On 25 May 2021, the White House and the State of California announced a plan to unlock more than 600 square miles of federal waters off the California coast for commercial scale wind energy development, with 4.6 gigawatts of generation potential. The announcement is a welcome step forward in an ongoing effort by federal, state, and local stakeholders to kickstart the offshore wind industry in the West Coast’s deep ocean shelf. Although California is still years away from operational projects, Tuesday’s breakthrough signals the resolution of resource conflicts with the Department of Defense that [...]
On 7 May 2021, the U.S. Fish and Wildlife Service (USFWS) published a proposed rule that would revoke the Trump administration’s rule that the Migratory Bird Treaty Act (MBTA) does not apply to the incidental take of protected migratory birds. If finalized, the proposed rule would represent a return to pre-Trump years, when courts disagreed about the scope of the MBTA and USFWS exercised broad discretion whether to seek civil or criminal penalties against parties whose activities unintentionally harmed or killed migratory birds. The proposed rule may ultimately clear the way for an MBTA incidental [...]
In March 2021, the White House announced an ambitious federal initiative to expand offshore wind energy development in the United States. The plan targets 30 gigawatts of offshore wind energy by 2030 and calls on the U.S. Department of the Interior (DOI) Bureau of Ocean Energy Management (BOEM) to authorize at least sixteen offshore wind projects over the next four years to meet that goal. The initiative’s short-term objectives are focused on the East Coast, where permitting is already afoot, but plans for the coast of California are underway as well. 30 Gigawatts by [...]
As expected, the Biden administration will invoke the Congressional Review Act (CRA) to delay the effective date of the Trump administration’s proposal to exempt incidental take from liability under the Migratory Bird Treaty Act (MBTA). The Trump administration rule would have taken effect on 8 February 2021; the Biden administration delay will extend the effective date until 8 March 2021. The new Federal Register notice, to be published on 9 February 2021, will request further public comments to inform the Biden administration’s review of the rule while at the same time clearly signaling its [...]
On 14 January 2020, the Bureau of Land Management (BLM) published a proposal intended to make it easier to develop renewable energy projects on BLM-administered lands in Southern California. The renewable energy industry should take the time to show the Biden administration why this is one Trump-era regulatory shift that should be carried forward if climate change reduction is indeed a priority. The proposal seeks in part to address long-standing renewable energy industry concerns that BLM took far too many acres off the table when it adopted the 10-million-acre Desert Renewable Conservation Plan (DRECP) [...]
On 22 September 2020, the California Fish and Game Commission (Commission) unanimously voted to designate the western Joshua tree (yucca brevifolia) as a candidate species under the California Endangered Species Act (CESA), as expected.
California Stalls Joshua Tree Endangered Species Act Determination to Consider Up-Front Take Authorization
On 20 August 2020, the California Fish and Game Commission (Commission) again postponed its decision whether to designate the western Joshua tree (yucca brevifolia) as a candidate species under the California Endangered Species Act (CESA).
Is To Kill a Mockingbird Good Authority? Federal Court Sets Aside Administration’s Interpretation of the Migratory Bird Treaty Act
On 11 August 2020, the U.S. District Court for the Southern District of New York issued an opinion setting aside the U.S. Department of Interior’s (DOI) interpretation of the Migratory Bird Treaty Act of 1918 (MBTA) as contrary to law pursuant to the Administrative Procedure Act. The decision deepens a circuit split over an issue of importance to industrial and wind energy installations across the United States.
Offshore wind energy development is in its infancy in the United States compared to Europe. The nation’s first operational project came online in 2016 off the coast of Rhode Island. A few other projects have since gained traction up and down the Eastern seaboard. Deep, crowded waters and technological barriers have largely kept the West Coast out of the discussion. But, as floating turbine technologies become commercially feasible and open up the potential for massive amounts of wind power in California waters, recent inter-agency cooperative efforts have begun to clear a path, and developers are lining up.
CEQA Update: A Bridge Too Far – Seeking and Accepting a Permit to Implement an Approved Project is Not a “Project” Under CEQA
On 18 May 2020, California’s Sixth District Court of Appeal unsurprisingly confirmed that a lead agency’s seeking and accepting a discretionary approval from a responsible agency to implement an approved project is not a CEQA event in its own right. The decision, Willow Glen Trestle Conservancy v. City of San Jose, involves an interesting fact pattern and creative arguments from the project’s opponents, but ultimately does not break new ground.