by Christopher Rizzo
On June 22, 2011, the N.Y.S. Legislature adopted a bill renewing Article X of the Public Service Law. The former version of Article X expired in 2002. It had governed the state approval process for all electric power plants of 80 megawatts or more. Its key features were the consolidation of state and local reviews within one administrative body (the siting board of the N.Y.S. Public Service Commission); exemption from the State Environmental Quality Review Act (“SEQRA”); possible exemptions from local laws; and a fund to help residents participate in the review process. Although Article X never achieved its goal of fast-tracking new power plants, it did streamline the process by creating one administrative procedure for approvals and eliminating municipalities’ ability to hold up or kill projects with local permitting requirements.
The new Article X aims to do the same–streamline the process and prevent municipalities from holding up local approvals endlessly. Its major differences from the former version are (1) applicability to new power plants of 25 megawatts or greater; (2) its more vigorous requirements for environmental and environmental justice reviews; (3) an increase in the fund for interveners from $400,000 to $750,000; and (4) a fast-track approval process for plants that reduce emissions (reducing the public process from 12 to 6 months). Presumably, the 25-megawatt threshold is intended to allow mid-size renewable power facilities, particularly wind farms, to participate in Article X rather than be subject to the permitting whims of municipalities.
If the law functions as intended, restricting the public review period to 12 months, it has the potential to fast-track new power plants in New York State. There’s some debate, however, about whether Article X or SEQRA provide better analysis and mitigation of environmental impacts. Any incentive to take older coal and oil-fired plants out of service is probably a good thing. But the law has missed an opportunity to truly incentivize renewable energy and offers few procedural advantages to wind and solar over, for example, natural gas.