On May 17, 2023, the US District Court for the District of Massachusetts granted summary judgment to federal government defendants and intervenor Vineyard Wind in the first of four lawsuits pending in that court challenging the development of Vineyard Wind, a 62-turbine offshore wind project being built off the coast of Massachusetts.
Continue Reading Federal Judge Rules for Vineyard Wind in First of Four Pending Actions
On March 21, 2023, the US Department of Energy (DOE) released three reports as part of its ““Pathways to Commercial Liftoff,” articulating its vision on how the private sector and policymakers can reach full-scale commercialization for advanced nuclear, clean hydrogen, and long-duration energy storage.
Continue Reading DOE Identifies Pathways for the Large-Scale Commercialization of Clean Energy Technologies
On February 22, 2023, the US Department of the Interior’s (DOI) Bureau of Energy Management (BOEM) released its first-ever proposed notice for an offshore wind lease sale in the Gulf of Mexico.
Continue Reading First Offshore Wind Energy Lease Sales in the Gulf of Mexico
On January 30, 2023, the U.S. Department of the Interior’s Bureau of Energy Management published its proposed Renewable Energy Modernization Rule – which is intended to update and modernize the regulations governing wind energy development on the Outer Continental Shelf (OCS) – in the Federal Register, opening a 60-day comment period.
Continue Reading BOEM Publishes Proposed Renewable Energy Modernization Rule
On January 12, 2023, the U.S. Department of the Interior’s (DOI) Bureau of Energy Management (BOEM) announced the signature of a Notice of Proposed Rulemaking (NOPR) addressing the regulations governing wind energy development on the Outer Continental Shelf (OCS). As BOEM notes in the NOPR, the first OCS renewable energy regulations were promulgated in 2009 by the Minerals Management Service, the predecessor to BOEM. Through the NOPR, BOEM intends to modernize its regulations by implementing reforms identified by the agency and recommended by stakeholders since 2010, when BOEM was established.
Continue Reading BOEM Proposes New Regulations for Offshore Wind
Yesterday, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Corps) (together, the Agencies) published a final rule revising the definition of “waters of the United States” (WOTUS) subject to federal regulation and permitting requirements under the Clean Water Act (CWA). This rule is the latest attempt by the Agencies to craft a durable rule defining WOTUS. The new rule, which largely mirrors the 2021 proposal, asserts a broader geographic scope of federal jurisdiction than the 2020 Navigable Waters Protection Rule (NWPR). In particular, the Agencies adopt the broadest possible interpretation of the Supreme Court’s decision in Rapanos (through incorporation of both the plurality’s “relatively permanent” test and Justice Kennedy’s “significant nexus” test). The final rule would, for the first time, codify aspects of the Agencies’ 2008 Rapanos Guidance and would rely on the significant nexus test’s case-by-case approach for evaluating jurisdiction for tributaries, wetlands, and other waters. The Agencies released the final rule while the Supreme Court considers the scope of CWA authority over a major category of WOTUS, “adjacent wetlands,” in Sackett v. EPA, and the Supreme Court could hand down a decision in the coming months that could require changes to the rule.
On September 30, the US Fish and Wildlife Service (USFWS or Service) published proposed rule that would revise the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act. 87 Fed. Reg. 59,598 (September 30, 2022). In the preamble to the proposed rule, the Service acknowledges that its current ETP regulatory process, first established in 2009 and revised in 2016, is not working as intended. In particular, the Service notes that “[w]hile there are more than 1,000 wind-energy projects on the landscape, the Service has received fewer than 100 applications from those projects and has currently issued only 26 permits since the promulgation of the 2016 Eagle Rule.” 87 Fed. Reg. at 59,602.
This week the US District Court for the Northern District of California overturned three Endangered Species Act (ESA) rules issued in 2019 that address: (1) listing species and designating critical habitat, (2) extending take prohibitions to threatened species, and (3) § 7 interagency consultation. Center for Biological Diversity v. Bernhardt, 19-05206 (N.D. Cal. July 5, 2022). The three rules were issued by the US Fish and Wildlife Service and National Marine Fisheries Service (together, the Services) in August 2019 and together represented the first comprehensive revisions to the ESA regulations in 33 years. The order has a number of important regulatory and caselaw implications.
On the heels of the November 2021 Tribal Nations Summit, a flurry of memoranda was signed by the White House and many government agencies. These memoranda seek to further the Biden administration’s promises of consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking. Center stage in the ongoing discussion is Indigenous Traditional Ecological Knowledge (ITEK), and the need for including and consulting with Tribal communities on the front end of planning as part of the environmental review process under the National Environmental Policy Act (NEPA). Stakeholders from developers and investors to Tribes and regulators, among other parties, should expect increased focus and guidance from the Biden administration in 2022 on these issues.
Continue Reading 2022 Promises Greater Focus on Tribal Consultation and Incorporation of Indigenous Traditional Ecological Knowledge in the Permitting Process
On January 11, the Bureau of Ocean Energy Management (BOEM) announced the beginning of a scoping period to prepare a draft environmental assessment (Draft EA) for the Gulf of Mexico (GOM) Call Area to assess potential impacts associated with offshore wind leasing. The area includes approximately 30 million acres of federal lands on the outer continental shelf (OCS) in the GOM, and covers areas in what is commonly known as the Western and Central Planning Areas of the GOM. This is the same area described in the Call for Information and Nominations published in the Federal Register on November 1, 2021. Comments will be received through February 9, 2022. BOEM anticipates completing the Draft EA this summer.
Continue Reading Interior Announces Environmental Review of Offshore Wind Leasing for the Gulf of Mexico