Through The RAPID Act, The NYPSC Is Losing Jurisdiction Over Transmission Siting – Or Is It?

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The Renewable Action Through Project Interconnection and Deployment ("RAPID") Act, initially introduced in January 2024 through Governor Hochul's 2025...
United States Energy and Natural Resources
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The Renewable Action Through Project Interconnection and Deployment ("RAPID") Act, initially introduced in January 2024 through Governor Hochul's 2025 Executive Budget Proposal, was approved as part of the New York budget in April 2024, and the Governor's signature is expected soon.

Intended to help expedite transmission siting to facilitate achievement of the State's Climate Leadership and Community Protection Act ("CLCPA") goals, the RAPID Act makes several significant structural changes to New York's major renewable energy generation facility and transmission line siting regimes and also raises a number of substantive and significant questions regarding implementation. First, it moves the Office of Renewable Energy Siting ("ORES") from the Department of State to the Department of Public Service ("DPS") and subjects any new rulemaking by ORES to approval by the Public Service Commission (NYPSC). Second, it consolidates and aligns ORES's generation siting process (established in Executive Law Section 94-c ("94-c Process")) and the NY Public Service Commission ("NYPSC") transmission siting process (established in Public Service Law Article VII ("Article VII Process")) into the newly created Public Service Law Article VIII regime ("Article VIII Process"). In doing so, ORES will become the Office of Renewable Energy Siting and Electric Transmission (for purposes of this post, we will continue to refer to the agency as "ORES"). Under Article VIII, permits for renewable energy generation and transmission will only be issued by ORES, a departure from the current Article VII, where the NYPSC issues transmission siting permits.

The new Article VIII largely mirrors Section 94-c. The generation siting process will mostly remain the same, but the RAPID Act introduces significant additional protections for farmland. This includes a requirement to design generation (and transmission facilities) in a manner that avoids, minimizes, or mitigates to the maximum extent practicable, "potential significant adverse impacts to land used in agricultural production, with additional consideration for land within an agricultural district or land that contains mineral soil group 1-4" (i.e., soil that may best support crops). How ORES will implement this requirement remains to be seen. The RAPID Act also establishes a Farmland Protection Working Group that will issue recommendations to further mitigate adverse impacts to farmland from generation and transmission siting within a year of the effective date of the RAPID Act.

While the general framework for the generation siting process remains unchanged, the RAPID Act is a significant overhaul of the transmission siting regime. As Foley Hoag has detailed in prior blog posts tracing the evolution of the RAPID Act from its initial proposal through the one-house budget bill process, several facets of the Article VIII Process appear to offer improvements over the Article VII Process. These include:

  • Establishing a 120-day timeframe in which the transmission project application must be deemed complete (with an automatic completeness determination issued where no ORES action is taken in that timeframe) – contrast this to the Article VII process where there is no timeframe or mechanism for an automatic issuance of a completeness determination;
  • Creating standardized permit conditions applicable to all projects (eliminating the need to reinvent the wheel for each project as is currently required);
  • Replacing the certificate condition settlement process (which often takes 6 months to a year) with the issuance of draft permit conditions for public comment and an adjudicatory process if necessary; and
  • A one-year deadline from the date the application is deemed complete for ORES to issue its final determination on the application (though a similar requirement exists under the Article VII Process, it lacks teeth as the one-year period is tolled for settlement and the NYPSC can easily extend the deadline).

Another significant departure from the current process is the codification of local outreach requirements that don't exist under the Article VII Process. For example, applicants must submit proof of their pre-application coordination with impacted municipalities, and the Act provides that an application cannot be deemed complete without proof of such consultation; notably, the bill does not provide any pathway for a completeness determination if a municipality refuses to so "consult". Though Article VII has requirements for applicants to serve the application on impacted municipalities, the RAPID Act's requirements for municipal engagement are much more stringent and beg the question of how a project can proceed if a municipality refuses to engage with the developer.

Despite the potential process improvements, the language of the Act also raises questions. These include the role of the NYPSC in siting processes going forward. While the RAPID Act clearly eliminates the NYPSC's jurisdiction over the issuance of permits for the siting and permitting of transmission lines, the language of the Act includes multiple instances where the PSC must approve ORES's regulatory actions, raising questions as to whether the Act is intended to give the PSC jurisdiction over ORES itself. For example, under the Act, the NYPSC must approve the regulations implementing the Act and Article VIII. The new Article VIII language also provides that the NYPSC must approve the uniform standards and conditions that govern the siting, design, construction and operation of transmission lines and any changes to such conditions for generation facilities. In practice, this oversight may give the NYPSC (and thus DPS staff) considerable control over future siting requirements, even if it is not issuing the permits. Moreover, several aspects of the Act require consultation between ORES and DPS, and the Act is silent with respect to the reporting relationship of the ORES Executive Director. It will be important for ORES and DPS to clarify the entities' respective roles so as not to inject additional uncertainty into the new process.

The changes codified in the RAPID Act are clearly based on the belief that the 94-c process offers significant improvements over the Article VII process, particularly with respect to timing. It is undeniably the case that the ORES and Section 94-c process has been an extraordinary improvement over the Article 10 process for generation; it is also true that the improvements in Article VIII from Article VII hold the promise of gaining certainty and efficiency with respect to transmission. However, the newly situated ORES will need to continue on its path to improving its still nascent permitting process for generation and will need to capture that potential for transmission.

In late April 2024, the NYS Comptroller's Office issued an audit of the 94-c permitting process to date in which it found, "while the overall time between application and final siting permit has improved since the creation of ORES, the process has taken significantly longer than originally envisioned because certain aspects of the process were not considered." The Comptroller's audit suggests that expectations have been high and that the timing guardrails outlined above may not provide developers with all of the certitude promised. Continued refinements and improvements of these new processes, and ensuring that the RAPID Act's potential uncertainties are addressed and clarified in short order, will enable the State to pick up speed on its path to more efficient permitting for both large-scale generation and transmission projects.

The RAPID Act requires ORES to establish uniform conditions for transmission facilities within 12 months of the effective date of the Act (which includes PSC approval), so the new process realistically won't commence until at least the second quarter of 2025.

In the meantime, we expect the public stakeholder processes associated with promulgating regulations for transmission permitting to commence this spring, with draft regulations to be issued later this year and a Commission vote to approve the final regulations in early 2025. The Foley Hoag team will continue to monitor and report as the state moves through the process required by the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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