U.S. Department of Energy Issues Additional NEPA Exemptions for Solar Energy Projects
These exemptions would help certain solar energy projects avoid significant public disclosure and delay.
On November 16, 2023, the U.S Department of Energy (“DOE”) issued a Notice of Proposed Rulemaking for regulations related to solar energy generation facilities. The Notice seeks comment on updated exceptions from National Environmental Policy Act (“NEPA”)[1] oversight.
NEPA generally requires federal agencies to complete certain environmental impact assessments and disclosures before undertaking “any major federal action that significantly affects the environment.” 42 U.S.C. § 4332(2)(C). Renewable energy projects, for instance, sometimes face NEPA requirements when they involve contracts with federal agencies, receive federal funding or permits, or cross federal land.[2]
Certain types of projects that would otherwise trigger NEPA review, however, have categorical exemptions. These categorical exemptions permit the federal agencies to avoid or limit NEPA review.
DOE’s Notice proposes five new exemptions:
(1) Removal of Length Maximum for Utility Line Projects. Currently, new or upgraded power lines must only comply with NEPA requirements if they are greater than 20 miles long. This amendment would remove the distance threshold, effectively exempting any such work to utility lines.
(2) Utility Line Relocation within Existing Easement. This amendment would exempt any relocation of an existing utility line within the defined boundaries of its current right-of-way or easement.
(3) Energy Storage Systems. This would exempt compressed air energy storage systems, thermal energy storage systems, and other similar technologies that “do not pose the potential for significant environmental impacts.”
(4) Decommissioning of Solar Photovoltaic Systems. This would add decommissioning to the current exclusions for installing, modifying, operating, and removing solar energy systems.
(5) Expansion of Exclusion of Solar Energy System Actions. Currently, the above-mentioned exclusion would only apply on project sites of less than 10 acres. This amendment would remove the acreage requirement and expand the exclusion accordingly.
The comment period on DOE’s proposed rulemaking will close on January 2, 2024. DOE will likely then proceed to finalizing the proposed rule.
Attorneys at Baird Holm LLP specialize in various subject matter areas including renewable energy, administrative, environmental and land use law. Please do not hesitate to contact us if you have any questions about this matter or any related matter.
[1] 42 U.S.C. § 4321 et seq.
[2] See e.g. Atlanta Coalition v. Atlanta Regional Comm’n, 599 F.2d 1333, 1344 (5th Cir. 1979); Historical Preservation Guild of Bay View v. Burnley, 896 F.2d 985, 990 (6th Cir. 1989); Sierra Club v. United States Army Corps of Engineers, 990 F.Supp.2d 9, 14-15 (D.C. Cir. 2013).