Governor Cuomo has proposed major changes to the way power plants are sited in New York State. The draft legislation is available here and here. The law is sweeping in its scope and changes all aspects of power plant siting including permitting and approval, the role of local zoning laws, land acquisition, environmental review, and creation of PILOT and Host Community Benefit Agreements. The Law Firm Hodgson Russ recently published an excellent summary of the changes (available here).

This blog explains some of my concerns about the structure and impact of the new proposed law. I have significant concerns about the proposed law and believe it will benefit energy companies to the detriment of local governments and citizens. I also question whether the proposed law is a solution in search of a problem—Article 10 is finally a mature process capable of siting hundreds of projects by 2030. By replacing a mature process (Article 10) with an entirely new, untested, and unfamiliar set of processes, the proposed law may have the unintended consequence of slowing down power plant siting and making it harder for the state to achieve its 70x30 renewable energy goal.

The evidence indicates the Article 10 siting process is working well and should not be replaced. An analysis of the list of active and approved projects under Article 10 proves this point. The full list of active projects is available here. The following facts are relevant to this discussion:

• 56 major renewable energy projects (wind and solar) have currently been proposed or approved. This demonstrates that many developers are using the existing process and have already invested significant time and resources in learning how to navigate Article 10.
• In 2017 a total of 10 projects were proposed, in 2018 a total of 9 projects were proposed, in 2019 a total of 18 projects were proposed, and so far, in the first 2 months of 2020 a total of 7 projects have been proposed. This shows the application rate is accelerating.
• 5 of projects on the list have been approved so far, including 1 in 2018 and 4 in 2019. This demonstrates the approval rate is also accelerating. I expect another 4 to be approved this year. The number of approved projects will start skyrocket in 2021 and moving forward.

In a previous blog I acknowledged the governor is upset by the slow pace of project approval since 2011, but the bottom line is that the pace of application and approvals is actually accelerating. Siting enormous multi-town energy projects is a complex process. The Article 10 siting procedure took time to spin up, but has come a very long way since 2011. Applicants, judges, towns, public intervenor groups, and the Siting Board have all played a vital and important role in creating regulatory and legal framework that furthers the state’s energy goals while identifying and mitigating local siting impacts. All of this means regulatory certainty for developers, which is precisely what the state would forfeit if it were to pursue the new and more complicated approval process proposed in the budget amendment.

In addition to being unnecessary, the proposed siting process will undermine the role of municipalities and the public in the power plant siting process. My discussion of the four most negative impacts follows:

1. The proposed changes are inconsistent with Home Rule and remove all local land-use control for power plants, transmission lines, and battery storage projects greater than 10 mw in size. This is achieved through broadening the definition of an “unreasonably burdensome” local law to mean inconsistent with state energy goals.
2. The proposed changes will result in financial benefits to energy developers at the expense of local governments. The changes will cap and standardize PILOT and Host Community Benefit Agreements, standardize the methodology for assessing property improved by wind and solar energy, and create standard approval conditions that could eliminate a municipality’s ability to identify and study the problems that require mitigation.
3. The proposed changes will alienate local constituents by excluding them from the siting process entirely. Individuals and public interest groups are now excluded from the Siting Proceeding. This is a complete reversal of one of Article 10’s two primary goals, which is to facilitate meaningful public participation in the siting process. Because municipalities retain the right to be parties to the new siting proceeding, it is likely local governments will be inundated by angry constituents demanding action and updates.
4. The proposed changes will exempt developers from a rigorous review of local environmental impacts through reliance on standard conditions and automatic approval provisions.

The Article 10 process is just now hitting its stride. It would be foolhardy for the state to abandon it now. Implementation of the proposed law will be even more complicated than Article 10, and will result in numerous obstacles by creating new agencies, staffing, rulemaking, and inevitable litigation. Even after the new process is in place, it will likely take years for parties, agency staff, and energy companies to work the kinks out of the process.

Ultimately, lawmakers should realize that by voting to jettison Article 10, they are really voting for even more delay in siting power plants. Given the climate crisis, can the State afford to wait another 9 years for the new, even more complicated siting process to be up to the task?

For inquiries about the process for siting large power plants in New York State, please contact Bridget O’Toole. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.

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