Senate 1040

WEST VIRGINIA LEGISLATURE

2026 REGULAR SESSION

Introduced

Senate Bill 1040

By Senators Rose, Helton, M. Maynard, Rucker, and Tarr

[Introduced February 21, 2026; referred
to the Committee on Energy, Industry, and Mining; and then to the Committee on Finance]

A BILL to amend and reenact §24-2-11 of the Code of West Virginia, 1931, as amended to amend the code by adding a new section, designated §24-2-23; and to repeal §24-21-11c, relating to creating the West Virginia Energy Freedom Act; providing findings and purpose; providing for registration of power generation companies; requiring grid interconnectivity; creating incentives; exempting certain electric generation facilities from attaining a certificate of public convenience and necessity; and eliminating requirement for siting certificates for certain electric generating facilities.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2. POWERS AND DUTIES OF PUBLIC SERVICE COMMISSION.

§24-2-11. Requirements for certificate of public convenience and necessity.

(a) A public utility, person, or corporation other than a political subdivision of the state providing water or sewer services and having at least 4,500 customers and annual gross combined revenues of $3 million or more may not begin the construction of any plant, equipment, property, or facility for furnishing to the public any of the services enumerated in §24-2-1 of this code, nor apply for, nor obtain any franchise, license, or permit from any municipality or other governmental agency, except ordinary extensions of existing systems in the usual course of business, unless and until it shall obtain obtains from the Public Service Commission a certificate of public convenience and necessity authorizing the construction franchise, license, or permit. Provided, That the The requirement to obtain a certificate of public convenience and necessity shall be waived for projects that have been reviewed and determined to be technically feasible and approved by the Infrastructure and Jobs Development Council. This subsection does not apply to:

(1) A political subdivision of the state that provides water or sewer services and has at least 4,500 customers and annual gross combined revenues of $3 million or more; nor

(2) Construction, modification, or operation of an electric generation facility that is not owned or operated by a public utility as defined in §24-1-2 of this code and does not produce power from an intermittent power source. Such facilities shall comply instead with the registration requirements set forth in §24-2-23 of this code, applicable environmental permits from the Department of Environmental Protection, local zoning and land-use approvals, and interconnection standards established by the applicable regional transmission organization. As used in this chapter, "intermittent power source" means an energy source whose electrical output is inherently variable, is not continuously available due to its dependence on external natural conditions, and cannot be fully controlled or dispatched on demand.

(b) Upon the filing of any application for the certificate, and after hearing, the commission may, in its discretion, issue or refuse to issue, or issue in part and refuse in part, the certificate of convenience and necessity. Provided, That the commission after After it gives proper notice, and if no substantial protest is received within 30 days after the notice is given, the commission may waive formal hearing on the application. Notice shall be given by publication which shall state that a formal hearing may be waived in the absence of substantial protest, made within 30 days, to the application. The notice shall be published as a Class I legal advertisement in compliance with §59-3-1 et seq. of this code. The publication area shall be the proposed area of operation is the publication area.

(c) Any public utility, person, or corporation subject to the provisions of this section other than a political subdivision of the state providing water and/or sewer services having at least 4,500 customers and combined annual gross revenue of $3 million dollars or more shall give the commission at least 30 days’ notice of the filing of any application for a certificate of public convenience and necessity under this section. Provided, That the The commission may modify or waive the 30-day notice requirement and shall waive the 30-day notice requirement for projects approved by the Infrastructure and Jobs Development Council.

(d) The commission shall render its final decision on:

(1) On any application filed under the provisions of this section or §24-2-11a of this code within 270 days of the filing of the application and within 90 days after final submission of any such application for decision following a hearing; Provided, That if the application is or

(2) On any application for authority to construct a water and sewer project and the projected total cost is less than $10 million, the commission shall render its final decision within 225 days of the filing of the application.

(e) The commission shall render its final decision on any application filed under the provisions of this section that has received the approval of the Infrastructure and Jobs Development Council pursuant to §31-15A-1 et seq. of this code within 180 days after filing of the application. Provided, That if If a substantial protest is received within 30 days after the notice is provided pursuant to subsection (b) of this section, the commission shall render its final decision within 270 days or 225 days of the filing of the application, whichever is applicable as determined in subsection (d) of this section.

(f) If the projected total cost of a project which is the subject of an application filed pursuant to this section or §24-2-11a of this code is greater than $50 million, the commission shall render its final decision on any such the application filed under the provisions of this section or §24-2-11a of this code within 400 days of the filing of the application and within 90 days after final submission of any such the application for decision after a hearing.

(g) If a decision is not rendered within the time frames established in this section, the commission shall issue a certificate of convenience and necessity as applied for in the application.

(h) The commission shall prescribe rules it considers proper for the enforcement of enforcing the provisions of this section; and, in establishing that public convenience and necessity do exist, the burden of proof shall be upon the applicant.

