April 1, 2020

New York Offers Guidance on Essential Energy Businesses During COVID-19 Pandemic

Holland & Knight Energy and Natural Resources Blog
Stephen J. Humes
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As states continue to respond to the coronavirus (COVID-19) pandemic with emergency executive orders aimed at enforcing social distancing, these mandates have generally excluded the energy industry's role as critical infrastructure, including utilities and electric generation, transmission and delivery of energy to retail customers. These orders and guidance also indicated that suppliers or manufacturers serving the energy sector were deemed essential, but questions remain as individual companies try to interpret the mandates in the face of uncertainty.

New York's Empire State Development, a public authority charged with economic development across New York and Gov. Andrew Cuomo's designated point agency for business-related COVID-19 impacts, issued new guidance on March 31 for contractors building energy and renewable energy projects, energy efficiency in buildings and new electric vehicle infrastructure in the state. Until this guidance, many suppliers and contractors for the energy industry were able to read their work as deemed "essential businesses."

Now, under the latest guidance,1 for businesses supporting construction and other projects in the energy industry critical infrastructure sector, "essential projects will be considered necessary if they are needed to respond to the COVID-19 public health emergency, provide support for basic human services (e.g. health, safety, housing, food, and other components of well-being), or proceed to a point where the project can be safely suspended. These activities must continue to comply with current guidance for maintaining a clean and safe work environment, as well as appropriate social distancing, as issued by the [U.S.] Department of Health." Essential businesses include utility operations and maintenance and capital projects for existing power generation, utility scale new power generation for projects with an in-service date of Sept. 1 or sooner; existing fuel supply; transmission and distribution infrastructure; ensuring safe and reliable service to customers; and energy construction activities related to existing or expanding the grid or other critical infrastructure or new renewable generation or energy storage necessary for continued operation of critical infrastructure. Construction projects on the electric grid serving transit, health care, affordable housing or homeless shelters are also deemed essential and should continue.

Energy projects deemed nonessential now include energy efficiency in existing buildings or new power generation, energy storage, construction or electric vehicle (EV) infrastructure except essential projects. These projects need to shut down during the emergency.

Energy industry manufacturers, construction contractors or other suppliers with questions after the latest guidance can contact Holland & Knight for further assistance or contact the Empire State Development (ESD).


1 Frequently Asked Questions for Determining Whether a Business is Subject to a Workforce Reduction Under Recent Executive Order Enacted to Address COVID-19 Outbreak, at response to FAQ #14

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

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