New York Governor Andrew Cuomo proposes radical reshaping of siting process for renewable projects 

In his annual budget address on Jan. 21, 2020, New York Governor Andrew M. Cuomo proposed a complete overhaul to New York’s siting of renewable energy projects. Noting that siting a project under the current Article 10 process takes 5-10 years to begin construction, the governor found that the current process simply does not work. In a reference to the renewable energy generation goals set forth in the Climate Leadership and Community Protection Act (CLCPA), the governor called setting goals without the means to achieve them “baloney” and went on to propose “flip[ping] the whole model” of renewable siting by having the state acquire potential sites for renewable energy generation, permitting the projects, and delivering shovel-ready sites to developers.

Article 10, signed by Governor Cuomo in 2011, was intended to streamline the siting of large-scale renewable and other major energy generating facilities of 25 megawatts or more. The original generation siting law had a higher threshold that omitted most renewable projects from its scope. Article 10 was meant to be a one-stop shop for environmental, health, and public safety reviews and permitting, allowing for an override of local laws that would unnecessarily impede siting and providing a strong mechanism to counterbalance knee-jerk NIMBYism, thereby allowing siting of needed electrical generation to help ensure safe and reliable service to ratepayers. It established a Board on Electric Generation Siting and the Environment, commonly referred to as the “siting board,” to accomplish that goal, and provided for the appointment of ad hoc members of the municipality where a project is proposed to be sited, giving a voice to residents.

However, while the law is designed to allow for fast-track siting in theory, in practice, quicker Article 10 approvals have not panned out since the law’s passage. As aggressive state renewable energy goals and incentive payments have driven a strong market for wind and solar projects, the scale and number of projects have increased, sometimes triggering community opposition. Agencies’ approaches to issues such as endangered species, wetlands, noise, and visual impacts have differed, further slowing the process. Projects have languished before the siting board, with a process that was supposed to take 12-18 months taking years to get to a complete application. Now, with the CLCPA driving legal deadlines for renewable generation to be in service, there is greater pressure to bring renewable projects on line.

The governor’s focus on reforming the siting process for renewable projects is a welcome development. However, the proposal announced during the budget address was not accompanied by any proposed legislative changes to Article 10 in the published Executive budget. To the extent any legislative proposals are put forth, written detail is not expected until the New York Executive publishes its budget amendments next month or proposes changes during the budget negotiations anticipated to be complete by April 1, when the state’s fiscal year begins. Other options include reforms that are regulatory in nature, including refining how the Public Service Commission, Department of Public Service, and Department of Environmental Conservation administer and interpret their obligations under existing laws and orders.

The new proposal raises many questions, including whether and how any new siting process would impact projects that are currently undergoing review under Article 10. In addition, it is not clear which state agency would take the lead in any site selection, acquisition, and approval of renewable sites, and whether the agency would enter into a public-private partnership with energy developers as the project is shepherded through the Article 10 process. Governor Cuomo also did not specify what changes, if any, would be made to Article 10 to facilitate the new state-driven process, and what other measures would be put in place to ensure timely certification of projects with complete applications.

The siting of any major energy project is never simple, involving a complex interplay of, among other things, environmental, energy, and local policies and concerns. New York has never faced the challenge of siting so many new facilities on such an expedited schedule. But, if New York is to meet its aggressive renewable energy mandates on time, it is imperative to expeditiously approve and site large-scale renewable energy generation and storage. The details of how that will happen remain to be seen, but the governor’s backing of reforms to the renewable siting process sends a strong signal to developers that New York is committed to helping, not hindering, the expeditious development of renewable projects.

©2020 Greenberg Traurig, LLP. All rights reserved.