N.Y.
Executive Law Section 94-C
Major renewable energy development program
1.
Purpose. It is the purpose of this section to consolidate the environmental review and permitting of major renewable energy facilities in this state and to provide a single forum in which the office of renewable energy siting created by this section may undertake a coordinated and timely review of proposed major renewable energy facilities to meet the state’s renewable energy goals while ensuring the protection of the environment and consideration of all pertinent social, economic and environmental factors in the decision to permit such facilities as more specifically provided in this section.2.
Definitions.(a)
“Executive director” or “director” shall mean the executive director of the office of renewable energy siting.(b)
“CLCPA targets” shall mean the public policies established in the climate leadership and community protection act enacted in chapter one hundred six of the laws of two thousand nineteen, including the requirement that a minimum of seventy percent of the statewide electric generation be produced by renewable energy systems by two thousand thirty, that by the year two thousand forty the statewide electrical demand system will generate zero emissions and the procurement of at least nine gigawatts of offshore wind electricity generation by two thousand thirty-five, six gigawatts of photovoltaic solar generation by two thousand twenty-five and to support three gigawatts of statewide energy storage capacity by two thousand thirty.(c)
“Local agency account” or “account” shall mean the account established by the office pursuant to subdivision seven of this section.(d)
“Local agency” means any local agency, board, district, commission or governing body, including any city, county, and other political subdivision of the state.(e)
“Municipality” shall mean a county, city, town, or village.(f)
“Office” shall mean the office of renewable energy siting established pursuant to this section.(g)
“Department” shall mean the department of state.(h)
“Major renewable energy facility” means any renewable energy system, as such term is defined in Public Service Law § 66-P (Establishment of a renewable energy program)section sixty-six-p of the public service law as added by chapter one hundred six of the laws of two thousand nineteen, with a nameplate generating capacity of twenty-five thousand kilowatts or more, and any co-located system storing energy generated from such a renewable energy system prior to delivering it to the bulk transmission system, including all associated appurtenances to electric plants as defined under Public Service Law § 2 (Definitions)section two of the public service law, including electric transmission facilities less than ten miles in length in order to provide access to load and to integrate such facilities into the state’s bulk electric transmission system.(i)
“Siting permit” shall mean the major renewable energy facility siting permit established pursuant to this section and the rules and regulations promulgated by the office.(j)
“Dormant electric generating site” shall mean a site at which one or more electric generating facilities produced electricity but has permanently ceased operating.3.
Office of renewable energy siting; responsibilities.(a)
There is hereby established within the department an office of renewable energy siting which is charged with accepting applications and evaluating, issuing, amending, approving the assignment and/or transfer of siting permits. The office shall exercise its authority by and through the executive director.(b)
The office shall within one year of the effective date of this section establish a set of uniform standards and conditions for the siting, design, construction and operation of each type of major renewable energy facility relevant to issues that are common for particular classes and categories of major renewable energy facilities, in consultation with the New York state energy research and development authority, the department of environmental conservation, the department of public service, the department of agriculture and markets, and other relevant state agencies and authorities with subject matter expertise. Prior to adoption of uniform standards and conditions, the office shall hold four public hearings in different regions of the state to solicit comment from municipal, or political subdivisions, and the public on proposed uniform standards and conditions to avoid, minimize or mitigate potential adverse environmental impacts from the siting, design, construction and operation of a major renewable energy facility.(c)
The uniform standards and conditions established pursuant to this section shall be designed to avoid or minimize, to the maximum extent practicable, any potential significant adverse environmental impacts related to the siting, design, construction and operation of a major renewable energy facility. Such uniform standards and conditions shall apply to those environmental impacts the office determines are common to each type of major renewable energy facility.(d)
In its review of an application for a permit to develop a major renewable energy facility, the office, in consultation with the department of environmental conservation, shall identify those site-specific environmental impacts, if any, that may be caused or contributed to by a specific proposed major renewable energy facility and are unable to be addressed by the uniform standards and conditions. The office shall draft in consultation with the department of environmental conservation site specific permit terms and conditions for such impacts, including provisions for the avoidance or mitigation thereof, taking into account the CLCPA targets and the environmental benefits of the proposed major renewable energy facility, provided, however, that the office shall require that the application of uniform standards and conditions and site-specific conditions shall achieve a net conservation benefit to any impacted endangered and threatened species.(e)
