New York’s New Renewable Energy Siting Regulation Survives Legal Challenge

In Town of Copake v. New York State Office of Renewable Energy Siting, the New York State Supreme Court rejected a lawsuit challenging regulations aimed to streamline and expedite the siting of major renewable energy projects…

In Town of Copake v. New York State Office of Renewable Energy Siting, the New York State Supreme Court rejected a lawsuit challenging regulations aimed to streamline and expedite the siting of major renewable energy projects. According to the court, the New York Office of Renewable Energy Siting (ORES) acted within its authority under the Accelerated Renewable Energy Growth and Community Benefit Act when establishing the new regulatory framework.

Accelerated Renewable Energy Growth and Community Benefit Act

In April 2020, New York enacted the Accelerated Renewable Energy Growth and Community Benefit Act. Among other changes, the law consolidated the environmental review of major renewable energy facilities in a newly established agency, ORES. The new law is designed to streamline the permit process and help the state accelerate progress towards its clean energy and climate goals, including the mandate to obtain 70 percent of the state’s electricity from renewable sources.

The siting of large utility-scale renewable energy generation facilities was previously subject to review and approval under New York State Public Service Law Article 10. The former process required significant public involvement, which ultimately proved time-consuming and unworkable, with few projects obtaining final approval.

Under the Act, all large-scale, renewable energy projects larger than 25 megawatts are now required to seek an approved permit through ORES for new construction or expansion. Projects already in the initial phases of the current Article 10 siting process through the State’s Siting Board may remain in Article 10 or opt-in to the new siting process. New projects sized between 20 and 25 megawatts are able to opt-in to the ORES review process.

If deemed complete, applications for a permit through ORES will be acted upon within one year; projects proposed on certain previously developed commercial and industrial sites will be acted upon within six months. If ORES does not make a determination within the required timeframe, the draft permit will be deemed approved and a permit granted.

The Act provides opportunities for communities and local governments to provide input during the ORES review process. Below are several key provisions:

• No application can be deemed complete without proof of consultation with the host community regarding procedural and substantive requirements of applicable local laws.
• Municipalities must be notified upon the publishing of an application’s draft permit conditions and must provide feedback on the draft permit conditions and the proposed facility’s compliance with local laws within the subsequent 60-day public comment period. ORES is required to consider any applicable local law when making a determination.
• If host community statements raise any substantive and significant issues that require adjudication, ORES may establish a date for an adjudicatory hearing. If substantive or significant issues are raised and the Siting Office does not hold an adjudicatory hearing, a public hearing will be scheduled in the host community.
• The Public Service Commission will hold a proceeding to determine how best to provide communities with a compensatory benefit for hosting a major renewable facility, such as a discount or credit on utility bills.
• Local government agencies and community intervenors have access to funds ($1,000/MW), administered by NYSERDA and distributed pursuant to regulations and at the direction of the Executive Director of ORES.
• As a condition for approval, permits must include a provision requiring host community benefits.

Lawsuit Challenging ORES Renewable Energy Siting Regulations

To carry out its new oversight authority, the Act required ORES to promulgate regulations within one year of its effective date. On September 16, 2020, the Office of Renewable Energy Siting issued draft regulations and uniform standards and conditions for public comment pursuant to the State Administrative Procedure Act (SAPA). The regulations, Chapter XVIII, Title 19 of NYCRR Part 900 (Subparts 900-1 – 900-15), became effective on March 3, 2021.

On June 29, 2021, several municipalities and public interest groups filed suit, challenging the ORES regulations. The suit alleged that the ORES regulations were procedurally defective; ran afoul of the State Environmental Quality Review Act (SQRA) and the State Administrative Procedures Act (SAPA); exceeded the statutory authority granted under New York State Executive Law; and violated the Home Rule Provisions of the New York State Constitution.

On October 8, 2021, Justice Peter Lynch of the New York State Supreme Court dismissed the suit. In reaching his decision, Judge Lynch found that ORES did take the requisite “hard look” at the potential environmental impacts of the regulations. In support, he noted that ORES identified relevant areas of environmental concern, analyzed them, and adequately supported its conclusion that the regulations wouldn’t lead to any significant adverse environmental impacts. With regard to the alleged SAPA violations, the court noted that ORES conducted several public hearings, as required under the Act. As Judge Lynch wrote, “Contrary to petitioner’s claim, the regulations seek and provide a full opportunity for public input.”

Judge Lynch also emphasized that the lawsuit challenged the adoption of the ORES regulations and not their application. “If ORES violates the regulations during any project review, such violation is subject to judicial review beyond the scope of this proceeding,” he wrote.

Key Takeaway

The Accelerated Renewable Energy Growth and Community Benefit Act and its implementing regulation have significantly changed New York’s process for approving the siting of renewable energy projects. The court’s decision in Town of Copake v. New York State Office of Renewable Energy Siting allows New York’s new regulatory framework to continue and provides greater legal certainty for entities involved in such projects.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Monica Schroeck, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.