Chapter 6 Renewable Development on Federal Lands: The Quest for NEPA Efficiencies
| Jurisdiction | United States |
BEN NORRIS is SEIA's Senior Director of Regulatory Affairs & Counsel. He leads all of SEIA's advocacy efforts and issue campaigns on federal regulatory matters, including engagement with the White House, Department of Energy, Environmental Protection Agency, Federal Energy Regulatory Commission, Department of the Interior, Department of the Treasury, and others. He also represents SEIA in litigation affecting the interests of the solar industry. Before joining SEIA, Ben served for ten years as senior counsel at the American Petroleum Institute where he advised on upstream and midstream regulatory and litigation matters. Prior to that, he was an associate in the energy and environmental practice of Sutherland Asbill & Brennan, where he defended on offshore drilling contractor in Congressional and government investigations stemming from the Deepwater Horizon oil spill. Ben has been published in the ENERGY LAW JOURNAL, ENVIRONMENTAL FORUM, LAW 360, and other publications. He is a frequent presenter and speaker on various legal issues affecting the energy industry, including federal rulemaking and land use. He earned a J.D. from Washington University School of Law in Saint Louis, Mo., and a B.A. from Rice University in Houston, Tex. He lives in Washington, D.C., with his wife, daughter, son, and dog.
DALE RATLIFF is an attorney at Williams Weese Pepple & Ferguson in Denver, Colorado. Dale's practice focuses on environmental and administrative law, with an emphasis on supporting natural resource projects and recreation and tourism businesses on public lands. His clients include ski areas, renewable energy developers, lodging and resort owners, water supply developers, and other project proponents. Dale helps his clients obtain and implement special use permits, special recreation permits, rights of way, easements, leases, and other authorizations from the United States Forest Service, the Bureau of Land Management, the Army Corps of Engineers, and other federal and state agencies. He regularly assists clients obtain project approvals under NEPA and navigate the federal land use planning process. Dale is a graduate of the University of Denver Sturm College of Law where he finished first in his class. Before law school, Dale worked as a fly-fishing guide in Colorado's Roaring Fork Valley, Chilean Patagonia, and Southwestern Alaska.
I. INTRODUCTION**
For the country to meet its climate goals and transition to a renewable-focused energy grid, development of new wind and solar facilities and transmission infrastructure will need to increase dramatically over the next decades.1
Federal onshore2 lands will play an important role in meeting these development goals due to the significant amount of land at issue, the existence of "vast contiguous areas available for onshore renewable energy deployment," and the agency's multiple-use mandate.3 Federal
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lands have significant potential for the development of solar and wind projects, and are also essential to the development of the transmission projects "critical to the feasibility of renewable energy projects proposed" both on federal and state and private lands."4
Recent actions by Congress and the Internal Revenue Service (IRS) have sought to incentivize the increased development of renewable energy on federal lands to effectively capture this potential, but have simultaneously recognized the difficulties and delays federal projects can face. At the end of 2020, the IRS issued Notice 2021-05 extending the period under which qualifying wind and solar projects must be placed in service to claim federal tax credits to ten years for renewable projects constructed on federal lands. The impetus for Notice 2021-05 and the tax-credit extension for federal projects, was the agency's acknowledgement that renewable projects constructed on federal lands can take twice as long to complete as comparable projects constructed on state or private lands.5 At the same time the IRS issued Notice 2021-05, Congress passed the Energy Act of 2020 ("2020 Energy Act").6 The 2020 Energy Act contains provisions focused on expediting and increasing approval and development of both solar and wind projects on federal lands managed by the Bureau of Land Management (BLM) and the United States Forest Service. And the act sets a specific target for the development of renewable projects on federal land—requiring the Department of Interior to seek to permit at least 25 gigawatts (GW) of electricity from wind, solar, and geothermal projects by 2025.7
These legislative and administrative actions have triggered a renewed focus on efforts to prioritize the permitting of renewable energy and transmission projects on federal lands, and to create the permitting efficiencies necessary to achieve this goal. As BLM recently acknowledged, the "efficient deployment of renewable energy from our nation's public lands is crucial in achieving the Biden-Harris administration's goal of a carbon pollution-free power sector by 2035, as well as Congress' direction in the 2020 Energy Act to permit 25 gigawatts of solar, wind, and geothermal production on public lands no later than 2025."8
