The Public Service Commission Just Notified Us of an Article 10 Solar Project in Our Town. Now What?
The rumors started about a year ago. Reports that a developer was entering into solar energy agreements with the local farmers. As the Town Supervisor, you were approached by a developer about four months ago to meet about a proposed solar energy project. You and other town officials met with them and they talked about a 300-megawatt (MW) solar project on about 1,500 acres of land and learned that the town wouldn’t have any authority to approve the project. Instead, the project would be wholly reviewed and approved by a state level “Siting Board” under something called the “Article 10 process” for siting electric power generating facilities. The developer then presented the project at the next Town Board meeting, explained the Article 10 process some more, and answered questions, but the Board is concerned. While the developer talked about stable revenue streams to help local farmers and significant PILOT and community host benefit payments, which will help the town budget and may reduce taxes for town residents, the Board wants to make sure the project is right for the town. And why does the state have sole authority to approve a huge project in the town instead of the Planning Board and Town Board? A couple of months after the Town Board meeting, you receive a letter from the Secretary of the Public Service Commission (PSC) about the project telling you to become familiar with the Article 10 process and that you need to prepare nominations for “ad hoc public members” to the Siting Board. Now what?
Solar and Wind Project Trends in Agricultural Towns
This scenario is rapidly playing out in agricultural towns throughout the North Country and Central and Western New York. According to the Department of Public Service, in 2018 one wind and six solar projects totaling 725 MW in capacity were initiated through the Article 10 process. By 2019, 17 solar and 1 wind energy projects were initiated totaling 3,690 MW in capacity, about half of which were initiated in September 2019, and six solar projects totaling 795 MW in capacity have already been initiated in 2020. The furthest south and east any of these projects is located is a 2018 solar project in Greene County and a 2020 solar project in Columbia County, with all the remaining projects located in the North Country or Central and Western New York.
This upward trend of large solar and wind projects will only continue. With the enactment of the Climate Leadership and Community Protection Act (CLCPA) in 2019, 70% of the electricity in New York is required to be obtained from renewable energy systems by 2030. To put this goal in perspective, in 2004 New York obtained about 19% of its electricity from renewable sources, primarily associated with the hydropower facilities at Niagara Falls and the St. Lawrence River, and the solar and wind development since then raised the amount of electricity generated from renewable sources to only about 28% in 2018. See NYISO 2018 Power Trends. So, in the next 11 years, to meet the CLCPA goals, New York will need to put wind and solar projects on-line totaling about six times the generating capacity of what was implemented in the past 14 years. While a portion of the CLCPA goals are slated to be met with offshore wind projects off Long Island, the CLCPA also calls for 6,000 MW of solar energy.
The Article 10 Process
So, what is the Article 10 process? In a nutshell, the Article 10 process refers to Article 10 of the Public Service Law and is the electric power plant siting approval process for large power projects, defined as those greater than 25 MW (the capacity of about 10 large wind turbines). The intent of the Article 10 process was to accelerate the approval cycle for large renewable energy projects in a way that protects human health and the environment. Except for certain environmental permits administered by the Department of Environmental Conservation (DEC), all of the permits and environmental reviews required for these projects are considered for approval by the Article 10 Siting Board, which consists of the heads of five state agencies (the PSC, DEC, NYSERDA, Department of Health, and Empire State Development) and two “ad hoc” members who are nominated by and reside within the municipalities where the project is located. The approval authority of local boards is usurped by the Siting Board and the Siting Board can override local laws that are determined to be “unreasonably burdensome.”
Protecting the Interests of the Town
If the Siting Board has approval authority over the project and can override local laws, how can a town participate in the proceeding and protect its interests?
First, the Article 10 process provides “intervenor funds” to host communities so they can hire legal representation and engineering and environmental consultants so that towns can meaningfully participate as a party to the proceeding. The town, with its consultants and input from its residents, can participate by commenting on proposals, raising issues of local concern, taking part in settlement negotiations, and submitting testimony and studies.
Second, compliance with local laws is an important factor for the Siting Board to consider when evaluating a project. The Siting Board is generally hesitant to override local laws and has only done so in very limited circumstances. A town can make clear in the proceeding how it would interpret the project’s compliance with its local law.
Third, the town can nominate qualified, motivated persons to act as the local ad hoc members of the Siting Board. The state officials on the Siting Board will likely have little background on local issues so it will be up to the ad hoc siting board members to communicate the impacts of the project to other Siting Board members.
Fourth, through the attorney for the town, the town can make sure that their legal rights to participate in the proceeding are not compromised.
What Should Towns Consider?
So, back to the original question, what is a town to do when the PSC Secretary notifies the town that an Article 10 project has been initiated? Each town has unique issues, but, in our experience, should consider the following:
- Take advantage, and encourage residents to take advantage, of open houses about the project that the developer will likely hold. These offer an opportunity for the developers to hear firsthand the questions and concerns that residents and town officials have about the project.
- Identify means to communicate information about the project to residents, such as posting links to project information on town websites.
- Review local solar and wind siting laws, especially if they are somewhat dated, to make sure they address current land use concerns. If significant gaps are noted, they should be addressed.
- Begin putting together a list of local candidates to be nominated to the Siting Board. An important consideration for these nominees is that the proceeding will likely take at least three years from the time of initiation, and the formal Siting Board deliberations won’t begin for at least a year and will last 12–18 months.
- Work with your municipal attorney and code enforcement officials to identify, interview, and assemble your consultant team to help guide the town through the Article 10 process. Experienced legal and engineering/environmental consultants familiar with Article 10 procedures and issues are critical to successful participation and protection of town interests.
The Article 10 process takes, at a minimum, two years from initiation to approval, and for the five projects that have been approved since the Article 10 process was restarted in 2012, the time from initiation to approval ranged from 36 to 55 months (not counting subsequent rehearings). Needless-to-say, once an Article 10 project is initiated, an affected town will likely be participating in a multi-year process that will command the attention of town officials. Early planning with an experienced team is critical to meaningful local participation.