The Endangered Species Act increasingly plays a larger role in environmental law and the federal permitting process for infrastructure projects. Hunton Andrews Kurth Partner Kerry McGrath and Associate Brian Levey give an inside look at the complex process of obtaining federal authorization for “take” of endangered species.
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On August 12, 2019, the US Fish and Wildlife Service and the National Marine Fisheries Service signed final rules instituting the first comprehensive revisions to Endangered Species Act regulations in 33 years. The Services made substantial revisions to their regulations concerning listing and delisting species, critical habitat designations, consultation with federal agencies and the process for establishing protections for threatened species. Two states and numerous environmental groups have signaled their plan to challenge the new rules.
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The United States’ first major offshore wind energy project is running into delays as federal agencies internally debate whether the project plan adequately protects the fishing industry. How the agencies resolve the degree to which the project plan must address the fishing industry’s concerns will shape how future offshore wind energy projects are planned and permitted.
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On June 26, 2019, the Council on Environmental Quality (CEQ) released draft guidance instructing federal agencies on how to consider and document greenhouse gas (GHG) emissions and the effects of climate change when evaluating proposed federal actions under the National Environmental Policy Act (NEPA).
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Last month, Representative Ben Ray Luján (D-NM) and Senator Tina Smith (D-MN) introduced companion bills in the House and Senate that renewed the call for a national clean energy standard for retail utilities. While Congress has mulled over the idea for over a decade, states have passed their own standards that force power generators to obtain increasing amounts of their electricity from non- or low-emitting sources. More recently, states have aggressively updated these targets in attempts to decarbonize their power sectors.
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In response to a court order, the Bureau of Land Management released a draft environmental assessment evaluating the potential environmental impacts of lifting the federal coal leasing moratorium. The publication opens a 15-day comment period that ends on June 6, 2019. The assessment focuses on the environmental impacts resulting from the three non-exempt leases issued as a result of the Zinke Order and the eight pending leases that would be produced about two years later if the moratorium remained in effect.
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The Department of Treasury and Internal Revenue Service have released Notice 2019-32 seeking comment on key issues to be interpreted in the Section 45Q carbon oxide sequestration tax credit. Congress significantly enhanced the Section 45Q tax credit in the Bipartisan Budget Act of 2018, increasing the credit from $10/ton for CO2 used as a tertiary injectant (i.e., to produce oil or gas) to $35/ton; and increasing the credit for CO2 geologically stored but not used as a tertiary injectant from $20/ton to $50/ton. See our previous blog post here for additional details on the applicable credit amounts for projects before and after enactment of the Bipartisan Budget Act and other credit amount details.
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