SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 2836

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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in section 15 by inserting after the words “criteria and requirements for the siting and permitting of small clean energy infrastructure facilities by local governments”, the words “participating in the opt-in consolidated local permitting program”; and

By striking out section 21 and inserting in place thererof:-

SECTION 21. Said chapter 25A is hereby further amended by inserting after section 20 the following 2 sections:-

Section 21. (a) As used in this section, the following words shall have the following meanings unless the context clearly requires otherwise:-

“Clean energy generation”, electrical energy output, or that portion of the electrical energy output, excluding any electrical energy utilized for parasitic load of a clean existing generation unit, that qualifies under clean energy standard regulations established pursuant to subsection (c) of section 3 of chapter 21N.

“Clean energy solicitation”, a competitive solicitation for clean energy associated environmental attributes or energy services completed by the department conducted pursuant to this section.

“Distribution company”, a distribution company as defined in section 1 of chapter 164.

“Energy services”, operation of infrastructure that increases the deliverability or reliability of clean energy generation or reduces the cost of clean energy generation, including, but not limited to, transmission, energy storage and demand response technologies.

“Environmental attributes”, all present and future attributes under any and all international, federal, regional, state or other law or market, including, but not limited to, all credits or certificates that are associated, either now or by future action, with unit specific clean energy generation, including, but not limited to, those provided for in regulations promulgated pursuant to subsection (c) of section 3 of chapter 21N and sections 11F and 17.

“Long-term contract” a contract for a period of not more than 20 years.

(b) Notwithstanding any general or special law to the contrary, in order to maximize the commonwealth’s ability to achieve compliance with limits and sublimits established pursuant to sections 3 and 3A of chapter 21N, the department shall investigate the necessity, benefits and risks of solicitations for energy services, competitively solicit for environmental attributes or energy services established pursuant to said sections 3 and 3A of said chapter 21N and may negotiate and enter into long-term contracts for such environmental attributes or energy services.

(c)  Not less than every 3 years, the department shall publish a resource solicitation plan, which shall include, but not be limited to, the following elements: (i) a description of the clean energy generation needs sufficient to maximize the commonwealth’s ability to achieve compliance with limits and sublimits established pursuant to sections 3 and 3A of chapter 21N, including resource generation type, nameplate capacity amounts and commercial operation dates for new resources; (ii) a schedule recommendation for clean energy solicitations that the department will conduct within the next 3 years; (iii) economic development objectives and requirements for the clean energy solicitations; (iv) a mechanism for the distribution companies to recover the costs associated with long-term contracts for clean energy associated environmental attributes or energy services entered into by the department under this section, including any administrative costs to support the department’s requirements under this section; and (v) a review of the previous clean energy solicitations, if applicable. The department shall consult with the department of public utilities and attorney general’s office in the development of this resource plan in advance of publishing it. Any ex parte rules established by the department of public utilities shall not apply to this consultation process.

(d) The department shall file the resource solicitation plan and its recommendations with the department of public utilities. The department of public utilities shall review the resource solicitation plan and recommendations to determine whether the resource solicitation plan is a reasonable, appropriate and cost-effective mechanism to achieve the goals of this section.  The department of public utilities shall approve, approve with modifications or reject the plan within 7 months of submission. Upon approval of the resource solicitation plan, the department of public utilities shall require the distribution companies to jointly propose tariffs consistent with the approved resource solicitation plan to recover costs associated with all contracts pursuant to this section not later than 3 months following the approval; provided, however, that the distribution companies shall not receive any remuneration, benefit or fee to compensate for costs associated with said contracts. The tariffs shall apportion costs associated with the contracts to be recovered from ratepayers among the distribution companies.

(e) The method for the clean energy solicitations shall be proposed by the department and shall utilize a competitive bidding process. The department shall consult with the attorney general regarding the choice of solicitation methods. The department may coordinate any solicitation under this section with other states, municipal light plants or other governmental and non-governmental organizations; provided, however, that the department shall describe any impacts coordination may have on the solicitation, including any impacts to nameplate capacity amounts or quantities of clean energy generation attributes sought in its solicitation. After notice and the opportunity for public comment, the department shall proceed with the clean energy solicitation. The department may competitively solicit proposals for long-term contracts for: (i) environmental attributes from clean energy generation; or (ii) energy services contracts. The department may consult with other states, federal agencies and regional organizations, including, but not limited to, ISO New England Inc. or its successor; provided, however, that reasonable proposals have been received, the department shall make or cause to be made filings as necessary through the appropriate jurisdictional mechanism and enter into long-term contracts that are consistent with the roadmap plans published pursuant to chapter 21N.

