California Energy Commission Finalizes Regs for Renewable and Energy Storage Projects
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California Energy Commission Finalizes Regs for Renewable and Energy Storage Projects

Brownstein Client Alert, Nov. 3, 2022

The highly anticipated emergency regulations describe how the direct permitting process will work under AB 205

The California Energy Commission (“CEC”) recently finalized its highly anticipated emergency regulations describing how renewable and energy storage projects can apply for direct permits under Assembly Bill 205 (“AB 205”). Among other things, AB 205 (signed by Gov. Gavin Newsom on June 30, 2022) expands the CEC’s siting jurisdiction to include solar, wind and energy storage facilities that meet certain criteria. 

On Oct. 16, 2022, the CEC propounded its AB 205 emergency regulations, and the Office of Administrative Law (the “OAL”) timely approved the regulations on Oct. 24, 2022.

The AB 205 emergency regulations provide detail on the AB 205 direct permitting process:

  • Mandatory Pre-filing Consultation: at least 30 days prior to submitting an “opt-in” application, an applicant must have a pre-filing consultation with CEC staff;

  • Opt-in Application, Review and Certification; Tribal Consultation: describes the application content requirements, CEC staff review and recommendation process, and the CEC certification process. CEC can request more information while considering an application, but once the application is deemed complete, aggressive timelines for California Environmental Quality Act (“CEQA”) review and CEC fact-finding apply. Tribal consultation in addition to that required by AB 52 under CEQA also apply;

  • CEQA and CEC Staff Assessment: within 150 days from the date the application is deemed complete, CEC staff must file a Staff Assessment of the opt-in application that consists of a draft environmental impact report (“DEIR”) along with a separate section addressing the specific required contents listed in the emergency regulations. After at least a 60-day public comment period on the Staff Assessment and DEIR, staff must publish an updated Staff Assessment and a Final EIR;

  • Record of Proceedings: explains the preparation process and required contents for the record of proceedings. The emergency regulations also discuss the process and deadlines for modification of the record to include public comments submitted after staff files the statement that the record is complete; and

  • Change to Project after Certification: describes the process and CEC deadlines for any changes to the design, operation or performance requirements of the project after project certification.

As of several weeks ago, CEC officials reported that no AB 205 applications had yet been received. Now that the emergency regulations have been released, however, we expect that interested applicants will begin the process.

For more information about AB 205, the emergency regulations or application process, please contact the authors.

This document is intended to provide you with general information regarding California Assembly Bill 205. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.

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