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Environmental Edge
January 28, 2022

Without BBB, Biden Administration Works to Create Energy Around Clean Energy

Environmental Edge: Climate Change & Regulatory Insights

With the fate of the Build Back Better Act hanging in the balance, the Biden Administration’s goal of reaching at least a 50% reduction in greenhouse gas emissions by 2030 becomes an even more daunting task. To demonstrate that significant progress can be accomplished without congressional action, on January 12, the Biden Administration announced several executive branch actions to advance the development of clean energy.

The mix of agency initiatives and intragovernmental partnerships utilizing long existing and recently granted Infrastructure Investment and Jobs Act (IIJA) authorities and funding amounts to a “grab-bag” of actions aimed at facilitating new and expediting existing clean energy projects. Key measures include the official announcement of a record-breaking offshore wind lease sale, enhanced interagency cooperation on permitting through two interagency agreements, and a new initiative to accelerate electric transmission development.

Offshore Wind Lease Sales

The Biden Administration announced that the Department of the Interior (DOI) will hold a record-breaking offshore wind lease sale of six lease areas in the New York Bight located off the coasts of New York and New Jersey. While this lease sale comes as no surprise after the Biden Administration announced designation of the New York Bight as a new priority Wind Energy Area in March 2021, it is significant because it is the first offshore wind lease sale under this administration and will involve the most lease sale areas ever offered in a single auction. When completed, the lease sale could result in up to seven gigawatts of wind energy—a substantial step towards the Biden Administration’s goal of deploying 30 gigawatts of offshore wind energy by 2030. To help achieve that ambitious goal, the Bureau of Ocean Energy Management (BOEM) plans to hold up to six additional offshore lease sales by 2025.

While holding the lease sales is a significant step forward, it is just the beginning of a long process to actually generate electricity. After a lease sale, companies need to develop and submit a site assessment plan (SAP) and construction and operation plan (COP), which can take years to develop. Only after these plans are submitted does BOEM begin the project-specific National Environmental Policy Act review in cooperation with the numerous other government agencies that must issue authorizations for construction to begin. For example, the lease sale enabling the Vineyard Wind 1 project was held in 2015, BOEM approved the SAP in 2018, but didn’t complete NEPA and receive approval of its COP until 2021 and isn’t projecting to be operational until 2023.

Interagency Collaboration on Renewable Energy Permitting

In an effort to reduce the impediments to progress created by environmental review and permitting, the Biden Administration announced two memorandums of understanding (MOU) among federal agencies intended to improve interagency coordination and address resource constraints.

  • Permitting Offshore Wind Energy: BOEM and the National Oceanic and Atmospheric Administration entered into an MOU that seeks to improve the efficiency and environmental review and authorization process for offshore wind energy. The MOU is intended to facilitate early and consistent coordination and communication of research, planning, environmental reviews, and data concerning offshore wind through designating staff members at the two agencies to serve as points of contact.
  • Permitting Renewable Energy on Federal Lands: Five agencies—DOI, the US Department of Energy (DOE), the US Department of Agriculture, the US Department of Defense, and the US Environmental Protection Agency—executed an MOU pursuant to the Energy Act of 2020 to prioritize and expedite environmental reviews and permitting needed for the planning, siting, and authorization of renewable energy projects on federal lands. The Energy Act of 2020 directed the Secretary of the Interior to issue permits that, in total, authorize production of not less than 25 gigawatts of renewable energy. To achieve that goal, the Energy Act of 2020 also directed the Secretary of the Interior to create interagency Renewable Energy Coordination Offices (RECOs) to establish and implement a program to improve federal coordination on review and permitting. Through this MOU, the agencies commit to providing expert staff to the six RECOs established by the Secretary, establish their respective roles and responsibilities, and agree to guiding principles for their coordination.

DOE Transmission Facilitation Initiative

As discussed in our recent blog post about IIJA transmission line provisions, building transmission lines in the United States is a challenging and critical part of deploying renewable energy and achieving decarbonization. Utilizing funding and authority provided in the IIJA, the DOE has launched the Building a Better Grid Initiative to catalyze nationwide development of new and upgraded high-voltage transmission lines through studies, tools, and funding. Through a Notice of Intent, DOE announced its intention that the Building a Better Grid Initiative be collaborative—involving ongoing engagement with federal agencies; state, tribal, and local governments; industry; unions; environmental justice organizations; and other stakeholders. DOE will be engaging with those parties on the development of a number of new and ongoing transmission planning studies, IIJA-enabled and existing financing programs, a number of transmission permitting initiatives (e.g., DOE’s development of a process for designating National Interest Electric Transmission Corridors on a route-specific, applicant-driven basis pursuant to section 216 of the Federal Power Act, as amended by the IIJA), and ongoing research, development, and demonstration initiatives.

We will continue to track these developments, including whether there is litigation to halt the development of offshore wind.

*Lucas Gorak contributed to this blog post.

© Arnold & Porter Kaye Scholer LLP 2022 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.