Memorandum in Opposition - S.5939-A (Ramos) / A.6761-A (Mamdani)

S.5939-A (Ramos) / A.6761-A (Mamdani) - An ACT to amend the public service law and the environmental conservation law, in relation to prohibiting the development of any new major electric generating facilities that would be powered in whole or in part by any fossil fuel.

The Independent Power Producers of New York, Inc. (IPPNY) is a trade association representing companies involved in the competitive power supply industry in New York State and in the development of electric generating facilities, the generation, sale, and marketing of electric power, and the development of natural gas transmission facilities. IPPNY Member companies produce the majority of New York's electricity, utilizing hydro, nuclear, wind, natural gas, solar, energy storage, biomass, oil, and waste-to-energy.

IPPNY opposes S.5939-A (Ramos) / A.6761-A (Mamdani). As drafted, this bill may jeopardize the electric power supply reserve margins that are needed to maintain electric system reliability. Importantly, the New York Independent System Operator (NYISO), which is the entity in charge of maintaining reliability, repeatedly has indicated resource adequacy margins are tightening across the New York grid from Buffalo to Long Island, and reliability margins are thinning as soon as 2023. This looming reliability problem is further exacerbated by the requirements of Climate Leadership and Community Protection Act (CLCPA) for electrification of the State’s economic sectors, the growth of intermittent resources, and the lack of needed energy storage capability and of new transmission facilities. Additional reliable sources of electricity supply will be essential to support this massive increase in electricity demand.

This legislation would prohibit the New York State Board on Electric Generation Siting and the Environment from issuing a certificate of environmental compatibility and public need under Article 10 of the Public Service Law (the State’s power plant siting law) for fossil fuel-powered facilities unless a written attestation and demonstration is provided that an existing reliability need cannot be met with any combination of transmission upgrades, energy storage, zero carbon electric generation, demand response, and/or energy efficiency.

The bill also would prohibit the New York State Department of Environmental Conservation (DEC) from issuing a permit under Title V of the Federal Clean Air Act that is in violation of these Article 10 provisions. The DEC issued for public comment, until February 7, 2022, its Division of Air Resources Guidance DAR-21, entitled “The Climate Leadership and Community Protection Act [CLCPA] and Air Permit Applications.” The guidance applies to all types of DEC air permitting, including new, modified, and renewed Title V permits. The draft guidance states that: “A permit renewal that does not include a significant modification and would not lead to an increase in actual or potential GHG emissions would in most circumstances be considered consistent with the CLCPA pending finalization of the {Climate Action Council’s} scoping plan and future regulations.” This legislation is premature as it would pre-empt the DEC’s finalization of this guidance.

Under the current Article 10 law, the Siting Board’s decision-making criteria already include evaluation of cumulative environmental impacts of related facilities, including cumulative emission impacts on the local community. The DEC’s regulation, Analyzing Environmental Justice Issues in Siting of Major Electric Generating Facilities Pursuant to Public Service Law Article 10 (6 NYCRR Part 487), already requires any significant and adverse disproportionate environmental impacts to be minimized, avoided, or offset to the maximum extent practicable using verifiable measures for the duration of the Article 10 certificate. Additionally, the Board’s criteria include consideration of consistency with energy policies and long-range planning objectives and strategies contained within the most recent State Energy Plan, which was updated in 2020 to include the goals of the CLCPA. Furthermore, applications under Article 10 already require a reliability study.

This bill is premature because it remains to be seen what recommendations the Climate Action Council will include in its scoping plan, which will be finalized by January 1, 2023. This legislation would pre-empt the efforts of the Council to develop a scoping plan for meeting the CLCPA’s goals, including how to reconcile the operation of fossil fueled power plants by 2040.

The CLCPA requires that 70 percent of electricity be renewable by 2030 and the remainder of power generation produce zero-emissions by 2040. Studies presented by the NYISO and New York State Energy Research and Development Authority (NYSERDA) to the Climate Action Council indicate that the remaining 30 percent of power generation must include upwards of 20 gigawatts of dispatchable, emissions-free resources to balance the electric power system by 2040 as the economy electrifies and reliance on intermittent resources increases. The studies find that battery storage resources help address shorter duration variability from renewable resources but, based on current technology, do not provide the long duration power generation that is necessary over seasonal periods of reduced renewable generation. Such dispatchable, emissions-free technologies could include new facilities that develop equipment to capture their emissions by 2040, or they could reduce their emissions by including zero-emission fuels. This legislation would discourage the development of those technologies.

In addition to the DEC’s Part 487 regulation on avoiding and minimizing impacts on environmental justice communities, the DEC has rules pursuant to which emissions from fossil fueled facilities continue to be reduced dramatically. New York’s power sector has reduced its emission rates, including those of nitrogen oxides by 92 percent and sulfur dioxide by 99 percent. The DEC’s Peaker Emission Reduction Rule (Subpart 227-3) further reduces nitrogen oxide emissions from peaker plants. The electric generation sector has decreased greenhouse gas emissions by nearly 55 percent, the most of any other sector of the economy. Also, the DEC’s Regional Greenhouse Gas Initiative rule recently was changed to apply to peakers that are 25 MW or more.

For the reasons stated above, IPPNY opposes S.5939-A (Ramos) / A.6761-A (Mamdani).

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