Permitting

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By Joshua T. Bledsoe and Max Friedman

As discussed in a previous post, the California Court of Appeal for the Fifth Appellate District (Court of Appeal) ruled on April 10, 2017 that the California Air Resources Board (ARB) had failed to properly follow a writ of peremptory mandate (the Writ) requiring ARB to remedy violations of the California Environmental Quality Act (CEQA) that occurred during adoption of the original Low Carbon Fuel Standard (LCFS). The Court of Appeal largely agreed with the petitioner, POET, LLC (POET), a South Dakota-based ethanol producer, holding that ARB had failed to comply with CEQA’s requirement that it analyze the degree to which nitrogen oxide (NOx) emissions from biodiesel fuels had been and would be impacted by the implementation of the LCFS. Indeed, the Court of Appeal found that ARB had acted in bad faith in selecting a definition of the “CEQA project” that failed to account for NOx emissions attributable to the original LCFS.

As a result, the Court of Appeal directed the Fresno County Superior Court (Superior Court) to deny ARB’s request for dismissal of the Writ and to set aside its 2015 approval of the CEQA analysis regarding NOx emissions from biodiesel until ARB had conducted a revised analysis. The Court of Appeal also froze the carbon intensity (CI) targets for diesel fuel at 2017 levels until ARB had completed its revised NOx assessment. The Superior Court implemented the Court of Appeal’s ruling on April 20, 2017, vacating its prior discharge of the Writ and modifying the reissued Writ as required by the higher court. However, on April 28, 2017 the Superior Court vacated its April 20th order as premature due to subsequent filings by ARB.

By Bob Wyman, JP Brisson, Joshua Bledsoe, Andrew Westgate, and Brittany Dryer

On April 18, 2017, California Assembly Members Garcia, Holden, and Garcia proposed amendments to Assembly Bill No. 378 (AB 378) that are intended to extend but significantly reshape California’s Cap-and-Trade Program.[1] This post briefly summarizes the backdrop against which AB 378 has been proposed and discusses the key provisions of AB 378.

Summary

The Members initially introduced AB 378 on February 9, 2017 to “make sure social justice [and] environmental justice [are] addressed” as the California Legislature contemplates how to meet Governor Brown’s 2030 greenhouse gas (GHG) emission reduction goals, as codified in Senate Bill 32 (SB 32).[2] As discussed below, it would appear that the amendments to AB 378 would support the extension of the Cap-and-Trade Program through 2030. The amendments to AB 378, however, propose a number of fundamental changes to the Program. For example, the amendments would create individual facility GHG emissions caps and empower the California Air Resources Board (ARB) to establish “no-trade zones” and facility declining caps. These changes, taken together, would gut the flexibility that is otherwise inherent to a cap-and-trade program, convert the Program into an unwieldy command-and-control mechanism, and ultimately undermine the ability of the state to meet the SB 32 GHG emission targets in a cost-effective way. Finally, the amendments also would require ARB to adopt new criteria pollutants and air toxics emissions standards in response to ongoing concerns expressed by the Environmental Justice (EJ) Community.

By Janice Schneider, Joel Beauvais, Stacey VanBelleghem, Jennifer Roy, and Francesca Bochner

On March 19, 2017, 52 new or reissued nationwide permits (NWPs) for discharges into “waters of the United States,” issued pursuant to Section 404(e) of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act went into effect. The U.S. Army Corps of Engineers (Corps) requires a Section 404 permit when development activities discharge dredged or fill materials into jurisdictional waters (i.e., “waters of the United States,” including wetlands). The NWPs – which are used to permit tens of thousands of new projects each year – cover a broad range of activities, including development of oil and gas pipelines, transmission and other utility lines, linear transportation projects, renewable energy, coal mining activities, and residential development. The Corps developed the NWPs as programmatic permits to expedite approval of specific types of activities deemed to have minimal environmental impacts. Seeking authorization under an NWP is less expensive and less time-consuming than obtaining an individual permit.

The prior NWPs were issued in March 2012 and expired on March 18, 2017. In the new NWPs, the Army Corps: (1) reissued all 50 of its existing NWPs, with revisions to twenty-seven; (2) issued two new permits; and (3) added one new general condition. The new NWPs include a grandfather provision that allows activities authorized under the 2012 NWPs that have commenced or are under contract to commence by March 18, 2017, to have until March 18, 2018, to complete the activity under the terms and conditions of the 2012 NWP. Activities that have not commenced by March 18, 2017, and/or will not be complete by March 18, 2018, must seek authorization under the new NWPs.

By Joshua T. Bledsoe and Max Friedman

Big changes appear to be imminent for California’s Low Carbon Fuel Standard (LCFS).

As discussed in greater detail in our recent post, the LCFS currently is the subject of two interrelated legal challenges commonly known as POET I and POET II. Here we provide an update on recent proceedings before the California Court of Appeal for the Fifth Appellate District (Court of Appeal) in POET I. These proceedings concern the California Air Resources Board’s (ARB) attempts to comply with a peremptory writ of mandate (the Writ) that primarily required ARB to remedy violations of the California Environmental Quality Act (CEQA) that occurred during promulgation of the original LCFS regulation.

On March 20, 2017, three days before oral argument occurred, the Court of Appeal issued a tentative ruling in the POET I Writ appeal. The tentative ruling alerted the parties that the Court of Appeal intended to overturn the Superior Court’s discharge of the Writ and suggested that some or all of the existing LCFS regulatory regime was in jeopardy. The tentative ruling found that ARB failed to comply with the Writ by excluding from its CEQA analysis information relating to nitrogen oxide (NOx) emissions from biodiesel, resulting in the utilization of an improper baseline for measuring NOx emissions. The tentative ruling also found that ARB’s treatment of NOx emissions was not a “good faith” attempt at corrective action because it relied on an objectively unreasonable interpretation of the CEQA term “project.” The Court of Appeal then further underscored its dim view of ARB’s response to the Writ: “ARB’s actions do not appear to be a sincere attempt to provide the public and decision makers with the information required by CEQA and omitted from the earlier documents.”

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.