In the summer of 2019 Governor Cuomo and the New York State Legislature passed the Climate Leadership and Community Protection Act (CLCPA) which was described as the most ambitious and comprehensive climate and clean energy legislation in the country when Cuomo signed the legislation. In early April 2020, NYS passed the Accelerated Renewable Energy Growth and Community Benefit Act (AREGCBA) as part of the 2020-21 state budget. This legislation is intended to ensure that renewable generation is sited in a timely and cost-effective manner. When this was proposed I posted an essay describing the hypocrisy and over-reach aspects and recently published another post showing why there are significant risks to the electric system. This post addresses other concerns including logistics, permitting differences with existing regulations, and environmental impact assessments
I refer you to the previous post’s background description for an overview of the legislation but I will note that the legislation was incorporated into the 2020-21 New York State budget by Governor Cuomo despite the fact that it might have been more appropriate to concentrate on the financial implications of the coronavirus pandemic. Worse, it included tight deadlines at the time it was approved when it was obvious that the State was pretty much in a holding pattern for an indefinite amount of time. It would have been far better to postpone this legislation so that it could be properly vetted and a reasonable schedule developed.
In order to introduce my other concerns, I will repeat my description of section 4 from § 2. Legislative findings and statement of purpose. I copied section 4 of the legislation and inserted my comments in italics.
- A public policy purpose would be served and the interests of the people of the state would be advanced by:
(a) expediting the regulatory review for the siting of major renewable energy facilities and transmission infrastructure necessary to meet the CLCPA targets, in recognition of the importance of these facilities and their ability to lower carbon emissions;
Article 10 Law currently requires “environmental and public health impact analyses, studies regarding environmental justice and public safety, and consideration of local laws” but those requirements take time to evaluate.
(b) making available to developers of clean generation resources build-ready sites for the construction and operation of such renewable energy facilities;
In my opinion if the CLCPA and AREGCBA laws had been written such that the plans were developed first it would have been more protective for New Yorkers. In that approach the State would fulfill all the Article 10 requirements as part of the “build-ready sites” approach.
(c) developing uniform permit standards and conditions that are applicable to classes and categories of renewable energy facilities, that reflect the environmental benefits of such facilities and address common conditions necessary to minimize impacts to the surrounding community and environment;
I have reviewed all the Article 10 solar applications and there is no question that uniform permit standards and common conditions could be addressed by a comprehensive planning approach.
(d) providing for workforce training, especially in disadvantaged communities;
This is a transparent effort to develop support from a political base.
(e) implementing one or more programs to provide benefits to owners of land and communities where renewable energy facilities and transmission infrastructure would be sited;
This is political payola. It is a bribe given in exchange for accepting any negative consequences of the renewable energy facilities.
(f) incentivizing the re-use or adaptation of sites with existing or abandoned commercial or industrial uses, such as brownfields, landfills, dormant electric generating sites and former commercial or industrial sites, for the development of major renewable energy facilities and to restore and protect the value of taxable land and leverage existing resources; and
This is a noble gesture. Without question it is a nice idea to re-use or adapt unused sites but the fact is that those sites are small relative to the areal needs of diffuse wind and solar power production.
(g) implementing the state’s policy to protect, conserve and recover endangered and threatened species while establishing additional mechanisms to facilitate the achievement of a net conservation benefit to endangered or threatened species which may be impacted by the construction or operation of major renewable energy facilities.
This is window dressing designed to appear to address environmental issues when in fact it falls far short of environmental protections. I will discuss this aspect of the legislation below.
The revised permitting process for AREGCBA sets up a new bureaucracy to handle permitting. The Office of Renewable Energy Siting (ORES) responsibilities will be established in the Department of State and charged with “accepting applications and evaluating, issuing, amending, approving the assignment and/or transfer of siting permits.” Within one year the Office is supposed to “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”. The goal is to “minimize or mitigate potential adverse environmental impacts”. Also, within one year, ORES will “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”.
