On August 27, 2021, Justice Peter Lynch of the New York State Supreme Court, Albany County issued the first substantive ruling in Town of Copake v. New York State Office of Renewable Energy Siting, No. 905502-21 (Sup. Ct. Albany Cty. Aug. 27, 2021), a lawsuit challenging the validity of regulations promulgated by the New York State Office of Renewable Energy Siting (ORES). Specifically, in a brief order, the Court denied the petitioners’ request for a temporary restraining order and ordered argument on whether the petitioners are entitled to a preliminary injunction. Oral argument is scheduled for September 8, 2021.
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New York State Office of Renewable Energy Siting Streamlines and Expedites Deployment of Large-Scale Renewables
New York State continues to supercharge the deployment of renewable energy projects. Building on landmark legislation passed in 2019, New York State’s newly created Office of Renewable Energy Siting (ORES) has now finalized the regulations that will govern siting and permitting of large-scale renewable energy projects greater than 25 MW; projects between 20 and 25MW have the option of proceeding under Article 10 of the Public Service Law or the ORES process. The regulations create a clear glide path that replaces the lengthy and cumbersome process previously established under Article 10. With these new procedures in place, developers can expect a 60-day shot clock for ORES to make a completeness determination, and a 12-month deadline for ORES to issue a final decision on a siting permit to promote cost-effective and efficient development that aligns with New York State’s commitment to fully decarbonize its electric sector by 2040.
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Reset 2.0?
Public Service Commission Resets Retail Energy Marketplace:
All ESCOs Required to Re-Register Under New Rules and Completely Revise Product Offerings
On December 12, 2019, the New York State Public Service Commission (“Commission”) voted to reset the retail energy marketplace by requiring all Energy Service Companies (ESCOs) to re-register for eligibility to serve customers. While the final order remains to be issued, the Department of Public Service (DPS) explained that as part of the re-registration process, it will subject each ESCO to new eligibility requirements and require all ESCOs to modify their product offerings to fit one of four categories.
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New York Transforms Energy Storage Economics
Throughout the first four years of New York’s Reforming the Energy Vision (“REV”) initiative, the precise role of energy storage has been unclear. There was no energy storage goal, only sparse incentives were available to spur development, the regulatory framework remained under construction, and the relatively nascent storage applications did not seem to fit within currently existing market mechanisms.
New York is now paving the way for a robust storage industry. In December 2018, the Public Service Commission (“Commission”) adopted an energy storage goal of 3,000 MW by 2030, with an interim target of 1,500 MW by 2025 (the “Storage Order”). To jumpstart the program, the Commission ordered Consolidated Edison to competitively procure and deploy 300 MW of energy storage by 2022, and the remaining utilities to each procure 10 MW of energy storage in their respective service territories.
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EPA Proposes to Replace Clean Power Plan with Affordable Clean Energy Rule
On August 21, 2018, the Environmental Protection Agency (“EPA”) proposed a new rule which would replace the Obama-era Clean Power Plan (“CPP”) and establish new emissions guidelines for states to address greenhouse gas (“GHG”) emissions from electric-generating power plants. As background, the CPP was stayed by the Supreme Court in a 5-4 decision in February of 2016 before the rule ever went into effect. More recently, in October 2017, the EPA announced its intention to effectively repeal the CPP because it “exceeded” the EPA’s authority. Now, the EPA is proposing to enact the Affordable Clean Energy rule (“ACE Rule”) to reduce GHGs while giving states more flexibility to achieve that goal.
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