Energy Law Alert: BIA Proposes Regulations for Surface Leases of Trust Land for Energy and Other Uses
A legal update from our colleagues Michael O'Connell and Stephen Kelly:
The Bureau of Indian Affairs (BIA) on November 29, 2011 published proposed regulations for leasing tribal and individual Indian trust land for business and residential uses. The comment period runs through January 30, 2012. It will take the BIA some time to review and respond to comments before issuing final regulations. The Federal Register notice for the proposed new regulations runs 44 pages. See 76 Fed. Reg. 73,784 (Nov. 29, 2011).
The BIA's proposed regulations apply to surface leases of trust land. Subsurface leases and mineral development agreements are governed by different regulations and statutes, as are rights-of-way and contracts or agreements that encumber tribal land.
Revised Subpart D of the proposed regulations covers leases for biomass, waste-to-energy, and other commercial and business uses. Subpart E establishes procedures for Wind and Solar Resource Leases and short-term (three years, with an option for one renewal term of three years) Wind Energy Evaluation Leases (WEELs) for purposes of installing instrumentation and related infrastructure, such as met towers, to evaluate wind resources for electricity generation. No similar provision is included for solar energy evaluation leases on the theory that physical possession of land is not required to evaluate a solar resource. WEELs take the place of short-term BIA permits that were included in an earlier version of the draft regulations.
California Energy Commission Releases Comprehensive Energy Storage Analysis
This week the California Energy Commission's PIER program released a comprehensive report titled "2020 Strategic Analysis of Energy Storage in California." The report discusses the state of technology, policy, barriers to deployment and suggested reforms. A staff workshop related to the report will be held on November 15, 2011 at 10 am at the CEC located at 1516 Ninth Street, Sacramento, California 95814 (webex also available).
EPA Enforcement of RFS2 Heats Up
The Environmental Protection Agency (EPA) is exercising its authority and enforcing the requirements of the Clean Air Act’s renewable fuel standard (RFS) program. The EPA issued twenty-four notices of violation on November 7, 2011, to petroleum refiners, importers and exporters of renewable fuel.
Following a filing last month of criminal charges of wire fraud, money laundering, and violations of the Clean Air Act (CAA) against an individual, Rodney R. Hailey, the EPA issued civil notices of violations (NOVs) to the entities that relied upon the allegedly invalid Renewable Identification Numbers (RINs) generated by Mr. Hailey. The companies involved are obligated parties under the RFS program and thereby, subject to Renewable Volume Obligations (RVOs) designed to demonstrate compliance with the renewable fuel standards set by Congress -- 36 billion gallons by 2022.
Stoel Rives issued a legal update on these matters, among the first enforcement actions initiated by the EPA under the RFS2 requirements. The entire update can be read here.
Legal Challenge to Avenal Energy Project's PSD Permit Filed with the Ninth Circuit
On November 3, 2011, the proposed Avenal Energy Project, a 600-megawatt natural gas-fired power plant proposed in the city of Avenal near Kettleman City in Kings County, California, encountered another legal challenge to providing electricity to the southern San Joaquin Valley. Sierra Club, Center for Biological Diversity, and Greenaction for Health and Environmental Justice challenged the Environmental Protection Agency’s issuance of a Prevention of Significant Deterioration (“PSD”) permit for the Avenal project via a Petition for Review filed with the Ninth Circuit Court of Appeals pursuant to section 307(b)(1) of the federal Clean Air Act (“CAA”). This is just the most recent turn of litigation activity involving the project. Avenal’s PSD permit has long been the subject of review and legal challenges. Among other claims raised to the Ninth Circuit, the Petitioners argue that the PSD permit impermissibly fails to address the recently adopted PSD requirements for greenhouse gas emissions.
