New York Shows There Is a Path Forward
Author
Noah C. Shaw - Foley Hoag LLP
Foley Hoag LLP
Current Issue
Issue
6
Parent Article

Those who care deeply about fighting climate change and who believe a transition to renewable energy is essential are often told that we have a binary choice: speed permitting and construction of wind, solar, and new transmission lines—or preserve our precious natural resources. But this is false.

For instance, we can have more efficient, fit-to-purpose permitting regimes that send effective market signals regarding the kinds of projects that will receive favorable review. Indeed, as permitting processes evolve to meet the moment, they can and should be both efficient and effective in reducing site-specific environmental impacts.

In recent years, most of the permitting regimes at both the federal and state levels were neither designed nor sufficiently resourced to accommodate the volume of applications or the particulars of the proposed projects. We too often forget that utility-scale renewable energy projects (that is, very large, grid-connected solar and wind projects) have been under widespread development in the United States for less than a decade. The federal Bureau of Ocean Energy Management’s regulations to consider offshore wind project applications under the National Environmental Policy Act were updated in 2011 and again in 2014 to anticipate offshore wind. Evolution in the structure of our reviewing entities and their processes is happening in real time. We should not recoil at the prospects of standard conditions, limits on review times, streamlined interagency processes, and impact analyses that consider a broader scope of direct and indirect environmental costs and benefits.

New York state holds a prime example of how renewable energy project permitting can be made more efficient without losing its protective quality. By 2020 more than 50 large-scale solar and wind project applications had piled up before a state entity called the Article 10 Siting Board. The board had been designed decades earlier to consider a few applications at a time for centralized, traditional energy facilities (like natural gas plants). Shortly after passing its landmark Climate Leadership and Community Protection Act, which mandates 70 percent of the state’s electricity come from renewable energy by 2030, and a zero-emission grid by 2040, the state effectively scrapped the board and formed a new permitting entity, the Office of Renewable Energy Siting. Notably the ORES process includes standardized permit conditions, it dispenses with a cumbersome “settlement” stage, it allows ORES not to apply local law if the law is “unreasonably burdensome in view of the [act’s] targets and the environmental benefits of the proposed . . . facility,” and it puts a one-year clock on issuance of a final permit after an application is deemed complete.

One of the animating theories behind ORES is that since project developers crave—over nearly all else—certainty and predictability, both as a matter of process and substance, then developers would design projects according to standard permit conditions if they were assured doing so would result in a permit at lower cost and in less time. This would lead to better results both for those concerned about project-specific environmental impacts and those motivated by speed for the renewable energy buildout. This seemingly simple principle—that if government tells the market what it wants, with specificity, and provides a reward for compliance, then the market is more likely to provide it—is a tried and true practice across any number of contexts, including utility and energy regulation in New York.

As a practitioner in this space, I can confidently say that the strategy is working and early results are good. Developers work hard to fit their projects to the ORES standard conditions. While not without controversy, this still-nascent process has already produced a final permit for the largest solar project in the history of the state—the 500-megawatt Cider Solar Farm, big enough to power 125,000 homes—which enjoyed strong local support and completely avoided any wetlands or endangered species impacts.

This moment in human history calls for flexibility and market orientation. It will require a willingness to reconsider established norms in environmental review processes.