Lewis Roca Blog

Louisiana has joined the growing number of states requiring solar producers to provide financial security for clean-up costs associated with shutting down their facilities.

The Pennsylvania legislature is weighing two bills that require decommissioning plans for solar energy projects, and the debate over them among lawmakers illustrates the challenges associated with developing a solution to this growing issue in the renewable energy industry.

On March 18, 2022, the U.S. Department of Energy (DOE), Solar Energy Technologies Office (SETO) released its Photovoltaics End-of-Life Action Plan.

As renewable energy projects approach the end of their lifespan, companies may face various legal issues associated with the decommissioning or repowering processes, some of which may lead to litigation.

On February 16^th, the Council on Environmental Quality (“CEQ”) published an interim document to guide the regulation and permitting of carbon capture, utilization, and sequestration (“CCUS”) technologies.

On January 26^th, Arizona Corporation Commissioners voted 3-2 against modifications to the state’s Energy Rules.

On January 24th, the U.S. Supreme Court granted Certiorari in Sackett, Michael, et ux. v. EPA, et al. on the limited question of “[w]hether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act.”

OIRA’s Fall 2021 Unified Agenda outlines the near and long-term regulatory actions each federal agency intends to take before the Spring 2022 Unified Agenda is released.

As industry leaders and businesses tackle the question of how to decommission, repower, or redevelop our renewable energy generation technology that has reached the end of its useful life, important considerations must be weighed.

On Monday, President Biden signed the $1.2 trillion bipartisan Infrastructure Investment and Jobs Act into law. The measure will deliver $550 billion in new federal spending over 5-years and will direct $650 billion in already appropriated dollars into new and existing funding programs for project development.

As more states continue to adopt and consider rules for renewable energy facility decommissioning, they do so against the backdrop of the existing federal financial assurance rules implemented by the Bureau of Land Management (“BLM”) (and, for offshore facilities, the Bureau of Ocean Energy Management).

The first commercial wind and solar power generation facilities in the United States were constructed in the early-1980s. Since then, hundreds of acres of solar farms and thousands of individual wind turbines have been installed around the country largely as a result of maturing technologies, declining power prices, state renewable energy portfolio requirements and goals, and growing public interest in clean energy.

Late last month, the Bureau of Land Management (“BLM”) issued Instruction Memorandum 2021-046 to reinstate both BLM Manual Section (MS-1794) and BLM Handbook (H-1794-1), which restore previously rescinded BLM policies on mitigating operator impacts on public lands managed by the BLM.

On October 7, 2021, the Council on Environmental Quality (CEQ) proposed certain changes to its regulations implementing the National Environmental Quality Act (NEPA).

On Friday, September 10th, the Bureau of Land Management (“BLM”) noticed a competitive offer of solar energy development on public lands in Beaver County, UT.

On August 30, 2021, Judge Marquez of the U.S. District Court for the District of Arizona vacated the U.S. Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers’ (“Corps”) (collectively “Government Defendants”) 2020 “Navigable Waters Protection Rule” (“NWPR”), finding that the NWPR had “fundamental, substantive flaws that cannot be cured without revising or replacing the NWPR’s definition of ‘waters of the United States.’”

On Tuesday, June 29, 2021, the U.S. Supreme Court voted 5-4 to reverse the Third Circuit and affirm that authorized natural gas pipeline developers have the ability to exercise federal eminent domain over state and municipal lands.

The opinion resolves the key legal issue in a citizen suit brought by a number of environmental interest groups alleging that Maui County, Hawaii, requires a CWA permit in connection with discharges of treated sewage into groundwater.

Southern District of Texas Remands Obama WOTUS Rule The U.S. District Court for the Southern District of Texas decided on May 28, 2019, that the Obama-era Clean Water Rule defining “waters of the United States” (WOTUS Rule), see 80 Fed. Reg. 37,054 (June 29, 2015), must be remanded to the U.S. Environmental Protection Agency.

On April 10, 2019, President Trump signed an executive order that alters how Section 401 review is performed under the Clean Water Act (“CWA”).  Currently, applicants must seek State authorization of a project pursuant to Section 401 of the CWA from the State in which the project is located.

On March 28, 2019, the Arizona Supreme Court filed a decision in the case, City of Surprise v. Arizona Corp. Comm’n, No. CV-18-0137-SA, that addressed the Arizona Corporation Commission’s jurisdiction in cases in which a public service corporation is being condemned by a municipality.

On March 14, 2019, the New Mexico legislature passed Senate Joint Resolution 1 that, if approved by voters, would change the New Mexico Constitution to require appointed instead of elected Commissioners to the New Mexico Public Regulation Commission.

By a resounding seven to zero vote, the City Council in Pueblo, Colorado recently passed a resolution to explore if and how the city could extricate itself from its franchise agreement with Black Hills Energy (BHE), clearing the way for the city to pursue creation of a municipal utility.