CHAPTER 11 NEPA PROCESS FOR ENERGY PROJECTS: UNIQUE CHALLENGES AND NEW DIRECTIONS
| Jurisdiction | United States |
(Oct 2010)
NEPA PROCESS FOR ENERGY PROJECTS: UNIQUE CHALLENGES AND NEW DIRECTIONS
Matthew E. Bostick
Farella Braun + Martell LLP
San Francisco, California
DAVID J. LAZERWITZ is a partner in the Environmental Law Department of Farella Braun + Martel LLP in San Francisco, California, where he represents renewable energy, water services, winery and manufacturing companies in environmental and natural resources counseling, permitting and litigation matters. His practice focuses on water quality, wetlands, endangered species, environmental impact analysis and federal public lands issues. Previously, he served in the Appellate Section of the Environment and Natural Resources Division of the U.S. Department of Justice. He also served as a law clerk to the Honorable Robert H. Henry on the U.S. Court of Appeals for the Tenth Circuit and as a Snyder Scholar at the Lauterpacht Centre for International Law at the University of Cambridge. He received his B.A. from Colorado College, and his J.D. and M.P.A. from the Indiana University School of Law and School for Public and Environmental Affairs in Bloomington.
MATTHEW E. BOSTICK is an associate in the Environmental Law Department of Farella Braun + Martel LLP in San Francisco, California, where he represents public and private clients in environmental counseling, permitting and litigation matters. His experience includes litigation and compliance counseling involving the remediation of contaminated property under federal and state statutes, including the Clean Water Act, RCRA, and CERCLA; federal public lands issues; and advice to manufacturers and users of pesticides and antimicrobials regulated under FIFRA and FFDCA. He received his B.A. from Williams College, and his J.D. from the University of Virginia School of Law.
I. Introduction
Energy projects have long played a fundamental role in the history and evolution of the National Environmental Policy Act ("NEPA"). From the Supreme Court's decision in Kleppe v. Sierra Club1 to Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council,2 energy resource and electrical generating facility projects form a crucial backdrop in the judicial interpretation and application of the statute and its implementing regulations. The basis for this is clear: energy-related projects form a substantial component of "major federal action[s]"3 triggering NEPA review and thereby result in a vast body of NEPA compliance documents, regulations, guidelines and directives. While the relationship between NEPA and energy projects is not new, it does give rise to unique issues and challenges, and corresponding considerations in terms of NEPA compliance and processes. This paper addresses the relationship between NEPA and energy projects by identifying the unique issues and challenges posed by energy projects and discussing the specific NEPA processes, accommodations and proposals for addressing those issues and challenges.
II. NEPA Challenges and Processes for Energy Projects
The unique issues and challenges posed by energy-related projects are as diverse as the types of the projects requiring NEPA review. Such projects range from the large scale development of fossil fuel resources to the construction of power plants for generating electricity to the siting of transmission facilities for delivering electricity to demand centers. The NEPA "handle" for such projects typically arises from the location of such projects on or within the federal public lands or jurisdictional waters (e.g., solar and wind development on lands administered by the Bureau of Land Management), required federal permitting for projects situated on state or private property (e.g., Clean Water Act Section 402 or 404 compliance) or federal funding (e.g., Department of Energy's loan guarantee program).
From among this vast subject matter, we have selected three issues to focus our discussion: (1) the demands posed by programmatic planning for the large-scale development of energy-related resources on the federal public lands with a particular focus on solar and wind resources; (2) the timing pressures associated with the need for expedited development of renewable energy resources; and (3) the phasing needs for projects where advanced exploration is needed prior to resource development as with oil and gas development.
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A. Programmatic Planning for Large-Scale Resource Development
1. The Challenges Posed by Developing Large-Scale Resources on the Federal Public Lands
The development of large-scale energy resources to support both non-renewable and renewable energy production poses unique planning challenges for federal agencies. At the outset, the identification of available resources and the process for authorizing the development of those resources often requires advance planning. In instances where the relevant resource is subject to an advanced leasing process - such as with the development of coal or oil and gas under the Mineral Leasing Act of 1920 ("MLA")4 - broader planning through the use of a programmatic environmental impact statement ("PEIS") can provide tremendous benefit in identifying the relevant resource, selecting areas appropriate for development and adopting the procedures and mitigation measures to guide development.
In circumstances where development is governed by individual actions - such as through the use of rights-of-way under the Federal Land Policy Management Act5 for solar and wind projects -- the efficacy of programmatic planning may be more difficult to gauge given the time constraints and difficulties associated with preparing a PEIS while development is underway. Nonetheless, even in such circumstances, a PEIS may provide a valuable tool for agency planning by collecting existing information to formulate best management practices and mitigation measures, amending land use plans and guiding future development. Below we address the NEPA guidance regarding programmatic documents and explore recent efforts to develop programmatic documents to guide wind and solar development on the public lands.
2. NEPA Processes for Programmatic Level Analyses and Tiering
NEPA and its implementing regulations expressly recognize both the need to prepare programmatic NEPA documents in the appropriate circumstances and the ability to tier later documents to programmatic review. CEQ's regulations define "major Federal action[s]" as, among other things, "new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated or approved by federal agencies."6 Such programs may include "a group of concerted actions to implement a specific policy or plan; [or] systematic and connected agency decisions allocating agency resources to implement a specific statutory program or executive directive."7
In attempting to synthesize these rather broad guidelines, the regulations suggest that agencies "may find it useful" to evaluate "broad actions" in three possible ways:
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(1) Geographically, including actions occurring in the same general location, such as body of water, region, or metropolitan area.
(2) Generically, including actions which have relevant similarities, such as common timing, impacts, alternatives, methods of implementation, media, or subject matter.
(3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment.8
The case law interpreting NEPA's PEIS requirement is surprisingly limited and there are very few cases where courts have ordered agencies to complete PEISs. In fact, the cases demonstrate significant deference to agencies in determining whether a PEIS is necessary in the first instance.9 Of course, agency discretion regarding whether to prepare a PEIS may be overridden by congressional directive, as occurred with the oil shale PEIS discussed in Section II.B below.
When utilized appropriately in terms of timing and scope, programmatic NEPA review can provide tremendous benefits to agencies to plan and guide large-scale energy resource development and to expedite the review process. Administrative agencies often use programmatic analyses to evaluate cumulative effects and to formulate best management practices and mitigation efforts comprehensively, thereby reducing the need to address these at the site-specific level. As provided under NEPA, site-specific actions can then tier to the programmatic level analysis or incorporate portions of that analysis by reference - thereby potentially expediting review, avoiding duplicative analyses and focusing the relevant environmental analysis to the relevant stage of project development.
3. The Solar and Wind Programmatic EISs
Numerous examples of programmatic planning exist in the energy field ranging from the evaluation of large scale leasing programs such as those for coal and oil and gas to efforts to guiding the development of renewable energy resources on the public lands. Today, both the Interior Department and DOE are focused on addressing programmatic planning for wind and solar project development. As a result, BLM has initiated and, in the case of wind energy, adopted an energy development program and accompanying Programmatic Environmental Impact Statement under NEPA.10 The solar energy development program and PEIS, being
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jointly prepared with the Department of Energy, is anticipated in draft in December 2010.11 We provide an overview of both programmatic efforts below.
a. BLM's Wind Energy Development Program and PEIS
In 2003, BLM embarked upon a process to develop a wind energy development program and, in conjunction with that process, prepared a PEIS pursuant to NEPA and Programmatic Biological Assessment...
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