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New York State Legislature Finally Reauthorizes Power Plant Siting Statute
July 11, 2011
Energy Law Alert
Author(s): Scott M. Turner

More than eight years after the expiration of New York State’s former power plant siting statute, the Legislature, in unusual bipartisan fashion, enacted S.5844 (Maziarz) / A.8510 (Cahill) in late June.  The bill introduces into the Public Service Law a new Article X that resembles to some degree the former Article X that expired at the beginning of 2003.  This alert highlights some of the key features of the new siting statute.

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The new Article X lowers the applicability threshold to 25 MW, a significant change from the original Article X threshold of 80 MW. The new statute, however, retains the one-year timeframe (unless extended) in which the Siting Board must render its decision on a project application (a shorter, six-month timeframe will apply to qualifying repowering projects). The new statute also retains the “one-stop” shopping component of the old law, specifying that no other State agency or municipality can require a permit for a project that is subject to Article X. One important exception, however, is the Department of Environmental Conservation’s (“DEC”) continued authority to issue federally-derived Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act permits, which DEC must issue prior to the Siting Board’s decision on a project (albeit within the one-year timeframe for Siting Board action). Importantly, the Siting Board’s ability to override unreasonably burdensome local requirements is retained in the new law.

New Article X effectively is fuel-neutral and now applies to wind, solar, and waste-to-energy projects that equal or exceed 25 MW as well as to more conventional electric generating facilities. That said, the new statute adds a “fuel waste byproduct” surcharge to the intervener funding fee that likely would apply to coal-fired and waste-to-energy facilities. In addition, the new statute requires specific bird and bat studies for wind projects.

New Article X will not apply to qualifying projects until DEC completes rulemakings required by the statute with respect to environmental justice, cumulative air impacts, and CO2 emissions. DEC has one year to promulgate those regulations. During this transition period, an applicant for a project that would be subject to Article X may file applications under the existing regulatory framework and thereafter “opt in” to Article X to procure its benefits or stay the course in the permitting process already underway.
Unlike New York’s previous power plant siting statutes, the new Article X has no expiration date.

Our Nixon Peabody team of power plant permitting professionals will be engaged actively in the three DEC rulemaking proceedings, as well as in the rulemaking that the Department of Public Service will conduct to promulgate regulations implementing Article X more generally.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.