conservation benefit to any impacted endangered and threatened species, which may require applicants to provide off-site mitigation or additional funding.

Save for certain limited exceptions, all new renewable projects must apply to the Siting Office for permitting approval. Until new regulations are issued, applications for major renewable energy facilities must substantially conform to the application requirements in Article 10 of the Public Service Law (“PSL”).

The Act, which takes effect immediately, will sunset on December 31, 2030.

New Siting Process for Major Renewable Projects

Within 60 days of receipt of an application for a major renewable energy project, the Siting Office must determine whether the application is complete. Once a completeness determination is made, the Siting Office has 60 days to publish draft permit conditions applicable to the project, which the public and affected municipality will then have 60 days upon which to provide comment. Adjudicatory hearings, similar to evidentiary hearings, will be held only if the public comments raise a “substantive and significant issue.” Non-adjudicatory hearings will be required whenever a municipality provides notice that a project does not comply with local laws. Unless otherwise waived by the Siting Office, project applications must comply with all local laws and regulations. The Siting Office may override any local law or ordinance upon finding that the law or regulation is “unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed major renewable energy facility.”

Similar to the existing Article 10 process, all applications must be accompanied by the payment of a fee in an amount equal to $1,000 per MW of the proposed facility. These funds will be utilized for participation by municipalities and local community intervenors that wish to provide public comment or participate in any required hearings. The Siting Office may also assess a fee to recover costs associated with its review and processing of an application. In addition, any final permit issued by the Siting Office must include host community benefits, which are intended to provide benefits to owners of land and communities where renewable facilities are located. Although applicants may put forward individual host community benefit agreements, the Public Service Commission will commence a separate proceeding to identify utility bill discounts or other benefits for communities that host a renewable energy project.

In contrast to the previous siting process, which could take several years or more, the Siting Office will have one year from the date an application is deemed complete to decide whether to approve a project. That time period is reduced to six months for projects proposed on certain previously disturbed commercial or industrial sites.

Development and Incentives for Build-Ready Sites

The Act also redefines the mission of the New York State Energy Research Development Authority (“NYSERDA”) to include identification of “build-ready sites” for development of renewable energy projects. Under the Act, NYSERDA must locate, identify and assess potential sites for clean energy development, taking into consideration natural and environmental conditions, current uses, and other factors, with a preference for redeveloping brownfields, landfills, commercial and industrial sites, and dormant electric generating sites.

NYSERDA is also tasked with developing programs to provide property owners and communities with incentives to host renewable energy facilities. Such programs may provide NYSERDA with the ability to negotiate and enter into agreements to (1) secure the rights and interests necessary for preparing a build-ready site; (2) secure a payment in lieu of taxes agreement; and (3) provide financing or other incentives to developers through a competitive bidding process. As this program is implemented, both renewable energy developers and commercial property owners should be on the lookout for turn-key development opportunities and renewed interest in once undesirable commercial sites.

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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