Passed into law in April 2024, the Renewable Action Through Project Interconnection and Deployment (RAPID) Act directs sweeping changes to how New York State permits and approves major electric transmission projects. In the wake of the act’s passage, the Office of Renewable Energy Siting and Transmission (ORES) is in the process of developing new regulatory standards and requirements for project approval.
The biggest change brought by the RAPID Act relates to the approval and permitting of “major” electric transmission facilities in New York State, defined as transmission lines that have a capacity of 125 kilovolts or larger and are at least one mile in length or have a capacity of 100 kilovolts or larger and are at least 10 miles in length (unless the transmission lines are wholly located within New York City). Since 1970, these major transmission lines have been approved by the New York Public Service Commission (PSC) under Public Service Law Article VII.
Under the RAPID Act, siting approval for these transmission lines has been transferred to ORES through newly created Public Service Law Article VIII. Final RAPID Act regulations must be promulgated no later than April 20, 2025.
On December 18, 2024, ORES issued a Notice of Proposed Rulemaking in the State Register for the draft regulations. Public statement hearings are scheduled across New York State beginning February 18, 2025, culminating with virtual hearings on March 11, 2025. Written public comments on the proposed draft regulations may be submitted until March 18, 2025. Thereafter, ORES will take further action to finalize its siting framework.
Major Changes From Current Article VII Regime to the New Article VIII Regime
Article VIII and the draft regulations as proposed take significant departures from the existing Article VII framework. While not required, existing Article VII applicants may elect to transfer an application to ORES under Article VIII once the regulations are finalized.
A. Pre-Application
First, the pre-application process is formalized, requiring at least one pre-application meeting with (1) the affected municipalities; (2) the local community members; and (3) each indigenous nation within the study area for the project, at least 60 days prior to application filing. Under Article VII, while applicants were required to provide notice to the affected municipalities, other stakeholders, and the public, outreach was merely encouraged (often conducted as part of a public involvement plan) but not required. Without proof of local stakeholder consultation, ORES cannot deem an application complete under Article VIII and the draft regulations. The pre-application process also entails consultation with state agencies; consultation with ORES is encouraged as early as possible but must occur no later than six months before the date the applicant anticipates it will file an application. Consultation with other state agencies, such as the Department of Environmental Conservation with respect to wetland and stream delineation, threatened and endangered species, etc., must also occur. Overarchingly, the new process attempts to front-load the facility design and supporting analyses that was typically addressed later in the siting process, which may reduce the timeframe to review and approve siting permit applications once an application is deemed complete by ORES.
B. Application Review Timeframe
The RAPID Act also incorporates strict timelines into the transmission siting permit process. Under Article VII, there was no set timeline for DPS to declare an application “complete.” While in practice, DPS staff has aimed for a completeness determination within 60 days of receiving an application, Article VII applicants have often encountered multiple deficiency letters, creating regulatory delays. Under the RAPID Act, ORES will have 120 days to issue either a Notice of Complete Application (NOCA) or a Notice of Incomplete Application (NOIA). If no action is taken within 120 days, the application will be deemed complete by default. Assuming ORES issues a NOIA, the draft regulations propose an additional 120 period, which only commences after all requested items are received from the applicant.
Perhaps the greatest departure from Article VII comes after application completeness. Under the current Article VII, most applicants enter into confidential settlement discussions after NOCA issuance, which begins the one-year statutory clock for permitting, and typically involves lengthy negotiations; settlement can stretch anywhere from six months to well over one year. The RAPID Act moves away from this settlement process and instead requires ORES to issue draft permit conditions for public comment and an adjudicatory process, if necessary, within 60 days of application completeness. The standard for adjudication is also heightened, with a party having to raise an issue that is “substantive and significant” in order to proceed to a hearing.
These action-forcing deadlines also apply to ORES’s grant of the siting permit. Dispensing with Article VII’s joint proposal framework, now ORES will automatically grant a siting permit if the department has not made a decision on the draft permit within one year of the NOCA, unless ORES and the applicant have agreed to an extension.
To put this timing in perspective, according to the draft Environmental Impact Statement document issued with the proposed regulations, since 2019, there have been nine applications filed with the PSC for electric transmission facilities under Article VII that received a certificate. The average time from the subject applications’ compliance with PSL § 122 to certificate issuance was approximately 536 days, with lengthy joint proposal and settlement processes being a key factor in timing. The RAPID Act aims to streamline the review process, with an expedited permit approval.
C. Application Contents and Siting Permit Conditions
The draft regulations presently envision 29 exhibits to be prepared as part of a siting permit application, which significantly expands upon the 15 exhibits required for Article VII applications under 16 NYCRR Part 86 (general exhibits) and Part 88 (exhibits specific for electric transmission facilities). While a variety of these new exhibits may have been captured in Article VII certificates by way of the joint proposal or as part of their environmental impacts exhibit, known as Exhibit 4, applicants will now be expected to address these issues separately and distinctly at the outset of the application process. The RAPID Act and, in turn, the draft regulations also incorporate Climate Leadership and Community Protection Act (CLCPA) considerations, requiring applicants to demonstrate whether local substantive requirements, for example, are unreasonably burdensome in light of the CLCPA targets.
As discussed above, in lieu of project-specific permit conditions negotiated through settlement, Article VIII adopts the framework previously laid out by ORES under Executive Law Section 94-c for major electric generation facilities. Newly proposed uniform standards and conditions (USCs), outlined in proposed 16 NYCRR Subpart 1102-3, will be applicable to major electric transmission facilities. Once adopted, the USCs will apply to each project, with site-specific conditions proposed and developed on an ad hoc basis in connection with DPS staff’s draft permit.
Questions Moving Forward
Although the draft regulations provide clarity as to how ORES intends to proceed under Article VIII, there are still gray areas that may be addressed throughout the public comment period. For example, the RAPID Act contains language allowing ORES to carve out an exemption for major electric transmission facilities proposed to be constructed “substantially within existing rights-of-way” (ROWs) from “certain requirements” of the new Article VIII. The draft regulations at present merely indicate applicants for these projects may consult with ORES in the pre-application stage regarding which exhibits the applicant seeks to be relieved from filing. Without further guidance, it is unclear to what degree the siting process may be expedited for projects that take advantage of existing ROWs.
Barclay Damon’s Regulatory Practice Area attorneys will continue to review the draft regulations and monitor the proceedings as comments are received and addressed by ORES.
If you have any questions regarding the content of this alert, please contact Ekin Senlet, Regulatory Practice Area co-chair, at esenlet@barclaydamon.com; Brenda Colella, Regulatory Practice Group leader and Regulatory Practice Area co-chair, at bcolella@barclaydamon.com; or David Solimeno, associate, at dsolimeno@barclaydamon.com; or another member of the firm’s Regulatory Practice Area.