Allison C. Smith
Allison Smith focuses her practice on the permitting and siting of geothermal, solar, wind, biomass and gas-fired energy facilities in California. Allison counsels public and private entities on compliance with CEQA, the California Coastal Act, local land use regulations, and state and federal air pollution control laws. Allison practices before the California Energy Commission and represents clients in state and federal court on environmental matters.
Practice Areas
- Energy and Environmental Law
- Litigation
CPUC Implements Changes to the California Renewable Auction Mechanism
The California Public Utilities Commission (CPUC) has adopted several changes to the state’s Renewable Auction Mechanism program (RAM), created in 2010. The RAM program operates as a reverse auction, offering a standard contract with the state’s three largest investor-owned utilities for energy from renewable distributed generation facilities of up to 20 megawatts (MW). The utilities will procure up to 1,000 MW of renewable energy under the program over two years. The first RAM auction took place in November 2011 and the second auction is schedule for next month. Resolution E-4489, adopted last Thursday, modifies the CPUC decision creating the RAM program, Decision 10-12-048, and Resolution E-4417, which served to implement details of the program. Resolution E-4489 approves changes to align the RAM with recent updates to Southern California Edison’s Solar Photovoltaic Program and incorporate a change requested by Pacific Gas & Electric Company.
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U.S. Fish and Wildlife Service Issues Land-Based Wind Energy Guidelines
On March 23, 2012, the U.S. Fish and Wildlife Service (USFWS) released its highly anticipated final Land-Based Wind Energy Guidelines. The Guidelines present a tiered approach for the consideration and analysis of potential impacts to wildlife and habitat from onshore wind energy development. The five-tier process and other guidance found in the Guidelines aim to efficiently avoid and minimize impacts to wildlife and habitat by guiding the decisions of developers from the initial stages of site selection through the development of project design and the ultimate construction and operation of a project.
While the Guidelines are voluntary, this new publication represents the informal rulebook by which the USFWS will judge the appropriateness of a site or project design and the adequacy of mitigation, including for purposes of enforcement. The new Guidelines replace the interim guidance published by the USFWS in 2003 and are effective immediately. The final version of the Guidelines does not significantly differ from the September 2011 draft version that was issued for public comment.
Update: California Energy Commission Postpones Action on Proposed Decision Allowing PV Projects to Opt-In to CEC Permitting Process
In a previous blog, we reported on a proposed decision pending consideration by the California Energy Commission (CEC), which would allow solar photovoltaic project developers to opt-in to the CEC's permitting process. The CEC has announced that its decision on this matter has been postponed to an as-yet undetermined date.
Proposed Decision Would Allow Solar PV Projects to Opt-In to California Energy Commission Permitting Process
Next Wednesday, the California Energy Commission will consider adoption of a Proposed Decision that would “expand” the Commission’s jurisdiction over the permitting of energy facilities in California. The Proposed Decision arises from a motion by Solar Trust of America asking the Energy Commission to find that photovoltaic electrical generating facilities may voluntarily submit to the Commission’s exclusive permitting jurisdiction. For thirty-five years, the Commission has acted as the “one-stop shop” for the permitting of thermal energy facilities greater than 50 megawatts capacity in California, including gas-fired, geothermal and solar-thermal power plants. However non-thermal facilities (e.g. wind and solar PV) and projects under 50 megawatts were excluded from CEC jurisdiction. The Proposed Decision provides an interpretation of an existing statutory “opt in” provision, which would allow solar photovoltaic projects (and logically, by extension, other non-thermal projects of less than 50 megawatt) to opt in to the Energy Commission’s permitting process and avoid local permitting jurisdiction. The Commission’s jurisdiction over a proposed energy facility generally dispenses with the need to obtain most other local, regional, and state permits, though it does not eliminate the obligation to comply with applicable local, regional, and state laws and regulations. Solar Trust’s motion to open up the Commission’s state-level permitting process for the first time to strictly non-thermal projects has been of interest to a variety of sectors and numerous parties participated in the briefing leading to the Proposed Decision. The Proposed Commission Decision Affirming that Warren-Alquist Act Section 25502.3 Applies to Photovoltaic Electrical Generating Facilities is available for public comment preceding the December 14 hearing.
California Renewable Energy Projects Receive A Boost From SB 267 and SB 618
Governor Brown signed Senate Bill 267 and Senate Bill 618 this past weekend which resulted in California having two more laws in place to help facilitate development of renewable energy projects in California. For further information please see Kristen Castaños’ recent post entitled, “Governor Brown Signs Two More Bills to Streamline Renewable Energy Development in California: SB 267 and SB 618."
The Bureau of Land Management, Tribal Cultural Resources and Renewable Energy Development
My collegue Michael O'Connell issued the legal alert below on a recent significant Interior Board of Land Appeals decision concerning the intersection of tribal cultural resources and a BLM geothermal lease application:
The Interior Board of Land Appeals (IBLA or Board) decision, Earth Power Resources, 181 IBLA 94 (May 12, 2011), deals with BLM action on a geothermal lease application in Nevada. Citing National Historic Preservation Act (NHPA) section 304, 16 U.S.C. § 470w-3, BLM withheld from a geothermal lease applicant an ethnographic study of Ruby Valley that identified a tribal traditional cultural property (TCP) important to an Indian Tribe and disapproved the lease application in order to protect the TCP. The Board overturned BLM’s decision and remanded the case for further action.
