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DOE Proposes to Develop. On November 16, 2023, the Division of Vitality (DOE) printed a proposed rule to expedite the environmental evaluate course of for sure renewable vitality infrastructure tasks by means of the usage of categorical exclusions. DOE’s proposal would apply to: (1) putting in, working, modifying, or decommissioning photo voltaic photovoltaic (PV) methods on buildings or different constructions or inside beforehand disturbed or developed areas; (2) upgrading, rebuilding, or relocating energy traces inside present rights of manner or on beforehand disturbed or developed lands; and (3) establishing, working, upgrading, or decommissioning electrochemical-battery or flywheel storage methods inside beforehand disturbed or developed areas or on small parcels of land contiguous to these areas. As mentioned in additional element beneath, DOE’s new proposal would modify present categorical exclusions for the primary two objects and create a brand new categorical exclusion for the third.
For background, the Nationwide Environmental Coverage Act (NEPA) requires federal businesses to conduct detailed environmental analyses of main federal actions considerably affecting the surroundings. Main federal actions embody these which might be undertaken, funded, or licensed by a federal company. Thus, for instance, the place DOE is funding an vitality, storage, or energy line undertaking, it will likely be required to conduct an environmental evaluate underneath NEPA. Actions by energy advertising and marketing administrations housed inside DOE, akin to interconnection approvals and transmission system administration, might also be topic to the environmental evaluate necessities of NEPA.
For many actions, the company will first conduct an environmental evaluation to find out whether or not the motion has the potential to trigger important environmental impacts. If the company determines that the motion will considerably have an effect on the standard of the human surroundings, the company will then put together an environmental impression assertion to extra rigorously assess these impacts and options to the undertaking. If the environmental evaluation reveals that the undertaking is not going to create important environmental impacts, the company will publish a discovering of no important impression. Federal businesses don’t want to arrange an environmental evaluation or impression assertion for tasks that fall inside a categorical exclusion. Categorical exclusions apply when the reviewing company determines that an motion is the type that usually doesn’t have important environmental impacts and subsequently doesn’t require an environmental evaluation or environmental impression assertion. Categorical exclusions subsequently function a mechanism for streamlining the evaluate and allowing of sure tasks that pose minimal environmental dangers.
The important thing modifications DOE is proposing to make to its categorical exclusions are as follows:
- Photo voltaic PV Tasks: DOE’s present NEPA laws embody a categorical exclusion (Exclusion B5.16) for sure classes of photo voltaic PV tasks. The present exclusion applies to the “set up, modification, operation, and elimination of photo voltaic PV methods situated on a constructing or different construction or, if situated on land, inside a beforehand disturbed or developed space usually comprising lower than 10 acres.” DOE now proposes to take away the 10-acre limitation for tasks based mostly on the understanding that “acreage is just not a dependable indicator of potential environmental impacts,” and that “the potential significance of environmental impacts is extra associated to native environmental situations than to acreage.” DOE can also be proposing to exchange the present language in regards to the “elimination of photo voltaic PV methods” with new language about “decommissioning of photo voltaic PV methods” in an effort to attain actions (akin to recycling) that happen in the course of the decommissioning course of.
- Energy Line Tasks: DOE’s present laws for energy traces likewise include a restricted categorical exclusion (Exclusion C4) for upgrading or rebuilding twenty miles or much less of present energy traces and minor relocations of small lengths of energy line. As with photo voltaic PV methods, DOE now proposes to take away the scale (on this case, size) limitation for upgrading and rebuilding energy traces, based mostly on the popularity that environmental impacts from such tasks are “extra associated to native environmental situations than to the size of the powerlines.” DOE additionally proposes to switch the prevailing categorical exclusion for “minor relocations of small segments of the powerlines” by deleting the phrase “minor” and by specifying that energy line segments could also be relocated “inside an present proper of manner or inside in any other case beforehand disturbed or developed lands.”
- Battery and Flywheel Vitality Storage Tasks: In contrast to photo voltaic PV tasks and energy traces, battery and flywheel vitality storage methods don’t at present have their very own categorical exclusions. Somewhat, sure vitality storage tasks are included in a extra basic exclusion (Exclusion B5.1) for actions to preserve vitality or water, which lists for example of a conservation motion “energy storage (akin to flywheels and batteries, usually lower than 10 MW).” DOE is now proposing to create a brand new categorical exclusion for the development, operation, upgrading, or decommissioning of electrochemical-battery or flywheel vitality storage methods in beforehand disturbed or developed areas, together with small areas contiguous to these disturbed or developed areas. DOE proposes to take away flywheel and battery storage methods from the extra basic conservation exclusion and additional proposes to not carry over the ten MW limitation for undertaking measurement.
