One of the biggest challenges to states meeting ambitious Clean Energy Standards is local opposition to large scale projects, something we’ve written about previously. The federal government and many state legislatures have taken significant steps to incentivize and promote a rapid clean energy transition. However, because local governments in many areas still play a critical gatekeeping role for these projects, progress can be stalled or halted for years if they’re forced to work through a lengthy and uncertain appeals process. New York has taken significant steps to try to address these challenges, the latest attempt at which is the adoption of the Renewable Action Through Project Interconnection and Deployment (RAPID) Act.
New York has one of the most aggressive Clean Energy Standards in the country, with the Climate Leadership and Community Protection Act (CLCPA) establishing targets of 70% of the state’s energy coming from renewables by 2030, and to achieve 100% emissions free electricity generation for the state by 2040. As of 2022, about 29% of the State’s energy came from renewable sources, meaning “the State will have to more than triple the installed 2022 renewable capacity of roughly 6.5 gigawatts by adding an additional 20 gigawatts over an eight-year period. As a point of reference, the State added 12.9 gigawatts of total electric generation, including both fossil fuel and renewable sources, in the last 20 years.”[1]
What the RAPID Act Entails
New York’s RAPID Act was adopted in the Spring of 2024 as part of the state’s FY 2025 Budget. The Act is an evolution of Section 94-c of New York Executive Law, adopted in 2020, which sought to streamline and expedite environmental and siting permits for major (generally, over 25 MW) renewable energy generating facilities. Section 94-c created the Office of Renewable Energy Siting (ORES), and with it made that office responsible for issuing a single permit covering all state and local approvals required for these large-scale facilities. The RAPID Act expanded ORES’s jurisdiction to include permitting for major electric transmission facilities as well, and has several deadlines built into the permitting process, including an overall deadline requiring a permitting decision within one year of the submission of a complete application, or six months if the project is located on certain distressed or abandoned properties (e.g., brownfields, landfills, former power plants, etc.).
Local laws and regulations, along with community engagement, still play a prominent role in the permitting process under the RAPID Act. Before an application can be submitted, applicants are required to engage on several levels with the local community, including meeting with the chief executive officer of the municipality where the facility will be located as well as any local agencies identified by that official. Section 1100-1.3(a). At those meetings, applicants must provide fairly detailed information to the community leaders. Section 1100-1.3(a)(1)-(8). In addition, at least 60 days prior to submitting an application, applicants are required to host at least one community meeting where there are detailed efforts to inform the public about the project and some key features of the RAPID Act in general. Section 1100-1.3(b)-(c).
The application itself must include details regarding all of the local “ordinances, laws, resolutions, regulations, standards and other requirements applicable to the construction or operation of the facility … that are of a substantive nature, together with a statement that the location of the facility as proposed conforms to all such local substantive requirements, except any that the applicant requests that [ORES] elect not to apply.” Section 1100-2.25. ORES is given the authority to preempt any such local laws if it finds that they would be “unreasonably burdensome in view of the CLCPA targets and the environmental benefits of the proposed facility.” Section 1100-2.25(c). While ORES’s authority here is not unlimited, it gives it the tools needed to preclude communities from significantly restricting these facilities through zoning regulations.
That authority is balanced through the creation of the Local Agency Account, an innovative tool that provides funds to local agencies and “potential community intervenors” to assist in the cost of experts, consultants, attorneys, etc. when the intervenor can show that the funds will used to “contribute to a complete record leading to an informed permit decision as to the appropriateness of the site and the facility” and, for local agencies, to determine whether the proposed facility conforms with applicable local laws and regulations. Section 1100-5.1(a)-(h). There are strict limits on eligibility and use of the funds, and they must be requested within 30 days of the date the application is submitted, helping to ensure they aren’t used simply to fund obstruction of the overall permitting process.
A Streamlined Appeals Process
The RAPID Act also sets forth a detailed and limited administrative appeal process. While many states have tried to expedite the permitting appeal process to counteract the negative impacts process-related delays have on otherwise appropriate and viable projects, the structure established in the RAPID Act is clearly designed to resolve appeals expeditiously. This includes strict and short duration deadlines for filings, responses and decisions. Issues raised in opposition to a proposed project must be “substantive and significant” in order to qualify as an “adjudicable issue”, meaning, in general, there must be “sufficient doubt about the applicant’s ability to meet statutory or regulatory criteria applicable to the project” in order for the issue to move forward to an adjudicatory hearing. Section 1100-8.3(c). If a hearing is held, in general parties are given just five days to respond to motions, and the administrative law judge is required to rule on motions within five days after the response is served.
New York’s Article 78 process for appeals from administrative decisions in general is already designed to move appeals along quickly by requiring that the appeal be filed quickly after the decision is issued, and limit discovery. This process complements the RAPID Act’s objective of moving projects through the pipeline quickly. As such, while final decisions from the administrative law judge under the RAPID Act could still be subject to an Article 78 appeal, given the exceptionally broad authority and discretion granted to ORES, it would be extremely difficult to meet the standards set forth for an appeal to be successful.
The Early Results Are In
In the relatively short period of time since 94-c was adopted, New York has approved 2.34 GWs of new renewable energy projects under 94-c and the RAPID Act. Another 2.85 GW is either under review, has a partially complete application submitted, or has issued a notice of their intent to submit an application. Many more are in the pipeline, and only one project has been denied. While not perfect, the RAPID Act provides a solid blueprint for how a state can help advance aggressive renewable energy goals while balancing local concerns through an expedited but predictable process.
[1] https://www.osc.ny.gov/files/reports/pdf/renewable-electricity-in-nys.pdf
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