New York Certificate of Public Convenience and Necessity (7-NY-c)
The Commission regulates the construction of electric corporations pursuant to N.Y. Pub. Serv. Law § 68, Certificate of Public Convenience and Necessity, 16 CCR-NY §§1-89, Rules of Procedure, and 16 CCR-NY §§90-218, Electric Utilities.
Certificate of Public Convenience and Necessity Process
7-NY-c.1 — Obtain Municipality Consent Documentation
The developer must obtain a “certified copy of the franchise (authorization) granted by the municipality or municipalities in which the construction is proposed.” 16 CCR-NY §21.2 (b), Summary of Legal Requirements. The authorization must contain a verified statement of consent from the municipalities approving the proposed project. 16 CCR-NY §21.2 (b), Summary of Legal Requirements.
7-NY-c.2 — Petition for a Certification of Public Convenience and Necessity
The developer must submit a Petition for a Certification of Public Convenience and Necessity (Petition) to the New York Public Service Commission (Commission) before beginning construction of an electric plant. N.Y. Pub. Ser. Law § 68, Certificate of Public Convenience and Necessity. The developer must file the Petition in accordance with 16 CCR-NY § 3.5, Documents Filed with the Secretary. Commission rule, 16 CCR-NY §21.3, Evidence to be Presented at Hearing requires the developer to show particular evidence regarding the Petition at hearing. The developer may include the required information in the Petition itself. The Petition could include the following evidence that the developer must show at the hearing:
- Description and population of the territory within which the developer proposes to exercise authority granted by the consent and to begin construction, including the names of all cities, towns, and villages.
- The dates when construction will begin and service will be provided;
- A description of the plant and system to be constructed and the estimated cost of the project;
- A description of the manner in which the cost is to be financed;
- A description of the facts for need of service, including evidence of the economic feasibility of the enterprise, proof of the applicant’s (developer) ability to finance the project and to render adequate service and that the proposal is in the public interest; and
- A description of where similar services are being rendered in all or part of the area proposed to be served, the public need for the service, including but not limited to:
- the adequacy of the existing service to meet the reasonable needs of the public in the territory involved;
- the ability and willingness of the present operator(s) to provide such reasonably adequate service; and
- the degree of competition desirable or required by the public interest.
The Petition must also include a “certified copy of the certificate of incorporation” as well as a “certified copy of the franchise (authorization) granted by the municipality or municipalities in which the construction is proposed.” 16 CCR-NY §21.2 (b), Summary of Legal Requirements; 16 CCR-NY §17.2, Attachment of Certificate of Incorporation.
The certification proceedings will commence on the date the petition complies with the applicable legal requirements. 16 CCR-NY §21.1 (h), Summary of Legal Requirements.
7-NY-c.3 to 7-NY-c.4 — Review Petition Materials for Completeness
The Commission must review the Petition for a Certificate of Public Convenience and Necessity for completeness and notify the developer of any deficiencies within thirty (30) days after receiving the filing. 16 CCR-NY §21.1 (h), Summary of Legal Requirements. The Commission may request additional information, and/or notify the applicant (developer) of a particular deficiency with the Petition. 16 CCR-NY §§ 17.3-17.4, Matters Relative to All Applications.
7-NY-c.5—Hold Pre-hearing Conference (If Applicable)
The Commission may convene a pre-hearing conference to:
- Formulate or simplify issues;
- Arrange for the exchange of testimony and exhibits;
- Limit the number of witnesses;
- Set schedules, or
- Otherwise expedite the orderly conduct of the proceeding.
7-NY-c.6 to 7-NY-c.8 — Publish Notice of Public Hearing
The Commission must hold a public hearing regarding the Petition. N.Y. Pub. Serv. Law § 68, Certificate of Public Convenience and Necessity. The Commission will conduct the hearing in accordance to 16 CCR-NY § 4.51 et seq., Hearings.
The Commission must provide notice of the hearing prior to the date of the hearing. 16 CCR-NY § 4.2, Notice. The notice must include the time and place of each hearing determined by the Commission. 16 CCR-NY § 4.2, Notice.
Only parties to a proceeding may present evidence and examine and cross-examine witnesses. 16 CCR-NY § 4.3(a), Parties. However, “any person may ask the presiding officer for permission to intervene.” The Commission will likely grant a petition of intervention if the intervention “is likely to contribute to the development of a complete record or is otherwise fair and in the public interest.” 16 CCR-NY § 4.3(c)(1), Parties. After the Commission grants intervenor status an interested party may provide written comment and testimony. 16 CCR-NY § 4.3(c)(1), Parties.
7-NY-c.9 — Does the Commission Approve the Petition?
The Commission has the power to grant a Petition for a Certification of Public Convenience and Necessity after “due hearing” to determine that the construction of the electric generating facility is “convenient and necessary for the public service.” N.Y. Pub. Serv. Law § 68, Certificate of Public Convenience and Necessity. In making such determination, the Commission must consider economic feasibility of the corporation, the corporation’s ability to finance improvements of the electric plant, render safe, adequate and reliable service, and provide just and reasonable rates, and whether issuance of a certificate is in the public interest. N.Y. Pub. Serv. Law § 68, Certificate of Public Convenience and Necessity.
7-NY-c.10 — Certificate of Public Convenience and Necessity
The developer must comply with the terms and conditions of the Certificate of Public Convenience and Necessity.
7-NY-c.11 — Petition for Rehearing (If Applicable)
Any party not satisfied with the Commission’s decision may apply for a rehearing within thirty (30) days after a written decision is issued.
7-NY-c.12 — Appeal Decision (If Applicable)
After the Commission has issued a decision on a petition for rehearing, any interested person may appeal a decision by the Commission, within one hundred and twenty (120) days of the date of the Commission decision to the Appellate Division of the New York State Supreme Court and then at the New York Court of Appeals. N.Y. Civ. Pract. L. and Rules §7801 et seq.; N.Y. Civ. Pract. L. and Rules §217. Sections 129 and 130 of the Public Service Law preclude any other state court, agency or municipality from reviewing the project. N.Y. Pub. Serv. Law §§ 129-130.
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