Environmental Law ReSource

Water Resources Development Act of 2013 - Will the "no earmarks" approach hold?

David Wagner — Mon, 10 Jun 2013 17:18:38 -0500

This post was written by Christopher L. Rissetto and Robert Helland.

On May 15th, the Senate gave final approval, by a vote of 83-14, to S. 601, the Water Resources Development Act of 2013. As we indicated previously, any legislation authorizing additional funds for water infrastructure projects is remarkable in these times of sequestration. In this case, credit the difference, in large part, to two factors: (1) the Senate-passed WRDA bill does not include any earmarking but instead authorizes all “ready-to-go” water development projects, i.e. those with both a completed Report from the Chief of the Army Corps of Engineers and a referral to Congress by the Corps (Section 1002); and (2) the Harbor Maintenance Trust fund, which funds all water projects, has a healthy surplus of almost $7 billion.

Please click here to read the full post written by our Global Regulatory Group colleagues.

New Incentivized Sales Tax Exemption for Renewable Energy Development in Nebraska

David Wagner — Wed, 05 Jun 2013 17:13:31 -0500

This post was written by Michael Eden

On June 4, 2013, Nebraska Governor Dave Heineman signed into law a bill (LB104) designed to incentivize the development of renewable energy in the state by exempting certain purchases of renewable energy equipment and other project costs from the state’s 5.5 percent sales tax. The bill defines sources of renewable energy to include wind, solar, geothermal, hydroelectric and transmutation of elements. Under the new law, prospective renewable energy developers will be required to invest a minimum of $20 million in qualified property in the state to be eligible for the exemption. Separate proposals to limit the benefit of the exemption to those spending a percentage of project costs using Nebraska-made materials, and to those spending a percentage of gross revenues earned with Nebraska businesses or individuals, both fell flat and are not included in the final law. The bill falls under the Nebraska Advantage Act of 2006 and takes effect immediately. The complete text of the new law can be found here: http://nebraskalegislature.gov/FloorDocs/Current/PDF/Final/LB104.pdf.

Nebraska wind continues to be a largely untapped resource. According to the Department of Energy, Nebraska has the fourth-best wind energy resource in the country with more than 900,000 MW of wind energy potential – more than 120 times the amount of power needed to meet the state’s needs. However, Nebraska is currently ranked 26th in wind energy production, with 459 MW of installed capacity– far less than neighboring Iowa with 5,137 MW. Neighboring states such as Iowa, Kansas and Oklahoma have similar sales tax exemptions for purchases made in connection with the development of renewable energy. The new law comes at a time when TradeWind Energy of Lenexa, Kansas, is considering the investment of $300 million to 400 million to develop the 200 MW Rattlesnake Creek wind project in Dixon County in northeastern Nebraska. Nebraska is a public power state, and producers of electricity are required to offer at least 10 percent of the generation from a project to Nebraska utilities.

Reed Smith Attends International Carbon Conference

David Wagner — Wed, 05 Jun 2013 10:48:29 -0500

This post was written by Peter Zaman, Nicholas Rock, Jennifer Smokelin and Laith Najjar

Last week, Reed Smith attorneys attended CarbonExpo 2013. For those unfamiliar with CarbonExpo, it is the largest carbon market event of the year. Although there are now US and Asian events of a similar format, the European event (hosted in Cologne and Barcelona in alternate years) is the largest and most widely attended. According to the organizers, last year, there were 1800 attendees, this year there were 2070 attendees. This no doubt reflects the end results of the market consolidation process that took place between 2010-2012 and suggests that there is probably room for some growth in the market following that consolidation. This was the first year that Reed Smith was represented, in force, at CarbonExpo. There were attendees from Reed Smith’s Energy and Natural Resources Practice Group: Peter Zaman, Nick Rock and Laith Najjar (all London) and Jennifer Smokelin (Pittsburgh). Reed Smith were one of the only two law firms exhibiting at CarbonExpo.

We noticed a strong positive interest in the California market. Price indicators per ton have been promising and offsets are expected to be at a premium, triggering interest in legal advice on the California market. Also, on the margins of CarbonExpo, the International Emissions Trading Association (IETA) organized a meeting of its California Drafting Working Group which is presently tasked with the drafting of a standard emissions master trading agreement for the California market. Reed Smith is involved in this drafting effort and can report that significant progress was made on the draft agreement.

