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 Transportation Security Administration issued a new security directive to enhance cybersecurity preparedness and resilience for designated passenger and freight railroads.

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 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.

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.

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.

President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act of 2022 on March 15, 2022. CIRCIA solicits public comment for 60 days, beginning September 12, 2022.

The California Air Resources Board, on August 25, 2022, voted to adopt the lengthy and complex second iteration of the state’s ambitious zero-emission vehicle regulation now set to fully phase out the sale of conventional gas-powered vehicles by 2035.

Governor Gavin Newsom announced a revamped water strategy on August 11, 2022, in response to updated projections that California could witness a 10% reduction in water supply by 2040 due to the accelerated impacts of climate change.

President Biden signed into law the Inflation Reduction Act on August 16, 2022, which, among other things, uses the tax code to slow the effects of climate change by significantly investing in clean energy and reducing of greenhouse gas emissions by 40% by 2030.

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.

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.

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.

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 Indian Affairs has proposed preliminary revisions to the regulations that govern the acquisition of land into trust for Indian tribes. The proposed revisions would streamline the fee-to-trust process and eliminate many important checks and balances that protect third-party interests.

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.

President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act of 2022 on March 15, 2022.

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.

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 $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.

The Infrastructure Investment and Jobs Act, which President Biden is expected to sign into law, contains some important changes to the federal environmental review process for surface transportation projects.

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

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.

Title VIII of the Infrastructure Investment and Jobs Act (H.R. 3684), the infrastructure bill recently passed by the U.S. Senate, includes several important amendments to Title 41 of the Fixing America’s Surface Transportation (FAST) Act, or FAST-41, which have the potential to significantly reform the federal environmental review and permitting process for covered infrastructure projects.

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 U.S. Senate passed the Drinking Water and Wastewater Infrastructure Act of 2021 by a nearly unanimous vote in its first significant legislative step towards fulfilling the goals of the Biden administration’s American Jobs Plan with respect to water infrastructure. The Act both reauthorizes existing funds and creates new programs to support drinking water and wastewater infrastructure projects. Most funds are allocated to the existing Environmental Protection Agency (EPA)-administered Drinking Water State Revolving Fund (DWSRF) and the Clean Water State Revolving Fund (CWSRF). A significant proportion of authorized funds specifically target water systems and infrastructure needs of disadvantaged populations, including low-income communities, rural areas, and tribal lands.

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.

President Biden’s Build Back Better initiative includes extensive investment in drinking water, wastewater, and stormwater systems with the hope of upgrading aging infrastructure, making it more resilient in the face of climate change, and addressing historical inequities.

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

The U.S. Department of Transportation has proposed comprehensive changes to update its procedures under the National Environmental Policy Act in response to the Council on Environmental Quality’s July 16, 2020, overhaul of the regulations implementing NEPA.

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. 

The California Public Utilities Commission (CPUC) on June 17, 2020, issued its Decision Adopting Short-Term Actions to Accelerate Microgrid Deployment and Related Resiliency Solutions in California.

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.

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. Fish and Wildlife Service issued a proposed rule on January 30, 2020, that narrowly interprets the protections afforded by the Migratory Bird Treaty Act.

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 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. 

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).

New regulations took effect last month governing the federal environmental review process for highway, public transit and some railroad projects.

The Environmental Protection Agency and the Army Corps of Engineers announced a proposed rule to redefine the term “waters of the United States” under the Clean Water Act on December 11, 2018.

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.

The U.S. Fish and Wildlife Service and National Marine Fisheries Service published three proposed rules last week that would revise the regulations implementing portions of the Endangered Species Act.

The Council on Environmental Quality yesterday issued an advance notice of proposed rulemaking inviting input on potential changes to the CEQ regulations under the National Environmental Policy Act, the federal law that requires environmental impact assessment for projects involving federal funding or other federal approvals.

On April 9, 2018, the heads of a dozen federal agencies executed a memorandum of understanding on implementation of Executive Order 13807, which directed federal agencies to expedite environmental review and permitting for major infrastructure projects.

The Federal Communications Commission recently adopted an order containing sweeping regulatory changes to speed the deployment of advanced wireless services to provide connectivity for innovative Internet of Things, augmented reality, unmanned vehicles, and artificial intelligence-driven devices, services, and systems.

On February 12, 2018, the White House released a set of proposals to streamline the federal environmental review process for infrastructure projects.

The Washington Post last week reported a leaked White House document that revealed a far-reaching set of proposals to streamline the environmental review process for infrastructure projects.

In a unanimous decision on January 22, the U.S. Supreme Court ruled that challenges to the Obama administration’s 2015 Clean Water Rule must be brought in federal district courts rather than directly in the courts of appeals.

Last week, three U.S. Department of Transportation agencies issued requests for comment on ways to update federal regulations and policies to allow for the safe testing and deployment of autonomous vehicles.

Reversing a district court decision that had delayed work on the $2.4 billion Purple Line light rail transit project in Maryland, the D.C. Circuit has held that the FTA and MTA fully complied with the National Environmental Policy Act when approving the project. 

The U.S. Department of the Interior’s Office of the Solicitor issued Memorandum M-37050, on December 22, 2017, which adopts the position that the Migratory Bird Treaty Act (MBTA) prohibition on the “taking” or “killing” of migratory birds applies only to deliberate acts intended to take a migratory bird.

President Donald J. Trump issued Executive Order 13807, on August 15, 2017, which is intended to accelerate the environmental review and permitting for infrastructure projects that require an environmental impact statement under the National Environmental Policy Act.

Title 41 of the Fixing America’s Surface Transportation Act (FAST-41) includes measures to streamline environmental reviews for certain infrastructure projects.

The Environmental Protection Agency and the U.S. Army Corps of Engineers released a proposed rule on June 27, 2017, that will rescind the Obama administration’s 2015 Clean Water Rule and recodify the pre-2015 regulations that it replaced.

The U.S. Department of Transportation (USDOT) announced today that it has initiated a review of its existing policies, guidance documents and regulations to identify “unnecessary obstacles to” transportation infrastructure projects.

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.

In the latest chapter of the seemingly never-ending controversy over the Clean Water Act’s reach, on February 28, 2017, President Trump signed an executive order directing the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers to rescind or revise the Obama administration’s 2015 Clean Water Rule.

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).

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.

Congress passed the Fixing America’s Surface Transportation Act (FAST Act) last December. The FAST Act provides new funding for surface transportation projects and includes measures to streamline environmental reviews for highway, transit, and rail projects.