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NEPA Revival in California: Strategies and Lessons from the Renewable Energy Boom

NEPA Revival in California: Strategies and Lessons from the Renewable Energy Boom. Environmental Law Institute Seminar, April 29, 2010 David J. Lazerwitz Farella Braun + Martel LLP. NEPA Revival in California. NEPA “major federal action” triggers

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NEPA Revival in California: Strategies and Lessons from the Renewable Energy Boom

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  1. NEPA Revival in California: Strategies and Lessons from the Renewable Energy Boom Environmental Law Institute Seminar, April 29, 2010 David J. Lazerwitz Farella Braun + Martel LLP

  2. NEPA Revival in California • NEPA “major federal action” triggers • Applications for FLPMA rights-of-way on BLM land • Federal funding (federalizing state projects) • Substantial expansion in federal projects • 223 solar applications filed on BLM land (107 in CA) • 200 wind applications, doubling existing projects • ARRA funding (48 solar projects) • Overview • Why is this happening? • Impacts on federal agency NEPA compliance • NEPA constraints and solutions?

  3. Why the Recent Boom in Applications? • Market forces – convergence of energy costs • Government intervention in the market • Direct investment and incentives (ARRA) • Policy drivers (RPS requirements and GHG goals) • Results: • Utilities are scrambling for renewable supplies • Looking to independent power producers • Spreading risk over numerous technologies • But RPS goals not being met • 5.3% renewable use (28% target across RPS states) • Strict time constraints set by ARRA and PPAs

  4. Attraction of the Federal Public Lands • Utility-scale solar and wind siting characteristics are well represented on the federal public lands: • Remaining open/undeveloped lands (256M acres) • Contiguous tracts/generally favorable slopes • Major utility transmission corridors • Proximity to major electricity markets in the West • Density of resource availability • Private land constraints • Limited state lands available for leasing

  5. Solar Resources on BLM Lands Solar insolation/radiation on BLM lands in six Southwestern States KWh/Square Meter/Day Source: NREL/BLM

  6. Challenges for BLM’s Management • Administrative burden • Establishing priority/avoiding speculation • Approximately 60 over-filed applications • Navigating FLPMA, NEPA, ESA, NHPA review • Addressing new, complex and evolving technologies • Transmission needs • Environmental issues and challenges • Species (plants and animals) • Resource needs (water, access) • Multiple use management and protected lands

  7. NEPA Compliance Hurdles • Lack of existing cohesive federal policy • BLM/DOE solar program and PEIS (initiated 2008) • Develop programmatic policies and BMPs • Identify suitable and excluded lands • Study Solar Energy Study Areas (670,000 acres) to potentially establish Solar Energy Zones • Backlog of applications and timing • ARRA requires “expeditious” NEPA review • Average EIS at 3.4 years (Nat’l Ass’n of Env. Prof) • Likelihood of public interest litigation at certain sites • Coordination with state agencies and CEQA

  8. Towards a NEPA Solution… • BLM current efforts and “natural selection” • Fast-track efforts (9 in CA, 8 at DEIS stage) • Significant reduction in projects moving forward (107 filings since 2003 in CA, down to 52 today) • Site-specific tiering to PEISs far from clear • Need for RMP amendments • Wind projects experience under PEIS • Is the PEIS process assisting or hampering review? • Coordinated federal and state efforts • Renewable Energy Action Team and DRECP • CEQA coordination • Legislative options for a “fix”?

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