On November 20, 2024, Governor Maura Healey signed into law An Act promoting a clean energy grid, advancing equity and protecting ratepayers, (the Act). This comprehensive Act is designed to streamline the permitting of Battery Energy Storage Systems (BESS) in Massachusetts, while also ensuring that the Commonwealth’s commitment to stakeholder participation and environmental justice and labor goals are met.
There are two processes included in the Act, depending on the timing of the project. Pierce Atwood will conduct a webinar on December 9, 2024, at 2:00 – 3:00 PM to provide additional details about the Act. Click here to register. However, we’ve provided an overview of the timing of each regulatory process below:
Process for Comprehensive Zoning Exemption Application Between Now and July 1, 2026
Developers of large BESS facilities (100 MWh or greater) looking to submit an application to the Massachusetts Energy Facilities Siting Board (EFSB) prior to July 1, 2026 (the date by which new regulations are set to be implemented) must first receive a comprehensive exemption from local zoning bylaws from the MA Department of Public Utilities (DPU). Pierce Atwood recommends filing for a comprehensive zoning exemption by April 1, 2025 to meet this deadline.
Once the DPU approves the comprehensive zoning exemption, the developer may then petition the EFSB for a certificate of environmental impact and public interest between March 1, 2026 and July 1, 2026. This certificate essentially overrides all local non-zoning permitting requirements.
BESS projects that have not received the DPU’s comprehensive exemption prior to July 1, 2026 will not be eligible to obtain a certificate of environmental impact and public interest. However, as long as they have filed a petition for the DPU’s comprehensive exemption prior to July 1, 2026, they will not have to follow the new permitting process established in the Act.
Permitting Process Starting July 1, 2026
Pursuant to the Act, new regulations will be promulgated under which developers of large BESS projects will be required to obtain a “consolidated permit” from the EFSB, the specifics of which will be established in the new regulations.
The consolidated permit will likely include approval of a zoning exemption and replace all local, regional, and state permits. Once a petition is filed and deemed complete by the EFSB, the agency will have 15 months to issue its decision; otherwise, the permit is deemed approved with standard conditions.
For smaller BESS installations of less than 100MWh, developers will have the option to seek a consolidated permit from the EFSB or to pursue a local consolidated permitting process. Seeking a consolidated permit before the EFSB would be beneficial if the local process will cause undue delays to the project development or if the developer is building a facility in more than one locality and would need to adhere to competing bylaws.
Small BESS developers selecting the local consolidated process will use a common standard application to be developed by the Department of Energy Resources (DOER). The local government will have 12 months to complete the permitting process, or the permit will be deemed approved with standard conditions.
The DOER will also be responsible for developing and promulgating regulations, criteria, guidelines, and standard conditions and requirements for permitting of small BESS by local governments. The local consolidated permit will include local permits and approvals needed for the project, but no state-level permits. Challenges to local consolidated permits must be made to the director of the facilities siting division, which will be part of the DPU.
While the permitting process will be significantly shortened, the Act lays out an extensive process, starting with a prefiling process requiring notice and outreach to various agencies and stakeholders.
Applications must include detailed certifications and disclosures that seek to ensure that project developers are advancing the Commonwealth’s environmental justice and labor goals, and newly created divisions and agencies within the DPU and DOER will create additional criteria for “siting suitability.”
Additionally, the Act will significantly increase stakeholder input into the siting process by creating an “Intervenor Support Fund,” financed by assessments on revenue from electric and gas companies, which will be used to support grants to intervenors to the EFSB process.
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