This article was originally published by the New York State Bar Association on April 23, 2025.
Since the enactment of the Climate Leadership and Community Protection Act in 2019, New York has prioritized – and made strides toward – developing the once-nascent renewable energy industry into the backbone of the state’s electric grid.
One cornerstone of New York’s clean energy strategy is offshore wind development. The new act directs the state to procure 9 gigawatts of offshore wind electric generation capacity by 2035. To that end, the Long Island Power Authority contracted for the development of the South Fork Wind Farm, which began operations in December 2023 and now delivers clean energy into Long Island. In addition, two major facilities are in construction: the Sunrise and Empire Wind 1 projects. Both projects received contracts from the New York State Research and Development Authority as well as approval from the Public Service Commission for their transmission lines connecting offshore wind development to the grid[1] and are expected to complete construction and commence commercial operations in 2026 and 2027, respectively.
Further, New York has made several major revisions to its permitting scheme of large-scale energy projects, the latest being the passage of the Renewable Action Through Project Interconnection and Deployment Act in 2024. Among other changes, the RAPID Act transfers the Office of Renewable Energy Siting and Electric Transmission to the Department of Public Service and enacts Article VIII of the Public Service Law. Article VIII replaces decades-old Article VII, which was enacted in 1970, and aims to modernize and expedite the approval process for transmission projects, which, in part, will facilitate the delivery of energy from wind facilities to New York’s grid.
However, President Trump and his administration’s approach to offshore wind development is designed to effectively take the wind out of New York’s sails – or in this case, turbines. Offshore wind development facilities are typically sited in federal waters under the purview of the Bureau of Ocean Energy Management, an agency within the United States Department of the Interior. Shortly after taking office, President Trump signed a presidential memorandum suspending all leasing of federal areas on the Outer Continental Shelf to wind energy developers and directing review of existing leasing and permitting practices of offshore wind projects. While existing projects with wind lease areas are presently unaffected, the memorandum effectively halts consideration of any future offshore wind projects that would potentially interconnect to New York’s bulk electric system.
Status of New York’s Offshore Wind Goals Under the Act
New York presently has 130 megawatts of installed offshore wind capacity through the South Fork Wind Farm. Additionally, the Sunrise and EW1 projects, as proposed, are planned to have 924 MW and 810 MW of capacity, respectively. Thus, taken together, the three wind farms would constitute just over 1.8 GW of offshore wind capacity.
Inflationary effects of the COVID-19 pandemic and other factors have stymied further development of offshore wind projects. While NYSERDA issued solicitations to procure additional projects between 2020 and 2023 (see infra Part III), roughly 6.5 GW of proposed offshore wind capacity ultimately was not secured, leaving New York well short of its target.[2] However, contract execution and publication of the 2024 solicitation are anticipated to occur in the first quarter of this year. As a prerequisite, each of the proposals had to include either an executed or provisional Bureau of Ocean Energy Management lease to be considered.
New York Has Limited Jurisdiction
Under the Submerged Lands Act of 1953,[3] New York’s jurisdiction only extends three nautical miles from its shores. While it is technically possible to site a wind generation facility just off the coast in New York’s territorial waters, there are a number of compelling reasons not to do so; for example, the incredibly tall turbines may present visual impacts, among others.[4] Therefore, offshore wind development has traditionally been limited to the Outer Continental Shelf. As such, New York’s direct authority is limited to the approval of a potential project’s transmission line, pursuant to what is commonly known as Article VII (which will be switching to Article VIII in 2025; see infra Section B.), as any such line would traverse the state’s territorial waters up to the point of interconnection onshore.
Accordingly, New York has indirectly driven offshore wind development through a procurement process overseen by NYSERDA. Additionally, New York is developing ancillary projects, such as expansion of the Port of Albany to accommodate a first-in-the-nation tower manufacturing facility.[5]
NYSERDA Procurement
New York’s primary tool of incentivizing offshore wind development is through the Offshore Wind Renewable Energy Credit procurement process, administered by NYSERDA as authorized by the Public Service Commission. These are essentially renewable energy credits in that they are market-based instruments specifically attributed to the value offshore wind-generated renewable energy provides New Yorkers.[6] In essence, a project produces the credit as a “byproduct” of its generation of renewable electricity; NYSERDA contracts to purchase these credits for a two-year term, in advance of construction and operation of a facility to incentivize its development.[7] Load-serving entities – namely the state’s six incumbent electric utilities – are then obligated to purchase credits from NYSERDA in relation to the portion of the electric load served by the load-serving entity.[8] The cost of NYSERDA’s procurements are ultimately borne by ratepayers in the form of a surcharge on their utility bills.
NYSERDA’s latest request for proposal, marking its fifth solicitation, was released July 17, 2024, with proposals due Sept. 9, 2024.[9] NYSERDA initially received 25 proposals representing 6,870 MW of capacity, although one developer withdrew four proposals when offer pricing was due on Oct. 18, 2024.[10] While contingent awards were anticipated to be communicated by NYSERDA to the successful bidders in November 2024, public award announcements and contract execution are projected to occur in the first fiscal quarter of 2025.
At present, NYSERDA has not publicly opined on how the regime change at the federal level may impact the 2024 solicitation or the state’s goals.[11] NYSERDA CEO Doreen Harris has merely acknowledged that the “federal actions that have occurred already that may impact our work and fundamentally affect our energy outcomes in New York State. But it is too soon to determine the exact nature of those impacts with respect to our progress and initiatives[.]”[12] Nonetheless, Harris has indicated NYSERDA and other state agencies remain committed to advancing New York’s climate goals. While New York can affirm its commitment to the statutory mandates under the Climate Leadership and Community Protection Act, it is unrealistic not to expect significant obstacles as we approach 2030 and beyond.
Article VIII’s Aim Is To Expedite Transmission Siting
Article VIII brings significant departures from the Article VII framework. ORES is still engaged in the rulemaking process to finalize its regulatory regime for transmission permitting: the Office of Renewable Energy Siting issued a notice of proposed rulemaking in the state register on Dec.18, 2024, and the public comment period currently ends April 18, 2025. Existing Article VII applicants may elect to transfer to the Article VIII process once the regulations are finalized but are not required to; new offshore wind-related transmission projects at this point forward are now subject to Article VIII.
Traditionally, pre-application procedures under Article VII were informal; Article VIII establishes a rough schedule, requiring at least one pre-application meeting with stakeholders (affected municipalities, local community members and each indigenous nation within the project study area) 60 days prior to application filing. The intent is to front-load facility design, consideration of alternatives and evaluation of potential impacts a particular project may have on the local community and environment. This ensures that when a developer is ready to file its formal Article VIII application, its consideration is streamlined. Furthering this objective, review is subject to a strict schedule. Under Article VII, there was no set timetable. Now, the Office of Renewable Energy Siting must either issue a notice of complete application or a notice of incomplete application within 120 days, the latter identifying deficiencies that, upon supplemental filing, are subject to an additional 120-day review period per draft regulations.
Issuance of the notice of complete application thereafter triggers a 60-day period for the agency to produce a draft siting permit and, if necessary, schedule adjudicatory procedures, as well as a one-year time frame to ultimately grant or deny the final permit. While the applicant may agree to an extension, this affords regulatory certainty as to when an applicant can expect a final decision. By comparison, since 2019, Article VII applicants on average waited 536 days from application completeness to the grant of a Certificate of Environmental Compatibility and Public Need.[13]
Applications themselves will also be more robust than their Article VII predecessors. The applications now require 29 exhibits, up from 15 exhibits, again formalizing requirements for a number of substantive obligations previously captured under the Article VII settlement process.
Article VIII carries over the uniform standards and conditions framework the Office of Renewable Energy Siting employs in siting major renewable energy facilities (under former Executive Law Section 94-c; now codified at Section 1101 of the Public Service Law). Whereas each Article VII Certificate of Environmental Compatibility and Public Need was wholly site-specific, in practice, Department of Public Service staff and applicants relied upon previous certificates to inform settlement negotiations, in a quasi-iterative fashion. Now, the uniform standards and conditions form the base set of conditions each transmission project must conform to, and to the extent necessary, the agency can develop additional site-specific conditions.
Finally, Article VIII contains provisions that can expedite siting of major electric transmission facilities that are proposed to be constructed “substantially within existing rights-of-way.” The office has discretion to waive certain application requirements, but at present it is unclear to what degree it will employ that discretion and, further, what that may entail for offshore wind transmission development.