To the extent that environmental impacts are not completely addressed by uniform standards and conditions and site-specific permit conditions proposed by the office, and the office determines that mitigation of such impacts may be achieved by off-site mitigation, the office may require payment of a fee by the applicant to achieve such off-site mitigation. If the office determines, in consultation with the department of environmental conservation, that mitigation of impacts to endangered or threatened species that achieves a net conservation benefit can be achieved by off-site mitigation, the amount to be paid for such off-site mitigation shall be set forth in the final siting permit. The office may require payment of funds sufficient to implement such off-site mitigation into the endangered and threatened species mitigation fund established pursuant to State Finance Law § 99-HH (Criminal justice discovery compensation fund)section ninety-nine-hh of the state finance law.(f)
The office, by and through the executive director, shall be authorized to conduct hearings and dispute resolution proceedings, issue permits, and adopt such rules, regulations and procedures as may be necessary, convenient, or desirable to effectuate the purposes of this section.(g)
The office shall within one year of the effective date of this section promulgate rules and regulations with respect to all necessary requirements to implement the siting permit program established in this section and promulgate modifications to such rules and regulations as it deems necessary; provided that the office shall promulgate regulations requiring the service of applications on affected municipalities and political subdivisions simultaneously with submission of the application to the office.(h)
At the request of the office, all other state agencies and authorities are hereby authorized to provide support and render services to the office within their respective functions.(i)
Notwithstanding any other provision of law, rule, or regulation to the contrary and consistent with appropriations therefor, employees of any state agency who are necessary to the functions of the office and who may be substantially engaged in the performance of its functions shall be transferred to the office in accordance with the provisions of Civil Service Law § 70 (Transfers)section seventy of the civil service law. Employees transferred pursuant to this section shall be transferred without further examination or qualification and shall retain their respective civil service classifications. Nothing set forth in this subdivision shall be construed to impede, infringe, or diminish the rights and benefits that accrue to employees through collective bargaining agreements, impact or change an employee’s membership in a bargaining unit, or otherwise diminish the integrity of the collective bargaining relationship.4.
Applicability.(a)
On and after the effective date of this section, no person shall commence the preparation of a site for, or begin the construction of, a major renewable energy facility in the state, or increase the capacity of an existing major renewable energy facility, without having first obtained a siting permit pursuant to this section. Any such major renewable energy facility with respect to which a siting permit is issued shall not thereafter be built, maintained, or operated except in conformity with such siting permit and any terms, limitations, or conditions contained therein, provided that nothing in this subdivision shall exempt such major renewable energy facility from compliance with federal laws and regulations.(b)
A siting permit issued by the office may be transferred or assigned, subject to the prior written approval of the office, to a person that agrees to comply with the terms, limitations and conditions contained in such siting permit.(c)
The office or a permittee may initiate an amendment to a siting permit under this section. An amendment initiated by the office or permittee that is likely to result in any material increase in any environmental impact or involves a substantial change to the terms or conditions of a siting permit shall comply with the public notice and hearing requirements of this section.(d)
Any hearings or dispute resolution proceedings initiated under this section or pursuant to rules or regulations promulgated pursuant to this section may be conducted by the executive director or any person to whom the executive director shall delegate the power and authority to conduct such hearings or proceedings in the name of the office at any time and place.(e)
This section shall not apply:(i)
to a major renewable energy facility, or any portion thereof, over which any agency or department of the federal government has exclusive siting jurisdiction, or has siting jurisdiction concurrent with that of the state and has exercised such jurisdiction to the exclusion of regulation of the facility by the state; provided, however, nothing herein shall be construed to expand federal jurisdiction;(ii)
to normal repairs, maintenance, replacements, non-material modifications and improvements of a major renewable energy facility, whenever built, which are performed in the ordinary course of business and which do not constitute a violation of any applicable existing permit;(iii)
to a major renewable energy facility if, on or before the effective date of this section, an application has been made or granted for a license, permit, certificate, consent or approval from any federal, state or local commission, agency, board or regulatory body, including the submission of a pre-application public involvement program plan under article ten of the public service law and its implementing regulations, in which application the location of the major renewable energy facility has been designated by the applicant, except in the case of a person who elects to be subject to this section as authorized by paragraph e of subdivision four of section one hundred sixty-two of the public service law.(f)
