The Power NY Act of 2011: New Power Facility Siting Regulations Under Article X

The New York state legislature recently passed the Power NY Act of 2011, finally reinstating the state's long expired power plant siting law, known as Article X of the Public Service Law. Governor Cuomo is expected to sign the bill into law shortly. The majority of parties pursuing regulatory approvals for power generating facilities during the eight year period following the expiration of Article X were wind farms, who in the absence of legislation, have been required to obtain both state agency and local approvals. Although Article X was never the "fast track" process that many hoped, it did provide a coordinated procedure for obtaining all Public Service Commission (PSC), Department of Environmental Conservation (DEC), state agency approvals and reviews, as well as review under the State Environmental Quality Review Act (SEQRA). Article X also greatly restricted the ability of municipalities, towns and counties from imposing roadblocks on power plant construction. The Power NY Act of 2011 modifications to Article X largely retain the "one stop" procedure for obtaining approval for power plant construction, although a number of additional or more specific environmental requirements and findings must be made. This Alert will highlight the new Article X procedural requirements under the Power NY Act of 2011. 

 

 

The Article X approval process will now apply to all electric generating facilities with a nameplate generating capacity of 25 megawatts (mw) or more. Old Article X applied only to such facilities of 80 mw or more. The lower threshold will permit most commercial sized wind farms to take advantage of the Article X process. 

 

 

The Article X review and approval process remains largely the same as before and will be performed by the New York Electric Generation Siting and The Environment Board (the "Board"). The Board will be made up of the PSC chair, the commissioners of DEC, Health and Economic Development, the chair of NYSERDA and two ad hoc public members who reside in the municipality in which the proposed facility will be located. The two ad hoc members will serve only until a final determination is made on the particular facility. The Board will not be able to accept applications until DEC adopts necessary regulations that will govern review of environmental justice and cumulative impact issues raised by an application. Therefore, if an electric generating plant application is filed before the DEC regulations are promulgated, the new Article X procedures will not apply. It should be noted that DEC is given no deadline for promulgating the necessary regulations, so it is not clear when the new Article X process will become effective. 

 

Pre-application procedures, which were voluntary under the old Article X, are now made mandatory and the contents of pre-application scoping document are specified. The scoping document must include: