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By Michael Carroll, Marc Campopiano and Max Friedman

The California Energy Commission (CEC) has released an August 2015 report projecting local reliability shortfalls in the Los Angeles basin planning area as early as 2021. The deficits may require new natural gas power generation to maintain grid reliability.

This finding is part of the Integrated Energy Policy Report, a collaborative effort with the California Public Utilities Commission (CPUC), California Independent System Operator, and the California Air Resources Board.

The report recommends that the CPUC “[i]nclude in its 2016 [Long Term Procurement Plan (LTPP)] rulemaking an explicit focus on local capacity requirements. Further, the CPUC should not assume that such requirements in the intermediate period 5-8 years forward have been satisfied through decisions in the 2012 LTPP rulemaking and the procurement activities authorized by D.14-03-004.” This recommendation would represent a significant shift in the CPUC’s planning horizon because the 2016 LTPP is intended to evaluate the need for new power resources beginning in 2026, not as early as 2021. Now, it appears that new resources may be needed much faster than the CPUC had anticipated.

Authors: Sara Orr and Jennifer Roy

On August 11, 2015, the US District Court for the Northern District of California remanded a US Fish & Wildlife Service’s (FWS) 2013 final rule that had extended the maximum duration of eagle take programmatic permits under the Bald and Golden Eagle Protection Act (Eagle Act) from 5 years to 30 years.[i] FWS promulgated the rule (an amendment to the existing eagle permitting program established in 2009) to align the duration of programmatic eagle take permits with the typical lifetime of renewable energy projects, such as wind farms. Bird protection groups then challenged the rule, alleging the FWS did not properly comply with the procedural requirements of the National Environmental Policy Act (NEPA) and the Endangered Species Act. While the district court recognized that “promoting renewable energy projects may well by a ‘worthy goal,” the court held that FWS did not meet its procedural obligations under NEPA and remanded the matter back to the FWS to complete the necessary environmental review. As a result of the Court’s decision, 30-year incidental take permits are no longer available to project developers under the Eagle Act until the FWS completes its environmental review and reissues the rule.

The Eagle Act’s Regulatory Scheme

The Eagle Act prohibits a person from taking, possessing, purchasing, bartering, offering to sell, transporting, exporting or importing bald or golden eagles, whether the eagle is alive or dead, or “any part, nest, or egg” of an eagle without a permit.[ii] Under the Eagle Act, take includes to “pursue, shoot, shoot at, poison, wound, kill, capture, collect, molest, or disturb.”[iii] “Disturb” is further defined broadly by regulation, including agitating or bothering a bald or golden eagle “to a degree that causes, or is likely to cause injury to an eagle, a decrease in its productivity, or nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.”[iv] The federal government can assess both civil and criminal penalties for unauthorized take of bald and golden eagles.[v]

By Paul Singarella, Claudia O’Brien, Marc Campopiano Daniel Brunton, Joshua Bledsoe, Lucas Quass, John Heintz, Joshua Marnitz and John Morris

On July 27, 2015, the US Department of the Interior, through its Office of Surface Mining Reclamation and Enforcement (OSMRE), proposed to revise regulations adopted under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) that govern surface coal mining and reclamation operations near surface streams (the Proposed Rule). According to the OSMRE, “[t]he primary purpose of this proposed rule is to reinforce the need to minimize the adverse impacts of surface coal mining operations on surface water, groundwater, fish, wildlife, and related environmental values, with particular emphasis on protecting or restoring streams and aquatic ecosystems.” OSMRE asserts widespread impacts including loss of headwater streams, long-term degradation of surface water quality downstream from mines, displacement of native species, compaction of postmining soils and watershed hydrology impacts. SMCRA requires OSMRE regulations to respect coal’s important place in the country’s energy portfolio. Whether this draft rule strikes a reasonable balance under SMCRA will be the subject of intense debate as this rulemaking proceeds.

The Proposed Rule would significantly alter OSMRE’s decades-old “Stream Buffer Zone” regulations, which nominally require a 100-foot buffer for mining operations along streams,[1] and would expand regulatory oversight in the coal industry. Along with the Proposed Rule, OSMRE has published a draft Environmental Impact Statement (EIS) and a Regulatory Impact Analysis (RIA).

