Permitting

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By Sara Orr, Jennifer Roy and Francesca Bochner

On December 14, 2016, the US Fish and Wildlife Service (FWS) finalized its proposed revisions to the Eagle Rule (Final Rule) and released its Record of Decision (ROD). The Final Rule allows companies and others to obtain 30-year incidental take permits under the Bald and Golden Eagle Protection Act of 1940 (the Act) in exchange for committing to conservation measures designed to reduce impacts to eagles.

As discussed in our previous articles (here and here), this is FWS’ second attempt at revising the Eagle Rule to allow for 30-year permit terms. The draft version of the revisions and the Draft Programmatic Environmental Impact Statement (DPEIS) were originally released on May 2, 2016. FWS accepted public comments on the proposed revisions and DPEIS until July 5, 2016, receiving over 700 comments from other agencies, public interest groups, industry organizations, and private citizens.

By Sara Orr, Bobbi-Jo Dobush and Francesca Bochner

On November 28, 2016, the Department of Energy’s (DOE) simplified Integrated Interagency Pre-Application (IIP) Process will go into effect.[i]

The IIP is a voluntary, pre-application process intended to streamline and improve the permitting and siting process for qualifying electric transmission projects. In an effort to increase efficiency, the IIP allows DOE to coordinate with applicable federal and non-federal entities to identify issues early in the process and before the developer submits a formal application.

Under the IIP, DOE is responsible for overseeing the IIP Process, coordinating the roles of other Federal entities and maintaining a consolidated administrative record. Developers may participate in two meetings with DOE and other federal and non-federal agencies (local, regional, and tribal stakeholders) to discuss potential issues with a project. While developers must still obtain all other necessary permits, the process is intended to minimize delays by involving all applicable parties from the outset. When the IIP process is complete, developers may submit their formal permit applications to agencies that have already had an opportunity to air concerns and suggest changes.

By Sara Orr, Jennifer Roy and Francesca Bochner

On July 5, 2016, the public comment period closed for the US Fish and Wildlife Service’s (FWS) proposed revisions to the rules authorizing eagle take permits under the Bald and Golden Eagle Protection Act (Eagle Act) and accompanying Draft Programmatic Environmental Impact Statement (PEIS), paving the way for FWS to complete and release a final rule, possibly as early as the end of this year.

FWS originally released the revised proposed rules on May 6, 2016, as discussed more fully in our previous post. FWS received over 700 comments on the proposed revisions and Draft PEIS from other agencies, public interest groups, industry organizations, and private citizens.

By Marc Campopiano, Josh Bledsoe, Jennifer Roy, and James Erselius

Phase I of the Desert Renewable Energy Conservation Plan (DRECP) has now been approved, paving the way for streamlined permitting and environmental review of qualified renewable energy projects on Bureau of Land Management (BLM)-administered lands in the Mojave and Colorado/Sonoran desert regions of Southern California.

As discussed in a previous post, the four lead agencies responsible for preparing the DRECP introduced a phased approach to implementing the DRECP in March 2015. After receiving public comments, BLM released a Proposed Land Use Plan Amendment (LUPA) and Final Environmental Impact Statement for Phase I—the DRECP’s federal land component—in November 2015. On September 14, 2016, BLM signed the Record of Decision (ROD) approving the LUPA.

By Joshua Bledsoe, Sara Orr and Stacey VanBelleghem

On August 2, 2016, the White House Council on Environmental Quality (CEQ) issued its final guidance for federal agencies to assess the impact of their decisions on greenhouse gas emissions (GHGs) and also how such decisions may be impacted by a changing climate (e.g., future sea level rise impacts on a long-term infrastructure project proposed for a coastal barrier island) when conducting reviews under the National Environmental Policy Act (NEPA). The final guidance follows CEQ’s issuance of draft guidance in 2010 and revised draft guidance in 2014, incorporating consideration of public comments and feedback on the two drafts. Following this six-year process, CEQ’s guidance is a recommendation to federal agencies versus a formal legal requirement and therefore does not have the same authority as a federal rule or regulation.

The guidance does not establish any particular quantity of GHG emissions as representing a significant burden on the environment – that determination will be left to the discretion of the agencies. However, the guidance does prohibit the so-called “de minimis approach” where an agency would compare a Federal action’s GHG emissions to global GHG emissions, finding that since the action did not represent a meaningful percentage of the global GHG inventory, the action did not significantly affect the environment.

By Sara Orr and Bobbi-Jo Dobush

On July 7, 2016, the US Fish and Wildlife Service (FWS) announced its Record of Decision (ROD) for the Upper Great Plains Wind Energy Programmatic Environmental Impact Statement (PEIS).[1] This is the final step in a process that US FWS, along with Western Area Power Administration (Western), embarked upon in 2010 to streamline the environmental review process for wind energy projects in the Upper Great Plains (UPG).[2] The process applies to wind energy projects in Iowa, Minnesota, Montana, Nebraska, North Dakota, and South Dakota that would interconnect to Western’s transmission facilities or require the US FWS to consider an easement exchange to accommodate placement of project facilities.

