Svend Brandt-Erichsen and Brooke Marcus Discuss Biden’s Push to Site Green Energy on Public Lands

Svend Brandt-Erichsen and Brooke Marcus were quoted in the Law360 article “Grading Biden's Push To Site Green Energy On Public Land” (subscription required). The piece provides an overview of how the Biden administration is doing in terms of fulfilling a congressional mandate to boost renewable energy development on public lands. Many industry observers have said the administration has made progress towards fulfilling the mandate, but will have to be more aggressive to hit the target set by Capitol Hill.

One of the steps industry watchers say the administration has taken that has met with some success is encouraging project developers to employ the FAST-41 Act to improve coordination among permitting agencies. One of the key aspects of FAST-41 is that it directs agencies to harmonize and stick to firm timetables for environmental reviews and permitting of large infrastructure projects. According to the federal government, the majority of FAST-41 participants are renewable energy, coastal restoration and transmission projects — with most being offshore wind projects.

Discussing these efforts, Svend noted, “This administration has embraced the FAST-41 process…That coordination function can be valuable because when multiple federal agencies are involved, that can lead to miscommunication and delays.”

The Bureau of Land Management (BLM) said in May that it would reduce acreage rental rates for new and existing wind and solar projects on public land, as well as megawatt capacity fees for projects, which reflect the electricity-generating value of the land that projects are sited upon. This could reduce rents and fees by an average of over 50%. Commenting on this action, Svend said, “There could be some unintended consequences of lowering the rents and fees on existing projects, including changing project owners' financial obligations under their existing contracts and how project lenders look at future projects.”

Additionally, building renewable energy projects on public land frequently requires input from federal, state, local and tribal authorities, and many attorneys say coordination with state and local authorities is still lacking. “Other than tribal consultations, which has received a strong emphasis in this administration, I haven't seen indications of other efforts to coordinate with state and local land use [authorities]," Svend added. "Frankly, that usually falls to the developer.”

The Biden administration has also made grid development central to its clean energy efforts, and experts praise the Bureau of Land Management (BLM) for giving transmission project permitting on public lands equal priority with renewable energy project permitting. Speaking on the issue, Brooke commented, “At BLM, there's definitely a heightened movement to get those lines through the transmission [approval] process.

Brooke also discussed how the BLM’s evaluation of new potential impacts on greater sage-grouse, including climate change, has the renewable energy industry concerned. She noted, “I think the uncertainty with what may be involved in those amendments and the uncertainty with sage-grouse populations have to be factored into project permitting…and uncertainty is hard to plan around.”

Another area that renewable developers want greater clarity on is Fish and Wildlife Service (FWS) regulations governing incidental take permits under the Eagle Act. The FWS began a potential revision of its eagle permitting regulations last September, acknowledging that the current rules may be written in a way that hinders the permitting process. The agency expects to propose changes by this September. “Until we see what those proposed amendments look like, and they are ultimately finalized, whether that goes in a good direction remains to be seen,” said Brooke.