Chapter 9A Permitting Utility-Scale Renewable Energy Projects: An Overview
| Jurisdiction | United States |
Chapter 9A Permitting Utility-Scale Renewable Energy Projects: An Overview
KAREN M. MCGAFFEY chairs the national Environment, Energy & Resources practice at Perkins Coie. With more than twenty-five years of experience, she represents clients on project development, permitting, regulatory and litigation matters arising under federal and state environmental laws. Karen's practice emphasizes energy project development. She counsels clients on the development of all types of energy facilities, including wind, solar, and natural gas generation, wood-fired cogeneration, renewable fuels, energy storage, transmission lines, and other related infrastructure. Karen also regularly advises clients on strategic business and policy matters concerning renewable energy, climate change, carbon reduction, and other environment, social, and governance (ESG) issues. Karen is a fellow of the American College of Environmental Lawyers and a member of the Foundation for Natural Resources and Energy Law's renewable energy task force.
I. Introduction
The United States is experiencing a period of rapid renewable energy development in the electricity and transportation sectors. Renewable electric generation, electricity storage, and related infrastructure are being developed, constructed, and put into operation at an accelerated rate. Renewable transportation fuel manufacturing facilities, transportation electrification, and related infrastructure are also being developed and deployed.
The shift in electricity generation from fossil fuels to renewable technologies will continue for many years to come. In 2002, almost 70% of electricity in the U.S. was generated using coal, natural gas, and other fossil fuels, almost 19% percent was generated by nuclear power, and approximately 11% was generated by renewable sources, including hydroelectric, wind, and solar.2 In 2021, the share of generation from fossil fuels dropped to 60% and the share of renewable generation rose to 21%.3
Even more significant is the fact that most new electrical generation is being developed from renewable sources.4 In the past five years, approximately 50 gigawatts of wind capacity,5 and 50 gigawatts of solar capacity has been installed in the United States.6 The Energy Information Administration expects another 7.5 gigawatts of wind capacity and 21.5
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gigawatts of new solar capacity to be installed in 2022.7 The Biden Administration has also announced an aggressive goal of deploying 30 gigawatts of offshore wind generating capacity by 2030.8
Energy storage facilities are also under development. The United States has approximately 22 gigawatts of pump storage capacity installed nationwide that can deliver more than 550 gigawatt hours of energy storage.9 By the end of 2021, the United States had a total of 4.6 gigawatts of installed utility-scale battery storage.10 More than 3 gigawatts of battery storage came online in 202111 and an addition 5 gigawatts of battery storage is expected to be brought online in 2022.12
Renewable energy development also includes renewable fuels and hydrogen. Several facilities in the United States manufacture renewable diesel, sustainable aviation fuel and other biofuels.13 Additional manufacturing facilities have been proposed, and some fossil fuel refineries are being converted to produce renewable fuels.14 The federal government is providing funding for "hydrogen hubs,"15 and several green hydrogen manufacturing facilities
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are under development.16 Automobile manufacturers are making hydrogen fuel cell vehicles,17 and additional infrastructure will be required to support hydrogen fuel cell deployment.18
Electric cars sales are increasing rapidly,19 and these sales create a demand for more electric vehicle charging infrastructure.20 Federal and state governments are providing funds to speed the deployment of this infrastructure.21
II. Permits and Authorizations Required for Utility-Scale Renewable Energy Projects
The construction and operation of new renewable energy projects and the related infrastructure will require a variety of permits, approvals, and authorizations. Utility-scale renewable energy projects often require federal, state, and local authorizations, and extensive environmental review is usually required in connection with permitting.22 The
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following sections provide an overview of some of the permitting and environmental review processes that may be encountered when developing utility scale renewable energy projects.
A. Federal Permitting and Environmental Review
Renewable energy projects will often require permits, approvals, leases, or other authorizing decisions from one or more federal agencies. For example, a project that disturbs wetlands will require a permit from the U.S. Army Corps of Engineers .23 Projects that cross or occupy federal lands may require a lease or a right of way from the Bureau of Land Management, the Forest Service, the Fish and Wildlife Service, or other federal agencies.24 Offshore wind projects may require leases and other approvals from the Bureau of Ocean Energy Management.25 Hydroelectric generating and pump storage facilities will require licenses from the Federal Energy Regulatory Commission.26 Projects that discharge wastewater or emit air pollutants may require Clean Water Act or Clean Air Act permits, and in some states, those permits are issues by the U.S. Environmental Protection Agency.27 Electric generation projects may also need to interconnect with or transmit power on federal transmission facilities operated by federal agencies such as the Bonneville Power Administration or the Tennessee Valley Authority and will require approval to do so.28
Each federal agency has its own process for making decisions concerning permits, licenses or other authorizations, and each agency is likely to have regulations, guidelines and guidance
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concerning its decision-making. The specific requirements of each permit and the details of the related agency process are beyond the scope of this paper.
The application for a federal permit, licenses or other federal decision may also trigger a variety of other requirements. The most significant of these is the environmental review required by the National Environmental Policy Act, but agencies may also be required to complete consultation with under the Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act, to complete review under the National Historic Preservation Act, and to consult with Native American tribes. Some renewable energy infrastructure projects may also be eligible to participate in the FAST-41 process.
1. National Environmental Policy Act
The National Environmental Policy Act (NEPA) requires federal agencies to evaluate the reasonably foreseeable environmental effects of their actions.29 Where a proposed federal action may significantly affect the quality of the human environment, the acting agency must prepare a detailed Environmental Impact Statement (EIS) analyzing the proposed action's environmental effects, alternatives to the proposed action, and mitigation measures.30
If an EIS is required, the lead federal agency typically undertakes a public process to determine the scope of the EIS and identify the issues to be addressed the EIS. The lead agency then prepares a draft EIS, conducts a public process to solicit comments on the draft, and ultimately prepares a final EIS.31 This federal EIS process often takes several years to complete.32
2. Endangered Species Act and the Magnuson-Stevens Fishery Conservation and Management Act.
The Endangered Species Act33 requires federal agencies to consult with the U.S. Fish and Wildlife Service (USFWS) and/or the National Marine Fisheries Service (NMFS) to ensure that their actions will not jeopardize the continued existence of any listed species or adversely
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modify its critical habitat.34 A permitting agency often prepares a Biological Evaluation to assess a project's impacts to listed species and critical habitat. If the potential adverse impacts are insignificant, the permitting agency forwards the Biological Evaluation to NMFS or USFWS and requests concurrence with the "not likely to adversely affect" determination.35 If the proposed project is likely to adversely affect the species or critical habitat, the permitting agency initiates formal consultation, and NMFS or USFWS prepares a Biological Opinion.36 If the Biological Opinion finds that the project will jeopardize the species, then permits are generally denied because Section 7 prohibits federal agencies from taking such actions. If the Biological Opinions concludes that a project will not jeopardize listed species, the Biological Opinion may identify "reasonable and prudent" measures needed to minimize any "take" of listed species as well as identifying advisory "conservation recommendations."37
The Magnuson-Stevens Fishery Conservation and Management Act also requires federal agencies to consult with NMFS on actions that may adversely affect designated Essential Fish Habitat.38 The Biological Evaluation prepared for the Endangered Species Act will generally include an assessment of potential impacts to designated Essential Fish Habitat. If the project adversely affects Essential Fish Habitat, the permitting agency will coordinate with NMFS in conjunction with the ESA consultation process.
3. Cultural Resources - Section 106 Consultation
Section 106 of the National Historic Preservation Act requires federal agencies to consider the effects of their undertakings on historic properties.39 The developer of a project requiring
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federal authorizations or permits generally completes a historic property or cultural resources survey. The federal agency then reviews the survey and coordinates with the applicable State Historic Preservation Officer and/or Tribal Historic Preservation Officer. The project developer may be...
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