Grid & Green | Environmental & Energy Blog

Did you ever wonder if you will need pre-approval to transfer your real property after you’ve decommissioned your electric generating facility?  If so, PSC has recently suggested that the answer might be “Yes.”

On June 23, 2025, in a seemingly innocuous Declaratory Ruling on Transfer Transaction, issued in Case 25-E-0192[1], the Commission took the opportunity to opine - without finding - that the definition of “electric plant” in Public Service Law (PSL) §12(2) was broad enough to encompass real property that formerly hosted a decommissioned generating facility where, as was the case here, residual easements and proximity to existing electric infrastructure might make it a suitable locus for future electric infrastructure.  Accordingly, the Commission reserved “the right to find, in the future, that such circumstances give rise to Commission jurisdiction under the PSL.”[2] It is, therefore, exactly the type of non-finding that should inspire caution.

Notably, the property in question has a unique history and a potential future that may set it apart from other former generating sites.  The subject of the petition was a parcel of land with a long history of hosting electric infrastructure, was formerly owned by Consolidated Edison (Con Ed), and is the site of a decommissioned 558 MW gas-fired turbine generator known as the Astoria Gas Turbine Facility that was removed in 2023.  The current owner of the parcel is Beacon Wind Land, LLC, a real estate holding company which had acquired the land in 2022, subject to a leaseback until the turbine facility was removed.  The landowner also informed the Commission that it had originally intended to lease the site for one or more converter stations and related facilities, or other renewable resources to be developed in the future.  When those plans were withdrawn, the land company then sought to sell the parcel to the New York Power Authority (NYPA) and requested that the Commission confirm the sale was exempt from pre-approval under Section 70(1) of the PSL because the seller was not an “electric corporation", and the property itself no longer qualified as “electric plant” after decommissioning and removal of the generating facilities by the former lessee.

At the core of the petition then, were two important questions: is a landowner that hosts a generating facility an “electric corporation”; and, does land that formerly hosted a generating facility continue to qualify as “electric plant” after the facilities are removed?   Ultimately, the Commission declined to answer either question because transfers to NYPA are specifically exempt from the pre-approval obligations under the PSL.  This non-finding opinion, however, is a signal that the Commission is not ready give such transactions a blanket exemption from PSL Section 70 review.      

Disclaimer:

This blog is a form of attorney advertising. Hodgson Russ LLP provides this information as a service to its clients and other readers for educational purposes only. Nothing in this blog should be construed as, or relied upon, as legal advice or as creating a lawyer-client relationship.

[1] Case 25-E-0192, Petition of Beacon Wind Land LLC for Declaratory Ruling that Transfer of Land is Not Subject to Review Under Public Service Law Section 70, Declaratory Ruling on Transfer Transaction (Issued and Effective June 23, 2025) (Declaratory Ruling).

[2] Declaratory Ruling at p.7.