Federal Environmental Permitting of Renewable Energy Projects

Lessons for the “Green” Economy from Conventional Industries

Many assume that it will be easier to obtain environmental permits and approvals for renewable energy projects than for conventional energy permits and projects, because they are designed to reduce environmental impacts such as greenhouse gas emissions.  Unfortunately, in most cases they are wrong.  The very same laws and administrative/legal dynamics that can make permitting difficult for conventional projects apply to renewable energy projects.  Proponents of renewable energy projects would be well-served to learn some hard-learned lessons from the permitting of conventional energy and resource extraction projects.

First, there rarely is “one-stop shopping” for environmental approvals, because permits and approvals almost invariably are required from multiple government agencies.  From offshore wind farms, to solar and wind projects on federal land, to power transmission corridors, large-scale renewable energy projects usually need the approval of at least one federal agency, such as the new Bureau of Ocean Energy Management Regulation and Enforcement (“BOEMRE”) and Federal Energy Regulatory Commission (“FERC”) for offshore projects, to the Bureau of Land Management (“BLM”) and U.S. Forest Service for projects on federal lands in the West.

Dealing with multiple agencies on the same project is more complicated than just talking to more people.  Typically no single agency has authority over another: separate agencies each have to approve a project.  Different agencies have different missions:  some are focused on protecting specific places, while others are focused on applying general rules across regions and industries. Agencies also have different regulatory “cultures,” which means that agencies may be populated with very different types of people, who have different understandings of the role of government oversight, and who may have different relationships with their chain of command. Agency staff do not always communicate well with staff in other agencies, or coordinate their requirements with project applicants, which can lead to long delays while agencies consider permit applications.  All of this means that it is up to the project applicant to provide the central point of coordination among the various agencies, to reduce the chance for miscommunication among government agencies and interested third parties, to keep everyone focused on the big picture of the importance of renewable energy, and to keep the overall approval process on track.  This typically requires a team of people with different skills and experience, and relationships with multiple agencies.  Given the relative novelty of some renewable energy technologies to government agencies, there can be greater need for agency coordination compared to traditional projects.

Second, the environmental laws that govern the federal permitting process make little distinction between “green” and conventional projects.  Federal agencies cannot issue final approvals without complying with several general environmental laws, such as the National Environmental Policy Act (“NEPA”) and the Endangered Species Act.  NEPA requires federal agencies to prepare an Environmental Impact Statement any time their permits will cause significant environmental impacts, even if those impacts are beneficial.  Although agency decision makers may want to facilitate the approval of such projects (as the Obama Administration has done for renewable energy projects on public lands and waters), they still have to follow the procedural laws that govern their approvals.  These laws tend to focus decision makers on environmental impacts at the specific location of projects as compared to the global environmental benefits of renewable energy.  And project opponents can use the same laws to try to block the “green” project that they use to block the conventional project.

Third, most project opponents are not driven by concerns over climate change or global environmental problems, but rather the location of a project and the effect it will have on one of their favorite places.  This means that these opponents generally do not care if it’s a “green” project, because they just want it somewhere else.  There are few places in this country that lack defenders. These truths are borne out by the fact that multiple lawsuits have been filed against renewable energy projects on public lands in the past several years, including solar projects in the Western deserts to wind projects off the Atlantic coast.  The nature of these challengers, and the fact that American law allows almost anyone personally affected by a project to bring a legal challenge, means that it is extremely difficult to reach any kind of global settlement with project opponents, because disaffected members of an opposition group can simply bring their own personal challenge.  Renewable energy project proponents therefore need to plan from the start how to engage with, and respond to, opponents of their projects.

Finally, renewable energy projects can take longer to permit than conventional projects.  Conventional projects may have more environmental impacts, but the nature of those impacts is better understood by agencies and there usually is a long track record of similar projects that agency staff can use as regulatory precedents.  Renewable energy projects, on the other hand, often involve new technologies with more uncertain or newer types of impacts, and are proposed for locations where there is less understanding of the existing environment (e.g., offshore waters), both of which makes it harder for agency staff to determine whether the project is environmentally acceptable.  Agency staff also may lack examples of earlier-approved projects which they can use as permit templates, and agencies themselves may not have sorted out which agencies are responsible for what type of projects.  Even if agency leadership want to support and approve these types of projects, agency staff still have to work through these issues before they actually issue a permit.  All of these factors mean that renewable energy projects perversely may take longer to permit because they involve new technologies that do not involve undesirable, but well-understood, negative effects.  The more cutting edge a technology, and the more unusual location where it will be located, the more challenging the project may appear to agency regulators.

Proponents of renewable energy projects would be well-served to learn from the permitting experience of other more conventional projects. While the nature of their projects may be different, many of the permitting challenges are very similar.

Neal McAliley is a partner in White & Case’s Disputes and Environmental Practices and also leads the Firm’s Climate Change group. His areas of practice include environmental litigation, regulatory matters before governmental agencies, and general civil and criminal litigation. He advises clients on a wide range of environmental issues, including federal agency permitting, wetland jurisdiction, airport environmental issues, and the criminal enforcement of federal environmental laws. Mr. McAliley is highly experienced regarding litigation with federal agencies under NEPA, the Endangered Species Act, and related federal environmental statutes.