Western, which is responsible for marketing and delivering wholesale power in the western United States and is the joint lead agency on the PEIS, announced its ROD adopting Alternative 1 on August 26, 2015.[3] Eleven months later, US FWS made its final decision and also adopted Alternative 1 of the PEIS which supports US FWS participation in easement exchanges for wind development and provides for expedited environmental reviews (including review pursuant to the National Environmental Policy Act (NEPA) and Endangered Species Act (ESA)) if developers follow specified best management practices, minimization and mitigation measures. Now that US FWS has issued its Record of Decision, it may implement the PEIS when permitting wind energy projects involving easement swaps within Western’s Upper Great Plains region.

By Chris Garrett, Shivaun Cooney and Shannon Lankenau

On October 7, 2015, the California Supreme Court heard oral argument in California Building Industry Association v. Bay Area Air Quality Management District (Supreme Court Case No. S213478), a case which calls into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of the California Environmental Quality Act (CEQA) is inconsistent with the statute’s language and intent. While the California Building Industry Association’s (CBIA) challenge to the Bay Area Air Quality Management District’s (BAAQMD) guidelines raised numerous legal issues, the Supreme Court’s order granting review in the matter expressly limited briefing and argument to the following issue: “Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?” In other words, is CEQA review limited to an analysis of a project’s impact on the existing environment, or does it also require an analysis of the existing environment’s impact on the project and its future occupants and users?

CBIA’s Challenge to BAAQMD’s Thresholds of Significance

On November 29, 2010, CBIA filed a petition for writ of mandate challenging BAAQMD’s 2010 thresholds of significance for certain air contaminants (Thresholds), adopted pursuant to Section 15064.7 of the CEQA Guidelines. The trial court agreed with CBIA that BAAQMD should have conducted an environmental review under CEQA before issuing the Thresholds, but declined to address CBIA’s remaining arguments, including that the Thresholds were arbitrary and capricious to the extent they required an evaluation of the impacts the environment would have on a given project (referred to by some as CEQA in reverse).[i]

By Marc Campopiano, Andrea Hogan and Joshua Marnitz

On September 22, 2015, the White House, through the Office of Management and Budget (OMB) and the Council on Environmental Quality (CEQ), issued guidance to the heads of certain federal departments and agencies[1] (the Agencies) establishing metrics for the permitting and environmental review of infrastructure projects in the United States (the Guidance). The Guidance is intended to expand the use and reframe the purpose of the publicly accessible online Federal Infrastructure Permitting Dashboard (the Dashboard). To that end, the Guidance establishes a set of metrics to track permit and review timelines for certain infrastructure projects, and sets a schedule for collecting and posting that data to the Dashboard. It then outlines an approach for capturing and reporting the environmental and community impacts resulting from the federal permitting and review process.

The infrastructure projects covered by the Guidance include those projects in the following sectors: surface transportation (including all highway, rail, and transit projects); airport capital improvement projects; ports and waterways; water resource projects; renewable energy generation; electricity transmission; storm-water infrastructure; broadband internet; and pipelines (except those subject to Federal Energy Regulatory Commission oversight). The Guidance also provides that the Agencies can include other sectors, as appropriate.

By Marc T. Campopiano, Joshua T. Bledsoe, Douglas Porter, Danny Aleshire, Jennifer Roy and Andrew Yancey

The end of the California State Legislature’s regular session for the year culminated in a frenzy of action, with Assembly members scrambling to pass dozens of bills before midnight on September 12, 2015. The California Legislature voted on a package of 12 bills addressing environmental and health concerns, such as off-shore drilling, divestment of investment funding from coal companies, water quality, energy efficiency in disadvantaged communities, and increased public transportation. This post analyzes three of the more significant and controversial bills proposed this year, including last minute changes to each during the final week of the session: SB 350; SB 32; and AB 1288.

SB 350 (De León): The Clean Energy and Pollution Reduction Act of 2015

The most far-reaching climate change goals of the climate bill package were enshrined in SB 350. The proposed bill, authored by Senate President Pro Tempore Kevin de León and Senator Mark Leno, originally called for a 50 percent reduction in petroleum use in cars and trucks, a 50 percent increase in energy efficiency in buildings, and for 50 percent of the state’s utility power to be derived from renewable energy, all by 2030; termed the “50-50-50” formula.

These standards paralleled Governor Jerry Brown’s climate change agenda for the year, which was first announced during his inaugural address in January. Last Wednesday, following a failure to garner the necessary votes amid resistance from moderate Democrats, state legislative leaders amended SB 350 to drop requirements for a 50 percent reduction in petroleum use for cars and trucks. As modified, the bill passed on a 52-27 vote.

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.