On July 31, 2021, California Governor Gavin Newsom issued an Emergency Order (“EO”) to address the strains on the energy grid from climate-change related weather events (see our prior analysis here).  The EO included a directive for the California Energy Commission (“CEC”) to create an expedited permitting process for new or expanded battery storage projects that (a) add at least 20 megawatts of power, (b) can discharge for at least for 2 hours, and (c) can deliver net peak energy by October 31, 2022.  Just five weeks later, at its September 8, 2021 meeting, the CEC issued Order 21-0908-2 (“Order”) which contains the requirements for this fast-track process.  According to today’s action by the CEC, fast-track applications could be submitted by September 18, 2021, and complete applications could have final determinations just 38 days later.

Projects that qualify for the CEC’s expedited process are under the exclusive jurisdiction of the CEC, are not subject to local permitting requirements or CEQA, and cannot be appealed.  To apply, the CEC Executive Director is required to ask for the information listed below, at a minimum.  Although the submittal process is not yet live, any proposed battery storage project that would like to take advantage of this pathway should have this information ready:

  • A description of the battery project, including that it meets the energy and timing requirements of the EO;
  • A project site description, including whether the site is disturbed, and what control the project applicant has over it. The application shall also include a list of all property owners within 1,000 feet of the project site and the current zoning and zoning allowable uses.
  • A description of the project’s potential environmental and public health and safety impacts, as well as project design measures proposed to mitigate potential impacts.
  • A description of all local, state, regional, and federal laws, ordinances, regulations, and standards that would otherwise be applicable to the project and an analysis of the project’s compliance with each.
  • Evidence of interconnection authorization, or a plan for authorization, for the battery storage system to the distribution or transmission grid by the relevant grid authority by October 31, 2022.

The Order requires the Executive Director (“ED”) to finalize the information requirements within 10 days, or by September 18, 2022.  Once a project application is submitted pursuant to the new information requirements, the ED must verify that the project meets the energy generation and timing requirements, and that it is complete, all within 10 days of submittal.  The ED will also establish a docket for the application, publish a notice, mail the notice to all property owners within 1,000 feet of the site, and also mail it to all federal, state, regional and local agencies, as well as to California Native American Tribes traditionally and culturally affiliated with the project area.

Once the application is determined to be complete, the ED will have just 21 days to conduct its own review of potential environmental and public health and safety impacts, as well as conduct a review of compliance with applicable laws, rules, and regulations. During this three-week period, CEC staff will also consult with state and local public agencies to resolve any potential non-compliance with laws, ordinances and regulations, and including meeting at least once with agencies that would otherwise have jurisdiction over the project.  At the completion of the 21 days, the ED will publish its resulting analysis for a 10-day public comment period, and then file a final decision within seven days of the of end of the comments period.  Final decisions cannot be appealed.

By adopting this extremely expedited process, California hopes to increase grid resiliency and reliability by storing excess renewable power and discharging it when renewable resources may not otherwise be available.  Increasing battery storage capability will help California in its efforts to address climate change by reducing reliance on carbon-emitting power sources.

For more information, contact Hope Schmeltzer at hschmeltzer@mlandlaw.com