New renewable energy siting act voted into law with some changes

LOWVILLE — Legislation approved in the 2021 state budget on Thursday included the controversial quicker, streamlined process to approve renewable energy projects, replacing Article 10. While some changes were made, decision-making is still taken from local jurisdictions.

The Accelerated Renewable Energy Growth and Community Benefit Act received some pushback from local municipalities and community activist groups while it was lauded by renewable energy companies and a number of environmental advocacy organizations after it was introduced as a 30-day amendment to Gov. Andrew Cuomo’s executive budget.

The Act establishes the Office of Renewable Energy Siting under the Department of State, instead of the Public Service Department which controlled the Article 10 process, to create and oversee a 12-month review and approval process for applications by wind and solar projects capable of producing between 25 and 200 megawatts of power.

In the initially proposed version of the act, the office would have been under the Empire State Development Corporation.

While the final version of the renewable energy act is largely the same as the draft, one significant change requires energy companies to provide proof of their consultations with host municipalities in order for their siting applications to be considered complete and the approval process to begin.

A New York State Energy Research and Development Authority (NYSERDA) spokesperson said after the Act was released at the end of February that companies were “expected” to engage municipal leaders and host communities before and during project creation and application preparation, although there were no requirements in the Act at that time.

Despite the new prerequisite, however, the final version of the Act solidifies the power of the siting office to override local laws if they are “unreasonably burdensome” and interfere with the state meeting clean energy targets that became law as of Jan. 1.

An opportunity was added to the final version, however, that would allow municipalities to request a public hearing from the siting office by submitting a statement explaining how a project doesn’t meet local laws.

Additionally, counties, towns or villages in project areas that do not agree with a Siting Office decision in the final version of an approved project can file an appeal that would be judged in the state Supreme Court Appellate Division in the county where the site is located.

Another significant difference to the final version of the Act negotiated with the state Senate and Assembly is the return of community groups, known as intervenors, in the hearing process.

Under Article 10, intervenors have been very involved in the process. Project owners are required to provide funding for the groups to be able to hire the lawyers or experts required to represent their interests in the siting process.

From now on, siting application fees of $1,000 per kilowatt hour paid by the applying energy company will be put into a “local agency account” to be used for local agencies and intervenors to help cover the costs of participating in the process.

The Siting Office will determine the eligibility criteria and decide how the money is distributed.

Large-scale energy companies that have already applied for their environmental certificates and siting approval through Article 10 will have the option to either continue with Article 10 or change to the new system.

Smaller renewable energy projects that produce between 20 and 25 megawatts can also choose to opt into the new siting process. In the original version, the threshold for participation was 10 megawatts.

Going forward, the Siting Office must create the “uniform standards and conditions” for the siting, design, construction and operation for each type of major renewable energy facility within the next year by working with NYSERDA, and the Departments of Environmental Conservation, Public Service and Agriculture and Markets among others.

The Act allows for the siting office to have energy companies pay a fee to cover “off-site mitigation” to be put into the endangered and threatened species mitigation fund for any negative impacts on those species that aren’t decreased by the uniform or site-specific conditions.

In addition to mitigation measures, the uniform standards and conditions will provide information like setback and sound standards companies can use to plan going forward.

Four public hearings will be held in regions around the state to get feedback from municipalities including counties, cities, towns and villages along with the general public about the uniform standards before they can be implemented.

For the next year while the standards are being created, new applicants with the office will follow established Article 10 standards, the Act says. The new office will decide how many, if any, of those established standards will be carried over into the new protocols.

One of the major areas of focus in the Act from the beginning is to incentivize the use of sites that are often hard to develop for other uses, like brownfields, landfills and former industrial sites, to create a number of shovel-ready sites.

An important change to the shovel-ready site development area of the Act is that NYSERDA is given the power to negotiate and enter into agreements with property owners and host communities providing “incentives” that include payments in lieu of taxes, which will then be transferred to the energy developer that purchases the build-ready sites in a competitive bidding process.

The final area of the renewable energy act involves steps that will be taken by NYSERDA and partner agencies around the state to improve the state-wide grid and transmission lines in order to ensure, a the NYSERDA news release on the act said, “which will allow for renewable energy power to be delivered to where it is needed in the state.”

This article has been updated to correctly state that the new siting office will be under the jurisdiction of the Department of State.