Unlike other types of energy development on lands administered by the U.S. Bureau of Land Management ("BLM") (e.g., wind, geothermal), solar energy has consistently encountered significant delays caused in large part by a regulatory authorization system that has yet to catch up to industry demand. In an effort to streamline the analysis of solar energy developers seeking right-of-way grants from BLM, the agency, together with the U.S. Department of Energy ("DOE"), has proposed a draft Programmatic EIS for Solar Energy Development ("Draft PEIS") that could have significant implications for solar project development on BLM lands in Arizona, California, Colorado, Nevada, New Mexico and Utah (http://solareis.anl.gov/). Just as the regulatory landscape appears to be heading toward a more predictable, expedient system of authorizations, however, opposition to solar development by tribes and other stakeholders is on the rise and has turned litigious. (And these potential obstacles are in addition to the recently-issued Secretarial Order directing BLM field offices to designate and set aside for protection "Wild Lands" under the agency's jurisdiction. See Alert at http://www.stoel.com/environmental-law-alert-additional-potential-obstacles-to-development.)
The BLM-DOE Draft PEIS
In a nutshell, the Draft PEIS represents consideration by the BLM and DOE of actions intended to facilitate solar energy development on BLM-administered lands in compliance with various orders, mandates, and agency policies. For the BLM, these actions include the evaluation of a new BLM Solar Energy Program applicable to all utility-scale solar energy development on BLM-administered lands in six southwestern states (Arizona, California, Colorado, Nevada, New Mexico and Utah). The Draft PEIS analyzes a no-action alternative, under which solar energy development would continue on BLM-administered lands in accordance with the terms and conditions of the BLM's existing solar energy policies, and two action alternatives for implementing new BLM Solar Energy Programs. Under the solar energy development program alternative (BLM's preferred alternative), the BLM would establish a new Solar Energy Program of administration and authorization policies and required design features to be implemented on BLM-administered lands. The alternative also would exclude solar energy development from certain BLM-administered lands. Under this alternative, approximately 22 million acres of BLM-administered lands would be available for right-of-way application. A subset of these lands, about 677,400 acres, would be identified as solar energy zones ("SEZs"), or areas where the BLM would prioritize solar energy and associated transmission infrastructure development. Under the separate SEZ program alternative, the same policies and design features would be adopted, but development would be excluded from all BLM-administered lands except those located within the SEZs.
Proposed new solar policies include provisions indicating a preference for competitive right-of-way authorizations on SEZ lands; an enumeration of solar-specific factors to be considered when deciding to approve or deny an application; a requirement that all applications conform to existing land use plans as amended by the PEIS; and substantial streamlining of the NEPA reviews of projects within SEZ lands by tiering them from the PEIS.
Some of the proposed design features, however, could prove challenging, particularly for projects already well along the development pipeline. For example, one feature discourages the development of project facilities in or near occupied habitats of special status animal species. Another prohibits development within 100-year floodplains and within natural drainages. Still another suggests the potential disapproval of projects not in conformance with Visual Resource Management objectives. Other design features of note include minimization of habitat disturbance through the use of helicopters during transmission installation; "strong encouragement" of mitigation agreements with affected grazing permittees; and potential mitigation agreements with local jurisdictions to address local socioeconomic impacts.
For DOE, the Draft PEIS analyzes a no- action alternative, under which DOE would continue to conduct environmental reviews of DOE-funded solar projects on a case-by-case basis, and one action alternative, under which DOE would develop programmatic guidance to further integrate environmental considerations into its analysis and selection of solar projects that it will support.
Comments on the Draft PEIS are due by March 17, 2011.
Historic Properties Litigation
Solar project development has recently encountered major obstacles on the litigation front. In mid-December 2010, the federal district court for southern California issued a preliminary injunction at the request of the Quechan Tribe temporarily enjoining construction of Tessara's Imperial Valley solar project. The court held that the BLM (which authorized Tessara to develop the project on BLM land) failed to adequately consult with the Quechan Tribe under section 106 of the National Historic Preservation Act ("NHPA").
Focusing on the multi-step section 106 consultation process set out in Advisory Council on Historic Preservation regulations, 36 C.F.R. part 800, the court found that BLM failed to adequately consult with the Quechan Tribe on a "government-to-government" basis and that affected Indian tribes are "entitled to special consideration" regarding the BLM's consultation obligations. The court noted that consultation with tribes collectively was insufficient and that "consultation with one tribe doesn't relieve the BLM of its obligation to consult with any other tribe that may be a consulting party under the NHPA."
NHPA section 106 is a procedural statute that requires each federal agency to "take into account" the effect of each of its "undertakings" that may affect properties listed on or eligible for listing on the National Register of Historic Places. Places of traditional religious and cultural importance to Indian tribes may be eligible for listing on the National Register.
The Quechan case is troubling as BLM clearly did not ignore section 106. Instead, the court faulted BLM for the adequacy of its consultations with the Quechan Tribe.
Another complaint for declaratory and injunctive relief, filed in late December in the same federal court, challenges BLM's approval of six solar projects in California, including the Imperial Valley project, on NHPA section 106 and other grounds.
Responsibility for complying with section 106 is on the federal action agency. The Advisory Council regulations frequently require consultations with multiple parties and require particular attention to claims made by Indian tribes. The Quechan case demonstrates that project proponents have a vital interest in ensuring that the agency's administrative record demonstrates compliance with section 106.
Stoel Rives lawyers have experience advising energy developers and other project proponents regarding navigating the BLM regulatory processes and complying with NHPA section 106. For further information, contact Aaron Courtney or your Stoel Rives attorney.