On August 4, 2011, New York Governor Andrew Cuomo signed into law the Power NY ACT of 2011, a comprehensive energy bill that, among other things, reinstates and significantly revises Article X of the New York State Public Service Law. New Article X provides power project developers a more efficient, streamlined “one-stop” siting process. Both business and environmental groups sought the new law to remedy a patchwork of inconsistent local siting rules that had hampered project development efforts. New Article X reduces the capacity threshold from 80 to 25 megawatts, thereby allowing smaller generation projects, such as wind, solar and other renewable project developers, an opportunity to take advantage of the streamlined siting process.

Under new Article X, the siting and licensing of electric generation facilities of at least 25-megawatts will fall within the purview of the New York State Board on Electric Generation Siting and the Environment. This seven-member Board, consisting of five state agency officials and two ad hoc members from the community, will be tasked with determining whether to issue a project the Certificate of Environmental Compatibility and Public Need, which is a prerequisite to siting or facility construction.

New Article X separates the Certificate process into two distinct phases: a pre-application preliminary scoping statement and the actual Certificate application. In the Pre-Application, an applicant provides the Board with a description of the proposed facility and its environmental setting; potential environmental and health impacts resulting from the construction and operation of the proposed facility; and proposed studies or programs of studies designed to evaluate the potential environmental and health impacts. Before submitting a Pre-Application, the applicant must meet with interested community groups and state agencies to address their concerns.

Once the Pre-Application is completed, the applicant then files a Certificate application with the Board, which describes the site and facility to be built and evaluates anticipated environmental, health, safety and security effects on the surrounding community. New Article X also requires that the Board schedule a hearing on the Certificate application no later than 60 days after the date the Board determines the Certificate application is complete.

New Article X requires that the Board issue a final decision on a Certificate application no later than: (a) 12 months after submission of a Certificate application deemed complete by the Board for a new-build facility, and (b) six months after the submission of a complete Certificate application deemed complete by the Board for modifications to existing facilities or new facilities adjacent or contiguous to an existing facility. Any appeal of the Board’s decision denying or granting a Certificate is first heard by the Board itself, which is required to render a decision on the application no later than 90 days after the expiration of the period for filing rehearing petitions.

For a more thorough discussion of the Power NY Act, click here.