Any person intending to construct a major renewable energy facility excluded from this section pursuant to paragraph (ii) or (iii) of paragraph (e) of this subdivision may elect to become subject to the provisions of this section by filing an application for a siting permit. This section shall thereafter apply to each major renewable energy facility identified in such notice from the date of its receipt by the office. With respect to such major renewable energy facilities, the rules and regulations promulgated pursuant to this section shall set forth an expedited permitting process to account for matters and issues already presented and resolved in relevant alternative permitting proceedings.(i)
With respect to a major renewable energy facility for which an application was previously reviewed pursuant to article ten of the public service law, and for which a completeness determination had already been issued at the time an application was filed pursuant to this section, such application shall be considered complete pursuant to this section upon filing.(ii)
With respect to a major renewable energy facility for which an application was previously reviewed pursuant to article ten of the public service law, and for which a completeness determination had not been issued at the time the application was filed pursuant to this section, the sixty-day time period provided in paragraph (b) of subdivision five of this section shall commence upon filing.(g)
Any person intending to construct a facility that is a renewable energy system, as such term is defined in Public Service Law § 66-P (Establishment of a renewable energy program)section sixty-six-p of the public service law as added by chapter one hundred six of the laws of two thousand nineteen, with a nameplate capacity of at least twenty thousand but less than twenty-five thousand kilowatts, may apply to become subject to the provisions of this section by filing an application for a siting permit. Upon submission of such application, the subject renewable energy facility shall be treated as a “major renewable energy facility” exclusively for purposes of permitting under this section.5.
Application, municipal notice and review.(a)
Until the office establishes uniform standards and conditions required by subdivision three of this section and promulgates regulations specifying the content of an application for a siting permit, an application for a siting permit submitted to the office shall conform substantially to the form and content of an application required by Public Service Law § 164 (Application for a certificate)section one hundred sixty-four of the public service law.(b)
Notwithstanding any law to the contrary, the office shall, within sixty days of its receipt of an application for a siting permit determine whether the application is complete and notify the applicant of its determination. If the office does not deem the application complete, the office shall set forth in writing delivered to the applicant the reasons why it has determined the application to be incomplete. If the office fails to make a determination within the foregoing sixty-day time period, the application shall be deemed complete; provided, however, that the applicant may consent to an extension of the sixty-day time period for determining application completeness. Provided, further, that no application may be complete without proof of consultation with the municipality or political subdivision where the project is proposed to be located, or an agency thereof, prior to submission of an application to the office, related to procedural and substantive requirements of local law.(c)
(i) No later than sixty days following the date upon which an application has been deemed complete, and following consultation with any relevant state agency or authority, the office shall publish for public comment draft permit conditions prepared by the office, which comment period shall be for a minimum of sixty days from public notice thereof. Such public notice shall include, at a minimum, written notice to the municipality or political subdivision in which the major renewable energy facility is proposed to be located; publication in a newspaper or in electronic form, having general circulation in such municipality or political subdivision; and posted on the office’s website.(ii)
For any municipality, political subdivision or an agency thereof that has received notice of the filing of an application, pursuant to regulations promulgated in accordance with this section, the municipality or political subdivision or agency thereof shall within the timeframes established by this subdivision submit a statement to the office indicating whether the proposed facility is designed to be sited, constructed and operated in compliance with applicable local laws and regulations, if any, concerning the environment, or public health and safety. In the event that a municipality, political subdivision or an agency thereof submits a statement to the office that the proposed facility is not designed to be sited, constructed or operated in compliance with local laws and regulations and the office determines not to hold an adjudicatory hearing on the application, the department shall hold non-adjudicatory public hearing in the affected municipality or political subdivision.(d)