Trump Administration
As stated previously, as part of his “Day One” directives, President Trump issued a presidential memorandum that directs temporary withdrawal from all wind energy leasing in the Outer Continental Shelf.[14] The memo cites Section 12(a) of the Outer Continental Shelf Lands Act, which reserves the secretary of defense’s authority (with approval of the president) to restrict certain areas from exploration and operation as needed for the national defense.[15] Thereafter, no exploration or operation may be conducted without concurrence from the secretary of defense; if operations are suspended, payments or royalties are likewise suspended and the term of any impacted lease is extended accordingly.[16] The memo cites the need for protecting marine life, the fishing industry and low-cost energy; it also specifically alienates wind energy leasing. The withdrawal “does not apply to leasing related to any other purposes, such as, but not limited to, oil, gas, minerals, and environmental conservation.”[17]
Citing “various alleged legal deficiencies,” the directive also orders suspension of all federal permitting relating to federal wind leasing, directing the secretary of the interior, in consultation with several other federal agencies, to complete a comprehensive assessment and review of federal wind leasing and permitting practices. The review must consider “the environmental impact of onshore and offshore wind projects upon wildlife, including, but not limited to, birds and marine mammals. The assessment shall also consider the economic costs associated with the intermittent generation of electricity and the effect of subsidies on the viability of the wind industry.”[18] Notably, there is no timeframe for this process; with multiple agencies involved and a host of implications under the National Environmental Policy Act, the Endangered Species Act and other statutes, there is little certainty, which inevitably will frustrate investment in offshore wind, not just in New York but nationwide.
Apart from the memo’s actions directed at offshore wind specifically, the recently announced tariffs implemented on Canada, Mexico and China may also hamper development by raising costs of various materials to manufacture components. President Trump has ordered a 25% tariff on goods from Canada and Mexico (with only a 10% tariff on Canadian fuel imports) as well as up to 245% on some Chinese goods as of this writing. However, the status of these tariffs remains fluid and subject to frequent changes, although the status of tariffs is at best “liquid” and changing daily. These tariffs will likely impose additional costs on turbine components; for example, steel makes up almost 75% of a wind turbine, and the United States imports the majority of its steel supply from its neighbors to the north and south.[19]
In conclusion, as of 2023, there were over 25 GW of proposed offshore wind projects across the East Coast, with an additional 28 GW proposed off the coast of California and Oregon in the Pacific Ocean, which all appear imperiled by the Trump administration’s sweeping policy shifts.[20] Regardless, absent seeing the political winds change, New York will need to be creative to sustain its industry partners in the short term, to have any plausible chance of procuring additional offshore wind generation over the next several years.
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David J. Solimeno and Ekin Senlet are attorneys at Barclay Damon. David, an associate, previously served as an Excelsior Fellow at the New York State Department of Public Service before entering private practice. He draws on his regulatory experience to advise clients on projects governed by Article VII and the new Article VIII of the Public Service Law, as well as in broader matters involving regulatory, administrative, and environmental law.
Ekin is a partner at the firm and co-chairs Barclay Damon’s Regulatory Practice Area. With over a decade of experience, she focuses her practice on regulatory matters, including infrastructure siting under the PSL, environmental permitting, major electric and gas rate cases, management and operations audits, regulatory compliance, and proceedings involving utilities and generator facilities.
This article appears in an issue of The New York Environmental Lawyer, the publication of the Environmental and Energy Law Section (EELS). For more information, please visit NYSBA.ORG/ENVIRONMENTAL.
Endnotes:
[1] The Sunrise and Empire Wind 1 projects both were granted Certificates of Environmental Compatibility and Public Need pursuant to Article VII of the Public Service Law on November 17, 2022, and December 18, 2023, respectively. See Case 20-T-0617, Application of Sunrise Wind LLC, Order Adopting Terms of a Joint Proposal (Nov. 17, 2022); Case 21-T-0366, Application of Empire Offshore Wind LLC, Order Adopting Terms of a Joint Proposal (Dec. 18, 2023).
[2] Ultimately, two contracts were canceled (for 2020 Solicitation Awardees, the 1,260 MW Empire Wind 2 Project and the 1,230 MW Beacon Wind Project) and no additional awards were made (effectively scuttling the 1,404 MW Attentive Energy One Project; 1,314 MW Community Offshore Wind Project; and the 1,314 MW Vineyard Offshore Project considered during the 2022 Solicitation). See New York’s Offshore Wind Projects, N.Y. State, https://www.nyserda.ny.gov/All-Programs/Offshore-Wind/Focus-Areas/NY-Offshore-Wind-Projects (last visited Mar. 27, 2025).
