On February 21, the Governor introduced the Renewable Energy Growth and Community Benefit Act for inclusion into the 2020 budget. Its goal is to streamline the process for approving large-scale (sometimes called (utility-scale) renewable energy projects. Currently, projects that anticipate generating under 25 megawatts are required to go through a local permitting process featuring SEQR and site plan review, administered by a municipal-level board. Projects over 25 MW must go through an Article 10 review process with the state before getting approved for construction. Article 10 review is seen as a major hinderance to the state’s ability to develop enough solar, wind, and other renewable electricity sources to meet the its ambitious climate change mitigation goals. The Climate Leadership and Community Protection Act (CLCPA), adopted in 2019, calls for New York to achieve complete carbon neutrality by 2050. This will require a dramatic increase in renewable energy generation capacity. Article 10 review has become a bottleneck in getting that capacity online. The review generally takes years. To date, 5 projects have been approved and 50 are stuck in the que. It has become apparent to the governor that the process is ill-fitted to renewable energy projects.
What will the new process look like?
A key feature of the new process, to be known as Article 23 review, includes the creation of a new Office of Renewable Energy Permitting (OREP), which will have exclusive authority to permit any new renewable energy systems of > 25 MW. Renewable energy systems include “solar thermal, photovoltaics, on land and offshore wind, hydroelectric, geothermal electric, geothermal ground source heat, tidal energy, wave energy, ocean thermal, and fuel cells which do not utilize a fossil fuel resource.”
OREP will be overseen by the Department of Economic Development, which has been tasked with promulgating additional regulations to fill in the details not covered by the Act. Under the new law, OREP will seek to work with other state agencies to develop uniform standards and conditions and streamlined procedures for the evaluation of applications that come before it. The proposal directs OREP to ensure that environmental impacts, CLCPA targets, community input, and economic effects all factor into in approval process. It also allows for site-specific permit terms for situations outside the scope of the uniform guidelines.
The Act also sets out aggressive approval timelines of 12 months for most projects and 6 months for others, from the date of receipt of a completed application. OREP will have 60 days to determine whether the application is complete. If it doesn’t meet these deadlines, the permit will be essentially be granted by default, with standard uniform conditions or site-specific conditions that have been issued for public comment. It is the hope that through a combination of specialization, uniformity, and centralization, that these timelines are achievable.
Projects exceeding 25 MW will have to go through this new procedure, while those between 10 and 25 MW can go through either Article 23 or local procedures, including SEQR. Projects are already languishing in Article 10 review or local review procedures will have the ability to opt-in to the new procedure.
What else is in the Act?
The Act calls for a substantial increase in state resources for identification and pre-development of potential large-scale project sites. This will be accomplished through the Clean Energy Resources Development and Incentives Program and administered by NYSERDA. The agency is charged with identifying and advancing so-called “build-ready” sites for rapid development. A government spokesperson described the intended operation: “Once sites are fully permitted and developed, NYSERDA will competitively auction the developed sites, bundled with contracts for renewable energy payments, to provide a fully de-risked package for private developers to construct and operate projects at these sites.” These projects will be on an accelerated six-month approval schedule.
The Act also modified the current property tax structure centered around Real Property Tax Law § 487. NYSERDA will act in a consultative capacity to communities in accessing appropriate valuations. It will create a more uniform real property value assessment methodology. The 60-day notice of intent to require a PILOT, which has been the source of some consternation among smaller localities, will be removed.
The 40-page bill contains numerous other provisions related to various energy production, transmission, and storage projects. A lot can happen in a short time in Albany around budget season. The Legislature is supposed to pass the budget by April 1st. Look for something resembling this to be in the final version of the budget and implemented to begin in the near future.
Christopher J. Baiamonte
Mr. Baiamonte concentrates his practice primarily on civil litigation. He counsels individual, corporate, and municipal clients on resolving disputes ranging from environmental liability to shareholders rights to creditor–debtor suits. He also works with clients to navigate various state and federal regulations relating to areas such as environmental protection, employment, and civil rights.