On the international side, the recent positive notes from China about adopting a cap on their emissions and the beginning of its own domestic voluntary scheme seems to have increased optimism for progress towards an international global agreement by 2015 to replace the Kyoto Protocol. The EU Emission Trading Scheme (EU ETS) remains in the doldrums until such time there is a fix for the excess allocation in Phase 3. We understand that legislative proposals from the European Commission are due in July 2013. On a final note, these positive sentiments did move EU ETS price up for the highest they have been in the last 14 weeks.

If you would like to discuss opportunities in the California carbon market or the international market, please contact your Reed Smith environmental team contact.

Continued Congressional Pressure on USEPA Related to Regulation of Chemical Plants

David Wagner — Fri, 31 May 2013 10:09:20 -0500

This post was written by Christopher L. Rissetto, Robert Helland, Lawrence A. Demase, Peter Cassidy, David W. Wagner

Last week, a Reed Smith client alert discussed pending legislation and possible regulatory responses related to chemical plant safety, in the aftermath of the recent West, Texas fertilizer plant explosion. The pressure to act continues to build. Most recent developments include a letter sent this week from Congressman Mike Pompeo (R-KS-4) to the U.S. Environmental Protection Agency (USEPA) addressing several issues, including: the scope of its authority to regulate chemical plant security under the General Duty Clause of the Clean Air Act; the EPA’s authority to mandate the use of “inherently safer technologies”; and its regulatory plans related to chemical plants. The Congressman also brought up these issues during testimony on May 16 by USEPA Acting Administrator Bob Perciasepe before the House Energy and Commerce Committee, Subcommittee on Energy and Power.

As we explained in the alert, it is the view of many – especially in the environmental community – that the General Duty Clause [Section 112(r)(1)] already provides the EPA with the authority to prevent the release of dangerous chemicals by requiring the use of “inherently safer technologies” i.e., replacing a chemical or chemical process when the use of that chemical is considered to be too dangerous. The EPA has not yet adopted this view - Acting Administrator Perciasepe did not commit to any position during his testimony on May 16 – but the possibility remains that the EPA might do so at any time. The letter from Rep. Pompeo underscores the concern of many lawmakers to such an interpretation of the General Duty Clause and follows legislation he sponsors, H.R. 888, the General Duty Clarification Act, which would prohibit USEPA from regulating “inherently safer technologies.”

As investigators continue to look at the explosion in Texas, the chances remain high that Congress and the EPA will take additional action on chemical plant safety.

Development of Cybersecurity Standards in the Utility Industry

David Wagner — Thu, 30 May 2013 17:30:40 -0500

This post was written by Timothy J. Nagle, Paul Bond and Amy S. Koch

Introduction

“Electric Grid Vulnerability: Industry Responses Reveal Security Gaps,” by the staffs of U.S. Reps. Ed Markey (D-Mass.) and Henry Waxman (D-Cal.), resulted from a survey of more than 100 utilities. The report and the contemporaneous House Energy and Commerce Committee hearing on “Cyber Threats and Security Solutions” are indicators of the level of legislative and regulatory attention to these issues. The report’s findings included:

Attacks on critical infrastructure, including energy, are up 68 percent from 2011 levels
Many utilities reported “daily,” “constant,” or “frequent” attempted cyber attacks ranging from phishing to malware infection to unfriendly probes
The rate of cyber attacks against American corporate and government infrastructure is on the rise and unlikely to abate

Click here to read the full entry written by members of the Global Regulatory Enforcement Practice Group and Energy and Natural Resources Industry Group.

Safety Among Chemical Plants: Will There Be Renewed Demand for Federal Regulation?

David Wagner — Fri, 24 May 2013 16:52:04 -0500

This post was written by Christopher L. Rissetto, Robert Helland, Lawrence A. Demase, Peter Cassidy, David W. Wagner

Introduction

The global demand for natural resources continues unabated. As revenues increase and profits soar in the face of this demand, there has been a resurgence of “resource nationalism” with resource-rich host states seeking greater control or a larger share of the revenue generated from its resources.