(f) The department shall propose draft contracts and take all reasonable actions to structure the contracts, pricing or administration of the products purchased under this section to contribute towards achieving compliance with limits and sublimits established pursuant to sections 3 and 3A of chapter 21N in a cost-effective manner that minimizes rate-payer impacts.

(g) Long-term contracts executed pursuant to this section shall be subject to the approval of the department of public utilities. The department of public utilities shall consider the potential costs and benefits of the proposed long-term contract and shall approve a long-term contract if the department finds that the contract is cost-effective and consistent with the roadmap plans published pursuant to chapter 21N, taking into account the factors outlined in this section, consistency with the approved resource solicitation plan and the department’s recommendations. The department of public utilities shall complete its review of long-term contracts submitted for its approval not later than 90 days after the contracts are filed by the department of energy resources.

(h) The department may retire any environmental attributes purchased pursuant to approved long-term contracts under this section on behalf of the commonwealth to be used toward satisfying compliance with the limits and sublimits established pursuant to sections 3 and 3A of chapter 21N and any regulations or programs established pursuant to sections 3 and 6 of said chapter 21N or sections 11F and 17. If any retired environmental attributes are eligible under a clean, renewable, clean peak or other energy portfolio standard established by the department or the department of environmental protection, the portfolio standard minimum obligations of suppliers subject to such standards may be reduced in proportion to any eligible environmental attributes retired pursuant to this section, subject to the discretion of the department and the department of environmental protection.

(i) There shall be a separate, non-budgeted special revenue fund known as the central procurement fund, which shall be administered by the department, without further appropriation, for funding long-term contracts consistent with this section. The fund shall be credited with: (i) funds or revenue collected by distribution companies pursuant to a tariff approved by the department of public utilities in furtherance of the objectives and requirements of this section; (ii) revenue from appropriations or other money authorized by the general court and specifically designated to be credited to the fund; (iii) interest earned on such funds or revenues; (iv) bid fees collected by the department from participants in clean energy solicitations conducted pursuant to this section; (v) other revenue from public and private sources, including gifts, grants and donations; and (vi) any funds provided from other sources. All amounts credited to the fund shall be used solely for activities and expenditures consistent with the public purposes of this section, including the ordinary and necessary administrative and personnel expenses of the department related to the administration and operation of the fund and performance of the duties established by this section.  Revenues deposited in the fund that are unexpended at the end of a fiscal year shall not revert to the General Fund and shall be available for expenditure in the following fiscal year. No expenditure made from the fund shall cause the fund to be in deficit at any point.

Section 22. (a) For the purposes of this section, the following words shall, have the following meanings unless the context clearly requires otherwise:

“Anaerobic digestion facility”, a facility that: (i) generates electricity from a biogas produced by the accelerated biodegradation of organic materials under controlled anaerobic conditions; and (ii) has been determined by the department of energy resources, in coordination with the department of environmental protection, to qualify under department of energy resources regulations as a Class I renewable energy generating source under section 11F.

“Local government”, a municipality or regional agency, including the Cape Cod commission and the Martha’s Vineyard commission, that has permitting authority over small clean energy infrastructure facilities.

“Small clean energy generation facility”, energy generation infrastructure with a nameplate capacity of not more than 24 megawatts that is an anaerobic digestion facility, solar facility or wind facility, including any ancillary structure that is an integral part of the operation of the small clean energy generation facility or, following a rulemaking by the department in consultation with the energy facilities siting board in which the facility type is added to the regulatory definition of a small clean energy generation facility, any other type of generation facility that produces no greenhouse gas emissions or other pollutant emissions known to have negative health impacts; provided, however, that the nameplate capacity for solar facilities shall be calculated in direct current.