By Joshua T. Bledsoe and Douglas K. Porter

On June 10, 2015, the California Independent System Operator (“CAISO”) released a draft final proposal (the “Expanded Metering and Telemetry Options Phase 2, Distributed Energy Resource Provider”) that, if finalized, would represent an initial  step towards a regulatory structure that would result in distributed energy resources (“DERs”) competing in California wholesale energy markets.  DERs are resources that are physically connected to the distribution grid of an electric utility (e.g., rooftop solar, energy storage, plug-in electric vehicles, and demand response).  In order for DERs to sell into the CAISO wholesale markets, they would use the distribution grid of the electric utility to deliver power to or to take power from the transmission grid.  Currently, the vast majority of existing renewable resources sell their power to California’s electric utilities.  Those distributed resources are compensated by electric utilities for the electricity they generate at a rate far in excess of current CAISO market prices.  In addition, those resources do not have the right or the ability to sell power directly into the wholesale market.  Absent the California Public Utilities Commission (“CPUC”) adopting a substantially revised regulatory structure that sorts out the thorny jurisdictional, economic and technical issues (e.g., metering and compensation for resources located behind the retail meter), the immediate impact of CAISO’s proposal may be modest at best.

By Marc Campopiano and Max Friedman

Following the May 28, 2015 release by the Bureau of Land Management (BLM) of 14 final Environmental Impact Statements (EISs) for land use plans designed to provide greater protection to the greater sage-grouse on approximately 50 million acres of BLM-managed land in 10 different western states, more than 40 environmental groups, industry organizations, states, and counties have  filed formal complaints with the BLM, protesting various aspects of the plans.  BLM aims to provide sufficient…

By Christopher Garrett & Daniel Brunton

On May 27, 2015, the United States Court of Appeals for the Ninth Circuit upheld the US Bureau of Land Management’s (BLM) grant of a right-of-way over federal land for a road (the Road Project) for a wind energy project developed by North Sky River Energy, LLC (North Sky) on private land (the Wind Project).[1] On the facts before it, the court held that the Wind Project was neither a federal action nor…

By Marc Campopiano, Joshua Bledsoe, Jennifer Roy, James Erselius

Phase I of the Desert Renewable Energy Conservation Plan (“DRECP”) is underway on the 9.8 million acres of public land managed by the Bureau of Land Management (“BLM”). As discussed in our previous post, the four lead agencies responsible for the plan introduced a phased approach to implementing the DRECP in March 2015 in response to public comments. Under Phase I of this approach, between 81,000 and…

By Chris Garrett, Cindy Starrett and John Morris

Today, the California Supreme Court unanimously upheld the City of San Jose’s Inclusionary Housing Ordinance, rejecting a facial constitutional challenge brought in California Building Industry Association (CBIA) v. City of San Jose (Affordable Housing Network of Santa Clara County et al.), S212072. The Court determined that, contrary to CBIA’s position, conditions upon new development contained in San Jose’s Inclusionary Housing Ordinance did not need to be justified by the more…

By Marc Campopiano, Max Friedman and Gunnar Gundersen

On Thursday, May 28, 2015, the Bureau of Land Management (BLM) released fourteen final Environmental Impact Statements (EISs) that incorporate greater-sage-grouse conservation measures into the land-use plans for about 50 million acres of BLM-managed land in 10 western states. The population of the sage-grouse has declined by more than half over the last decade. As discussed in our prior entry, the US Fish and Wildlife Service (FWS) is under a…

By Andrea Hogan, Mark Campopiano, Sara Orr, and Daniel Brunton

On May 26, nine western states filed an amicus brief in People for the Ethical Treatment of Property Owners  (PETPO) v. United States Fish and Wildlife Service urging the 10th Circuit Court of Appeals to limit the reach of the Endangered Species Act.

At issue in the case is a special regulation that the Fish and Wildlife Service adopted under section 4(d) of the Endangered Species Act…