[3] See 43 U.S.C. §§ 1301–1303, 1311–1315. Beyond the Submerged Lands Act, the United States claims sovereignty over the first 12 nautical miles extending from its coast, however the Exclusive Economic Zone (EEZ) extends 200 nautical miles out to sea in line with the United Nations Convention on the Law of the Sea (UNCLOS) treaty; while the United States is not a signatory to UNCLOS, it generally acts in alignment with its terms. Adam Vann, Cong. Rsch. Serv., R40175, Offshore Wind Energy Development: Legal Framework 1 (2023).
[4] See Robert G. Sullivan et al., Offshore Wind Turbine Visibility and Visual Impact Threshold Distances, Env’t Prac., June 2012, at 1 (finding that OSW were “judged to be a major focus of visual attention at distances of up to ten miles, with visibility of small to moderately sized facility by the naked eye at distances greater than 26 miles).
[5] Offshore Wind Albany, Port of Albany, https://www.portofalbany.us/offshore-wind-albany/ (last visited Mar. 27, 2025).
[6] NYSERDA, New York State Offshore Wind – Fourth Solicitation Award and Program Update 6 (2024), https://www.nyserda.ny.gov/All-Programs/Offshore-Wind/Focus-Areas/Offshore-Wind-Solicitations. See also Renewable Energy Certificates, EPA, https://www.epa.gov/green-power-markets/renewable-energy-certificates-recs (last accessed Feb. 2, 2025).
[7] Id.
[8] Id.
[9] NYSERDA, ORECRFP24-1, Request for Proposals (2024).
[10] 2024 Offshore Wind Solicitation (Closed), N.Y. State, https://www.nyserda.ny.gov/All-Programs/Offshore-Wind/Focus-Areas/Offshore-Wind-Solicitations/2024-Solicitation (last visited Mar. 27, 2025).
[11] Colin Kinniburgh, Trump Throws Wrench Into Offshore Wind, Putting New York’s Clean Energy Plans in Doubt, NYFocus, Jan. 23, 2025, https://nysfocus.com/2025/01/23/donald-trump-offshore-wind-executive-order-new-york.
[12] Ron Plants, State Energy Policies Questioned by GOP Lawmakers; Trump Executive Orders Block Off Shore Wind Power, WGRZ, Feb. 2, 2025, https://www.wgrz.com/article/news/local/buffalo/state-energy-policies-questioned-gop-lawmakers-trump-executive-orders-block-off-shore-wind-power/71-3d9033c5-ae28-4128-b30a-ec22e391f2c3.
[13] Ekin Senlet et al., RAPID Action: NYS Office of Energy Renewable Energy Siting and Transmission Announces Draft Regulations for New Transmission Siting Framework, Barclay Damon LLP, Dec. 20, 2024, https://www.barclaydamon.com/alerts/rapid-action-nys-office-of-energy-renewable-energy-siting-and-transmission-announces-draft-regulations-for-new-transmission-siting-framework.
[14] The Trump administration recently issued an order to stop construction on the Empire Wind 1 project. Trump’s Disdain for Wind Energy Could Lead to Cuts in Capital Region, Albany Times Union, April 17, 2025 https://www.timesunion.com/business/article/trump-s-distain-wind-energy-lead-cuts-capital-20280627.php.
[15] 42 U.S.C. § 1341(d).
[16] See Id.
[17] Presidential Memorandum on Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects, 2025 Daily Comp. Pres. Doc. 2, § 1, Jan. 20, 2025.
[18] Id. at § 2(a).
[19] Benjamin Storrow, Trump Tariffs Spark Fears of Clean Energy Supply Chain Chaos, SCIAM, Feb. 3, 2025, https://www.scientificamerican.com/article/trump-tariffs-potential-clean-energy-effects-explained/.
[20] Jared Anderson et al., US Offshore Wind Power Development Expanding Beyond the East Coast in 2023, S&P Global, May 17, 2023, https://www.spglobal.com/commodity-insights/en/news-research/latest-news/energy-transition/051723-us-offshore-wind-power-development-expanding-beyond-the-east-coast-in-2023.