Article 10 and 94-c: Apples and Unripe Oranges – Is New York Improving at Large-Scale Renewables Siting?

By Eric Pinsker-Smith, Senior Analyst; and Andrew Lidington, Senior Analyst

Publish Date: February 28, 2022

Estimated Read Time: 7 minutes

On August 4, 2011, New York Governor Andrew Cuomo signed Article 10 into law, making it the primary siting procedure for electric generation projects 25 MW and larger. Under Article 10, project developers were required to assess potential project impacts and include methods to reduce or remediate those impacts. Many projects seeking approval under Article 10 experienced significant delays when stakeholders opposed building a project due to extended disputes and negotiations. It was not until 2018 that Cassadaga Wind became the first project to receive its Article 10 approval. With the slow pace of project development under Article 10, New York was at risk of missing its targets to use 70% renewable energy by 2030 and have a carbon-free grid by 2040.

In April 2020, the Accelerated Renewable Energy Growth and Community Benefit Act became law, establishing the new Section 94-c permitting program for large-scale renewable energy projects. The objective of Section 94-c was to expedite the permitting process by standardizing many of the testing, mitigation, and remediation processes that Article 10 had required. Although these adjustments were designed to benefit numerous aspects of the project siting process from permitting timelines to outcome predictability, in this blog we focus on analyzing permitting timelines. Section 94-c also set stricter timelines for the newly created Office of Renewable Energy Siting (ORES) to finish its assessment of each project’s Section 94-c application, with a requirement of reaching a determination within one year.

New York sought to have Section 94-c accelerate large-scale renewable energy development, but, in practice, is Section 94-c more efficient than Article 10? After approximately one year under Section 94-c, Sustainable Energy Advantage has analyzed both programs to compare the differences in the number of projects, capacity, and completion time of the projects in each program.

Let’s start by looking at the different permitting stages of the Siting Board’s Article 10 process and the ORES’ 94-c process, which are shown in Figure 1 below:

Figure 1: Major Siting Milestones for Article 10 process (top) and 94-c Process (bottom)

Even though both siting programs have the same goal—efficiently site large-scale electric generation projects while taking into consideration legal, environmental, social, and economic factors—the intermediary steps differ substantially. Not only does the 94-c process have several more intermediary steps, but there are also statutory requirements governing the timeline of a project’s progression through the 94-c process. The ORES has:

  • 60 days to issue a draft permit (or deem the application incomplete) after the notice of application filing;
  • 30 days for the administrative law judge to designate adjudicable issues after ORES staff recommends a draft permit for approval;
  • 45 days for the administrative law judge to issue a recommended decision on the adjudicable issues; and
  • 44 days for ORES’ Executive Director to rule on the adjudicable issues and issue the permit after the administrative law judge’s recommended decision

As for the current pipeline of projects, there are approximately 4,500 MW in the Article 10 pipeline, and approximately 5,050 MW in the 94-c pipeline. Figure 2 shows the current permitting pipeline for the two siting programs:

Figure 2: MW of Projects at each Stage of Article 10 Process
Figure 2: MW of Projects at each Stage of 94-c Process

Both programs have a substantial backlog in the pre-application siting stages: the Siting Board has about 1,850 MW of projects in the Public Involvement Program Plan and/or Preliminary Scoping Statement stage (see Figure 1), while the ORES has about 2,450 MW of projects that have requested a transfer to 94-c process or have submitted their application with ORES but haven’t yet begun 94-c review. The number of Article 10 projects that remain in the pre-application process, even after the program has been in place for over a decade, indicates that the early stages of siting approval have been a significant bottleneck under that program. While the large portion of 94-c projects that have yet to file their applications suggests that projects in new program may face similar challenges, it is still too early to determine if these projects will progress through siting review shortly, or if the backlog will continue to grow. We have, however, been tracking exactly how long it has taken each 94-c project to progress through each phase in the ORES’ process to gather more insights:

Figure 3: 94-c Milestone Stages and Mean Days Taken for Projects to Progress through those Stages

To analyze in greater depth, we zoomed in on the number of projects and MW that have been permitted by each program:

Figure 4: The Number of Approved Projects (left) and Approved MW (right) by Program

At first glance, it seems that the 94-c process is substantially less effective at siting large-scale projects than the Article 10 process was. The Article 10 process, however, was initiated in 2011 and the first projects submitted their applications in 2012, but the Siting Board didn’t grant its first permit until January 2018. This gets to the question of efficiency; how many MW per month has each program sited (only counting projects that have actually received siting permits)? The Siting Board permitted 1,613 MW between November 2014 and September 2021, which equates to ~20 MW per month. Meanwhile, the ORES permitted 740 MW between its inception in January 2021 and January 2022, which equates to ~63 MW per month. By that metric, the 94-c process is about three times more efficient (though some of the 94-c projects had a head start as is discussed next).

But what about the time it takes the average project to receive a permit? Though this potentially would be a meaningful comparison, it is impossible to measure permitting completion time for 94-c projects, because as of now, no project that filed directly with ORES has received a permit; only projects that began in Article 10 and transferred to the 94-c program have been permitted. Of these four projects permitted by ORES—it is unclear exactly which processes these projects were allowed to shorten or skip, but the projects may have been able to begin in the draft permit stage. Moreover, the average time that it has taken projects to receive permits from the Article 10 process is about 1,363 days (roughly three years and nine months). Of the four projects that received 94-c permits, the average permitting time was about 1,480 days (roughly four years), but only 9 months (on average) of that time was in the 94-c process. This, however, is an apples-to-oranges comparison because of the aforementioned reason that no projects that have received their siting permit from ORES have gone through the ORES process from start-to-finish, so we don’t have enough data to make an apples-to-apples comparison. We will note, however, the Hecate’s proposed 500 MW Cider Solar was the first project to submit its application with ORES and have its application deemed complete (which occurred on Dec 31, 2022).

The ORES is required to site projects within one year—and while it has technically achieved this goal if one counts the pre-approved projects that came from Article 10, ORES has slipped occasionally (in the most extreme case, an 8-day lapse when it took 68 days to turn around Heritage Wind’s draft permit). On the one hand, while ORES may have missed its deadline, this tardiness pales in comparison to the multi-year delays that often took place during Article 10 review. However, 94-c is not inculpable, as there are still thirteen projects that have requested a transfer from Article 10 to 94-c, some of which have waited a year or longer without ORES beginning the 94-c review process. A true comparison, then, between the Article 10 and 94-c processes is not yet truly tractable given the difference in maturity of the two programs; it’s a bit like comparing apples to unripe oranges. ORES’s first true test will come by December 2023, when it must complete its review of the Cider Solar project, after which a apples-to-apples comparison should be more fruitful.