"Small clean energy infrastructure facility”, a small clean energy generation facility, small clean energy storage facility or small clean transmission and distribution infrastructure facility.

“Small clean energy storage facility”, an energy storage system as defined under section 1 of chapter 164 with a rated capacity of less than 100 megawatt hours, including any ancillary structure that is an integral part of the operation of the small clean energy storage facility.

“Small clean transmission and distribution infrastructure facility”, electric transmission and distribution infrastructure and related ancillary infrastructure including: (i) electric transmission line reconductoring or rebuilding projects;  (ii) new or substantially altered electric transmission lines located in an existing transmission corridor that are not more than 10 miles long, including any ancillary structure that is an integral part of the operation of the transmission line; (iii) new or substantially altered electric transmission lines located in a new transmission corridor that are not more than 1 mile long, including any ancillary structure that is an integral part of the operation of the transmission line; and (iv) electric distribution-level projects that meet a certain threshold, as determined by the department; provided, however, that the “small clean transmission and distribution infrastructure facility” shall be: (A) designed, fully or in part, to directly interconnect or otherwise facilitate the interconnection of clean energy infrastructure to the electric grid; (B) designed to ensure electric grid reliability and stability; or (C) designed to help facilitate the electrification of the building and transportation sectors; provided further, that on or after January 1, 2026, a “small clean transmission and distribution infrastructure facility” shall not include new transmission and distribution infrastructure facilities that solely interconnect new or existing infrastructure that does not meet the definition of a small clean energy infrastructure facility or large clean energy infrastructure facility as defined in section 69G of chapter 164.

“Solar facility”, a ground mounted facility that uses sunlight to generate electricity.

“Wind facility”, an onshore or offshore facility that uses wind to generate electricity.

(b) The department shall establish standards, requirements and procedures governing an opt-in process for the siting and permitting of small clean energy infrastructure facilities by local governments that includes: (i) uniform sets of public health, safety, environmental and other standards, including zoning criteria, that participating local governments shall require for the issuance of permits for small clean energy infrastructure facilities; (ii) a common standard application for small clean energy infrastructure facility project applicants submitting a permit application to participating local governments; (iii) uniform pre-filing requirements for small clean energy infrastructure facilities, which shall include specific requirements for public meetings and other forms of outreach that must occur in advance of an applicant submitting an application; (iv) standards for applying site suitability guidance developed by the executive office of energy and environmental affairs pursuant to section 30 of chapter 21A to evaluate the social and environmental impacts of proposed small clean energy generation facilities, small clean energy storage facilities and small clean transmission and distribution infrastructure facilities in new rights of way, which shall include a mitigation hierarchy to be applied during the permitting process to avoid, minimize or, if avoidance or minimization is impossible, mitigate negative impacts of siting on the environment, people and the commonwealth’s goals and objectives for climate mitigation, resilience, biodiversity and protection of natural and working lands, to the extent practicable; (v) common conditions and requirements for a single permit consolidating all necessary local approvals to be issued for different types of small clean energy infrastructure facilities in the event that constructive approval is triggered through the non-issuance of a final decision by a participating local government pursuant to subsection (d); and (vi) responsible parties subject to enforcement actions, including in the event of sale of small clean energy infrastructure facilities after permitting. The department of energy resources may promulgate rules and regulations allowing local governments to set fees for compensatory environmental mitigation for the restoration, establishment, enhancement or preservation of comparable environmental resources through funds paid to the local government or a non-profit entity to be used at the election of an applicant to satisfy the standard of mitigation to the maximum extent practicable. Participating local governments acting in accordance with the standards established by the department for small clean energy generation facilities and small clean energy storage facilities pursuant to this subsection shall be considered to have acted consistent with the limitations on solar facility and small clean energy storage facility zoning under section 3 of chapter 40A. The department shall establish a transition or concurrency period for the effective date of any standards that it establishes.

(c) The proponent of a small clean energy infrastructure facility may submit a consolidated small clean energy infrastructure facility permit application seeking a single permit consolidating all necessary local permits and approvals from participating municipalities. To initiate such permitting of a small clean energy infrastructure facility, an applicant may elect to submit an application, with supporting information in the form developed by the department pursuant to subsection (b), for the participating local government to conduct a consolidated review pursuant to the criteria and standards set forth in subsection (b) and using the process set forth in subsection (d).  Participating local governments shall determine whether such consolidated small clean energy infrastructure facility permit application is complete within 30 days of receipt. If an application is deemed incomplete, the applicant shall have 30 days, and any additional time as determined by the local government, to cure any deficiencies before the application is rejected. In the event of a rejection of the application, the participating local government shall provide a detailed reasoning for the rejection.

(d) Participating local governments shall issue a single, final decision on a consolidated small clean energy infrastructure facility permit application submitted pursuant to subsection (c), including all decisions necessary for a project to proceed with construction, but not including any state permits that may be required to proceed with construction and operation of said facility, within 12 months of the receipt of a complete permit application. All local government authorities, boards, commissions, offices or other entities that may be required to issue a decision on 1 or more permits in response to the application for the small clean energy infrastructure facility may conduct reviews separately and concurrently. Such permits shall adhere to any requirements established by the department pursuant to subsection (b). If a final decision is not issued within 12 months of the receipt of a complete permit application, a constructive approval permit shall be issued by the local government that adopts the common conditions and requirements established by the department for the type of small clean energy infrastructure facility under review.

(e) An appeal or review may be made only of the single, final decision of a local government on an application for a small clean energy infrastructure facility, including all decisions necessary to complete the application and permitting process, but not including decisions on any state permits that may be required to proceed with construction and operation of said facility. Decisions of local government authorities, boards, commissions, offices or other entities on the issuance of 1 or more permits to the applicant for the small clean energy infrastructure facility shall not be subject to independent appeal or review. Decisions on any state permits that may be required shall be subject to de novo adjudication of the permit application by the director of the energy facilities siting division, as provided in subsection (f).

(f) Within 30 days of the single, final decision on a consolidated permit application by a local government described in subsections (d) and (e), project proponents and other individuals or entities substantially affected by a proposed small clean energy infrastructure facility may file a petition to request in writing a de novo adjudication of the permit application by the director of the facilities siting division pursuant to section 69W of chapter 164 following permit issuance, including constructive approval permits or denial by a local government.

(g) If a participating local government lacks the resources, capacity or staffing to review a small clean energy infrastructure facility permit applications within 12 months, it may, not later than 60 days after receipt of such application or at any time thereafter with the consent of the applicant, request in writing a de novo adjudication of the such application by the director pursuant to section 69W of chapter 164.

(h) The department shall promulgate regulations to implement this section in consultation with local governments, Massachusetts Municipal Association, Inc., the department of public utilities, the department of environmental protection, the department of fish and game, the department of conservation and recreation, the department of agricultural resources, the Massachusetts environmental policy act office, the office of environmental justice and equity, the executive office of health and human services, the executive office of housing and livable communities and the executive office of public safety and security.

(i) To adopt consolidated local permitting of clean energy infrastructure pursuant to subsections (c) to (g) a municipality shall (1) opt into the process by a majority vote of the local legislative body; and (2) submit a copy of the vote to the department in a form and manner to be prescribed by the department. Upon municipal adoption of the consolidated local permitting process, the department shall:

(j) maintain a publicly-accessible record of all municipalities who adopt consolidated local permitting of small clean energy infrastructure and provide for periodic updates;

(k) not later than April 1, submit a report to the clerks of the senate and the house of representatives, the joint committee on telecommunications, utilities and energy, the joint committee on state administration and regulatory oversight, and the senate and house committees on ways and means detailing the results relative to the communities who adopt the consolidated local permitting process for small clean energy infrastructure.

(l) Subject to appropriation, participating municipalities shall have access to funding support in the form of grants or other payments for community mitigation, expansion of local capacity, help to conduct associated community engagement, related technical assistance, siting and construction of renewable and alternative energy projects on municipally-owned land, and other supports identified by the department.

(m) Nothing in subsections (c) to (g), inclusive, shall apply to a comprehensive permit pursuant to sections 20 to 23, inclusive of chapter 40B. For the purpose of this section, the procedures and standards for filing and review of an application for a comprehensive permit that includes a small clean energy infrastructure facility shall be in accordance with said sections 20 to 23, inclusive, of said chapter 40B.