Is an Energy Storage System a Generating Facility?

As more energy storage projects are developed in Massachusetts, laws and policies may need to catch up. Energy storage can provide many benefits and play many roles, but it does not always fit neatly into familiar categories, which are sometimes embedded in the background legal landscape. A recent petition at the Massachusetts Energy Facilities Siting Board (“EFSB”) brings this issue to the fore.

The EFSB has jurisdiction over transmission lines, gas pipelines, facilities for the manufacture and storage of gas, oil facilities, and “generating facilities” that meet certain thresholds. As a result, the EFSB provides an overarching review of the need for, cost of, and environmental impacts associated with most significant energy infrastructure in the Commonwealth. It also has the ability, in certain circumstances, to override state and local decisions that would block such projects.

On January 4, 2019, Cranberry Point Energy Storage, LLC petitioned the EFSB for a determination that the EFSB does not have jurisdiction over—and therefore need not review or approve—a proposed 150-megawatt, lithium-ion energy storage system in Carver because the energy storage system is not a “generating facility.” Cranberry Point’s key argument is straightforward: an energy storage project of the type proposed is not a generating facility because it does not transform another type of energy into electric energy; it takes electric energy generated elsewhere, stores it, and then dispatches it.

The EFSB’s decision on this petition will affect the review and approval processes applicable to large energy storage projects in Massachusetts. A decision that energy storage projects are not jurisdictional would remove the need for such projects to obtain EFSB approval, a process that can be rigorous and often overlaps with other state and local permitting processes. However, such a decision could also prevent energy storage projects from utilizing the EFSB’s authority to override local opposition—something that has long been important for traditional energy infrastructure projects. Further, the EFSB’s decision could influence debates over energy storage in other contexts where existing paradigms include dividing energy infrastructure between generation, transmission, and distribution assets.

The EFSB has docketed the petition as EFSB 19-01, and is likely to provide public notice and opportunities for comment soon. A decision is likely within about four months.