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

On May 13, 2024, at a special transmission reform meeting, the Federal Energy Regulatory Commission (FERC or Commission) issued Order No. 1920 “Building for the Future Through Electric Regional Transmission Planning and Cost Allocation” (Final Rule).[1]  The Final Rule builds upon Order No. 888, Order No. 890, and Order No. 1000, which developed…

On Thursday, May 9, 2024, the California Independent System Operator (CAISO) issued an addendum to its Interconnection Process Enhancements (IPE) Track 2 Final Proposal, and issued a revised version of that addendum on May 17.  Track 2 focuses on modifications to the interconnection and queue management processes to address the substantial interconnection request volumes in…

Background

The California Independent System Operator’s (CAISO) recently issued Interconnection Process Enhancements (IPE) final proposal[1] provides heightened requirements to complete an interconnection request and relies on scoring criteria to determine which projects advance to the interconnection study process. Due to the proposed 150% cap on specific interconnection zones, not all interconnection requests in each…

The Oregon Energy Facility Siting Council (EFSC) oversees the siting of large-scale energy facilities like wind and solar power projects, which often include an associated Battery Energy Storage System (BESS). BESS is a critical tool in the decarbonization toolbox, offering backup power when it’s needed and addressing intermittency and other grid limitation problems. Though many…

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

UPDATE 10/30/2024 An update to this post is available here.
The Oregon Energy Facility Siting Council recently finalized rule changes clarifying contested case procedures for large-scale energy project approvals. Key updates include more specific requirements for public participation—such as detailing objections in comments and petitions—and expanding opportunities for issue-raising in contested cases. Additionally, the…

Today, the U.S. Fish and Wildlife Service (“Service”) published notice in the Federal Register of a final rule amending its regulations authorizing permits for eagle incidental take and eagle nest take.  The final rule comes roughly a year and four months after the Service issued its proposed rule (discussed here) and includes most of the changes from the proposed rule.  Most notably, the Service has authorized general permits for certain activities where standard conditions can be met. In addition to the new general permit framework, the Service has adopted a number of other changes to overall requirements and processes, with the goal of increasing compliance by simplifying the permitting process.  Key changes in the final rule include:

General Permit for Wind Energy Facilities.  The final rule includes a general permit for wind energy facilities that are located in areas that are “low risk” to eagles.  For first-time applicants, whether a project is eligible for a general permit is based on eagle abundance and eagle nest proximity.  Specifically, all project components must be located within areas where the eagle relative abundance is below the regulatory threshold and must be located at least two miles from a golden eagle nest and 660 feet from a bald eagle nest.  To determine eligibility, the Service will maintain a mapping tool (here).  For projects that do not meet the general permit eligibility criteria, the Service will allow applicants to submit a specific permit application and request a letter of authorization to obtain a general permit.  In the notice, the Service estimates that “more than 80 percent of existing land-based wind turbines in the lower 48 States may be eligible for general permits.”  General permits will be valid for five years.Continue Reading U.S. Fish and Wildlife Service Publishes Final Rule Amending Eagle Permit Regulations

At its January 26, 2024 meeting, the Oregon Energy Facility Siting Council (EFSC) approved an ambitious rulemaking schedule for 2024 that will include consideration of changes to a wide range of EFSC rules.  Detailed information regarding EFSC’s rulemaking projects can be found on EFSC’s website.  Notable 2024 rulemaking projects will include potential changes to…

In early January, the Minnesota Department of Commerce shared new details about the state’s Low and Moderate-income Accessible Community Solar Garden program (the “Program”) application process and requirements. Among other features, the Program emphasizes subscribing low- and moderate-income (“LMI”) households and public interest organizations and establishes new consumer protection requirements. Applications for the Program will be submitted and reviewed in batches – starting February 1, 2024 – and new caps on project size and Program size will apply.Continue Reading Minnesota Community Solar Garden Updates – New Program To Begin Accepting Applications