(i) Pursuant to the requirements of this section, the commission may issue a certificate of public convenience and necessity to any intrastate pipeline, interstate pipeline, or local distribution company for the transportation in intrastate commerce of natural gas used by any person for one or more uses, as defined by rule, by the commission in the case of:

(1) Natural gas sold by a producer, pipeline, or other seller to the person; or

(2) Natural gas produced by the person.

(j) A public utility, including a public service district, which has received a certificate of public convenience and necessity from the commission after July 8, 2005, from the commission and has been approved by the Infrastructure and Jobs Development Council, is not required to, and cannot be compelled to, reopen the proceeding if the cost of the project changes but the change does not affect the rates established for the project.

(k) Any public utility, person, or corporation proposing any electric power project that requires a certificate under this section is not required to obtain the certificate before applying for or obtaining any franchise, license, or permit from any municipality or other governmental agency.

(l) Water or sewer utilities that are political subdivisions of the state, and having have at least 4,500 customers and combined gross revenues of $3 million dollars or more, desiring and desire to pursue construction projects that are not in the ordinary course of business, shall provide adequate prior public notice of the contemplated construction and proposed changes to rates, fees, and charges, if any, as a result of the construction to both current customers and those persons who will be affected by the proposed construction as follows:

(1) Adequate prior public notice of the contemplated construction by causing a notice of intent to pursue a project that is not in the ordinary course of business to be specified on the monthly billing statement of the customers of the utility for the month immediately preceding the month in which an ordinance or resolution approving the proposed construction and proposed changes to rates, fees, and charges, if any, is to be before the governing body for the public hearing on the ordinance or resolution approving the proposed construction and proposed changes to rates, fees, and charges, if any;

(2) Adequate prior public notice of the contemplated construction by causing to be published as a Class I legal advertisement of the proposed public hearing on the ordinance or resolution approving the proposed construction and proposed changes to rates, fees, and charges, if any, in compliance with §59-3-1 et seq. of this code. The publication area for publication shall be all territory served by the political subdivision. If the political subdivision provides service in more than one county, publication shall be made in a newspaper of general circulation in each county that the political subdivision provides service;

(3) The public notice of the proposed construction shall state the scope of the proposed construction; a summary of the current rates, fees, and charges, and proposed changes to said the rates, fees, and charges, if any; the date, time, and place of the public hearing on the ordinance or resolution approving the proposed construction and proposed changes to rates, fees, and charges, if any; and the place or places within the political subdivision where the ordinance or resolution approving the proposed construction and proposed changes to rates, fees, and charges, if any, may be inspected by the public. A reasonable number of copies of the ordinance or resolution shall be kept at the place or places and be made available for public inspection. The notice shall also advise that interested parties may appear at the public hearing before the political subdivision and be heard with respect to the proposed construction and the proposed rates, fees, and charges, if any;

(4) The ordinance or resolution on the proposed construction and the proposed rates, fees, and charges shall be read at two meetings of the governing body with at least two weeks intervening between each meeting. The public hearing may be conducted prior to, or at, the meeting of the governing body at which the ordinance or resolution approving the proposed construction is considered on second reading;

(5) Enactment or adoption of the ordinance or resolution approving the proposed construction and the proposed rates, fees, and charges shall follow an affirmative vote of the governing body and the approved rates shall go into effect no sooner than 45 days following the action of the governing body. If the political subdivision proposes rates that will go into effect prior to the completion of construction of the proposed project, the 45-day waiting period may be waived by public vote of the governing body only if the political subdivision finds and declares the political subdivision to be in financial distress such that the 45-day waiting period would be detrimental to the ability of the political subdivision to deliver continued and compliant public services. Provided, That if If the political subdivision is a public service district, in no event may the rate may not become effective prior to the date that the county commission has entered an order approving or modifying the action of the public service district board;

(6) Rates, fees, and charges approved by an affirmative vote of the public service district board shall be forwarded in writing to the county commission with the authority to appoint the members of the public service board of the public service district. The county commission shall, within 45 days of receipt of the proposed rates, fees, and charges, take action to approve, modify, or reject the proposed rates, fees, and charges, in its sole discretion. If, after 45 days, the county commission has not taken final action to approve, modify, or reject the proposed rates, fees, and charges, the proposed rates, fees, and charges, as presented to the county commission, shall be effective with no further action by the board or county commission. In any event this This 45-day period may be extended by official action of both the board proposing the rates, fees, and charges and the appointing county commission;

(7) The county commission shall provide notice to the public by a Class I legal advertisement of the proposed action, in compliance with §59-3-1 et seq. of this code, of the meeting where it shall consider the proposed increases in rates, fees, and charges no later than one week prior to the meeting date; and

(8) A public service district, or a customer aggrieved by the changed rates or charges who presents to the circuit court a petition signed by 25 percent of the customers served by the public service district, when dissatisfied by the approval, modification, or rejection by the county commission of the proposed rates, fees, and charges under the provisions of this subsection, may file a complaint regarding the rates, fees, and charges resulting from the action of, or failure to act by, the county commission in the circuit court of the county in which the county commission sits. Provided, That any Any complaint or petition filed hereunder pursuant to this section shall be filed within 30 days of the county commission’s final action approving, modifying, or rejecting the rates, fees, and charges, or the expiration of the 45-day period from the receipt by the county commission, in writing, of the rates, fees, and charges approved by resolution of the board without final action by if the county commission has failed to approve, modify, or reject the rates, fees, and charges. and the The circuit court shall resolve said the complaint or petition. Provided, however, That the The rates, fees, and charges so fixed by the county commission, or those adopted by the district upon which the county commission failed to act, shall remain in full force and effect until set aside, altered, or amended by the circuit court in an order to be followed in the future.