With all due respect to the authors of this legislation, implementing those requirements within one year is an overly ambitious goal. In the first place, the Depart of State has limited existing staff for environmental issues. The Department of Environmental Conservation, Department of Public Service, Department of Agriculture and Markets, and New York State Energy and Research Development Authority do have staff who support renewable energy development project permitting already. There is language in the legislation stating that ORES can request support and services from those agencies and language addressing personnel transfers. The relevant staff in those agencies are already working on projects, so what happens to projects already in the Article Ten queue? I would not be surprised if there are staff within the agencies who support permit applications for a variety of projects not just renewable energy so what happens to other permit applications? Consequently, if ORES just commandeers staff for this requirement other agency commitments will suffer.
In the second place, developing uniform standards for siting, design, construction, and operation is going to take time to draft, review and present. Converting those to rules and regulations also will take time to prepare and the staff with the most experience in this regard have permitting obligations. Importantly, there are New York Administrative Procedure Act requirements for adopting rules that include the opportunity for public involvement and specific schedule obligations. All these factors suggest that it is unlikely that all this can be completed within one year. Once the effects of the coronavirus pandemic are factored in, I am comfortable saying this cannot be implemented on the timeframe legislated.
New York’s Article Ten process was enacted during the days when regulated utilities proposed all the major electric generating station developments. In its original form it was very unwieldly, time-consuming and required enormous resources to complete. When de-regulation came along and the state realized that they would have to deal with non-regulated generating companies they revised the Article 10 process hoping to streamline its onerous provisions. To some extent the 2011 revisions made improvements but the fact it that permitting still takes a minimum of over three years and often much more.
The Article Ten Environmental Assessment Form describes the Part 1001 requirements that specify what information is needed in applications to allow the Siting Board to make permit application findings and determinations. The Article Ten application contains sections specifying general application requirements and exhibits concerning overview and public involvement, location of facilities, land use, electric system effects, wind, natural gas and nuclear power facilities, electric system production modeling, alternatives, consistency with energy planning objectives, preliminary design drawings, construction, real property, cost of facilities, public health and safety, pollution control facilities, air pollutant emissions, safety and security, noise and vibration, cultural resources, geology, seismology and soils, terrestrial ecology and wetlands, water resources and aquatic ecology, visual impacts, effects on transportation and communications, socioeconomic effects, environmental justice, site restoration and decommissioning, state and local laws and ordinances, other filings, electric, gas, water, wastewater and telecommunications interconnections, electric and magnetic fields, back-up fuel, and applications to modify or build adjacent to existing facilities.
One of the first things the ORES will have to do is to specify what information is needed for its application process. There is no question that there are some topics in the Article 10 applications do not need to be included for renewable energy projects but the reality is that the Article 10 applications are not being held up much by addressing those topics.
In order to reduce permitting time, the AREGCBA’s biggest apparent difference is to eliminate the extensive public outreach components of Article 10 permits. The Public Involvement Program and Scoping Statement components are the first two steps in the Article 10 permit process. They include timing requirements that mandate eight months before the permit application can be submitted. As far as I can tell there is nothing equivalent in the AREGCBA. The public’s first inkling of a project under AREGCBA is not clear by my reading. Once the application is received the law states the permit cannot be considered complete “without proof of consultation with the municipality or political subdivision where the project is proposed to be located”. Once it is considered complete then there is a 60-day comment period. Without some sort of legal requirement, the general public may only find out about a project that affects them when the 60-day comment period starts.
Article 10 applications are reviewed and approved by a siting board made up of seven people including two local community members. AREGCBA decisions are made by the Executive Director of ORES. Cynics like me suspect that the new law makes it easier for the Cuomo administration to control the outcome by reducing the number of people needed to approve a project.
Article 10 requires public notification and scoping statements be prepared with plenty of time for the public to get involved. Both Article 10 and AREGCBA include provisions to give money for intervenors but finding out about a project, figuring out who and what needs to be addressed, hiring someone to do the evaluation and then getting it done in time to make substantive comments all within the 60 day permit period is ambitious at best and more likely impossible. In fact, it is such an unrealistic schedule that I suspect that it was included to deliberately forestall local resistance to renewable energy projects.
Another major difference between Article 10 and AREGCBA is that there are no provisions in Article 10 to over-ride local ordinances limiting or prohibiting renewable energy developments. The Cuomo Administration has already modified the Article 10 rules to forestall a township or county passing an ordinance limiting renewable developments during the Article 10 process. AREGCBA goes much further stating that when making the final permit decision ORES “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”. It is not hard to read between the lines of that statement to see that Cuomo’s law ensures that renewable energy developments are going to be built whatever the locals think. The Article 10 process is so long that affected communities have replaced elected officials that supported projects with those who opposed them. Clearly the AREGCBA schedule prevents that from happening.
The hubris of politicians never ceases to amaze me. In order to make the locals happy the law includes what can only be described as a bribe. The legislation specifies that “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”. Another changes states that “The public service commission shall, within 60 days from the effective date hereof, commence a proceeding to establish a program under which renewable owners would fund a program to provide a discount or credit on the utility bills of the utility’s customers in a renewable host community, or a compensatory or environmental benefit to such customers.” The affected locals lose their community character, have their housing values reduced and, depending on what the uniform standards are, could have adverse health effects but not to worry here is a community benefit project.
I have been doing environmental assessments for over 40 years and really worry about the environmental impacts of the CLCPA because there is no commitment to evaluate the cumulative impacts. As far as I can tell the State Administrative Procedure Act (SAPA) and the State Environmental Quality Review Act (SEQRA) requirements for environmental reviews do not apply to it because it is a legislative action. Up to this point Article 10 did at least require extensive “environmental and public health impact analyses, studies regarding environmental justice and public safety, and consideration of local laws” so at least the local impacts were thoroughly evaluated. The AREGCBA legislation sets up an entirely new permitting process for renewable energy and it is not clear how environmental impacts will be handled in the new system. It all depends on the uniform standards developed by ORES in the first year.
The problem proponents of renewable energy have with the Article 10 process is that it takes time. When Article 10 was revised in 2011, the politicians thought that they were going to streamline the complete process down to a few years. The environmental staff people in the agencies and industries agreed at the time that it was still going to take four to five years to complete an application. As of March 17, 2020, six projects have had their applications approved taking between 3.2 and 4.5 years since the first filing in the process.
Those completion times are from the first formal submittal in the Article 10 regulatory process. When a developer starts to evaluate a site for a renewable development a lot of work has to be done to assess the local impacts by mapping and evaluating the property. The plan has to be drafted, reviewed and submitted in order to start the clock. There is no way to speed those preliminary steps up. The revised AREGCBA permitting requirements may eliminate some of the Article Ten considerations described below but many will remain so I estimate at least nine months and more like twelve months will be needed to develop that information. For Article Ten projects that means that from the time a developer starts a project you are talking at least 4 to 5 years to have all the necessary permits to start construction. Apparently AREGCBA hopes to cut that time mostly be reducing the public involvement requirements. At a time when the State is emphasizing environmental justice concerns it is odd that this regulation ignores public involvement. Cynics like me suspect that rural EJ communities don’t matter.
I argued in my more recent post on AREGCBA that a feasibility study was necessary to see if the CLCPA targets are realistic and affordable. It may be possible to argue that on an individual basis industrial wind and solar facilities may not have acceptable unavoidable environmental impacts. However, the cumulative impact of all the facilities required by the CLCPA to provide enough power to meet the reliability needs of the state could have unacceptable unavoidable environmental impacts. I estimated the resources needed for a load estimate from the Citizen’s Budget Commission with wind and solar output estimates based on meteorological data from January 3-4 2018 and found that New York would have to build 11,395 MW of residential solar, 16,117 MW of utility-scale solar, 18,457 MW of on-shore wind and 16,363 MW of off-shore wind to meet the increased load needed for the CLCPA targets. I made assumptions about sizes of turbines and solar arrays and estimate that those facilities would require over 3,845 on-shore wind turbines and 176 square miles of solar arrays.
The bottom line is that the massive areal extent of the renewable energy resources needed for the CLCPA obviously needs a cumulative environmental impact analysis to determine how the law will affect the environment. Instead the AREGCBA legislates a plan to implement “the state’s policy to protect, conserve and recover endangered and threatened species while establishing additional mechanisms to facilitate the achievement of a net conservation benefit to endangered or threatened species which may be impacted by the construction or operation of major renewable energy facilities”.
In the long list of Cuomo’s hypocritical environmental policies this may be the topper. There is no question that there is value for net conservation benefits. For example, if an acre of a wetland is impacted, then the applicant could restore, create or enhance more wetland acreage nearby for a net environmental benefit. The Cuomo administration has a consistent record of ignoring the possibility of this approach where it is inconvenient for their rationale to reject an application (e.g., any of the pipeline applications rejected in his tenure). While this may be appropriate for affected wetlands at renewable facilities the real concern with blanketing the state with wind turbines is the effect on endangered or threatened avian species. What in the world could be proposed as a net benefit for incidental slaughter of birds and bats at any wind turbine?
It gets even worse. The AREGCBA states that: “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.” So where does this money go? The legislation includes an amendment to environmental conservation law establishing the endangered and threatened species mitigation bank fund. The fund may pay for contracts with not-for-profit corporations, private or public universities, and private contractors for mitigation services and may “enter into contracts with a not-for-profit corporation to administer grants made pursuant to this title, including the approval and payment of vouchers for approved contracts.” Gee, do you think there is any chance that this will enable Cuomo to fund his environmental base.
I subscribe to Politico’s daily New York Energy newsletter. In the April 6, 2020 edition the New York League of Conservation Voters sponsored the following message supporting AREGCBA:
“A broad coalition of environmental, clean energy, real estate and labor groups applaud Governor Cuomo, Majority Leader Stewart-Cousins and Speaker Heastie for including critically needed renewable energy siting and transmission reform in the State Budget that will support New York’s ambitious climate goals and economic development across the state! Learn more. “
The learn more link includes the statement “The improved siting process for renewable energy projects will help New York to achieve 70 percent renewable electricity by 2030, as required by NY’s 2019 climate law, and maintain New York’s strong environmental and public participation standards.” It is not clear to me what they read that gave them assurances that public participation will not be endangered by this regulation but the knowledge that there is a pot of money out there for the environmental non-profits sure gives incentive for their rationale to support this law.
I understand the desire to revise the Article 10 process to handle the upcoming surge of renewable energy projects necessary to implement the CLCPA but believe this should have been addressed differently. New York State’s budget process has never been a template for good governance because decisions are made by very few players and this March would have been an appropriate time to concentrate on the financial implications of the coronavirus pandemic. Instead, Cuomo jammed this legislation into the budget package making it difficult for the assembly or senate to discuss, much less object, to any needed reforms to Article 10 for renewable energy projects. It is very disappointing that there is a broad coalition of groups that think this was a good idea.
It remains to be seen how the uniform standards will play out. Will there be adequate protections for environmental impacts, local community character, property values, and health impacts? Another aspect is community involvement. Article 10 had eight months for public involvement before the permit application was submitted. There is no specification for local community involvement in the legislation.
This legislation includes two mitigation stipulations: community benefits and the endangered species mitigation bank fund. Cynics like me suspect this more about payola than mitigating impacts. Ultimately, I cannot see how anyone can support the CLCPA and AREGCBA legislation without a feasibility study and cumulative environmental impact analysis.
Finally, ORES “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”. This provision runs rough shod over home rule provisions of rural Upstate communities. The rationale for the CLCPA targets is the climate emergency. Is it too much for the State to quantify how their programs will affect global warming? It has never been done by New York State. When I calculated the effect of the CLCPA reduction of 218.1 million metric tons on projected global temperature rise I found there would be a reduction, or a “savings,” of approximately 0.0032°C by the year 2050 and 0.0067°C by the year 2100. You cannot measure and therefore you cannot expect any effect on any of the purported impacts of climate change. Based on my analyses to date these laws recklessly endanger electric reliability and the environment in the name of virtue-signaling climate “leadership”.