This post was co-authored by Stoel Rives summer associate Ryan Laws.

On April 12, 2024, the U.S. Fish and Wildlife Service (Service) published notice in the Federal Register of a final rule (89 Fed. Reg. 26070) that amends regulations regarding the issuance of enhancement of survival and incidental take permits under the Endangered Species Act.

This post was co-authored by Stoel Rives summer associate Connor McRobert.

On May 1, 2024, the White House Council on Environmental Quality (CEQ) published notice in the Federal Register of a final rule amending its regulations implementing the National Environmental Policy Act (NEPA). The final rule, known as the Phase II revisions to NEPA, comes nearly a year after CEQ issued its proposed rule and is mostly consistent with the proposed rule. Notably, the final rule emphasizes that NEPA contains action-forcing procedural requirements to implement the letter and spirit of the Act. This shifts the traditional view that NEPA is a purely procedural statute that only informs decision-making and does not mandate outcomes. Although CEQ intends these changes to add regulatory certainty, it is highly likely the final rule will be subject to court challenges. In addition to the new NEPA characterization, the final rule adopts multiple changes that substantially expand NEPA in scope and impact several aspects of the NEPA review process. Key changes in the final rule include:

Consideration of Climate Change. The final rule requires agencies to analyze the effects of climate change on projects and, conversely, the potential effects of projects on climate change. Specifically, where feasible, projects must quantify greenhouse gas emissions from the proposed action and alternatives. Broadly, the final rule adds climate change to a host of effects that an agency must already consider.Continue Reading Council on Environmental Quality Publishes Final Rule Substantially Amending NEPA

Summary

On March 29, 2024, the California Independent System Operator (CAISO) released the Track 2 final proposal for its Interconnection Process Enhancements (IPE) initiative. The proposed changes in the IPE proposal aim to address the “unprecedented and unsustainable interconnection request volumes” in the CAISO.  CAISO proposes to adopt a zonal approach that prioritizes project interconnection in areas with existing or planned transmission capacity, to cap the number of projects permitted to proceed into the study process at 150% of the available and planned transmission capacity in specific zones, and adopt scoring criteria for eligibility and prioritization in the interconnection study process. Continue Reading CAISO Releases Interconnection Process Enhancements Final Proposal

At the July 27, 2023, Open Meeting, the Federal Energy Regulatory Commission (FERC) issued long-awaited Order No. 2023, the Final Rule on Improvements to Generator Interconnection Procedures and Agreements in Docket No. RM22-14-000.  The rulemaking arose from the Advanced Notice of Proposed Rulemaking: Building for the Future Through Electric Regional Transmission Planning and Cost

During its May 18 voting meeting, the California Public Utilities Commission (Commission) voted to open a new rulemaking proceeding that will consider improvements to its permitting procedures for electric infrastructure projects that fall under its jurisdiction.  The Commission’s action is driven by increased legislative and policy interest in reducing barriers to energy infrastructure development to

On October 21, 2021, the Public Utility Commission of Texas (PUCT) approved a rule that creates requirements for power companies to better prepare for winter weather. The rule stems from the Texas Legislature’s passage of Senate Bill 3 (S.B. 3) in response to the devastation caused to the energy grid by Winter Storm Uri.

S.B. 3, effective June 8, 2021, is a multi-pronged law that attempts to make the Texas energy system more resilient to the effects of extreme winter weather events. Key to S.B. 3 is a requirement that the PUCT implement winter weatherization requirements so that each of the entities providing electric generation service must implement measures to prepare its generation assets to provide adequate electric generation service during a weather emergency. The new rule, codified as 16 Texas Administrative Code §25.55,  requires electric generators and transmission service providers (TSPs) (collectively, generation entities) to implement the winter weather readiness recommendations identified in the 2012 Quanta Technology Report on Extreme Weather Preparedness Best Practices and the FERC/NERC 2011 Report on Outages and Curtailments During the Southwest Cold Weather Event on February 1-5, 2011. The rule also requires affected entities to fix any known, acute issues that arose from winter weather conditions during the 2020-2021 winter weather season. The deadline for implementation of many components of the new rule is December 1, 2021.
Continue Reading Public Utilities Commission of Texas Adopts New Winter Weatherization Rules in Response to Winter Storm Uri

Earlier this month, the Fish and Wildlife Service (“Service”) published a final rule revoking the Trump Administration’s rule on incidental take under the Migratory Bird Treaty Act (“MBTA”), as well as an advanced notice of proposed rulemaking (“ANPR”) aimed at codifying the Biden Administration’s interpretation of the MBTA’s incidental take provision and creating new incidental take regulations.

The MBTA prohibits the “take” of over 1,000 species of migratory birds, but the reach of the MBTA’s take prohibition, including whether it applies to “incidental” take from otherwise lawful activities, is unsettled and subject to a current split in the federal circuit courts. The Trump Administration rule, published on January 7, 2021, largely reflected the Fifth Circuit’s view that the MBTA only prohibits “intentional acts” that directly kill migratory birds. We anticipate that the Biden Administration rule will take the position endorsed by the Tenth Circuit and articulated in the Obama Administration’s M-Opinion that the MBTA prohibits non-purposeful take of migratory birds, nests, and eggs that occur incidental to lawful activities.
Continue Reading Biden Administration Revokes Trump Administration MBTA Rule and Initiates Rulemaking for MBTA Incidental Take Permitting Program

On September 24, 2021, the Federal Energy Regulatory Commission issued an order (176 FERC ¶ 61,207) approving tariff revisions to amend the California ISO’s (CAISO) interconnection procedures for its current queue cluster (Cluster 14).  The CAISO had requested changes to its interconnection procedures due to the massive increase in the number of interconnection requests it received this year—373 interconnection requests representing 150,000 megawatts of generating capacity, as compared to the 155 requests in 2020.  Prior to 2021, the average number of interconnection requests that the CAISO received each year over the past 10 years was 113.  The volume of interconnection requests in 2020 caused the CAISO to issue a market notice to delay the publication of Phase I interconnection study results by one month, pursuant to its tariff authority to extend the timing for providing study results under Sections 6.6 and 8.5 of its Generator Interconnection and Deliverability Allocation Procedures (GIDAP, Tariff Appendix DD).

Rather than rely on these tariff provisions to extend the study timelines for Cluster 14, however, the CAISO sought approval to establish extensions for various interconnection deadlines early in the process, to provide generators with advance notice of the timing for Cluster 14.  Per the approved tariff revisions, Cluster 14 deadlines will be extended as follows:
Continue Reading FERC Approves Changes to CAISO Interconnection Procedures; Next Queue Cluster Application Window Not Scheduled to Open Until 2023

In June 2021, the California Public Utilities Commission (Commission) issued its Mid-Term Reliability Procurement Decision, Decision (D.) 21-06-035, which directed load-serving entities subject to its jurisdiction (investor-owned utilities, community choice aggregators, and energy service providers) to procure at least 11,500 megawatts (MW) of net-qualifying capacity (NQC) for reliability for the period 2023 through 2026.  The decision established cumulative annual procurement requirements: 2,000 MW in 2023, 6,000 MW in 2024, 1,500 MW in 2025, and 2,000 in 2026.  The decision also states that the Commission expects all of the resources procured pursuant to that decision to be zero-emitting, unless they otherwise qualify under renewables portfolio standard eligibility requirements (biomass, for example).
Continue Reading CPUC Issues Net-Qualifying Capacity Values to Be Used for Mid-Term Reliability Procurement

As a follow up to our post here, the Minnesota Court of Appeals issued a decision on August 23 affirming the MPUC’s decisions related to the Nemadji Trail Energy Center natural gas plant (NTEC) that will be constructed in Superior, Wisconsin.  Applying a deferential standard of review, the Court analyzed the appeal (on remand