II. NEPA: EXISTING TOOLS FOR EFFICIENCY
4 Id. at 2.
5 Internal Revenue Serv., Notice 2021-05, Beginning of Construction for Sections 45 and 48; Extension of Continuity Safe Harbor for Offshore Projects and Federal Land Projects 9 (Dec. 31, 2020) ("Notice 2021-05"), available at www.irs.gov/pub/irs-drop/n-21-05.pdf.
6 See Pub. L. No. 116-260, 134 Stat. 1182, 2418, Div. Z (Dec. 27, 2020).
7 43 U.S.C. § 3004(b).
8 See Press Release, Bureau of Land Mgmt., Bureau of Land Management Solicits Initial Public Input on Updating Regulations for Rights-of-Way and Renewable Energy (Aug. 31, 2021) ("Wind and Solar Press Release"), available at https://www.blm.gov/press-release/bureau-land-management-solicits-initial-public-input-updating-regulations-rights-way.
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The National Environmental Policy Act (NEPA) often receives a lion's share of the blame for why developing projects on federal lands is cumbersome, costly, and time consuming. IRS Notice 2021-05, for example, identified "the applicability of significantly more stringent permitting requirements" and "heightened environmental regulation (including, for example, the environmental analysis process carried out by the Director of the Bureau of Land Management)" as two of three reasons why federal onshore renewable projects take up to twice as long to permit and construct as projects developed on state and private land.9
NEPA's reputation is not underserved. NEPA can be difficult and costly to navigate. And delays in the federal review and approval process often conflict with the practical realities of private project development, such as limited construction seasons and the need to enter into binding procurement contracts far in advance of commencing construction activities.
But the purpose and intent of NEPA is "not to generate paperwork . . . but to foster excellent action."10 The Council on Environmental Quality's (CEQ's) NEPA regulations are "intended to ensure that Federal agencies conduct environmental reviews in a coordinated, consistent, predictable and timely manner, and to reduce unnecessary burdens and delays."11 And CEQ's regulations, and agency-specific regulations and practices, contain tools built that fulfill the purpose and intent of the statute and when used effectively create needed efficiencies for federal land management agencies and project proponents. The below sections describe some of these existing tools and identify whether and how they are being used by the federal land-management agencies to foster the development of renewable energy on federal lands.
A. Programmatic Planning and Tiering
Tiering allows agencies to prepare site-specific environmental analyses and incorporate by reference the general discussions of broader, programmatic reviews, such as those contained in Resource Management Plans.12 CEQ's regulations direct agencies to tier site-specific NEPA analyses in order "to eliminate repetitive discussions of the same issues, focus on the actual issues ripe for decision, and exclude from consideration issues already decided or not yet ripe at each level of environmental review."13 Tiering is a fundamental tool for streamlining the NEPA process at the project level.
The effective use of programmatic land-use planning and tiering is arguably one of the most important factors supporting the widespread and efficient development of federal oil and gas resources over the last forty years. Since the passage of the 1976 Federal Land Policy and Management Act (FLPMA), BLM has consistently incorporated oil and gas leasing and development into federal resource management plans (RMPs). FLPMA identifies "mineral
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exploration and production" as one of the "principal or major uses" of federal lands, and the statute requires that the agency report to Congress all management decisions that exclude "principal or major uses" for two or more years on tracts of land 100,000 acres or more.14 For this and other reasons, including Congress's delegation of authority to BLM to manage fluid mineral resources under the Mineral Leasing Act, BLM RMPs "generally include analysis of the effects of mineral leasing and make decisions regarding the availability of lands within the planning unit."15
BLM's consistent efforts to incorporate fluid mineral leasing and development in land use plans have resulted in a situation where it is generally uncommon for BLM to prepare an environmental impact statement (EIS) to approve either a lease sale or an application for a permit to drill (APD).16 At times, this has resulted in average processing time frames for APDs as low as three months.17 And BLM has...
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