National Historic Preservation Act

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 Christopher W. Garrett, Daniel P. Brunton and Taiga Takahashi

On March 14, 2014, in Public Employees for Environmental Responsibility et al. v. Beaudreu et al. [click here to view opinion], the US District Court for the District of Columbia issued a decision on multiple challenges to the Cape Wind Offshore Wind Farm based on alleged violations of federal laws, including the Administrative Procedure Act, the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Outer Continental Shelf Lands Act, the Coast Guard and Maritime Transportation Act of 2006, and the National Historic Preservation Act.[1]  The Court rejected all of the claims, except the Court granted summary judgment in favor of the plaintiffs on the Endangered Species Act claims, remanding the case to the US Fish and Wildlife Service and the National Marines Fisheries Service to make independent determinations regarding whether the feathering operational adjustment was a reasonable and prudent measure and to issue an incidental take statement for right whales, respectively.

By Christopher Garrett, Daniel Brunton and Andrew Yancey 

On February 18, 2014, the Ninth Circuit Court of Appeals rejected challenges under the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), and the Department of Transportation Act to the Federal Transit Administration’s approval of a 20-mile high-speed rail project through downtown Honolulu, Hawaii. 

The plaintiffs in v. Federal Transit Administration argued that the environmental impact statement (EIS) prepared by the Federal Transit Administration violated NEPA by unreasonably restricting the project’s purpose and need, and that it failed to analyze reasonable alternatives.  The purpose-and-need statement was fairly narrow, and included the purpose of providing “high-capacity rapid transit” in the identified corridor.  The Court nonetheless upheld the statement of purpose and need, relying in part on the fact that it was developed as part of the federally-mandated Regional Transportation Plan.  The Court approved of the district court’s conclusion that:

Because the statement of purpose and need did not foreclose all alternatives, and because it was shaped by federal legislative purposes, it was reasonable.

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

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: