California Independent System Operator released its draft 2023-2024 Transmission Plan on April 1, 2024. As expected, the 2023-2024 Plan incorporates projections for significant new generation of renewable energy and plans for major new transmission projects to carry the additional energy.

The Bureau of Ocean Energy Management announced on March 18, 2024, the identification of a final Wind Energy Area of 2,000,902 acres for commercial leasing and potential development of floating wind on the Outer Continental Shelf in the Gulf of Maine, offshore Maine, New Hampshire, and Massachusetts.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on March 21st, at 10:00 a.m. ET.

In support of the Biden administration’s goal of 15 gigawatts of floating wind by 2040 and Oregon’s goal of 3 GW of offshore wind by 2030, the Bureau of Ocean Energy Management recently announced its selection of two final Wind Energy Areas for leasing and potential development of floating wind on the Outer Continental Shelf offshore Oregon.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on February 15th, at 10:00 a.m. ET.

The U.S. Bureau of Land Management announced in January 17, 2024, the publication of its draft Programmatic Environmental Impact Statement to help streamline and accelerate utility-scale solar energy development on public lands throughout the West.

The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

The Bureau of Ocean Energy Management published the Notice of Availability on January 12, 2024, for the draft programmatic environmental impact statement on offshore wind energy development activities in the New York Bight (NY Bight)—offshore New York and New Jersey.

The Bureau of Ocean Energy Management published on December 20, 2023, its notice of intent to prepare a Programmatic Environmental Impact Statement of reasonably foreseeable impacts of floating offshore wind energy development activities on the five leased areas offshore Humboldt County and Morro Bay, California.

The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

The U.S. Department of Energy proposed to amend its National Environmental Policy Act procedures on November 16, 2023, to include a new categorical exclusion for certain energy storage systems and to expand its categorical exclusions for certain transmission lines and solar photovoltaic systems.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on November 16th, at 10:00 a.m. ET. The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

Amid the rapidly increasing pace of nonsynchronous resources being added to the electric grid, the Federal Energy Regulatory Commission issued Order No. 901 on October 19, 2023.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on October 19th, at 10:00 a.m. ET.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on September 21st, at 10:00 a.m. ET.

The Washington Department of Ecology recently announced rulemaking intended to clarify a key cost containment provision of the Climate Commitment Act, the state’s carbon emissions cap-and-trade program.

The U.S. Patent and Trademark Office extended its Climate Change Mitigation Pilot Program on June 6, 2023, encouraging inventors to play a more significant role in mitigating climate change. The USPTO created the CCMPP more than a year ago in response to President Biden’s Executive Order 14008, which supports climate action throughout the United States.

The Council on Environmental Quality has proposed further amendments to its National Environmental Policy Act implementing regulations as part of its phased rulemaking initiated in 2021.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s open meeting to be held on July 27, 2023, at 10:00 a.m. ET. The summaries below are based on publicly available information in the dockets listed on the FERC agenda at the time of publication.

The U.S. Court of Appeals for the District of Columbia Circuit’s decision in Maine Lobstermen’s Association v. State of Maine Dep’t of Marine Resources, 2023 WL 4036598 (D.C. Cir. June 16, 2023), stands as a warning that courts may show greater skepticism to statutory interpretations by agencies that reflect policy rather than empirical judgments (at least where they are not acknowledged as such).

Over the last decade, carbon offsets have gained popularity within the retail and consumer products industry as a voluntary tool to mitigate their Scope 1, 2, and 3 greenhouse gas emissions.

After much debate, a bipartisan Congress suspended the public debt ceiling until 2025 by passing the Fiscal Responsibility Act of 2023, which President Joe Biden signed on June 3.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on June 15, 2023, at 10:00 a.m. ET.

The Fiscal Responsibility Act, colloquially known as the Debt Ceiling Bill, was signed into law by President Joe Biden over the weekend and contains several amendments to the National Environmental Policy Act. These are the most substantive amendments to NEPA since the statute was enacted more than 50 years ago.

On May 30, 2023, the Bureau of Ocean Energy Management announced its final environmental assessment considering the effects of site characterization and site assessment activities associated with the leasing of federal waters in the Gulf of Mexico for offshore wind development. BOEM’s issuance of the final environmental assessment is one of the last steps before it holds the first-ever offshore wind lease auction in the Gulf of Mexico, which is anticipated to occur in fall 2023.