As mirrored in DOE’s present categorical exclusions encompassing photo voltaic PV, energy traces, and battery and flywheel vitality storage, DOE has already decided that these tasks don’t usually trigger important destructive environmental impacts, assuming that sure situations are met. These situations embody the land on which the undertaking is being developed: usually, developed or disturbed land, outlined as “land that has been modified such that its functioning ecological processes have been and stay altered by human exercise,” or areas contiguous to that land. Earlier than making use of any categorical exclusion, DOE additionally considers whether or not there are any “extraordinary circumstances associated to the proposal which will have an effect on the importance of the environmental results of the proposal,” together with:
- “scientific controversy concerning the environmental results of the proposal,”
- “unsure results or results involving distinctive or unknown dangers,” and
- “unresolved conflicts regarding different makes use of of accessible sources.”
These elements embody site-specific issues, akin to whether or not the presence of sure species or environmentally-sensitive sources presents distinctive environmental dangers. DOE’s present proposal is important for recognizing that—as soon as these particular, native situations at or close to the undertaking web site are accounted for—the scale of those tasks doesn’t independently threaten to create important environmental impacts. DOE offers a number of examples of this in its proposal, noting that “the presence of environmentally delicate sources alongside the prevailing right-of-way is extra pertinent than the size of the prevailing powerlines to be upgraded or rebuilt,” and additional that “environmental assessments for photo voltaic PV tasks bigger than 1,000 acres on beforehand disturbed or developed land [have shown that the projects] wouldn’t end in important environmental impacts.” DOE’s proposal is subsequently justified on the idea that the company has decided that sure photo voltaic PV, energy line, and vitality storage tasks don’t create important environmental impacts no matter undertaking measurement, assuming the tasks are sited on disturbed or developed land and that site-specific elements don’t exacerbate a undertaking’s impacts. This proposal would deliver actual advantages, as a result of large-scale clear vitality tasks, together with all three classes of tasks included within the proposal–photo voltaic, transmission, and storage–are mandatory to fulfill america’ objective of 100% clear electrical energy by 2035.
Nevertheless, there are limitations to the proposal, together with the truth that DOE is just not at present proposing to take away the scale limitations in a number of different of its categorical exclusions for renewable vitality tasks. Most prominently, DOE’s categorical exclusion (Exclusion B5.18) for onshore wind generators applies solely to “[t]he set up, modification, operation, and elimination of a small quantity (usually no more than 2) of commercially obtainable wind generators, with a complete top of lower than 200 toes).” That is true regardless that the explicit exclusion solely applies to tasks on beforehand developed or disturbed land, independently considers whether or not the generators may trigger important impacts to individuals (together with by means of shadow flicker and noise), and independently considers whether or not the generators may trigger important impacts to birds and bats. Moreover, this measurement limitation exists regardless of DOE recurrently concluding by way of environmental assessments that considerably bigger wind farms would current no important environmental impacts: for instance, in Might 2023, DOE printed a discovering of no important impression after conducting an environmental evaluation for the North Bend Wind Mission, which is ready to incorporate seventy-one wind generators, every with a hub top of 292 toes and a blade tip top of 501 toes.
Though wind turbine tasks–like all growth–can have native environmental impacts, these impacts could be mitigated or eradicated by means of cautious siting, design, and operational practices. As only one instance, wind farms—like photo voltaic farms—could be sited on contaminated lands, subsequently avoiding degradation of open areas and viewsheds and conflicts with different land makes use of. Moreover, potential avian impacts are carefully tied to the location of wind tasks, and DOE individually considers these impacts earlier than making use of Exclusion B5.18. And whereas the development of wind generators generates small quantities of greenhouse gasoline emissions, DOE has acknowledged that–like photo voltaic PV–wind vitality considerably reduces greenhouse gasoline emissions and air air pollution emissions in the long run. For all of those causes, DOE has recurrently issued findings of no important impression after conducting environmental assessments of huge wind turbine tasks.
DOE ought to take into account making use of the logic of its present proposal to its categorical exclusion for wind generators by eradicating the undertaking measurement limitation in Exclusion B5.18 and as a substitute basing its software solely on site-specific elements. If DOE doesn’t take away the undertaking measurement limitation utterly, DOE ought to take into account amending the explicit exclusion to embody tasks which might be bigger than two generators and 200 cumulative toes. The complexities of wind turbine siting shouldn’t dissuade DOE from this modification, as a result of DOE would retain authority to refuse to use the explicit exclusion based mostly on unbiased elements akin to native avian impacts. Even when the change had been made, DOE would nonetheless be required to conduct an in depth environmental evaluate when site-specific elements may result in elevated environmental dangers, however it could enable DOE to streamline evaluate when such elements are absent, no matter undertaking measurement.
Jacob Elkin is a Renewable Vitality Authorized Protection Initiative Fellow on the Sabin Heart.
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