Environmental Law: Cuomo, electric generation siting board push expedited revisions to siting regulations

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In conjunction with his proposed budget in January 2020, Gov. Andrew Cuomo stated that there is a need to revise and expedite siting regulations for electric generation facilities under Article 10 of the Public Service Law (PSL). In particular, the Governor complained about the amount of time it takes to site new renewable energy projects, suggesting that it often takes five to 10 years to complete the process. While Article 10 was meant to provide an efficient application process for developers and provide public input to assure environmental and public health matters are addressed, none of the state projects that have received certifications have been constructed yet.

A few weeks after the governor’s comments, on Feb. 11, the NYS Board on Electric Generation Siting and the Environment adopted amendments to the regulations under the PSL on an emergency rule-making basis that modified the requirements of when a hearing is required on an application for a Certificate of Environmental Compatibility and Public Need under PSL Article 10 for construction and operation of an electric generating facility. The expedited nature of the emergency changes received a number of comments from interested communities where proposed electric generating facilities are being considered under the Article 10 process. The changes to the siting regulations present an interesting confluence of issues and priorities.

On July 18, 2019, Cuomo signed the Climate Leadership and Community Protection Act (CLCPA). The legislation was described by the governor as “the most ambitious and comprehensive climate and clean energy legislation in the country.” The need to meet CLCPA goals of 70% of NY’s electric production from generation facilities which are greenhouse gas free sources was cited as a reason for the emergency rule-making to modify the public hearing requirements.

The CLCPA requirements are significant and are intended to re-shape New York’s energy, transportation and building sectors in the next few decades. The CLCPA requires the State to attain a carbon free electricity system by 2040 and reduce greenhouse gas emissions by 85% below 1990 levels by 2050. The legislation is said to spur investment in clean energy technologies such as wind, solar, energy efficiency and storage, with targeted investment in disadvantaged communities and thousands of new jobs.

The CLCPA requires the NYS Department of Environmental Conservation (DEC) to adopt regulations to attain an initial 40% reduction in emissions from 1990 levels by 2030 and an 85% reduction in greenhouse gas emissions by 2050. Significantly, the legislation provides that the regulations include “legally enforceable emissions limits, performance standards, or measures or other requirements to control emissions from greenhouse gas emission sources.” The regulations will cover the entire breath of the NYS economy from energy, transportation, buildings and development. Notably, internal combustion engines (gas or diesel), as well as boilers and furnaces are included under the scope of greenhouse gas emissions sources.

The CLCPA legislatively adopted the governor’s “nation-leading goals as called for under his Green New Deal,” requiring that at least 70% of New York’s electricity come from renewable energy sources such as wind and solar by 2030 in order to attain 100% carbon neutral by 2040. In addition, the governor’s goals include “nation-leading commitments” to install 9,000 megawatts of offshore wind by 2035; 6,000 megawatts of solar by 2025; and 3,000 megawatts of energy storage by 2030.

The regulatory amendment to the Article 10 rules eliminates the bright line requirement for public hearing on a revision where there is a “shifting of a wind turbine, access road or collector line to a new location within a 500-foot radius of the original location.” Under existing rules after a certificate of need is issued, but project design is underway, any revision in the location or shifting in location of specific project elements beyond 500-foot radius would be subject to a full hearing, with potential briefing, that could take many months of additional time. In addition, another change is to reduce the area for required wetland mapping from within 500 feet of disturbed area down to 100 feet, consistent with state wetland regulations. By modified language in several areas of the PSL regulations, the board is aiming for more expedient development of renewable electric generation facilities.

In its rule-making impact statement, the board said that “[t]he Article 10 process should encourage renewable developers to make beneficial project changes without introducing additional risk and uncertainty to project development timelines. … The 500-foot bright line test, thus, is potentially acting as a disincentive to developers from making beneficial project changes. Deletion of the bright-line test from the definition of ‘revision,’ would eliminate this disincentive.” In particular, relocation of access roads and turbines post-certification, but during planning, is viewed as creating negative consequences of additional hearings, regulatory delays and risk of lost tax credits. Hence, the board wrote that the changes were necessary to ensure that “Article 10 is implemented to protect the public health and environment in a manner that does not delay or jeopardize the siting of renewable energy facilities in New York.”

Overall, there is a perception that the state has prioritized siting of renewable energy facilities over extensive public input that has been a part of Article 10 proceedings. Among other comments submitted in opposition to the changes, Save Ontario Shores, Inc., wrote that the board’s emergency rule-making is not founded on any provision of Article 10 which provides an indication that the legislation placed a higher priority on siting facilities than public health. In addition, there is no scientific basis or plan that suggests onshore industrial wind projects are required to meet renewable energy targets in the state. Notably, the group also stated that “[i]f this is considered to be an emergency, then anything that is stated by the corporation building a project as financially or otherwise impeding its operations will be determined an emergency.”

The use of emergency rule-making to address procedures for public hearings in major energy projects is interesting and raises a variety of questions, but also highlights the importance that the governor and state place on construction of renewable energy projects to meet the CLCPA requirements. Ultimately, it will take some time to determine whether the regulatory changes effectively narrow the need for public hearings on post-certification modifications, while also providing appropriate public input.

George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation Practice Group and chair of the firm’s Environmental and Municipal Practice Groups. He focuses his practice in the areas of environmental law, municipal law, construction and commercial litigation.