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11.26.2024 | Legal Advisory

Last week, Governor Healey signed “an Act promoting a clean energy grid, advancing equity, and protecting ratepayers” into law. The legislation includes changes in the way energy infrastructure is sited and permitted, improvements to electric vehicle charging stations, and new battery storage initiatives among other measures to help meet the state’s net-zero emissions requirements by 2050. Here are the key aspects of the law:

Siting and Permitting Changes for Clean Energy Infrastructure Facilities

• Requires the Executive Office of Energy and Environmental Affairs to establish a methodology for determining the suitability of sites for clean energy infrastructure in newly established public rights of way and to periodically update guidance to inform regulations and permitting processes on ways to avoid, minimize, or mitigate impacts on the environment and people.
• Mandates the Energy Facilities Siting Board (“EFSB”) to:
• provide a reliable, resilient, and clean supply of energy consistent with the commonwealth’s climate change and greenhouse gas reduction policies and requirements;
• ensure that large (>25 MW generators or >100 MW storage) and small (<25 MW generators or <100 MW storage) clean energy infrastructure facilities, other facilities, and oil facilities avoid or minimize environmental impacts and negative health impacts to the extent practicable;
• ensure that these facilities comply with energy, environmental, land use, labor, economic justice, environmental justice and equity, and public health and safety policies of the commonwealth; and
• ensure that these facilities are constructed in a manner that avoids or minimizes costs.
• Requires the Department of Public Utilities (“DPU”) and EFSB to streamline the siting and permitting of clean energy infrastructure facilities by local governments by creating: a common standard application; uniform set of baseline public health, safety, environmental, and other standards that apply to the issuance of a consolidated permit; uniform pre-filing requirements; and standards for applying site suitability guidance, among other measures.

• Consolidates all necessary local approvals for small clean energy infrastructure facilities and all necessary local, regional, and state approvals for large clean energy infrastructure facilities, allowing facility proponents to submit a single consolidated permit to a local government or the EFSB.  
• Requires local governments to determine whether a consolidated small energy infrastructure facility permit application is complete and the EFSB to determine whether a consolidated large energy infrastructure facility permit application is complete within 30 days of receipt.
• Requires all decisions necessary for a project to proceed with construction within 12 months of the receipt of a complete permit application for a small clean energy infrastructure facility and 15 months for a large clean energy infrastructure facility project, or a constructive approval permit will be issued.
• Establishes a facility siting division to oversee the siting and permitting functions of the DPU and to maintain a real-time clean energy infrastructure online dashboard to track applications filed, decided, or pending, as well as the average duration of application review.
• Extends any approval granted for a clean energy generation or storage project that was in effect between October 22, 2020, and August 1, 2024, to August 1, 2029.

Updates to Jurisdiction

• Confirms that battery storage facilities of at least 100 MW in capacity are subject to EFSB jurisdiction.
• Broadens the scope of judicial review of decisions by the EFSB to include the updates to the clean energy infrastructure siting and permitting processes.
• Transfers authority to the EFSB (from the DPU) to review petitions from electric or gas companies, generation companies, wholesale generation companies, and natural gas pipeline companies for the right to exercise the power of eminent domain for clean energy infrastructure.  
• Transfers authority to the EFSB (from the DPU) to review transmission line siting if the location of the line has been refused or has not been refused or granted within 3 months after filing with the city council or the select board of the town.

Expanded Opportunities and Incentives

• Allows for artificial, as well as naturally occurring, temperature differences in ground, water, or air to qualify as an alternative energy generating source under the Alternative Renewable Portfolio Standard - a program that encourages businesses, institutions, and governments to install alternative energy systems throughout the state.
• Decreases the number of employees required for offshore wind facilities to be eligible for certain tax credits, from 200 employees to 50.
• Mandates energy distribution companies to competitively elicit proposals for energy storage systems and enter into cost-effective long-term contracts of at least 5,000 MW of energy storage by July 31, 2030.
• Allows an energy storage system project of at least 100 MW hours that has received a comprehensive exemption from local zoning by-laws to petition the EFSB to obtain a certificate of environmental impact and public interest if the petition is filed before consolidated permit regulations are promulgated.

Climate Focused Considerations

• Directs the DPU, when weighing a petition by a gas company to expand its service territory, to consider the commonwealth’s interest in complying with greenhouse gas emissions limits, the likelihood of costs being borne by ratepayers, and whether a substantially similar alternative to gas service is available.
• Directs the DPU, in determining whether to direct a corporation to supply a petitioner with gas service, to consider the public interest, including the public interest in reducing greenhouse gas emissions, and whether the petitioner can secure adequate substitutes for gas-fired services.
• Establishes a special legislative commission to recommend to the state legislature extended producer responsibility policies, including methods to encourage certain product and packaging production policies that reduce or reuse materials and extend a product’s lifecycle, as well as impacts on waste generation and waste stream contamination reduction.

Many aspects of the bill, especially the siting and permitting changes, will be implemented by the EFSB through regulation.  The bill requires the regulations to be implemented by March 2026.

This advisory was prepared by Matthew Connolly, Michelle Kenyon, and Matthew Snell in Nutter’s Real Estate Department. If you would like additional information, please contact any member of the department or your Nutter attorney at 617.439.2000.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.