On May 11, 2023, the U.S. Environmental Protection Agency issued a proposed rule that would adopt new GHG emissions standards for certain coal and natural gas-fired power plants. The Proposed Rule aims to drive down GHGs in the electric generation sector significantly by requiring certain new and existing fossil generation to use CCS by 2035 or co-fire with hydrogen by 2032. Questions remain, however, whether this approach will fare any better than the Clean Power Plan on judicial review.

The U.S. District Court for the District of Massachusetts granted the government’s motion for summary judgment on May 17, 2023, in a case seeking to invalidate agency approvals of the first utility-scale offshore wind project in the United States.

The U.S. Supreme Court, on May 25, 2023, narrowed the reach of the Clean Water Act, in the latest judicial effort to define the “waters of the United States” that Congress intended to regulate. Sackett v. Environmental Protection Agency (No. 21-454).

The U.S. Supreme Court has accepted review of a case taking direct aim at “overregulation” by federal administrative agencies. Any client that routinely deals with federal administrative agencies—especially those who have experienced administrative overreach—should pay attention and consider weighing in.

Governor Gavin Newsom announced an ambitious and wide-ranging plan on May 19 to expedite the development of important infrastructure projects across the state, with the twin goals of building California’s clean energy future to meet its bold climate goals while at the same time creating hundreds of thousands of jobs.

On May 12, 2023, the U.S. Department of the Treasury issued Notice 2023-38, which contains the first rules concerning the domestic content bonus credits for renewable electricity, renewable natural gas, energy storage, hydrogen storage, and some hydrogen facilities pursuant to Code Sections 45, 48, 45Y, and 48E.

The U.S. Department of Energy published a combined Notice of Intent and Request for Information on May 9, 2023, that proposes a new applicant-driven, route-specific process to designate National Interest Electric Transmission Corridors.

Brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on May 18, 2023, at 10:00 a.m. ET.

On May 10, 2023, the Biden administration announced its support for permitting reforms contained in Joe Senator Manchin’s Building American Energy Security Act of 2023. The administration also announced its support for the inclusion of eleven priorities in any bipartisan permitting reform package, including accelerated deployment of critical electrical transmission, improved permitting efficiency and predictability, and robust community engagement.

On April 26, 2023, the New Jersey Board of Public Utilities formally requested that PJM Interconnection, L.L.C. incorporate New Jersey’s increased offshore wind goals into the PJM transmission planning process via the “State Agreement Approach.”

Below are brief summaries of the agenda items for the Federal Energy Regulatory Commission’s (FERC or the Commission) open meeting to be held on April 20, 2023, at 10:00 a.m. ET.

The Maryland General Assembly passed the Promoting Offshore Wind Energy Resources Act on April 10, 2023, committing the state to develop 8.5 gigawatts of offshore wind by 2031.

This Update discusses a flurry of activity in the first quarter of 2023 from state and federal agencies focused on offshore wind transmission.

The development of clean hydrogen—a key component to meeting the Biden Administration’s ambitious clean energy goals—was bolstered this week by the Administration’s announcements of the Pathways to Commercial Liftoff: Clean Hydrogen report and of $750 million in funding for research, development, and demonstration of clean hydrogen technologies. Because of its reliance on renewable energy, green hydrogen presents a significant opportunity for the offshore wind industry. As highlighted in the White House Ocean Climate Action Report, released on March 21, 2023, offshore wind development is a priority in the United States, with the Administration’s goal to deploy 30 gigawatts of offshore wind by 2030 and 15 GW in floating offshore wind by 2035.

All Member States of the United Nations Intergovernmental Conference on Marine Biodiversity of Areas Beyond National Jurisdiction reached an agreement on March 4, 2023, regarding an international treaty governing the sustainable use and conservation of the “high seas”—areas of the ocean that lie beyond any single nation’s jurisdiction. The treaty represents a culmination of nearly two decades of negotiations and meetings. It is a crucial step toward achieving the recent UN 30x30 Agreement to protect 30% of the planet’s lands and oceans by 2030.

This Update provides brief summaries of the agenda items for the Federal Energy Regulatory Commission’s March 16, 2023, open meeting.

Last week, the Bureau of Ocean Energy Management issued a Proposed Sale Notice for the first offshore wind energy leases in the Gulf of Mexico. BOEM has dramatically reduced the proposed lease areas from the identified Wind Energy Areas, and there’s a chance that the ultimate lease areas will be even smaller. Similar to the California and Carolina Long Bay lease sales, BOEM is proposing to use a multiple-factor auction format and is newly proposing a fisheries compensatory mitigation fund bidding credit. Comments on the lease areas, auction format, proposed lease stipulations, and other issues will be accepted through April 25, 2023.