The issue of chemical plant safety has long been a target of environmental, and other, groups concerned with operational safety, as well as protection from terrorist intentions. The recent explosion at a Texas fertilizer plant provides further impetus to these groups, to some in Congress and with the Executive Branch agencies to act now on mandating at least some level of heightened safety standards. Rules are already in place requiring (1) chemical facilities to develop “risk management plans” that detail the potential effects of an accidental chemical release and outline the steps that are to be taken to prevent or address such an event; and (2) facilities identified as “high risk” to develop an effective site security plan. Safety and security concerns, whether from a release of chemicals that harms the public or from terrorist threats, add further pressure in support of a greater federal response; it may be that now is the time when new requirements are established. In this client alert, we identify pending legislation and possible regulatory responses for chemical plant safety, and discuss their potential for enactment.

To read the full entry, please click here.

Understanding the Basics of Transacting in Offsets under AB 32

David Wagner — Thu, 23 May 2013 16:45:04 -0500

This post was written by Jennifer Smokelin and Jamon Bollock

This client alert serves as an executive summary for a supplementary white paper, The Basics of Transacting in Offsets under AB 32, and will assist clients in addressing offset transaction risks.

The white paper offers an in-depth discussion of the following:

"Primary" vs. "Secondary" markets for offsets
Options and strategies for buying offset credits
Benefits and challenges of buying offset credits

To access the white paper, please click here.

To read the full client alert, please click here.

Slides and Audio for Reed Smith's May 23 Environmental and Energy Law Resource Teleseminar

David Wagner — Fri, 17 May 2013 14:06:38 -0500

On Thursday, May 23rd Reed Smith's Energy and Natural Resources group presented on cap and trade, with a primary focus on the May 2013 auction. Further, we discussed recent trends and developments, business risks in the primary market and proposed regulatory changes in the carbon offset market, and how those issues affect the California carbon market.

California Cap and Trade Update
With a Spotlight on Offset Issues

Topics:

Auction Comments
Hot issues at CARB
Offset Update: Business risks in the primary market and proposed regulatory changes (Fall 2013)

The slides and audio are available here for download.

OSHA Issues New Hazard Communication Standard Requirements

David Wagner — Fri, 17 May 2013 13:46:40 -0500

This post was written by Edward V. Walsh, III

Chemical manufacturers, distributors and employers of all types need to take note of new Occupational Safety and Health Administration (OSHA) requirements contained in OSHA’s recently modified hazard communication standard (HCS). The modifications make the new HCS consistent with the United Nations Globally Harmonized System of Classification and Labeling of Chemicals (GHS). The United States now joins the EU and numerous other countries in making this move.

Note that currently 27 states or U.S. territories have OSHA-approved plans. These states have six months from the publication of the new standard to adopt comparable versions. State governments may also enact federally approved plans that impose stricter (but not less strict) requirements on employers. Businesses must be aware of any such state rules and adjust their programs accordingly.

To read the full entry, please click here.

The Impact of "Resource Nationalism" on Infrastructure Projects

David Wagner — Fri, 17 May 2013 12:17:55 -0500

This post was written by Peter Cassidy and Joseph Otoo

Introduction

Ernst & Young has recently ranked protectionism by governments through resource nationalism as the number one risk for mining companies in 2013. This alert looks at the impact of risks associated with resource nationalism on infrastructure projects and how those risks might be mitigated.

To read the full entry, please click here.

Understanding the EU Emissions Trading laws

David Wagner — Fri, 10 May 2013 16:42:39 -0500

This post was written by Peter Zaman

Unlike most traded commodity markets, the market for trading carbon credits or emissions allowances in the EU is not one based on its utility, usage or consumption. A carbon credit is not used in manufacturing processes or consumed like power or grain. Its market is entirely an invention of policy as implemented through legislation and regulation with a view to reducing the carbon emissions in the EU. Any demand for a carbon credit or emission allowance (“allowances”), is also therefore a creation of those legislative and regulatory processes. That process has left the EU Emissions Trading Scheme (“EU ETS”), today in its third phase, moribund with an over-supply of allowances.

To read the full entry, please click here.

USEPA Requesting Public Input on Guidance Documents for Vapor Intrusion

David Wagner — Fri, 26 Apr 2013 15:10:20 -0500

This post was written by Mark A. Mustian.

If you have been involved in a property with contamination, you are likely aware of the concerns associated with the release of volatile vapors into the indoor air space of buildings located on or near the contamination. Volatile organic chemicals such as trichloroethylene, petroleum compounds, and even inorganics such as mercury, may all emit vapors which can become trapped inside of buildings. These vapors present both short and long-term health concerns, and in certain circumstances even create a risk of fire or explosion. Because such vapors may migrate offsite to neighboring properties, they may create the risk of a third party lawsuit as well. Both the U.S. Environmental Protection Agency (EPA) and various state agencies have recognized the potential environmental impacts of vapor intrusion (VI) for many years, and have developed a patchwork procedure for evaluating and mitigating these impacts.

EPA first addressed this issue formally in November, 2002, when EPA’s Office of Solid Waste and Emergency Response (OSWER) issued Draft OSWER Guidance for Evaluating the Vapor Intrusion to Indoor Air Pathway from Groundwater and Soil (Subsurface Vapor Intrusion Guidance). This document, which has never been finalized, was intended as a tool to help people conduct screening evaluations and determine if VI at a particular site posed an unacceptable risk to human health. The document did not provide recommendations for either delineating the extent of the risk or procedures to eliminate the risk. Since this draft guidance was published, numerous sites across the country have been evaluated and mitigated to reduce or eliminate potential risks. This work, along with research by private and government groups, has lead to a greatly improved understanding of the issues involved in assessing and managing VI. In 2009, EPA’s Office of the Inspector General (OIG) recommended that OSWER evaluate the 2002 report and update it to reflect the current understanding of VI evaluation and remediation. The new draft guidance documents are the result of the 2009 recommendation.

EPA has issued in draft form two guidance documents. One document is the comprehensive guidance for assessing vapor intrusion, making risk management decisions and implementing mitigation. This document, the OSWER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Sources to Indoor Air (Final VI Guidance), is intended to replace the 2002 draft Subsurface Vapor Intrusion Guidance document. For petroleum hydrocarbons that arise from releases at Subtitle I underground storage tank (UST) systems, EPA has developed a companion to the Final VI Guidance. The companion guidance document, Guidance For Addressing Petroleum Vapor Intrusion At Leaking Underground Storage Tank Sites (OUST Guidance), provides information and guidance about how vapor intrusion should be assessed for petroleum hydrocarbons at petroleum UST sites and brownsfield sites with similar characteristics. The OUST Guidance is intended to supplement the Final VI Guidance, and both documents would be applicable to petroleum sites. The OUST Guidance was prepared as a result of the 2009 OIG report which noted that the 2002 draft guidance did not address vapor intrusion at petroleum sites and recommended the preparation of guidance for UST sites.

According to EPA, the Final VI Guidance is intended for use at any site being evaluated by EPA pursuant to CERCLA or RCRA, EPA’s brownfield grantees, or state agencies with delegated authority to implement CERCLA or RCRA where vapor intrusion may be of potential concern. However, it is likely that the concepts and procedures developed in this guidance will be adapted for use at any site where VI is of concern.

The Final VI Guidance and OUST Guidance is intended to address the issues recommended in the 2009 OIG report. These issues include:

Updated toxicity values.
A recommendation(s) to use multiple lines of evidence in evaluating and making decisions about risks from vapor intrusion.
How risks from petroleum hydrocarbon vapors should be addressed.
How the guidance applies to Superfund Five Year Reviews.
When or whether preemptive mitigation is appropriate.
Operations, maintenance, and termination of mitigation systems.
When institutional controls (ICs) and deed restrictions are appropriate.

Affected parties to this guidance could include property developers, local and state regulatory agencies, land owners, consultants, and Potentially Responsible Parties (PRPs) at CERCLA sites. When finalized, these documents, even though they have no regulatory authority, will likely establish the “standard of care” going forward and determine how properties with VI issues are evaluated and remediated. It is important that interested parties evaluate these document and address any issues or concerns during the comment period. EPA will accept comments on the draft documents through May 24, 2013.

Under the 'Recovery Act' Oversight of Energy Spending Continues

David Wagner — Thu, 11 Apr 2013 15:52:46 -0500

This post was written by Christopher L. Rissetto and Robert Helland.

It’s been more than four years since President Obama signed the American Recovery and Reinvestment Act of 2009 (“Recovery Act”) into law February 17, 2009 (Public Law 111-5). Yet questions and issues regarding the spending of energy-related Recovery Act funding continue. The latest includes an audit from the Department of Energy Office of Inspector General that found problems with the use of Recovery Act funding in the Industrial Carbon Capture and Storage Program. In addition, the Vice Chair of the House Energy and Commerce Committee, Marsha Blackburn, has introduced legislation imposing additional restrictions on companies that receive federal funding from the Department of Energy,drafted in response to reports that at least one bankrupt recipient of Recovery Act funds is selling its assets to a Chinese auto manufacturer. Both of these events - along with the fact that millions in Recovery Act funding has still not been spent - indicate that both Congress and the Executive Branch will continue to pay attention to the spending of funds for renewable and energy-efficiency projects for some to come.

To read the full entry, please click here.

Slides and Video from Reed Smith's March 21 Environmental and Energy Law Resource Teleseminar

David Wagner — Fri, 29 Mar 2013 11:50:21 -0500

On Thursday, March 21st presenters from London, California and Pennsylvania spoke about compliance with environmental regulations affecting products. They discussed recent domestic and international requirements related to material sourcing, product design, use, and disposition.

With U.S. manufacturers, distributors and retailers faced with increasing environmental regulation of products, this program was designed to help regulated entities understand the prohibitions, restrictions and requirements they need to know. In particular, key requirements and legal developments were addressed:

The SEC's conflict minerals regulations
California's Green Chemistry Law
The European Union's Restriction on Hazardous Substances (RoHS) and REACH laws
Product takeback, especially electronic waste legislation

The slides are available for download. To watch the video presentation please click here.

Be sure that we will monitor and analyze these issues and many other environmental and energy issues through the year on our blog and in future teleseminars.

Oil and Gas Companies Partner with Environmental Groups to Develop Performance Standards for the Industry

David Wagner — Thu, 28 Mar 2013 16:17:23 -0500

This post was written by Stefanie Lepore and Nicolle Snyder Bagnell.

The Center for Sustainable Shale Development (“CSSD”), an environmental organization located in Pittsburgh, Pa., has announced a program of Performance Standards that has been mutually agreed to by a number of environmental groups and oil and gas companies. The program is voluntary and does not create any new requirements or restrictions for oil and gas companies. However, it is possible that state regulators will look to the Performance Standards when drafting new regulations and permitting requirements, or that the Performance Standards will become unofficial “best practices” in the industry.

To read the full entry, please click here.

California Bill May Place Moratorium on Hydraulic Fracturing Permits

David Wagner — Wed, 27 Mar 2013 13:02:45 -0500

This post was written by Julia Butler, Don Ousterhout, and Todd Maiden.

On March 11, 2013, California State Senator Fran Pavley (D – Agoura Hills) introduced an amendment to Senate Bill 4, which the Senator herself had introduced on December 3, 2012, to further regulate hydraulic fracturing in California. Among other things, the amendment would (1) require the Secretary of the State Natural Resources Agency to conduct an extensive, independent and peer-reviewed scientific study of the potential hazards and risks that hydraulic fracturing treatments pose to natural resources and public, occupational, and environmental health and safety, and (2) preclude the Division of Oil, Gas, and Geothermal Resources (DOGGR) from issuing hydraulic fracturing permits from and after January 1, 2015, until the study, including the peer review component, has been completed. While the fracking permit moratorium would not go into effect until 2015 and the amendment theoretically requires the study to be completed before that date, the extensive requirements of the study, including the peer review component, suggest that completion of the study may take considerably longer and thus result in a lengthy period during which fracking would not be allowed to occur. This bill is set for hearing on April 9 before the Senate Natural Resources and Water Committee.

We will continue to monitor and report on legislative and regulatory developments regarding hydraulic fracturing in California.

UK Shale Gas Tax Breaks

David Wagner — Fri, 22 Mar 2013 08:50:22 -0500

This post was written by Lynne Freeman and Chris Parrott

The UK government has given a boost to the country’s budding shale gas industry. In order to propose early investment in the industry, it has been announced that there will be a “generous new tax regime”, with tax breaks such as field allowances (which will allow developers to off-set profits from their shale gas exploitation against any other losses in the company, which they would not otherwise be able to do under UK law). The announcement came as part of the 2013 Budget Speech, given by George Osborne, Chancellor of the Exchequer.

Osborne said: “I want Britain to tap into new sources of low cost energy like shale gas. So I am introducing a generous new tax regime, including a shale gas field allowance, to promote early investment. And by the summer, new planning guidance will be available alongside specific proposals to allow local communities to benefit. Shale gas is part of the future, and we will make it happen.”

This further development, in addition to the lifting of the moratorium on fracking in December, gives momentum to the development of the shale gas industry in the UK. The next step is likely to be drafting of relevant legislation, a topic we have previously discussed; click here for further information.

UK Shale Gas - A Regulatory Update

David Wagner — Tue, 19 Mar 2013 10:00:47 -0500

This post was written by Lynne Freeman, Nicholas Rock, Laura Riddeck

Key discussion points

Energy crisis and new “dash for gas” set to ignite UK shale market
Moratorium on exploration lifted
New industry guidance issued, UK and EU shale-specific legislation under consideration
Now is the time to “engage” and lobby for the regulation you want
Introduction

On 13 December 2012, the UK moratorium on hydraulic fracturing (“fracking”) of shale gas was lifted. On 5 December 2012 the government published its Gas Generation Strategy paper. The two events are, we would suggest, closely connected.

On 19 February 2013 Alistair Buchanan, current head of Ofgem, the UK electricity regulator, articulated a stark vision of a Britain plunged into darkness, shorter working weeks and manufacturing shut downs as early as winter 2014 if urgent steps are not taken to address the country’s looming energy gap. As environmental regulations drive the shut-down of old fossil-fired plants, and a silver bullet of new nuclear remains mired in delay and arguments about the necessary level of subsidy; electricity generation capacity margins sit at their lowest levels since privatisation of the industry a generation ago. The misery of power cuts brought down at least two governments in the 1970s. The next general election in the UK is fixed for May 2015. If Mr Buchanan’s predictions are right and the weather is unkind, that could take place against a backdrop of one of the most miserable winters in recent memory.

To read the full entry, please click here.

Federal Government Approves New Solar Projects in Solar Energy Zones

David Wagner — Tue, 19 Mar 2013 09:15:22 -0500

This post was written by Phillip H. Babich

The U.S. Department of Interior (DOI) has approved three major renewable energy projects. Two have been sited in California, and another is sited in Nevada. The two California projects are solar energy facilities. The McCoy Solar Energy Project is a 750-megawatt photovoltaic solar facility that would be one of the largest solar projects in the world. A 12.5-mile generation transmission line would connect the project to Southern California Edison’s Colorado River Substation. The Desert Harvest Solar Farm is a 150-megawatt photovoltaic facility. The project also includes an on-site substation and 230-kilovolt line to the Red Bluff Substation, which will connect the project to the Southern California Edison regional transmission grid. Both projects will be located in California’s Riverside East Solar Energy Zone (SEZ), one of 18 such zones on land held by the Bureau of Land Management (BLM), a division of the DOI. The Nevada-based project is the Searchlight Wind Energy Project, a 200-megawatt project that will be located on BLM land about 60 miles southeast of Las Vegas.

The two California solar projects, approved on March 13, 2013, add to the DOI’s progress in furthering the Obama Administration’s goals on solar energy which were articulated in the Department’s Solar Programmatic Environmental Impact Statement (Solar PEIS).

In January, the BLM approved a new SEZ in Arizona. Known as the Agua Caliente SEZ, this area opens up 2,550 more acres of BLM land to be used for utility-scale solar energy development under the Solar PEIS, which was approved and adopted as amended by a Record of Decision (ROD) on October 12, 2012.

The Agua Caliente SEZ is located approximately 120 miles south east of Phoenix and is part of the Yuma Resources Management Plan (RMP). The BLM chose this location for its proximity to transmission lines or systems, roads and infrastructure. The SEZ also has known environmental or cultural constraints that have been deemed acceptable for purposes of solar development.

Right of Way (ROW) applications for solar energy projects in the Agua Caliente SEZ will undergo a site-specific environmental review in accordance with the National Environmental Policy Act (NEPA). However, ROW applicants will be allowed to rely on the findings in the BLM’s environmental analysis of the SEZ published in its Restoration Design Energy Project EIS (January 2013) by tiering the site-specific environmental reviews off of that EIS. Through its environmental review, the BLM has already determined areas where solar programs are likely to have the least impact on the environment, leaving applicants to focus only on the site-specific environmental issues the proposed project might raise.

The BLM will continue to identify new SEZs, taking into account conditions in the solar market and existing and planned transmission systems. In Arizona, the BLM plans to assess the need for new or expanded SEZs at least once every five years. The addition of the Agua Caliente SEZ makes a total of three SEZs in Arizona. The other two, established by the Solar PEIS, are the Brenda SEZ, with 3,348 acres located in La Paz County in west-central Arizona, and the Gillespie SEZ, with 2,618 acres located in Maricopa County, also in the west-central region of the state.

The Solar PEIS established an initial 17 SEZs in six southwestern states: Arizona, California, Colorado, Nevada, New Mexico, and Utah. Those SEZs are comprised of 285,000 acres of land set aside for solar energy development. There are also 19.3 million additional acres of BLM land in those states that the BLM will make available to solar energy development projects that pass a more stringent environmental review.

SEZ projects must comply with NEPA, the Endangered Species Act (ESA), and the National Historic Preservation Act (NHPA). However, in issuing the Solar PEIS, the DOI has implemented key stream-lined features that reduce the amount of environmental review proposed projects will have to undergo. The BLM has already conducted a thorough environmental review of the SEZs under NEPA and determined the optimum locations for solar energy development with the fewest environmental concerns. Applicants for ROW authorizations for utility-scale solar energy facilities will be able to make use of the BLM’s NEPA findings and will only have to focus their review on site-specific and facility-specific issues. As with ROW applications for the Agua Caliente SEZ, applicants in the BLM’s other SEZs will be able to utilize relevant portions of the Solar PEIS and focus on site-specific issues in developing its NEPA documents. Moreover, the PEIS analyzes the likely environmental effects of utility-scale solar development and identifies SEZ-specific design features that will be required of all solar projects in those zones. This will help solar energy developers avoid some of the risks and costs associated with an environmental review because they will not have to develop NEPA documents from scratch and can focus on designs with a high likelihood of being acceptable to BLM.
The Solar PEIS applies to all new ROW applications in SEZs. “New” applications are those filed within an SEZ after June 30, 2009. The Solar PEIS also applies to any application filed within a variance or exclusion zone after October 28, 2011. Any application filed before those dates are not affected by the Solar PEIS. In addition, the Solar PEIS does not affect projects that were approved before the ROD was issued (October 12, 2012).

The Solar PEIS provides important incentives for solar energy developers. Authorization of ROWs in SEZs will not be subject to administrative appeals. The BLM is also continuing to evaluate transmission needs for the SEZs, including consideration of available capacity on existing lines and the need for new or modified corridors.

In the meantime, three environmental groups have filed suit against the BLM, alleging that the bureau violated NEPA by ignoring alternative approaches for solar energy development on BLM land that would be less damaging to the environment. The Western Lands Project, Desert Protective Council, and Western Watersheds Project filed their suit in the U.S. District Court for the Southern District of California on February 12, 2013 (Case No. 3:13-cv-00339).

Don't ROC the boat

David Wagner — Fri, 15 Mar 2013 13:27:57 -0500

This post was written by Richard A. Ceeney, Christopher Parrott, Stefan Schmitz

In December 2012 the UK government published its response to the consultation on the Renewables Obligation banding review. This will result in the level of Renewables Obligation (RO) support being cut for solar projects commissioned after 31 March 2013, with further cuts to follow.

Although the cuts will not be as severe as initially proposed, the reduction from the current 2 Renewable Obligation Certificates per megawatt hour will still be more severe than many in the solar industry had been hoping for and will have an effect on the number of viable projects. At the time of writing, we are already seeing a huge rush of large-scale projects under construction – or to be constructed – in order to be accredited before 31 March deadline. For example, Solarcentury is hoping to complete the construction of a 6.3MWp park at Chalcroft Farm near Southampton within three months; Hive Energy is investing £72 million in nine solar parks, all of which it hopes to be operational by the end of March.

A report by market analyst Solarbuzz notes that this push to complete large-scale projects will mean that the UK solar market will exceed 1.6GWp; 94% of this capacity will have been installed within the past two years. But what will happen after 31 March? We have set out below a few issues that will need to be considered when ascertaining whether a project will be viable.

To read the full article please click here.