During the 2021 budgeting process, New York State adopted Article 94-c of the Executive Law forming the new Office of Renewable Energy Siting (ORES). This year, in the 2022 budget (available here), the state seeks to exempt ORES from reviewing the environmental impacts of individual renewable energy projects pursuant to the State Environmental Quality Review Act (“SEQRA”). The change is proposed via Part Q of the TED Bill (explanatory memorandum available here, see numbered page 19).
Although the older Article 10 power plant siting process enjoyed a similar exemption from SEQRA, the Public Service Law requires the Board on Electric Generating Siting and the Environment to make express findings and determinations related to the environmental impacts of any given project. These project specific findings and determinations are listed in Section 168 of the Public Service Law.
Before approving a power plant, and in lieu of SEQRA review, the Siting Board is required to compile evidence necessary to show impacts on ecology, air, ground and surface water, wildlife, and habitat; public health and safety; and cultural, historic, and recreational resources, including aesthetics and scenic values, among other things. PSL 168(2)(a-c). The Siting Board is also required to make an express determination that, “the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable . . . .” PSL 168(3)(c).
In contrast, Article 94-c and the draft ORES regulations do not require ORES to make any findings and determinations related to environmental impacts prior to issuing a permit. Instead, ORES operates under a presumption that all environmental impacts will be addressed through uniform standards and conditions equally applicable to every project in the state. Under Article 94-c, it is possible for ORES to award a siting permit without making a single finding and determination about the environmental impacts of a specific project.
Given Article 94-c’s lack of a requirement for findings and determinations related to environmental impact, it would be disingenuous to argue the legislature’s initial failure to exempt the ORES process from SEQRA was the result of sloppy drafting, or a mere accident. Instead, the refusal to exempt ORES applications from SEQRA review is a reasonable alternative to the findings and determinations made by the Siting Board in Article 10 proceedings.
If the state follows through with its plan to exempt ORES applications from SEQRA review, it would be prudent to further modify Article 94-c to require ORES to make express findings and determinations concerning environmental impacts prior to issuing a permit. The findings and determinations could mirror those required by PSL 168 in Article 10 proceedings.
Finally, a requirement for environmental impact findings and determinations would not inhibit the expeditious processing of ORES permits, as the Siting Board has demonstrated an unfailing ability to compile a record and make required findings and determinations within in the same 1 year time period applicable to ORES proceedings.
For inquiries about the process for siting large power plants in New York State, please contact Benjamin E. Wisniewski. The Zoghlin Group represents individuals, public interest groups, and municipalities in power plant siting proceedings throughout New York State.
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