§24-2-11c. Siting certificates for certain electric generating facilities or material modifications thereof.

[Repealed.]

§24-2-23. West Virginia Energy Freedom Act.

(a) Short title. – This section is and may be cited as the "West Virginia Energy Freedom Act".

(b) Legislative findings. – The Legislature finds that streamlining the approval process for new electric generation facilities, particularly dispatchable resources such as natural gas, and for coal-fired plants, is essential to promoting economic development, enhancing energy reliability, attracting investment in the state’s abundant natural resources, and supporting job creation throughout the state.

(c) Purpose. – The purpose of this section is to reform the regulatory framework for new electric generation facilities by:

(1) Eliminating the mandatory certificate of public convenience and necessity or siting certificate for a non-utility project;

(2) Shifting oversight to a simplified registration process, local permitting, environmental compliance, and grid interconnection standards; and

(3) Preserving necessary safeguards for public health, safety, environmental protection, and grid reliability.

(d) Registration of power generation companies. –

(1) Any person, corporation, or entity seeking to construct, own, or operate an electric generation facility in West Virginia, excluding public utilities subject to §24-2-11 of this code and energy facilities that produce power from an intermittent power source, shall register as a power generation company with the commission prior to commencing construction.

(2) The commission shall provide a registration process which includes:

(A) The legal name, business address, and principal place of business of the registrant;

(B) A description of the proposed facility, including type, such as natural gas or coal, capacity in megawatts, location, and anticipated commercial operation date;

(C) Contact information for primary and secondary emergency contacts and a regulatory representative;

(D) Evidence of compliance with applicable federal requirements, including any Federal Energy Regulatory Commission registrations, if applicable; and

(E) An affidavit attesting to the accuracy of the information provided.

(3) The commission shall review the registration for completeness within 15 business days of receipt. If incomplete, the commission shall notify the registrant of deficiencies, and the registrant shall have 20 business days to cure. If not cured, the registration may be rejected without prejudice.

(4) Upon approval, the commission shall issue a registration number, which is required for obtaining local permits, environmental approvals, and grid interconnection.

(5) Registrants shall update their registration biennially or upon material changes, such as changes in ownership, facility modifications exceeding 10 percent of capacity, or cessation of operations.

(6) The commission may establish reasonable fees for registration to cover administrative costs, not to exceed $1,000 per application.

(7) Failure to register prior to construction may result in civil penalties not exceeding $5,000 per day, enforceable by the commission.

(8) As used in this chapter, "intermittent power source" means an energy source whose electrical output is inherently variable, is not continuously available due to its dependence on external natural conditions, and cannot be fully controlled or dispatched on demand.

(e) Environmental and Local Permitting. –

(1) This section does not exempt electric generation facilities from complying with:

(A) Air, water, and waste permits issued by the Department of Environmental Protection pursuant to chapters §22-1-1 et seq., §22A-1-1 et seq., and §22B-1-1 et seq. of this code;

(B) Local zoning, building, and land-use permits from county commissions or municipal authority; and

(C) Any applicable federal environmental or safety regulation.

(2) The Department of Environmental Protection shall:

(A) Prioritize and expedite permit reviews for dispatchable generation facilities, including without limitation natural gas and coal, and excluding energy facilities that produce power from an intermittent power source; and

(B) Maintain a goal of issuing decisions within 180 days of complete application submission to facilitate timely development of the facilities, absent substantial public opposition or environmental concerns, as determined by the commission.

(f) Grid interconnection. –

(1) Electric generation facilities shall comply with interconnection standards and processes established by the applicable regional transmission organization, such as PJM Interconnection, for access to the interstate grid.

(2) The commission shall coordinate with the regional transmission organization to ensure that interconnection studies and agreements do not unduly delay facility development and may intervene in cases of unreasonable delays.

(g) Incentives for dispatchable generation. –

(1) To encourage investment in reliable, dispatchable generation, the Division of Economic Development shall establish a program providing low-interest loans or grants for qualifying new natural gas or coal-fired facilities that add at least 100 megawatts of capacity.

(2) Eligible projects must demonstrate a substantial positive impact on the local economy and employment, with priority given to facilities utilizing West Virginia-sourced fuel.

(3) The Division shall report annually by December 1 to the Joint Committee on Government and Finance on program utilization and outcomes.

NOTE: The purpose of this bill is to create the West Virginia Energy Freedom Act related to power generation companies in the state.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.