If public comment on a draft permit condition published by the office pursuant to this subdivision, including comments provided by a municipality or political subdivision or agency thereof, or members of the public raises a substantive and significant issue, as defined in regulations adopted pursuant to this section, that requires adjudication, the office shall promptly fix a date for an adjudicatory hearing to hear arguments and consider evidence with respect thereto.(e)
Following the expiration of the public comment period set forth in this subdivision, or following the conclusion of a hearing undertaken pursuant to this subdivision, the office shall, in the case of a public comment period, issue a written summary of public comment and an assessment of comments received, and in the case of an adjudicatory hearing, the executive officer or any person to whom the executive director has delegated such authority, shall issue a final written hearing report. A final siting permit may only be issued if the office makes a finding that the proposed project, together with any applicable uniform and site-specific standards and conditions would comply with applicable laws and regulations. In making this determination, the office may elect not to apply, in whole or in part, any local law or ordinance which would otherwise be applicable if it makes a finding that, as applied to the proposed major renewable energy facility, it is unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed major renewable energy facility.(f)
Notwithstanding any other deadline made applicable by this section, the office shall make a final decision on a siting permit for any major renewable energy project within one year from the date the application was deemed complete, or within six months from the date the application was deemed complete if the major renewable energy facility is proposed to be sited on an existing or abandoned commercial use, including without limitation, brownfields, landfills, former commercial or industrial sites, dormant electric generating sites, and abandoned or otherwise underutilized sites, as further defined by the regulations promulgated by this section. Unless the office and the applicant have agreed to an extension, with such extension limited to thirty days, and if a final siting permit decision has not been made by the office within such time period, then such siting permit shall be deemed to have been automatically granted for all purposes set forth in this section and all uniform conditions or site specific permit conditions issued for public comment shall constitute enforceable provisions of the siting permit. The final siting permit shall include a provision requiring the permittee to provide a host community benefit, which may be a host community benefit as determined by the public service commission pursuant to section eight of the chapter of the laws of two thousand twenty that added this section or such other project as determined by the office or as subsequently agreed to between the applicant and the host community.(g)
Any party aggrieved by the issuance or denial of a permit under this section may seek judicial review of such decision as provided in this paragraph.(i)
A judicial proceeding shall be brought in the appellate division of the supreme court of the state of New York in the judicial department embracing the county wherein the facility is to be located or, if the application is denied, the county wherein the applicant has proposed to locate the facility. Such proceeding shall be initiated by the filing of a petition in such court within ninety days after the issuance of a final decision by the office together with proof of service of a demand on the office to file with said court a copy of a written transcript of the record of the proceeding and a copy of the office’s decision and opinion. The office’s copy of said transcript, decision and opinion, shall be available at all reasonable times to all parties for examination without cost. Upon receipt of such petition and demand the office shall forthwith deliver to the court a copy of the record and a copy of the office’s decision and opinion. Thereupon, the court shall have jurisdiction of the proceeding and shall have the power to grant such relief as it deems just and proper, and to make and enter an order enforcing, modifying and enforcing as so modified, remanding for further specific evidence or findings or setting aside in whole or in part such decision. The appeal shall be heard on the record, without requirement of reproduction, and upon briefs to the court. The findings of fact on which such decision is based shall be conclusive if supported by substantial evidence on the record considered as a whole and matters of judicial notice set forth in the opinion. The jurisdiction of the appellate division of the supreme court shall be exclusive and its judgment and order shall be final, subject to review by the court of appeals in the same manner and form and with the same effect as provided for appeals in a special proceeding. All such proceedings shall be heard and determined by the appellate division of the supreme court and by the court of appeals as expeditiously as possible and with lawful precedence over all other matters.(ii)
The grounds for and scope of review of the court shall be limited to whether the decision and opinion of the office are: (A) In conformity with the constitution, laws and regulations of the state and the United States; (B) Supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion; (C) Within the office’s statutory jurisdiction or authority; (D) Made in accordance with procedures set forth in this section or established by rule or regulation pursuant to this section; (E) Arbitrary, capricious or an abuse of discretion; or (F) Made pursuant to a process that afforded meaningful involvement of citizens affected by the facility regardless of age, race, color, national origin and income.(iii)
Except as herein provided article seventy-eight of the civil practice law and rules shall apply to appeals taken hereunder.6.