The Federal Energy Regulatory Commission has published a final rule calling for the North American Electric Reliability Corporation to develop standards for internal network cybersecurity monitoring that will be required for all high-impact bulk electric systems and medium-impact bulk electric systems with external roundtable activity and conduct a study of the security of other bulk electric systems.

The Biden Administration released its National Cybersecurity Strategy on March 1. The Strategy breaks with past precedent and emphasizes regulatory mandates and imposing liability, in addition to enhancing voluntary information-sharing and development of best practices. The Strategy will particularly affect critical infrastructure and cloud service providers.

Two climate-related regulatory programs impacting business and industry in Washington state took effect on January 1, 2023. First, the Climate Commitment Act (CCA) introduces an economywide emissions cap-and-invest program. Second, the Clean Fuels Program will regulate transportation emissions. Together, these programs are intended to help the state reach ambitious statutory emissions reductions targets, including a goal of achieving a 95% reduction in greenhouse gas emissions below 1990 levels by 2050.

The Federal Energy Regulatory Commission issued a notice of proposed rulemaking to update its regulations governing backstop siting authority for electric transmission projects.

When you put it that way, California’s new plan to phase out gas-powered cars by 2035 hits differently—the transition is real and will accelerate soon.

The Internal Revenue Service published a fact sheet clarifying changes in federal clean vehicle tax credits enacted through the Inflation Reduction Act in August 2022.

The U.S. Environmental Protection Agency and the U.S. Department of the Army jointly announced on December 30, 2022, the latest final rule that attempts to define “waters of the United States” under the Clean Water Act. The Rule will take effect 60 days after its publication in the Federal Register.

The Council on Environmental Quality published guidance on how to evaluate greenhouse gas emissions and climate change under the National Environmental Policy Act.

Secretary of the Interior Deb Haaland announced on December 5, 2022, that the U.S. Bureau of Land Management (BLM) will develop an updated Solar Programmatic Environmental Impact Statement (PEIS) to help guide solar energy development on public lands throughout the West.

On December 6–7, 2022, the Bureau of Ocean Energy Management (BOEM) held its third offshore wind lease sale this year—and the first of its kind for floating wind—bringing in $757.1 million from five lease areas off the central and north coasts of California.

The Biden-Harris administration launched Version 1.0 of its Climate and Economic Justice Screening Tool on November 22, 2022.

On November 17, 2022, the Federal Energy Regulatory Commission issued an order approving the surrender of the FERC license for the Lower Klamath Project.

FERC announced clarifications regarding what constitutes a change of control of a public utility or public utility holding company under the Federal Power Act and how it will assess the presumption that investors who own less than 10% of the voting securities of a FERC Regulated Entity are not affiliated with that entity.

As the Bureau of Ocean Energy Management has ramped up offshore wind development to meet the Biden-Harris administration’s goal of generating 30 gigawatts of offshore wind by 2030, the expansion of offshore wind energy could affect the North Atlantic right whale.

Partner Ted Boling authored “NEPA Means Better Agency Decisions” published in the The Environmental Forum regarding the National Environmental Policy Act (NEPA) and its regime for environmental impact assessment and framework for a transparent, evidence-based public process for agency decisions.

The Bureau of Ocean Energy Management (BOEM) issued its Final Sale Notice (FSN) on October 18, 2022, for the first offshore wind energy leases on the west coast of the United States.

Five New England states recently issued a Request for Information seeking comment by October 14, 2022, on changes and upgrades to the regional electric transmission system to integrate renewable energy resources, particularly offshore wind. Through the RFI, the five states seek to improve the grid’s reliability, resilience, and affordability for the region’s electricity customers by integrating renewables and leveraging federal funding for transmission investments. Information received during the comment period will inform the states’ decisions to procure or facilitate transmission investment, inform planning activities, and further inform efforts to secure federal funding, including under the Infrastructure Investment and Jobs Act and the Inflation Reduction Act, and otherwise support infrastructure investment decisions.

The $437 billion Inflation Reduction Act, signed into law on August 16, 2022, by President Biden, makes historic investments in clean energy. The IRA allocates $369 billion toward energy security, carbon emissions reduction, and climate resilience.

Governor Hochul announced the release of New York’s third competitive Offshore Wind Renewable Energy Certificate solicitation on July 27, 2022.

