By Taiga Takahashi

In previous commentary, we have noted the importance of a well-developed administrative record in project approval in risk management, controlling the potential for delay, and in project-related litigation. The U.S. District Court for the Southern District of California recently affirmed this general principle in rejecting a broad-based challenge by an environmental group and a labor union (the “Plaintiffs”) in Desert Protective Council v. U.S. Department of the Interior, No. 12cv1281-GPC(PCL) (S.D. Cal. Feb. 27, 2013).

By Janice M. Schneider and Andrea M. Hogan

On February 27, 2013, the U.S. District Court for the Southern District of California rejected the Quechan Tribe of the Fort Yuma Indian Reservation’s (“Quechan Tribe”) suit challenging the Ocotillo Wind Energy Facility Project (the “Project”), a wind energy project in the Sonoran Desert in California.  See Quechan Tribe of Fort Yuma Indian Reservation v. U.S. Department of Interior, et al., 2013 U.S. Dist. LEXIS 27069 (S.D. Cal. Feb. 27, 2013). 

By Janice Schneider and Joshua Marnitz

Last week, the Bureau of Land Management (BLM) published in the Federal Register an Advance Notice of Proposed Rulemaking outlining a competitive process for leasing public lands for solar and wind energy development.  76 Fed. Reg. 81906 (December 29, 2011).  BLM believes that a competitive process will better enable it to capture fair market value for the use of public lands, as required under the Federal Land Policy and Management Act (FLPMA) (43 U.S.C.

By Michael Feeley and Aron Potash

A lawsuit which delayed and once threatened to dismantle California’s greenhouse gas (GHG) cap and trade scheme was largely resolved last week, removing one roadblock to California’s plan to be the first state to impose an economy-wide GHG trading program.  Under modified regulations adopted by the California Air Resources Board (CARB) on October 20, 2011, California will require certain emitters of GHGs to obtain allowances or offsets in amounts commensurate to their respective emissions

David A. Goldberg and Daniel S. Feinberg

The Bureau of Land Management (“BLM”) has extended the public comment period for the Draft Solar Programmatic Environmental Impact Statement (“Draft Solar PEIS”) by thirty days to April 16, 2011.  The Draft Solar PEIS should be of interest to any developer seeking to build utility-scale solar energy projects or associated transmission infrastructure on public lands in the Southwestern United States, as the adoption of any of the study’s proposed plans of action could dramatically influence solar energy development on BLM-administered lands.

The Draft Solar PEIS is a detailed study released in December 2010 by BLM and the Department of Energy that evaluates the environmental, economic and social impacts of solar energy development on BLM-managed public lands in the Southwest.  As part of the study, BLM identified 24 “solar energy zones” (“SEZs”) that it deemed most suitable for environmentally sound, utility-scale solar energy development in six states: Arizona, California, Colorado, Nevada, New Mexico, and Utah.  The study addressed three alternatives for managing utility-scale solar energy development: a solar energy development program alternative and a solar energy zone alternative (collectively, the “action” alternatives), and a no-action alternative.

Clean energy projects have tremendous potential to create jobs and grow the economy and help the nation meet its energy needs in a more sustainable way, but regulatory and legal barriers to energy projects have substantially reduced job creation and economic growth while impeding efforts to bring new energy generation facilities on line, according to a recent economic study commissioned by the US Chamber of Commerce as part of its Project No Project.  The report, entitled, “Progress Denied: A Study on the Potential Economic Impact of Permitting Challenges Facing Proposed Energy Projects,” (PDF) found that legal challenges, threats of legal challenge, and regulatory hurdles caused the delay or cancellation of 333 energy projects which, if constructed and operated for twenty years, would have potential economic and employment benefits of  a projected $3.4 trillion.  These estimated benefits would include $1.4 trillion in employment earnings and one million or more jobs per year.

Finding that the Bureau of Land Management (BLM) had likely failed to consult adequately with the Quechan Tribe over a large solar project’s potential impacts on historic resources, the Federal District Court for the Southern District of California issued an order on December 15th granting a preliminary injunction that halts development of the project. 

The 709-megawatt-project is planned on 6,500 acres of mostly federally owned land in Imperial County, California.  On October 29, 2010, the Quechan Tribe, a federally recognized tribe with a reservation in Imperial County and Arizona, sued the Department of Interior, BLM to overturn the approvals for the project, alleging that they violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Federal Land Policy and Management Act (FLPMA). 

NHPA and its implementing regulations identify certain Indian tribes that the BLM must consult with before approving or spending money on a federally assisted project.  NHPA and its regulations generally require the consultation to “be conducted in a manner sensitive to the concerns and needs of the Indian tribe” and to “recognize the government-to-government relationship between the Federal Government and Indian tribes.”  NHPA’s overall goal is straightforward, but the regulations outlining the required consultations are detailed and complex.  As the court noted: