Consensus needed to facilitate renewable energy development on federal lands

By Peter Mohr

The Daily Record Newswire

At a time when consensus on domestic policy seems to be rare, one of the few things policy makers have long agreed on is our nation's need to achieve greater energy independence. However, when it comes to developing energy resources available on federal lands, the need for protecting wildlife habitat and other environmental resources has all too often conflicted with efforts to develop more traditional, often extraction-based energy projects.

The increasing promise of renewable energy development provides cause to believe such conflicts can be avoided. Executive orders issued by Presidents Bush and Obama directing federal agencies to expedite the review process for renewable energy projects on federal lands only seem to bolster such a position. But executive orders do not override the laws under which federal agencies must consider issuing approvals.

Proposals to site renewable energy or other major facilities on federal lands are subject to an extensive review process required under the National Environmental Policy Act.

NEPA requires federal agencies reviewing projects under their jurisdiction to consider the environmental impacts associated with construction and operation. The process does not distinguish between conventional and renewable energy projects. The permitting agency therefore must apply all of the same requirements to approve green energy development that apply to the more conventional extractive approach, even though the latter is more apt to pose significant environmental impacts to develop what ultimately is a finite energy supply.

The agency must issue a "detailed statement" that includes the environmental impacts of the proposed project, potential adverse environmental effects and alternatives to the proposed project. In most cases involving a utility-scale project, the agency must prepare an environmental impact statement to address these issues. Depending on the scope and complexity of the proposed project, preparation of an EIS can require a number of months, but more likely a number of years. The cost can range from a few hundred thousand dollars to a million or more.

Such delays and costs have led to increasing calls that NEPA, while appropriate for permitting conventional energy projects, lacks the necessary flexibility to encourage development of renewable energy resources on federal lands.

While more suited to address the often mutually exclusive conservation and development positions taken during the approval processes for conventional energy projects, NEPA is less suited to evaluate renewable energy projects, which by design seek to create significant environmental benefits through the production of clean renewable energy. As one commentator stated, "...there is some irony that NEPA, this nation's environmental 'Magna Carta,' significantly delays" the completion of such projects.

The federal agency most involved in siting renewable energy facilities on public lands is the Bureau of Land Management. Charged with managing more than 245 million acres, the BLM administers more land than any of its federal counterparts.

BLM lands account for more than 15.7 million acres in Oregon and approximately 436,000 acres in Washington, together with approximately 23.4 million acres of federal subsurface minerals. BLM manages all of this under a multipurpose mission that includes energy production among many other activities.

The BLM has made significant efforts to streamline the approval process for renewable projects. Under its "fast track review," the agency will complete an EIS within one year for certain renewable projects that are well developed and pose no significant impact. However, as beneficial as these efforts have been, such an option is still too limited, because most projects still fall prey to the traditionally longer and more costly NEPA review timeline.

Congress took up this issue this year with the introduction of three pieces of legislation -- H.R. 2170, H.R. 2171 and H.R. 2172 -- to streamline NEPA review for renewable energy development. The Obama administration opposes all of these bills for their alleged failure to effectively meet what it considers material NEPA safeguards.

Rather than face off on this issue, both Congress and the Obama administration need to build upon the BLM's efforts and develop a streamlined NEPA process -- one that allows approval where impacts may occur but can be mitigated in part by the equally compelling environmental and economic benefits that can be obtained by developing clean, reliable energy here.


Peter Mohr is an attorney Of Counsel in the Energy and the Environmental & Natural Resources Practice Groups at Tonkon Torp.

Published: Tue, Dec 20, 2011