Federal Government Proposes Significant Modifications To The Draft Programmatic Environmental Impact Statement For Solar Energy Development In Six Southwestern States

On October 27, 2011, the Bureau of Land Management (BLM) and the US Department of Energy (DOE) made available the much anticipated targeted Supplement to the Draft Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States (Draft Supplement).1 The Draft Supplement modifies the alternatives currently under consideration for utility-scale solar development on the public lands and, if adopted, could have the practical effect of dramatically reducing the amount of federal land available for solar energy development in the western United States. The federal agencies are currently taking comments on the proposed modifications though January 26, 2012. Solar developers and finance partners will want to review the new proposals carefully and participate actively in this process, particularly where the proposals may eliminate or significantly complicate development on currently available sites.

Background: NEPA, PEISs and the Draft Solar PEIS

The National Environmental Policy Act of 1969 (NEPA) requires federal agencies to prepare an environmental impact statement (EIS) for all "major Federal actions significantly affecting the quality of the human environment,"2 including the adoption of agency "programs" in the renewable development area. These "programmatic" evaluations — known as Programmatic Environmental Impact Statements (PEIS) — serve multiple purposes, including to provide highlevel and regional environmental analysis, identify consistent mitigation measures to avoid, minimize, or mitigate the adverse impacts of projects and provide opportunities to tier site-specific analyses for individual projects, which in turn can help to streamline the environmental review and permitting process. As such, PEISs can provide valuable tools for project developers and save them time, money and other valuable resources, for instance, by eliminating the need for each developer to reinvent the wheel on certain types of larger-scale analyses.

While the federal government has developed multiple renewable energy PEISs for wind, geothermal and other resources,3 the trend line between these documents suggests a strong interest and progression by the federal government and others in using the PEIS and land use planning process to identify environmentally sensitive areas and preferred areas for development (e.g., those with the highest renewable energy potential and the fewest environmental and resource conflicts). The goal of this approach is to streamline the project approval process and at least theoretically minimize potential opposition to sitespecific projects. The Draft Solar PEIS took a strong step in that direction by specifically identifying proposed solar energy zones (SEZ).4

How the Supplement Changes the Draft Solar PEIS

The Draft Supplement takes a bold new step toward merging the PEIS process with Federal Land Policy and Management Act (FLPMA) land use planning by expanding the proposed exclusion areas and more actively steering potential project development to designated areas by offering potential incentives and the use of a proposed variance process to develop outside of SEZs. In the Draft...