Laura Morton and Ted Boling contributed a book chapter titled “Building the Plane While We’re Flying It – Should We Reform the Offshore Wind Leasing and Permitting Process During Liftoff for a New Industry?” to 68th Annual Institute Proceedings.

The Washington State Department of Ecology recently released a focus sheet that provides Ecology’s recommended soil and groundwater cleanup levels for a group of chemical compounds known as per- and polyfluoroalkyl substances.

The Bureau of Ocean Energy Management published its notice of intent on Friday, July 15, 2022, to prepare a programmatic environmental review to analyze the potential impacts of wind energy development activities in the New York Bight—offshore New York and New Jersey.

Gov. Newsom signed AB 205 into law on June 30, 2022, a legislative effort that significantly expands the California Energy Commission’s jurisdiction and encourages the development of new clean energy projects.

The U.S. Supreme Court’s recent decision in West Virginia v. Environmental Protection Agency curtailed the agency’s authority to regulate emissions from power plants through rules shifting electricity generation from coal to more renewable sources.

In a notable decision interpreting the California Endangered Species Act, a California court of appeal ruled that insects are eligible for listing as threatened, endangered, or candidate species under the act.

As leaders gather for the first in-person celebration of Capitol Hill Ocean Week in two years, we have a proposal for how to bridge the chasm between America’s offshore wind energy ambition and current capacity.

The Bureau of Ocean Energy Management published its Proposed Sale Notice on May 31, 2022, for what would be the first ever offshore wind energy leases on the west coast of the United States.

Stacey Bosshardt and Megan McLean co-authored Climate Change and the Biden Energy Agenda Part I: Infrastructure, the first article in two-part series in the PLI Chronicle about the Biden Administration’s climate change agenda.

The Bureau of Ocean Energy Management (BOEM) held its second offshore wind lease sale of 2022 off the East Coast on May 11, bringing in $315 million from two lease areas in the Carolina Long Bay.

Ocean Conservancy and Perkins Coie partnered to outline actionable recommendations that, if implemented, would significantly increase the effectiveness, efficiency, and regulatory certainty of U.S. offshore wind.

On April 14, 2022, the Federal Energy Regulatory Commission accepted a “State Agreement Approach” Agreement between PJM Interconnection, LLC and the New Jersey Board of Public Utilities effective April 15, 2022.

President Biden, on March 31, 2022, invoked the Defense Production Act to secure reliable supply chains for minerals essential to a clean energy transition.

In January, a New Jersey-based nonprofit organization, Save Long Beach Island, and its president sued the U.S. Department of the Interior in the U.S. District Court for the District of Columbia. The complaint in Save Long Beach Island v. U.S. Department of the Interior asserts that the Bureau of Ocean Energy Management violated the National Environmental Policy Act and the Endangered Species Act.

The Bureau of Ocean Energy Management (BOEM) released its final sale notice (FSN) for two lease areas totaling 110,091 acres in the Carolina Long Bay Area on March 25, 2022.

Nowhere is change more certain than when it comes to Clean Water Act (CWA) rulemakings, leaving floundering regulated entities and litigation in their wake.

Offshore wind energy development received a huge dose of momentum at the end of February, as the Bureau of Ocean Energy Management (BOEM) held the largest offshore wind lease sale ever in the United States.

The U.S. government has steadily increased its warnings about malicious cyber activity by Russia and other sophisticated, persistent adversaries.

A New Jersey based nonprofit organization, Save Long Beach Island, and its president sued in the U.S. District Court for the District of Columbia in January 2022.

The U.S. Environmental Protection Agency, on March 14, 2022, issued both a final rule incorporating revised ASTM International standard practices, ASTM International’s E1527–21 ‘‘Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process,’’ and a proposed rule soliciting comment on this action.

Offshore wind development in the United States continues to draw opposition from coastal landowners, businesses, organizations, and other users of ocean waters, as it has since the industry first emerged here.

President Biden signed an executive order on December 8, 2021, directing the federal government to use its scale and procurement power to slash its carbon emissions by 65% by 2030 and achieve net-zero emissions by 2050

President Biden signed an executive order on December 8, 2021, directing the federal government to use its scale and procurement power to slash its carbon emissions by 65% by 2030 and achieve net-zero emissions by 2050.

The Infrastructure Investment and Jobs Act, signed into law by President Biden on November 15, 2021, has the potential to transform the surface transportation sector in the United States.

