On December 20, 2024, the U.S. Department of Interior (“DOI”) published the Utility-Scale Solar Energy Development Programmatic Environmental Impact Statement Record of Decision, also known as the updated Western Solar Plan (the “Plan”). The Plan will guide the DOI’s management of solar energy proposals and projects on federal lands. The Plan updates the 2012 Western Solar Plan, relying upon input from various stakeholders in the solar energy industry as well as updates to technologies since it was first published over a decade ago. The Plan makes significant changes, including expanding its scope to additional states as well as updating its best practices for siting solar energy projects on federal lands managed by the Bureau of Land Management (“BLM”). As we approach Inauguration Day, the looming presence of the Congressional Review Act (“CRA”) threatens Biden-era energy rules, which could include the Plan.
Solar Energy in the U.S. and the Western Solar Plan
Solar and wind energy combined generated less than 3% of electricity in the U.S. in 2012.1 However, the National Renewable Energy Laboratory released a report in 2012, the results of which showed that renewable energy resources could feasibly supply 80% of electricity in the U.S. in 2050 with solar and wind energies contributing to almost 50% of same.2 This naturally contributed to an increase in interest in siting utility-scale solar energy projects in 2012.
To increase solar energy production in an efficient and effective manner, DOI published the Solar Programmatic Environmental Impact Statement Record of Decision, or the Western Solar Plan, in October 2012.3 The 2012 Western Solar Plan established the first process for permitting utility-scale (> 20 MW) solar energy projects on federal lands. It made available federal lands in 6 southwestern states: Arizona, California, Colorado, Nevada, New Mexico, and Utah.
The Updated Western Solar Plan
In 2021, President Biden signed the Executive Order on Tackling the Climate Crisis at Home and Abroad, which required the Secretary of the Interior to “review siting and permitting processes on public lands” to increase “renewable energy production on those lands . . . with the goal of doubling offshore wind by 2030 while ensuring robust protection for our lands, waters, and biodiversity and creating good jobs.”4 DOI responded to the Executive Order by publishing a Notice of Intent in December 2022. Two years later, the DOI published a draft Programmatic Environmental Impact Statement, held a comment period, published a final Programmatic Environmental Impact Statement, and published a Record of Decision, resulting in the Plan.
In addition to the original 6 states listed above, the Plan now increases its solar energy planning effort to a total of approximately 31 million acres by expanding to 5 new states: Idaho, Montana, Oregon, Washington, and Wyoming. However, the Plan highlights the fact that only approximately 700,000 of 31 million available acres of public lands across those 11 Western states are anticipated to be developed by 2045.
The Plan uses the substantial input received from the public to update its best practices in identifying and siting lands for solar energy projects. Some of these updates include identifying lands near transmission lines and “previously disturbed” lands as available and excluding lands that are specially protected, contain important cultural resources, and are critical wildlife habitats. The Plan adds 3 new resource-based exclusions criteria: (1) areas with 10% or higher slope (compared to the 5% limitation set in the 2012 Western Solar Plan), (2) areas further than 15 miles from existing and planned transmission lines with capacities of 69 kV or greater and further than 15 miles from the centerlines of most Section 368 energy corridors, and (3) lands that do not qualify as previously disturbed lands unless in sufficient proximity to transmission lines. The Plan also eliminates the 2012 Western Solar Plan’s variance process and removes existing land use allocations for variance lands after determining that the variance process is unnecessary and redundant. Further, the Plan chose not to evaluate concentrating solar power technologies – such as parabolic trough systems, power tower systems, and solar dish engine systems – after determining that their use is no longer prevalent. Programmatic design features for utility-scale solar energy development were also updated to support environmentally responsible solar energy development.
These updates were made to create a smoother permitting process by avoiding siting projects on lands that conflict with other resources and creating more flexibility with a wider range of available land options when considering solar energy project proposals.
Notably, this year DOI also issued the final Renewable Energy Rule, which it believes will lower consumer energy costs and the cost of developing solar and wind projects, improve project application processes, create jobs, and incentivize developers to continue responsibly developing solar and wind projects on public lands.
Potential Risk of Repeal Under the CRA
In the first 4 months of his previous presidency, President-elect Trump repealed a historic record of 14 administrative rules from the Obama administration using the CRA. It is therefore likely that Trump will once again utilize the CRA to invalidate certain regulations.
To determine whether the Plan is considered a rule subject to the CRA, we can look to the Government Accountability Office’s (“GAO”) opinion on whether the 2016 Eastern Interior Resource Management Plan – similarly issued by the BLM – is a rule under the CRA.5 In its opinion, the GAO determined that the 2016 Eastern Interior Resource Management Plan is considered a rule under the CRA after meeting the following criteria:
- Be an agency statement,
- Have future effect, and
- Be designed to either implement, interpret, or prescribe law or policy or describe the agency’s organization, procedure, or practice requirements.
It is likely that the Plan satisfies the criteria to be considered a rule under the CRA. First, the Plan was issued by BLM, a federal agency, and therefore would be considered an agency statement. Second, the Plan creates a guide for and designates areas covered by the Plan for future use and therefore would have future effect. Third, the Plan satisfies the third requirement by prescribing policies for future use of the covered areas under the Plan, implementing the provisions of the Energy Act of 2020 and other applicable statutory and regulatory provisions, and requiring extensive input from interested parties through the notice and public comment process.
Once a rule is made ineffective under the CRA, no rule that is “substantially the same” can be issued or reissued unless the new or reissued rule is specifically authorized by law. If repealed under the CRA, future administrations and solar energy proponents may have a difficult time implementing a widespread process for solar energy projects on federal lands unless it is determined to be specifically authorized by law.
The Congressional Research Service has unofficially estimated that rules submitted to either the House of Representatives or Senate “on or after August 1, 2024, until the end of the second session of the 118th Congress are likely to be subject to the CRA . . . and will qualify for additional periods of CRA review in the first few months of the first session of the 119th Congress.”6
With the Republican Party in control of both the House of Representatives and Senate, Congress is likely to find a smooth path to use the CRA to invalidate certain final regulations issued on or after August 1, 2024. It is unclear at this time if they will target the Plan for invalidation under the CRA because it is focused on streamlining and efficiency, which are priorities for the incoming administration.
For further information, please contact:
Lauren Bachtel, Linklaters
lauren.bachtel@linklaters.com
1 National Renewable Energy Laboratory, A Decade of Transformation: What We Have Learned Since RE Futures Showed What Was Possible (June 6, 2022), https://www.nrel.gov/news/features/2022/re-futures.html.
2 National Renewable Energy Laboratory, Renewable Electricity Futures Study, Executive Summary (2012), https://www.nrel.gov/docs/fy13osti/52409-ES.pdf.
3 Bureau of Land Management, Approved Resource Management Plan Amendments/Record of Decision (ROD) for Solar Energy Development in Six Southwestern States (Oct. 2012), at 1, https://solareis.anl.gov/documents/docs/Solar_PEIS_ROD.pdf.
4 Exec. Order No. 14008, 86 C.F.R. 7619 (2021), https://www.federalregister.gov/documents/2021/02/01/2021-02177/tackling-the-climate-crisis-at-home-and-abroad.
5 U.S. Government Accountability Office, Eastern Interior Resource Management Plan (B-329065) (Nov. 15, 2017), https://www.gao.gov/products/b-329065.
6 Congressional Research Service, The Congressional Review Act: The Lookback Mechanism and Presidential Transitions (July 9, 2024), https://crsreports.congress.gov/product/pdf/IF/IF12708.
