Winston’s Environmental Law Update

On August 16, 2022, President Biden signed the Inflation Reduction Act of 2022 (IRA). The IRA reconciliation package includes $369 billion in funding and subsidies to support the transition to renewable energy and reduce greenhouse gas emissions from the energy sector.

In this alert, we first examine whether such superseding approval by FERC would be subject to the National Environmental Policy Act (NEPA) and require an environmental impact statement (EIS).  Second, we explore how such backstop siting authority is likely to affect state Public Utility Commissions (PUCs) permitting decisions.  Overall, it is unlikely that the new IIJA will lead to a sudden acceleration of the siting of transmission lines.

Recent lawsuits against renewable energy projects show that they are not immune from environmental challenges. Many support deploying more wind and solar assets to reduce greenhouse gas emissions.

The Biden Administration plans to revoke the Trump-era Migratory Bird Treaty Act (MBTA) Rule and return to interpreting the MBTA as prohibiting incidental take, not just purposeful take, of migratory birds.

On June 1, 2020, the U.S. Environmental Protection Agency (EPA) finalized the “Clean Water Act Section 401 Certification Rule.” Issued in response to President Trump’s Executive Order 13868 “Promoting Energy Infrastructure and Economic Growth,” which directed the EPA to review the Clean Water Act (CWA) Section 401 certification process, the final rule seeks to clarify the role of states and authorized tribes in ensuring that activities subject to federal CWA permitting requirements comply with established water-quality standards. While streamlining the water-quality certification process in the name of promoting energy infrastructure, this rule also restricts the scope of state and tribal review under Section 401.

Under Section 211(v) of the Clean Air Act, EPA was required to complete “a study to determine whether the renewable fuel volumes required by [Section 211(o)] will adversely impact air quality as a result of changes in vehicle and engine emissions of air pollutants.” On May 29, 2020, EPA released its so-called anti-backsliding study, which evaluated two scenarios for calendar year 2016.

The Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps) case continues in the Ninth Circuit.

On May 11, 2020, the Montana federal district court issued an amended order in the Northern Plains Resource Council et al. v. U.S. Army Corps of Engineers (NPRC v. Corps), narrowing the scope of its initial nationwide vacatur of Clean Water Act Section 404 Nationwide Permit 12 (NWP 12).

The energy industry across the country continues to watch the Montana district court case Northern Plains Resource Council v. U.S. Army Corps of Engineers (NPRC v. Corps), given the “nationwide” impact of the Montana court’s April 15^th order vacating Clean Water Act Nationwide Permit 12 (NWP 12).

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 was amended by the Brownfield Utilization, Investment, and Local Development Act of 2018.

In an April 11, 2018 guidance memorandum, the U.S. Fish and Wildlife Service (USFWS) reiterated the Trump Administration’s stance that “the take of birds, eggs or nests occurring as a result of an activity, the purpose of which is not to take birds, eggs or nests, is not prohibited” by the Migratory Bird Treaty Act (MBTA).

On April 27, 2018, Germany’s Federal Network Agency announced the results of its second offshore wind power auction; the six winning bids are cumulatively capable of producing 1,610 megawatts (MW) of power. 

Last week, the Electric Reliability Council of Texas (ERCOT) announced that commercial operation of a new 155-megawatt wind farm in West Texas pushed the State’s wind power capacity to over 20,000 megawatts, exceeding the State’s capacity of 19,800 megawatts from coal-fired power plants.  

On May 6, 2016, the U.S. Fish and Wildlife Service (USFWS) issued a proposed rule that would, in part, extend the maximum term of eagle incidental take permits under the Bald and Golden Eagle Protection Act to 30 years.

The United States Fish and Wildlife Service recently released a final rule under § 4(d) of the Endangered Species Act for the northern long-eared bat that contains a key exception for wind energy facilities.