The 26th United Nations Climate Change Conference of the Parties, wrapped up earlier this month in Glasgow, Scotland, after two weeks of negotiations. This update discusses how international agreements and U.S. policy announcements coming out of COP26 will affect businesses and provide opportunities in the months and years ahead.

The $1.2 trillion Infrastructure Investment and Jobs Act, which President Biden signed into law today, and the proposed $1.75 trillion Build Back Better Act (H.R. 5376) each set aside historic investments in clean energy.

Under the new leadership of Director Jigar Shah, the U.S. Department of Energy’s Loan Programs Office (LPO) has announced that more than $40 billion is available in loans and loan guarantees to fund innovative energy infrastructure projects.

The Council on Environmental Quality has proposed amendments to its 2020 NEPA implementing regulations, adopted during the waning days of the Trump administration.

The U.S. Fish and Wildlife Service revoked its January 7, 2021, rule defining the scope of the Migratory Bird Treaty Act as it applies to conduct that results in the injury or death of protected migratory birds.

Governor Gavin Newsom signed a $15 billion legislative package on September 23, 2021, funding efforts to combat climate change in California over the next three years.

The Federal Energy Regulatory Commission recently signaled potential wide-reaching reforms to regional electric transmission planning, cost allocation, and generator interconnection processes. Nearing the tenth anniversary of its landmark Order No. 1000, FERC issued an Advanced Notice of Proposed Rulemaking, which examines whether existing approaches adequately account for the transmission needs of a changing resource mix. The ANOPR probes a wide range of topics and appears likely to generate specific proposals for fundamental reform to how we plan and pay for the grid.

FERC’s twice-delayed new relational database is now live and parties must begin to use it in connection with new applications for market-based rate authority or changes to existing market-based rate tariffs.

To take advantage of the new administration's emphasis on clean, renewable energy, and economic development and energy projects on tribal lands, developers may wish to explore streamlined surface leasing opportunities for development on tribal lands.

The recent ransomware attack on Colonial Pipeline—one of the largest oil pipelines in the United States that delivers nearly 45% of the fuel consumed on the East Coast—has put a spotlight on a regulatory gap in reliability standards for pipeline infrastructure. This update reviews the current status of federal regulation of pipeline reliability as well as several legislative fixes under consideration.

The U.S. Fish and Wildlife Service has issued a proposed rule to revoke its January 7, 2021, final rule, which had determined the Migratory Bird Treaty Act prohibits only the intentional take of migratory birds, and not incidental and unintentional take associated with development activities or project operations. 

The secretary of the interior issued two Secretarial Orders on April 16, 2021, that provide early indications of the Biden administration’s approach to the environmental review process for infrastructure projects under the National Environmental Policy Act.

On April 15, 2021, the Federal Energy Regulatory Commission supplemented the notice of proposed rulemaking (Supplemental NOPR) for transmission incentives it issued last year (2020 NOPR). In its Supplemental NOPR, FERC focused on one hotly contested incentive—the return on equity (ROE) adder for transmitting and electric utilities that join a regional transmission organization, independent system operator, or similar entity (Transmission Organization) and abandoned its proposal in the 2020 NOPR to increase the incentive from 50-basis-points to 100-basis-points. FERC also proposed to sunset the ROE adder three years after the recipient transfers control of its transmission facilities to a Transmission Organization.

On March 22, 2021, FERC took a step toward reforming the way in which it analyzes greenhouse gas (GHG) emissions for purposes of natural gas pipeline certificates. However, FERC did so via a certificate order rather than a revised policy statement, as many had anticipated, and garnered sharply dissenting opinions from two commissioners as a result.

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions.

Over the past few weeks, the U.S. Securities and Exchange Commission has taken several actions that put climate change front and center, reflecting the importance to many investors of climate change related disclosures. 

In May of 2019, the Clean Energy Transformation Act (CETA) became law in Washington state and set bold decarbonization and renewable energy mandates for electric utilities

The Federal Energy Regulatory Commission held its first monthly meeting of 2021 on January 19, welcoming new Commissioner Mark Christie to his first meeting and taking on a packed agenda.

The U.S. Army Corps of Engineers published in the Federal Register changes to its Clean Water Act Nationwide Permits (NWPs).

The Washington Department of Commerce released its 2021 State Energy Strategy this month.

This article explores the legal and practical issues associated with the oncoming increase in solar energy, how solar projects are developed and financed, and the risks and opportunities solar energy presents for landowners, energy developers, regulated utilities, local communities, and the state as a whole.

