Fiddling as the world floods and burns: how climate change urgently requires a paradigm shift in the permitting of renewable energy projects.

Author:Thaler, Jeffrey
Position:IV. Concrete Steps to Modernize Environmental Review of Proposed Offshore Wind Projects through V. Conclusion, with footnotes, p. 1141-1156

    The forty-four page 2011 White House Blueprint for a Secure Energy Future omits a critical component: the blueprint does not tackle the issue of streamlining regulatory and permitting processes and requirements for a secure supply of renewable energy. (227) This makes the blueprint largely irrelevant to the challenges of preparing renewable energy projects for investment risks, design, regulatory review, and construction within the time frames demanded by the climate change crisis. (228) Missing are concrete steps that would:

    1) Prioritize and streamline the regulatory review of renewable energy projects by proclaiming in laws like NEPA and other major environmental statutes that quickly building significant numbers of such projects is of great strategic importance to the U.S.;

    2) Establish clear, expedited timelines for agency review, consultation and coordination, as well as any judicial review of agency decisions;

    3) Develop the expanded use of categorical exclusions under NEPA for offshore wind demonstration, testing, and small-scale projects; and

    4) Require that the "hidden" costs of fossil-fueled energy be taken into account, along with the comparative life cycle impacts of competing energy sources, as part of NEPA's no-action alternative analysis and other regulatory reviews.

    Steps to achieve these goals can be undertaken through a combination of federal legislation, (229) presidential executive orders, (230) new CEQ and other agency regulations, and MOUs. (231) Comparable steps have previously been taken for prioritizing fossil fuel energy. (232) Given the twenty first century exigencies of climate change, the playing field must not just be leveled for renewable clean energy projects, but tilted in their favor. I first focus on changes that will or may require congressional action, and then on changes that may be accomplished through other means.

    1. Needed Legislative Action

      The BOEM leasing and NEPA analysis processes take the most amount of time for any offshore wind project, and underscore the need for reform. The fundamental goals of the OCSLA and NEPA (drafted in 1953 and 1969, respectively) must be newly implemented in the carbon-stressed world of today. As NEPA section 101 notes: "it is the continuing policy of the Federal Government, in cooperation with State and local governments ... to use all practicable means and measures" to "improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may--1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations; [and] 2) assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings." (233) Likewise, Congress declared in the OCSLA that the "outer Continental Shelf ... should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner consistent with the maintenance of competition and other national needs," (234) and that the Secretary of the Interior should develop a leasing program (then only for oil and gas) that "will best meet national energy needs for the five-year period following its approval or reapproval." (235)

      In other words, given the well-documented public health, economic, national security, and environmental harms to the United States from carbon-fueled climate changes as summarized in Part HI, it is strategically imperative that all "practicable means" be utilized to expedite the carbonfree energy source development of the OCS by BOEM in order to help best meet national energy, health, safety, and intergenerational environmental needs. To do so first requires amending NEPA and the OCSLA to prioritize, streamline, and expedite project reviews of offshore wind project proposals.

      There are a number of examples where Congress has taken steps to streamline NEPA and related statutes in proceedings related to energy and other matters. For example, within 18 months after passage of the Oil Shale, Tar Sands, and Other Strategic Unconventional Fuels Act of 2005 (UFA), (236) the Secretary of the Interior was required to develop a Programmatic EIS (PEIS) "for a commercial leasing program on public lands in the Green River Basin of Colorado, Utah and Wyoming," in order to streamline the leasing process for oil shale and tar sands leases. (237) Regulations were then to be developed within six months. (238) Legislation to streamline the regulatory process to "promote oil or natural gas production on the outer continental shelf" (239) has been enacted as the Deepwater Port Act, (240) which requires that the NEPA and public hearing process be completed within 240 days of a completed project application, and a final decision rendered within ninety days of the last public hearing. (241)

