On February 7, 2020, the Siting Board announced a meeting to adopt emergency changes to the Article 10 regulations. The notice is available here. Later, on February 11, 2020, the Siting Board issued a memorandum describing the rule changes, available here. The Siting Board adopted the changes on February 13, 2020. The new rules change the definition of a “revision” to an application, thereby hurting the ability of municipal and intervenor parties to seek additional intervenor fund payments or extension of the 1-year deadline for adjudication. The changes also appear to limit the review of impacts on wetlands, specifically by limiting the review of wetlands to areas within 100 feet of project components. The existing standard is 500 feet.

I have concerns about the impetus for, and effect of the proposed changes. I also question whether the emergency rulemaking procedure is justified given the lack of any discernible emergency.

The remainder of this blog provides an excerpt from a joint letter I drafted to Chairman Rhodes on Feb. 12, 2020, voicing opposition to the emergency rulemaking. I drafted the letter in conjunction with numerous attorneys who work on Article 10 cases:

The Siting Board has failed to demonstrate public health, safety, or the general welfare would not be preserved in the absence of emergency rulemaking procedures. Under SAPA §202(6)(c), “if an agency finds that the immediate adoption of a rule is necessary for the preservation of the public health, safety or general welfare and that compliance with the requirements of subdivision one of this section would be contrary to the public interest, the agency may dispense with all or part of such requirements and adopt the rule on an emergency basis.”

In support of its Emergency Rule, the Siting Board claims “unintended consequences” and “construction delays” arising from the regulatory definition of an application revision. The Siting Board states that the definition has resulted in “administrative process . . . jeopardize[ing] completion of one renewable energy project and can potentially discourage more.” The Siting Board alleges the definition of revision is resulting in “costly administrative litigation,” and causing “regulatory delays.” It concludes, “[a]bsent this emergency rulemaking, then, the State’s goals for deployment of renewable energy resources and reduction of greenhouse gases would be impeded.”

None of these cited reasons constitutes threats to public health, safety or general welfare. Instead, the Siting Board focuses on the concerns of Article 10 applicants, and claims applicants, not the public, could be financially harmed by the allegedly slow pace of Article 10 proceedings. We believe that risk of financial harm to private corporations, or loss of federal tax credits, does not justify application of emergency rulemaking procedures in the name of the public welfare.

Furthermore, obstacles to implementation of state energy goals are not “emergency” circumstances pursuant to SAPA § 202(6). These obstacles did not cause, and cannot remedy, the climate crisis. If the climate crisis itself caused the emergency the proposed rules address, that explains too much: all proposals to diminish public participation, reduce costs for developers, or shorten project reviews will warrant emergency rulemaking under this reasoning.

The desire for immediate carbon mitigation cannot be allowed to overwhelm the detailed review of local environmental impacts required by Article 10. Public and municipal intervenor parties play a vital role in identifying environmental impacts that state agencies lack the time and resources to address. The proposed regulatory changes will only serve to reduce the amount of intervenor funds available to parties, and increase the likelihood that serious and avoidable environmental impacts will slip through the cracks. The proposed changes will reduce the efficacy of the deployment of remaining funds, while making requests for extension of litigation schedules less likely to be approved. The changes will substantially impede Article 10’s public participation mandate, while virtually ensuring even lighter review of environmental impacts than is currently taking place. The proposed changes do not remedy an emergency, but they may well cause one.

For the forgoing reasons, the undersigned attorneys and the intervenor parties they represent respectfully request the Siting Board abstain from adopting the emergency rules set forth in the Draft Memorandum and Resolution filed on February 11, 2020 (DMM Item No. 3).

The full letter is available on the DMM docket for the rulemaking case, available here.

For inquiries about the process for siting large power plants pursuant to Article 10 of the New York State Public Service Law, please contact The Zoghlin Group. The Zoghlin Group represents individuals, public interest groups, and municipalities in Article 10 proceedings throughout New York State.

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