The American Public Power Association generally supports a Department of Energy proposal tied to the agency’s implementing regulations governing compliance with the National Environmental Policy Act. The proposal would add categorical exclusions (CEs) for certain energy storage systems and revise CEs for upgrading and rebuilding transmission lines and for solar photovoltaic systems.
APPA’s comments respond to a DOE notice of proposed rulemaking seeking comments on amendments to the agency’s implementing regulations governing compliance with NEPA.
Along with adding CEs for certain energy storage systems and revising CEs for upgrading and rebuilding transmission lines and for solar photovoltaic systems, the proposal would make conforming changes to DOE’s NEPA regulations.
Public power utilities support energy infrastructure permitting reforms to streamline federal permitting and siting processes and eliminate excessive regulatory barriers to ensure predictable and timely decisions from relevant federal agencies, APPA noted in its comments.
DOE is proposing revisions to its NEPA procedures, including three review types for proposed actions: environmental impact statement, environmental assessment, and categorical exclusions.
CEs typically do not significantly impact the human environment and thus do not necessitate an environmental assessment or environmental impact statement.
To apply a CE, the DOE must ensure that: (1) the proposed action fits within a listed categorical exclusion, (2) there are no extraordinary circumstances that could significantly impact the environment and necessitate further assessment, and (3) the proposal has not been improperly divided to fit the definition of a categorical exclusion.
Fiscal Responsibility Act Amendments
The 2023 Fiscal Responsibility Act included several significant amendments to the procedural requirements for environmental reviews under NEPA.
The FRA amendments:
- Limit the definition of “major federal action” and the scope of alternatives to be considered;
- Provide details on when environmental assessments are required and the appropriate level of review;
- Include time and page limits for environmental impact statements and environmental assessments (EAs) and a new mechanism to seek judicial review where an agency fails to comply with the deadlines for an EIS or EA;
- Improve agency coordination by designating a lead agency and relevant roles/procedures for unified federal reviews; and
- Establishes a process for the adoption of another agency’s CEs.
APPA said it supports these statutory amendments to NEPA and urged DOE “to work expeditiously to make any necessary changes to its regulations and practices to implement these reforms.”
Specifically, APPA said that DOE should implement the FRA changes to the definition of “major federal action.”
For NEPA to apply, the proposed action must be both a “major federal action” and have significant effects.
As defined in the FRA, a “major federal action” is limited to an action subject to “substantial Federal control and responsibility” and excludes non-federal projects over which the government has no or minimal involvement and where it cannot control the outcome of the project.
APPA Supports the Greater Use of CEs
APPA supports the greater use of CEs “as this practice is consistent with the original intent of NEPA regulations and guidance,” it said.
“Still, more importantly, greater use of CEs will expedite permitting for ‘low-impact’ projects with no significant environmental effects. Expanding the use of CEs will conserve agency resources for actions that are otherwise more complex and require further environmental review. DOE’s proposed changes seek to leverage its experience, current technologies, regulatory requirements, and industry practices,” APPA said.
Transmission Lines
With respect to DOE’s proposal to revise the CEs in its NEPA implementation regulations for upgrading and rebuilding existing powerlines, APPA noted that the current categorical exclusion applies to upgrading or rebuilding existing power lines “approximately 20 miles in length or less.”
The proposed changes remove the mileage limitation, add new conditions, and add options for relocating within an existing right of way or previously disturbed or developed lands.
DOE noted that upgrading and rebuilding power lines can mitigate adverse environmental impacts, for example, by relocating small segments of the existing line to avoid sensitive environmental resources.
Additionally, DOE noted these actions can improve the resilience of the power lines.
APPA said it supports the removal of the existing mileage limits, which means that more projects that public power utilities are building can utilize this CE and benefit from a streamlined environmental review.
“Providing more flexibility for upgrading and rebuilding existing powerlines will enable faster delivery of critical objectives such as enhancing reliability and mitigating wildfire risk. New and upgraded transmission lines are also important to achieving federal, regional, state, and private sector decarbonization and electrification goals,” APPA said.
Energy Storage
DOE proposes to add a new CE for the “construction, operation, upgrade, or decommissioning of an electrochemical-battery or flywheel energy storage system within a previously disturbed or developed area or within a small area contiguous to a previously disturbed or developed area.”
APPA supports the new CE for specific energy storage systems.
In response to public comments that the CE be written broadly to include other energy storage systems, DOE asserted it “has not identified sufficient information to conclude that compressed air energy storage, thermal energy storage (e.g., molten salt storage), or other technologies normally do not present the potential for significant environmental impacts.”
APPA encouraged DOE to extend this CE to other storage technologies, such as aboveground (non-geological) storage, “as the environmental risks of such storage are notably smaller than for underground storage, and consider iron-air batteries which are currently under development, including those that DOE is funding through various demonstration projects,” it said.
“Energy storage has the potential to reduce the scale of renewable overbuilding required to manage intermittency, which in turn can reduce the land use requirements of the energy system and minimize impacts on communities and ecosystems. Additionally, energy storage can help improve grid resiliency and reliability,” APPA said.
Solar PV
With respect to DOE’s proposal to revise the CE in its NEPA implementation regulations for solar PV systems, APPA noted that the current CE covers installing, modifying, operating, and removing solar PV systems located on a building, other structures, or land within a previously disturbed or developed area, typically less than 10 acres.
DOE proposes to replace the term “removal” with “decommissioning.” DOE asserted that decommissioning includes recycling and other actions that occur when a utility facility is out of service. DOE also proposes to remove the acreage limitation for proposed projects, allowing the CE to apply to systems generating up to hundreds of megawatts.
DOE reasoned that acreage is not a reliable indicator of potential environmental impacts.
“APPA agrees and supports the proposed categorical exclusion for solar PV, including its elimination of an acreage limit. Imposing an arbitrary size limit could discourage site-specific design practices or standards that aim to improve a project’s ecosystem and social and/or cultural benefits, which may increase the total land area of solar development,” it told DOE.
When solar energy systems are designed and maintained thoughtfully in terms of site location and site-level design, they can lead to positive outcomes for the environment and the community, the public power group added.
APPA encouraged DOE “to expeditiously complete the proposed rulemaking consistent with our recommended suggestions.”