The Biden administration’s “Clean Energy Revolution” includes a wide range of legislative and executive priorities to reach its net-zero emissions target by 2050.

The Federal Permit Improvement Steering Council on November 27, 2020, proposed to add mining to the list of infrastructure sectors that are covered by Title 41 of the Fixing America’s Surface Transportation Act (FAST-41).

The U.S. Forest Service has released narrowly tailored changes to update its procedures under the National Environmental Policy Act, in the wake of the Council on Environmental Quality’s recent overhaul of the NEPA regulations.

With the coal era winding down and renewable energy sources rapidly growing, Arizona offers an attractive market for renewable energy facilities, with plenty of sunshine and even a bit of wind up north.

The Energy Facility Site Evaluation Council (EFSEC) is continuing its efforts to develop a streamlined process for permitting solar energy facilities in Washington State

The Energy Bar Association held a very well-attended virtual Fall Forum last week. Perkins Coie Partner Jane Rueger, who is president of the EBA this year, opened the Fall Forum with an address that built on the event theme of “Commit, Engage, Ignite.”

The Federal Energy Regulatory Commission issued Order 2222 on September 17, 2020.

For the first time in fifteen years, the Federal Energy Regulatory Commission (FERC) significantly revamped key aspects of its regulations implementing the Public Utility Regulatory Policies Act of 1978 (PURPA).

The U.S. Supreme Court delivered near-term relief to project developers on June 6, reinstating one of the U.S. Army Corps of Engineers’ key nationwide Clean Water Act permits. 

On June 30, 2020, in an en banc review, the U.S. Court of Appeals for the D.C. Circuit concluded that the Federal Energy Regulatory Commission cannot delay judicial review of its decisions by issuance of tolling orders.

The Internal Revenue Service on May 28, 2020, introduced proposed regulations detailing how companies can qualify for carbon capture tax credits under Section 45Q of the Internal Revenue Code.

Pressing ahead on his efforts to reduce delays in federal approvals necessary for major infrastructure projects, President Donald Trump on June 4 called for more streamlining in another executive order, Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities.

The U.S. Environmental Protection Agency issued a final rule on June 1, 2020, intended to limit the ability of states and tribes to block or delay projects requiring a water quality certification under Section 401 of the Clean Water Act.

The Washington Department of Ecology initiated the process of developing regulations governing greenhouse gas assessments for major projects by issuing a CR-101 Preproposal Statement of Inquiry on April 30, 2020.

Governor Gavin Newsom issued an executive order on April 22 suspending for a period of 60 days (1) the filing, posting, notice, and public access requirements related to certain notices under the California Environmental Quality Act, and providing for electronic posting; and (2) certain aspects of the consultation process with Native American tribes.

Uncertainty has long reigned over the reach of the federal Clean Water Act, which applies to “navigable waters,” defined by statute only as “waters of the United States.”

The U.S. Centers for Disease Control is now recommending that everyone consider wearing facemasks or other face coverings to help prevent the spread of COVID-19 in public settings where social distancing measures are difficult to maintain, which would include many workplaces.

The Federal Energy Regulatory Commission (the commission) took numerous actions on April 2, 2020, to ease regulatory burdens across the electricity, natural gas, and oil pipeline industries in response to the COVID-19 pandemic.

There are many ways that companies can cooperate with each other to combat COVID-19 without running afoul of antitrust laws. But companies considering cooperating with competitors should be aware of and assess potential antitrust risks before they do so.

As the widespread economic impacts of the coronavirus (COVID-19) worsen, Governor Gavin Newsom issued Executive Order N-28-20 on March 16, 2020, to assist Californians experiencing financial hardship.

The past year saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies. Click here to read the full report.

New Jersey Governor Phil Murphy signed landmark legislation (S2252/A4819) on January 17, 2020 that is poised to dramatically accelerate the electrification of New Jersey’s transportation sector.

Taking the next step in its efforts to streamline the environmental review process for projects under federal jurisdiction, the White House Council on Environmental Quality (CEQ) published proposed regulations on January 10 that would revamp the rules implementing the National Environmental Policy Act.

The San Francisco Mayor’s Office of Housing and Community Development released its much-awaited Community Opportunity to Purchase Act (COPA) Program Rules on Monday, September 3, 2019. (The mayor signed COPA on May 3, 2019. More information about the legislation can be found in our previous update.)

The U.S. Court of Appeals for the D.C. Circuit has issued an important decision that narrowly interprets the types of governmental decisions that may be challenged in court as “final agency action.”

