Computer rendering shows one of the possible layouts Vistra Energy is considering for its 600-megawatt battery storage project. Rendering courtesy Vistra\
With Vistra’s pulling of its Battery Energy Storage System (BESS) Project from City hands, and into the arms of the State Energy Commission, the question becomes, “What now?”
Assembly Bill 205 (AB 205), passed in June 2022, is being invoked by Vistra to halt the City’s project review and ask the CEC to take over, in an expedited review process laid out in the law.
Morro Bay Planning Director, Airlin Singewald, in response to several Estero Bay News questions said Vistra’s Oct. 28 letter came without warning.
He doesn’t think the local furor over Measure A-24 or the growing opposition to the project that it’s fueled, had anything to do with the company’s decision.
“Under AB 205,” he said, “Vistra can apply to the CEC Opt-in Certification Program at any time.”
Vistra choosing to do this less than two weeks before the election, seems curious and in the official break-up letter, the company’s Senior Vice President, Development Vistra Corp., Claudia Morrow, said, “The Sept. 17 Staff Report and accompanying discussion at the Sept. 24 council meeting provided updated processes and timelines that added a minimum of another 18 months to the municipal consideration calendar, which began in 2020. Given this extension of municipal consideration, the Opt-in Certification process will provide a more defined pathway for consideration.”
What does that pathway look like? Singewald referred to that same Sept. 24 update on the BESS Project. City Attorney, Chris Neumeyer’s report, which came out a full month before Vistra made the jump, outlines the AB 205 route.
“AB 205 authorizes qualifying battery energy storage system developers the option to seek all necessary permits for BESS development (including otherwise necessary permits from a local government) directly from the California Energy Commission and, as applicable, a few other State agencies such as the California Coastal Commission. The current application being processed by City staff from Vistra for development of a BESS in Morro Bay qualifies for the AB 205 permitting process and is subject to the CCC’s jurisdiction,” the report explained.
The State Legislature with AB 205 essentially authorizes overriding all local laws, even those passed by voters. “The issuance of a certificate by the CEC for a site and related facility,” Neumeyer’s report said, “shall be in lieu of any permit, certificate, or similar document required by any… local… agency…(sic) for the use of the site and related facilities, and shall supersede any applicable statute, ordinance, or regulation of any… local… agency…”
That said, what could Estero Bay News readers expect from this brand-new process? Will local folks still have a say?
“For the CEC to certify a new BESS,” the report said, “the CEC must make findings that the construction or operation of the facility will have an overall net positive economic benefit to the local government that would have had permitting authority over the site and related facility.”
AB 205 also lists examples of economic benefits: employment growth; housing development; infrastructure and environmental improvements; assistance to public schools and education; and assistance to public safety agencies and departments, among potentially other uses not listed.
The company will also have to sign binding deals “with, or that benefit, a coalition of one or more community-based organizations, such as workforce development and training organizations, labor unions, social justice advocates, local governmental entities, California Native American tribes, or other organizations that represent community interests, where there is mutual benefit to the parties to the agreement.”
AB 205 isn’t an automatic override of City ordinances or citizen initiatives, rather the CEC has to make special findings to justify what is in some regard a violation of the law.
“If a project is approved,” the report reads, “CEC’s certificate is in lieu of any local permit or local law or ordinance. However, to grant a certificate to a project, the CEC must make findings that the project will comply with all applicable laws, ordinances, regulations, and standards, or make findings that despite the non-conformance, the project is required for public convenience and necessity, and that there are not more prudent and feasible means of achieving public convenience and necessity.”
The law requires the CEC to “invite” City Government to attend “a mandatory pre-filing meeting with an applicant.”
Vistra said in its letter to the City that it anticipates making formal application to the CEC before the end of the year, which would start a clock ticking for the CEC with carryover to other agencies.
And the first order of business is public noticing of the completed application. This would be done via a special subscription service that you sign onto via the CEC website. (Look for a legal ad in a local newspaper.)
Estero Bay News will report that address when the CEC releases its notice.
From there, a Draft Environmental Impact Reports or DEIR would be released for official comments.
The CEC must hold at least one “scoping” meeting here before the DEIR drops. Such meetings normally seek to identify issues an EIR should address for analysis. But Vistra’s BESS Project already has a DEIR well-along the process that it stopped with the City.
The CEC will have to decide if that work can be picked up where it left off, or if they must start over again. Things move relatively quickly from there.
“No later than 270 days after [a BESS] application is deemed complete, or as soon as practicable thereafter,” the report said, “the [CEC] shall determine whether to certify the environmental impact report and to issue a certificate for the site and related facilities.”
So, a CEC decision could optimistically be estimated to take a little over nine months.
In its latest timeline, the City Planning Department laid out an 18-month, “phased” permitting process, which Vistra said was too long and messes up its schedule to order needed equipment.
And if the EIR process leads to significant changes in the project, the timeline could be extended.
The other significant agency involved in this — the Coastal Commission — would have 90 days (3 months) after the CEC approves a project, to “take final action.” So under this AB 205 scenario, it could take a year for Vistra to get its answer on the BESS.
