Relief from NIMBYism for renewable energy: New York’s RAPID Act

One of the biggest challenges for countries meeting ambitious Clean Energy Standards is local opposition to large-scale projects, as we have written about before. The federal government and many state legislatures have taken significant steps to encourage and promote a rapid transition to clean energy. However, as local governments in many areas continue to play a key role in implementing these projects, progress could be blocked or halted for years if they are forced to go through a long and uncertain appeals process. New York has taken significant steps to address these challenges, most recently adopting the Renewable Activities through Interconnection and Project Implementation (RAPID) Act.

New York has one of the most stringent clean energy standards in the country, with the Climate Leadership and Community Protection Act (CLCPA) setting goals for 70% of the state’s energy to come from renewable sources by 2030, as well as achieving power generation 100% emission-free electricity for the state by 2040. As of 2022, about 29% of the state’s energy came from renewable sources, which means “the state will need to more than triple its installed renewable capacity in 2022 of about 6.5 gigawatts, adding an additional 20 gigawatts over an eight-year period. As a baseline, the state has added 12.9 gigawatts of total electricity generation over the past 20 years, including both fossil fuels and renewables.”(1).

What does the RAPID Act cover?

New York’s RAPID Act was passed in the spring of 2024 as part of the 2025 state budget. The act is an expansion of Section 94-c of the New York Executive Act passed in 2020, which was intended to streamline and expedite the issuance of environmental and site permits for major (typically over 25 MW) facilities generating renewable energy. Section 94-c created the Office of Renewable Energy Siting (ORES) and with it gave this office responsibility for issuing a single permit covering all state and local permits required for these large facilities. The RAPID Act expanded ORES jurisdiction to include permitting major electric transmission facilities, and several deadlines were built into the permitting process, including a general deadline requiring a permitting decision to be issued within one year of submission of a complete application, or six months if the project is located on specified properties in difficult situations or abandoned (e.g. post-industrial areas, landfills, former power plants, etc.).

Local laws and regulations, as well as community engagement, continue to play a significant role in the permitting process under the RAPID Act. Before submitting an application, applicants must engage with the local community at several levels, including meeting with the chief executive of the municipality in which the facility will be located, as well as any local agencies identified by that official. Section 1100-1.3(a). During these meetings, candidates must provide quite detailed information to community leaders. Section 1100-1.3(a)(1)-(8). Additionally, at least 60 days prior to submitting an application, applicants are required to hold at least one community meeting at which detailed efforts are made to inform the public about the project and some of the key features of the RAPID Act in general. Section 1100-1.3(b)-(c).

The application itself must include detailed information regarding all local “ordinances, laws, resolutions, regulations, standards and other requirements applicable to the construction or operation of the facility… of a substantive nature, together with a statement that the location of the facility as proposed complies with all such local requirements substantive, except those which the applicant requests that (ORES) chooses not to apply.” Section 1100-2.25. ORES is given the authority to rescind any such local regulations if it determines that they would be “unreasonably burdensome in light of the purposes of the CLCPA and the environmental benefits of the proposed facilities.” Section 1100-2.25(c). While ORES’s powers are not unlimited in this case, they give it the tools needed to prevent communities from significantly restricting these facilities through zoning regulations.

This power is balanced by the creation of a Local Agency Account, an innovative tool that provides funds to local agencies and “potential community interveners” to help cover the costs of experts, consultants, lawyers, etc., where the intervener can demonstrate that the funds will be used to ” contribute to the complete documentation leading to an informed permit decision on the suitability of the site and facility” and, in the case of local agencies, to determine whether the proposed facility complies with applicable local laws and regulations. Section 1100-5.1(a)-(h). There are strict limits on eligibility and use of the funds, which must be applied for within 30 days of the application date, ensuring that they are not used simply to finance obstructing the overall permitting process.

Streamlined appeals process

The RAPID Act also sets out a detailed and limited administrative appeals procedure. While many states have attempted to expedite the permit appeals process to counteract the negative impact of process delays on appropriate and feasible projects, the structure established in the RAPID Act is expressly designed to quickly process appeals. This includes strict and short deadlines for submission of applications, responses and decisions. The issues raised in opposition to a proposed project must be “substantial and significant” to qualify as a “resolvable issue,” which generally means that there must be “sufficient doubt as to the applicant’s ability to meet the statutory or regulatory criteria applicable to the project. project” in order to refer the case for consideration. Section 1100-8.3(c). If a hearing is held, the parties generally have just five days to respond to the motions, and the administrative law judge is required to rule on the motions within five days of delivery of the response.

Generally speaking, New York’s procedure for appealing administrative decisions under Art. 78 already aims to process appeals quickly by requiring an appeal to be filed quickly after a decision is made and limiting discovery. This process complements the RAPID Act’s goal of expeditious project implementation. Therefore, although final decisions of an administrative law judge under the RAPID Act may still be subject to appeal under s. 78, given the exceptionally broad powers and discretion granted to ORES, it would be extremely difficult to meet the standards set for an appeal to succeed.

The first results are already in

In the relatively short time since 94-c was passed, New York has approved 2.34 GW of new renewable energy projects under the 94-ci RAPID Act. Another 2.85 GW are under review, have submitted a partially complete application, or have issued a notice of intent to apply. There are many other projects in the pipeline and only one project has been rejected. While the RAPID Act is not perfect, it provides a solid blueprint for how the state can help meet ambitious renewable energy goals while balancing local concerns in an expedited but predictable process.

(1) https://www.osc.ny.gov/files/reports/pdf/renewable-electricity-in-nys.pdf

(See source.)