The Environmental Protection Agency issued a 163-page proposed rule on August 9, 2019, to clarify the substantive and procedural requirements for water quality certifications under Section 401 of the Clean Water Act.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service issued a set of three new final rules on August 12, 2019, that substantially revise the regulations implementing the Endangered Species Act.

The Council on Environmental Quality published draft guidance June 26, 2019, on how to assess greenhouse gas emissions under the National Environmental Policy Act, the law that requires environmental impact assessment for projects that receive federal funding or federal approvals. 

Two midwestern states are taking up the issue of how to address the expansion of electric vehicles (or EVs) in their jurisdictions.

Electric vehicles (or EVs) cumulatively consume large amounts of electricity, which means regulated utilities have a natural interest in the expansion of EVs and in managing the impacts to the electric grid from that increased electric demand.

Federal environmental law governing coal ash ponds used by many regulated electric utilities remains uncertain after a flurry of recent activity at the Environmental Protection Agency and in the courts.

A federal court recently prohibited the U.S. Department of the Interior from approving any plans or permits for offshore fracking off the California coast until it complies with the Endangered Species Act (ESA) and the Coastal Zone Management Act (CZMA).

Electric utilities across the country are laying the groundwork—sometimes literally—to keep up with the growing popularity of electric vehicles (EVs).

The California Department of Fish and Wildlife and the California attorney general have jointly issued an advisory regarding California’s state law protections for migratory birds.

In a unanimous decision with immediate repercussions for the administration of the Endangered Species Act (ESA), the U.S. Supreme Court held that an area is eligible for designation as critical habitat under ESA only if it is also “habitat” for the species within the meaning of the statute.

Thanks to better technology and lower costs, fuel efficient electric vehicles (EVs) are on the move in nearly every state in the country.

Approximately 17 months into this administration, we can better assess the consequences of the administration’s dual—and sometimes dueling—agendas of deregulation and deconstruction, and forecast how these priorities may affect agency action going forward.

The $1.3 trillion Consolidated Appropriations Act of 2018, passed March 23, 2018, includes bipartisan measures to fundamentally change how the U.S. Forest Service and other agencies pay for wildfire suppression.

An importer of natural gas from Canada filed suit on February 23, 2018, alleging that U.S. Customs and Border Protection unlawfully denied preferential treatment for its imports under NAFTA.

In an order issued Monday, January 8, 2018, the Federal Energy Regulatory Commission unanimously terminated the rulemaking proceeding it previously initiated in response to a directive issued last fall by U.S. Department of Energy Secretary Rick Perry. 

The Environmental Protection Agency announced, in a 121-page prepublication decision on December 1, 2017, that it will not issue final regulations under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act establishing financial responsibility requirements for certain hardrock mining facilities.

The Ninth Circuit recently ruled that the Resource Conservation and Recovery Act’s (RCRA) anti-duplication provisions under 42 USC § 6905 do not apply in the absence of a stormwater discharge permit issued under the Clean Water Act.

The U.S. Court of Appeals for the District of Columbia last week vacated and remanded a 2016 Order by the Federal Energy Regulatory Commission that had authorized construction and operation of the Southeast Market Pipelines Project.

The California Supreme Court has issued its decision in Friends of the Eel River v. North Coast Railroad, an important case regarding preemption of state environmental law by the Interstate Commerce Commission Termination Act, which contemplates a unified national system of railroad lines subject to federal, not state, regulation.

The U.S. Congress has started to explore potential legislation governing the testing and regulation of autonomous vehicles.

In Defenders of Wildlife v. Zinke, the U.S. Court of Appeals for the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.

A forest products trade association has standing to challenge the critical habitat designation for the northern spotted owl, the U.S. Court of Appeals for the District of Columbia Circuit held in Carpenters Industrial Council v. Zinke, No. 15-5304 (April 11, 2017).

President Donald Trump recently signed Executive Order 13783, an omnibus executive order aimed at reducing burdens on further development of domestic energy resources, with “particular attention” to oil, natural gas, coal and nuclear energy resources.

The Supreme Court of California recently ruled that under the California Endangered Species Act (CESA), plaintiffs may use a delisting petition, supported by new evidence, to challenge a prior decision by the California Fish and Game Commission to list an endangered species.

The U.S. Fish and Wildlife Service has formally approved the long-awaited, 30-year eagle take rule, which will allow renewable energy companies and other developers of large projects to obtain a 30-year permit (as opposed to the previous five-year permit) for the incidental take of bald and golden eagles.