Powers of municipalities and state agencies and authorities; scope of section.(a)
Notwithstanding any other provision of law, including without limitation article eight of the environmental conservation law and article seven of the public service law, no other state agency, department or authority, or any municipality or political subdivision or any agency thereof may, except as expressly authorized under this section or the rules and regulations promulgated under this section, require any approval, consent, permit, certificate, contract, agreement, or other condition for the development, design, construction, operation, or decommissioning of a major renewable energy facility with respect to which an application for a siting permit has been filed, provided in the case of a municipality, political subdivision or an agency thereof, such entity has received notice of the filing of the application therefor. Notwithstanding the foregoing, the department of environmental conservation shall be the permitting agency for permits issued pursuant to federally delegated or federally approved programs.(b)
This section shall not impair or abrogate any federal, state or local labor laws or any otherwise applicable state law for the protection of employees engaged in the construction and operation of a major renewable energy facility.(c)
The department of public service or the public service commission shall monitor, enforce and administer compliance with any terms and conditions set forth in a permit issued pursuant to this section and in doing so may use and rely on authority otherwise available under the public service law.7.
Fees; local agency account.(a)
Each application for a siting permit shall be accompanied by a fee in an amount equal to one thousand dollars for each thousand kilowatts of capacity of the proposed major renewable energy facility, to be deposited in an account to be known as the local agency account established for the benefit of local agencies and community intervenors by the New York state energy research and development authority and maintained in a segregated account in the custody of the commissioner of taxation and finance. The office may update the fee periodically solely to account for inflation. The proceeds of such account shall be disbursed by the office, in accordance with eligibility and procedures established by the rules and regulations promulgated by the office pursuant to this section, for the participation of local agencies and community intervenors in public comment periods or hearing procedures established by this section, including the rules and regulations promulgated hereto; provided that fees must be disbursed for municipalities, political subdivisions or an agency thereof, to determine whether a proposed facility is designed to be sited, constructed and operated in compliance with the applicable local laws and regulations.(b)
All funds so held by the New York state energy research and development authority shall be subject to an annual independent audit as part of such authority’s audited financial statements, and such authority shall prepare an annual report summarizing account balances and activities for each fiscal year ending March thirty-first and provide such report to the office no later than ninety days after commencement of such fiscal year and post on the authority’s website.(c)
With respect to a person who has filed an application for a siting permit pursuant to subdivision four of this section, any amounts held in an intervenor account established pursuant to articles seven and ten of the public service law shall be applied to the intervenor account established by this subdivision.(d)
In addition to the fees established pursuant to paragraph (a) of this subdivision, the office, pursuant to regulations adopted pursuant to this section, may assess a fee for the purpose of recovering costs the office incurs.8.
Farmland protection working group.(a)
There is hereby created in the executive department a farmland protection working group consisting of appropriate stakeholders, including but not limited to:(i)
the commissioner of the department of agriculture and markets;(ii)
the commissioner of the department of environmental conservation;(iii)
the executive director of the office;(iv)
the commissioner of the department of public service;(v)
the president of the New York state energy research and development authority;(vi)
local government officials or representatives from municipal organizations representing towns, villages, and counties;(vii)
representatives from at least two county agricultural and farmland protection boards.(b)
The working group shall, no later than one year after the effective date of this subdivision, recommend strategies to encourage and facilitate input from municipalities in the siting process and to develop recommendations that include approaches to recognize the value of viable agricultural land and methods to minimize adverse impacts to any such land resulting from the siting of major renewable energy facilities.(c)
The working group, on call of the commissioner of the department of agriculture and markets, shall meet at least three times each year and at such other times as may be necessary. * NB Repealed December 31, 2030
Source:
Section 94-C — Major renewable energy development program, https://www.nysenate.gov/legislation/laws/EXC/94-C (updated Mar. 29, 2024; accessed Apr. 27, 2024).