      The EPAct states, in part, that the "sense of Congress" was that the Secretary of the Interior "should," within ten years after the Act's 2005 enactment, "seek to have approved non-hydroelectric power renewable energy projects located on public lands with a generation capacity of at least 10,000 megawatts of electricity." (242) The Act also provides for a process to streamline and expedite the siting of interstate electric transmission facilities. (243) And a bill now pending in Congress, the Hydropower Regulatory Efficiency Act of 2012, (244) was unanimously passed by the House of Representatives on July 9, 2012, in light of evidence that hydropower permitting could take five to seven years or more because of reviews by different federal agencies with conflicting policy goals. This bill would amend the current law to allow FERC to exempt small hydroelectric facilities with a generating capacity of ten megawatts or less from FERC's licensing requirements, and require the Secretary of Energy to study the feasibility of a two-year permitting process for certain hydropower projects. (245)

      Offshore wind energy could be considered an "unconventional" energy or fuel source in that it is not a "conventional" source of carbon-based, fossil-fuel-emitting energy. (246) The EPAct has resulted in some onshore wind development on public lands by the Bureau of Land Management through the use of a PEIS and the expedited issuance of a three-year site-specific or project-area grant for testing and monitoring of wind projects. (247) This effort, though, will fall far short of meeting the 2005 mandate of developing at least 10,000 MW of non-hydropower renewable energy projects on federal public lands by 2015. (248) Moreover, the initiative and goals have not been translated to apply to the federal public lands under the Great Lakes and oceans. While BOEM has recently begun the process of identifying some Wind Energy Areas, (249) this has not resulted in the approval of any offshore wind projects.

      If oil shale, tar sands, natural gas, and cell and transmission towers are important enough to warrant greater federal control to expedite their development, then so too is legislation to amend NEPA and the OCSLA to provide clear federal policy encouraging the development of offshore wind energy projects, both generally and by streamlining and standardizing the permitting and licensing processes. (250) Under NEPA and the OCSLA, projects are killed through delays in the BOEM and other permitting or leasing regimes, or at least their costs are significantly increased. (251) NEPA and the OCSLA should be amended to impose agency consultation and review deadlines. There must be binding time limits for each step of the NEPA and BOEM processes--for example, the Department of Energy (DOE), the Corps, or other lead agency must turn around the draft EA or EIS within a specific number of days, or else waive amendments or revisions. Likewise, consulting agencies must be required to submit any comments within a specified number of days, or be precluded from commenting. (252) Precedent for such waivers exists in the CZMA. (253)

      Likewise, Congress should learn from the experiences of other countries and even individual states about ways to develop better coordinated and streamlined regulatory reviews of renewable energy projects. For example, Denmark successfully created a streamlined permitting regime making the Danish Energy Authority the one-stop shop for siting offshore wind. (254) The Authority has sole jurisdiction "over the tendering of bids for renewable energy construction; approval of pre-investigation of sites, environmental impact assessments, construction and operation; and licenses to produce electricity." (255) The Authority requires streamlined permitting, which "shortens ... lead times ... simplifies the siting process, hedges against uncertainty and risk [for generators]," and has resulted in over 300 offshore wind turbines being approved and installed since 2003. (256)

      In the United States, when the Maine legislature promulgated the state's Wind Energy Act, it found that "it is in the public interest to reduce the potential for controversy regarding siting of grid-scale wind energy development by expediting development in places where it is most compatible with existing patterns of development and resource values when considered broadly at the landscape level," (257) and established wind energy development as a permitted use subject to expedited treatment in many parts of the state. (258) On the West Coast, Oregon, California, and Washington each has some form of one-stop and/or expedited permitting process for proposed energy facilities. In Oregon, the Oregon Energy Facility Siting Council is the one-stop forum that determines compliance with state standards for thermal electric power plants with a nominal electric generating capacity of twenty-five megawatts or more, and for renewable electric power plants with an average electric generating capacity of thirty-five megawatts or more. (259) Gas-fired plants of any...

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