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37041 on January 10, 2017, arguing that incidental take is prohibited under the Migratory Bird Treaty Act (MBTA).

On January 11, 2017, the EPA's proposed rule for financial assurance requirements under Section 108(b) of the CERCLA for the hardrock mining industry was published in the Federal Register, triggering a 60-day comment period. 82 Fed. Reg. 3388 (Jan. 11, 2017). 

After committing in litigation to a joint schedule to conduct rulemaking for financial assurance requirements under Section 108(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the EPA proceeded with its first regulatory proposal for the hardrock mining industry by releasing its proposed rule on December 1, 2016.

The U.S. Court of Appeals for District of Columbia Circuit recently held that the U.S. Fish and Wildlife Service violated the National Environmental Policy Act by approving an Ohio wind energy project without looking at all reasonable alternatives for reducing deaths to the endangered Indiana bat.

In NRDC v. Pritzker, the U.S. Court of Appeals for the Ninth Circuit confirmed that the Marine Mammal Protection Act’s (MMPA) incidental take authorizations will be construed narrowly and conservatively, giving the benefit of doubt to marine mammal species.

The U.S. Supreme Court ruled on May 31, 2016 that an approved jurisdictional determination issued by the U.S. Army Corps of Engineers under the Clean Water Act is a final agency action subject to judicial review.

The IRS recently issued Notice 2016-31, providing further guidance regarding the “beginning of construction” requirement for the production tax credit (PTC).

The government of India ratified the Convention on Supplementary Compensation (CSC) for Nuclear Damage on February 4, 2016, making India a part of the global agreement establishing standards for compensation of victims of nuclear accidents.

The senior-most U.S. Supreme Court Justice, Antonin Scalia, passed away on February 13, 2016 just days after the Supreme Court, by a slim 5 to 4 majority, stayed the EPA’s enforcement of the Clean Power Plan.  

On Tuesday, February 9, 2016, only a few weeks after the U.S. Court of Appeals for the District of Columbia Circuit denied a multistate plea to stop the U.S. EPA’s Clean Power Plan, the United States Supreme Court issued a highly unusual judicial stay on the EPA’s implementation of the Clean Power Plan.

Congress enacted the Surface Transportation Reauthorization and Reform Act of 2015, also known as the Fixing America’s Surface Transportation Act (the FAST Act) on December 4, 2015.

A 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.

Commercial Renewable Energy Project Development program hosted by The Foundation for Natural Resources & Energy Law in Westminster, CO.

Counsel Andrea Driggs discussed how various per- and polyfluoroalkyl substances (PFAS) are regulated under environmental statutes such as the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); the Safe Drinking Water Act (SDWA); and the Clean Water Act (CWA). She also previewed developments at the state and federal levels.

Offshore wind is a critical part of a rapid transition to a carbon-free electrical grid. The industry faces significant barriers, however, in the planning, leasing, and permitting process. This panel examined potential legal and policy reforms that could provide more certainty for offshore wind projects.

Ted Boling co-presented “Best Practices for NEPA Implementation in a Dynamic Regulatory Environment” at the National Association of Environmental Professionals (NAEP) Conference in Fort Lauderdale, Florida.

Ted Boling  presented “NEPA beyond 50: EIA for Renewable Infrastructure Investment” to the International Association for Impact Assessment Conference.

A 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.

During its 2020–21 Session, the Virginia General Assembly enacted the Virginia Clean Energy Act and a host of bills impacting various aspects of renewable energy resource development.

Matt Rojas and Ted Boling participated in a panel entitled “The Future of NEPA—the Status and Future of New NEPA Rules” on a recent ABA-sponsored webinar.

This presentation discussed the major issues in the Council on Environmental Quality's (CEQ) 2020 final rule updating the National Environmental Policy Act (NEPA) Implementing regulations, the CEQ process to "consider suspending, revising, or rescinding," the 2020 rule under Executive Order 13990, and recommendations on which provisions from the 2020 rule should be retained or modified.

Perkins Coie attorneys present at the HalfMoon Education, Inc. virtual program, “Environmental Issues in Energy Project Development”.

A 90-minute multi-panelist briefing on the recent evolution of land use, planning, CEQA, and environmental law in California.

Current trends in energy, from gas production to the coal market to alternative forms. Updates of current markets, as well as recent bankruptcy cases and issues, will be addressed, including the rejection of gathering agreements and the upward trend in requests for equity committees in commodity cases.