Designation of Western Energy Corridors: Proposed Settlement Between Environmental Groups and Federal Agencies Would Revise Procedures

by Davis Wright Tremaine LLP
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[author: James K. Mitchell]

Procedures for designation of West-wide Energy Corridors pursuant to Section 368 of the Energy Policy Act of 2005 are to be revised to allay concerns that (i) construction of energy-related facilities within such corridors would adversely affect environmentally sensitive areas, and (ii) that procedures for designation of such corridors improperly support development of new coal-fired generation resources while failing to give appropriate consideration to transmission needs of generating stations utilizing renewable energy resources that could be developed in the future. Such procedures are to be modified in accordance with a recent Settlement Agreement between the United States government and several environmental groups which was filed on July 3, 2012 in The Wilderness Society, et al. v. United States Department of the Interior, et al., No. 3:09-cv-03048-JW (N.D. Cal).

Section 368 of the Energy Policy Act of 2005 requires the federal government to designate corridors for development of oil, gas, and hydrogen pipelines and electricity transmission and distribution facilities on federal land in the eleven states in the West (Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming), and to expedite applications for authorization to construct or modify oil, gas, hydrogen pipelines and electricity transmission and distribution facilities within such corridors.  The Wilderness Society and other environmental groups challenged regulations adopted to implement this requirement following the designation of more than 6,000 miles of such corridors in 2008. According to a press release issued by the Wilderness Society, the original corridor designations did not “facilitate access to renewable energy development,” and “would adversely affect National Park Service areas, National Monuments, National Wildlife Refuges, habitat for threatened and endangered species, and proposed wilderness,…and miss opportunities to minimize impacts and designate preferable locations.”

The Settlement Agreement is subject to approval by the United States District Court. When effective, the Settlement Agreement requires that the future revision, deletion, or addition to the system of corridors designated pursuant to Section 368 of the Energy Policy Act 2005 be based on consideration of the following general principles:

  • Location of corridors in favorable landscapes that provide maximum utility while minimizing the impact to the environment
  • Promotion of efficient use of the landscape for necessary development
  • Facilitation of renewable energy projects where feasible by providing connectivity to renewable energy generation to the maximum extent possible.
  • Avoidance of environmentally sensitive areas to the maximum extent practicable
  • Diminution of the proliferation of dispersed rights-of-way crossing the landscape, and improvement of the long-term benefits of reliable and safe energy transmission

The Settlement Agreement requires the Bureau of Land Management, the Forest Service and the Department of Energy to adopt specified open and transparent processes for designation of such corridors which provide an opportunity for stakeholder involvement, and to provide appropriate training and supervision for personnel responsible for administering the processes. In addition, it requires authorities to review certain existing corridors in (i) northeastern California and northwestern Nevada, (ii) southern California, southeastern Nevada, and western Utah, and (iii) southern Wyoming, northeastern Utah, and northwestern Colorado, to ensure that they are consistent with the agreed-upon principles, especially with regard to efficient use of the landscape. These West-wide Energy Corridors should not be confused with National Interest Electric Transmission Corridors established pursuant to Section 216 of the Federal Power Act in which the Federal Energy Regulatory Commission may approve construction of interstate electric transmission facilities under certain circumstances if state regulatory authorities fail to do so.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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