Continue Reading...Compliance with California Cap-And-Trade May Be Deferred until 2013
Yesterday, the Executive Director of the California Air Resources Board (CARB), Mary Nichols, announced that CARB is proposing to delay full implementation of California’s cap-and-trade program for a year. In testimony before the California Senate Select Committee on the Environment, the Economy, and Climate Change, Nichols stated that CARB is proposing to “initiate” the cap-and-trade program in 2012, but delay requirements for compliance until January 1, 2013. CARB adopted cap-and-trade in December 2010 and the program was set to go into effect on January 1, 2012, the statutory deadline for all greenhouse gas emissions reduction measures under A.B. 32 to become operative. CARB’s announcement comes despite an order from the California Court of Appeals last Friday that CARB can continue with implementation of cap-and-trade pending appeals related to the program in Association of Irritated Residents v. CARB. Earlier this month, CARB issued a revised analysis of alternatives to the cap-and-trade program, as ordered by the lower court in Association of Irritated Residents v. CARB. That supplemental environmental document is currently open for public comment until July 28 and CARB will consider adoption of the supplement on August 24, 2011. Nichols stated in her testimony that CARB will hold a public workshop in the next few weeks on its proposal to delay cap-and-trade compliance and other elements needed to finalize the cap-and-trade regulation. Look for CARB to issue an updated draft regulation in advance of the public workshop.
New Greenhouse Gas Reduction Targets - from the U.K. to Bank of America
This week, the United Kingdom proposed cutting its greenhouse gas (GHG) emissions 50% below 1990 levels, in its recently released proposed carbon budget for 2023 to 2027. This would put it on track to cut emissions by 80% by 2050, as required under the U.K. Climate Change Act of 2008. Moreover, this target would go beyond the European Union goal of cutting emissions to 20% below 1990 levels by 2020. The U.K. has given itself an escape hatch, however, in that its target is tied to the E.U. following suit. Sources reporting the story invariably note that the U.S. has no mandatory GHG emissions reduction targets in place. Being in California, though, I’ll make a mention of our state’s mandate to reduce GHG emissions to 1990 levels by 2020 under A.B. 32. That said, as a side note, Bank of America committed this week to reduce its GHG emissions by 15% by 2015. I’ve heard many a pundit declare that the heyday of the nation-state is over, and that the world is increasingly controlled by multinational corporations. If that’s the case, maybe the new trend will be corporations like Bank of America committing to, and actually achieving, GHG reductions where countries don’t.
Governor Brown Signs Bill Increasing California's Renewable Portfolio Standard to 33%
A Legal News Alert from Seth Hilton and the Stoel Rives Renewable Energy Law Group:
California’s Governor Jerry Brown signed Senate Bill ("SB") X1-2 on Tuesday requiring California's electric utilities to procure 33% of their energy from renewable resources by 2020. Upon signing the bill, Governor Brown stated the "bill will bring many important benefits to California, including stimulating investment in green technologies in the state, creating tens of thousands of new jobs, improving air quality, promoting energy independence and reducing greenhouse gas emissions."
Details concerning the implementation of the new legislation will have to be worked out at various California regulatory agencies, including the California Public Utilities Commission and the California Energy Commission. The legislation will likely spawn numerous regulatory proceedings as the various regulatory agencies struggle to come to grips with the new RPS mandate.
For more information about SBX1-2, please see our earlier blog post and detailed Renewable Energy Law Alert, dated March 29, 2011.
Will California's Best Management Practices and Guidance Manual help streamline renewable energy permitting in the California deserts?
The California Renewable Energy Action Team's (REAT) final Best Management Practices and Guidance Manual for Desert Renewable Energy Projects is now available. The Manual was adopted by the California Energy Commission on December 15, 2010. The final version posted online last week includes the minor additions from the December 15 meeting.
The REAT is made up of the California Energy Commission, California Department of Fish and Game, U.S. Fish and Wildlife Service, and the U.S. Department of Interior Bureau of Land Management. The REAT has the task of helping accelerate the permitting of renewable energy facilities in the California Mojave and Colorado Deserts, while minimizing environmental impacts and conserving natural resources in these areas. This will facilitate California’s larger goals of generating 33% of the state’s electricity from renewable sources by 2020. For more background information on the REAT and Executive Order S-14-08, creating the Team, see our previous legal alert.
The REAT is preparing a Desert Renewable Energy Conservation Plan for the California Mojave and Colorado Deserts ecological areas. The Best Management Practices and Guidance Manual provides interim guidance to facilitate renewable energy during preparation of the comprehensive Conservation Plan. The Manual is designed to provide guidance to renewable energy developers on designing and siting renewable energy projects in these desert areas. The Manual’s stated goals also include assisting agencies in reviewing and permitting renewable energy projects and accelerating environmental review of renewable energy projects, though there is less practical material on these goals.
The Manual mainly details actions that should be taken prior to filing an application for a renewable energy project to streamline the permitting process. Many of the recommendations, though, are what savvy developers would strive for in any project: start coordinating early with agencies with long permitting lead times and provide them with complete materials so the process is not delayed, design and site your project to lessen environmental impacts and make sure it is not in conflict with local requirements, plans, or zoning, and complete your long-lead items in the environmental review process, like season-specific surveys, early. In fact, the Manual states “if the majority of the actions are not addressed it is likely that environmental review and decision-making will take additional time.” While it isn’t groundbreaking advice, it is useful for developers new to California or to serve as a checklist. The Manual, disappointingly (but perhaps not surprisingly) doesn’t provide agencies with any new means to shortcut the laborious permitting process. The main pre-filing recommendations are:
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