The Draft Programmatic Environmental Impact Statement (Draft EIS) was released by the Department of Energy (DOE) and Department of Interior, Bureau of Land Management (BLM) in December 2010. The purpose of the Draft EIS is to establish a framework for developing utility-scale solar energy projects on public lands in solar energy zones in six Western states (California, Arizona, Utah, Nevada, Colorado and New Mexico). Public comment on the Draft EIS closed in May 2011. However, on July 14, the DOE and BLM announced that a Supplement to the Draft EIS (Supplement) would be prepared. A Final Programmatic Environmental Impact Statement (Final EIS) is still expected by the end of 2011.  

The Council on Environmental Quality’s EIS regulation (40 C.F.R. Sec. 1502.9) requires a supplement if the agency has made substantial changes in the proposed action or there are new circumstances or information “relevant to environmental concerns and bearing on the proposed action or its impacts.” Any agency may decide to prepare a supplement if the agency “determines that the purposes of the [National Environmental Policy] Act will be furthered by doing so.”  

According to DOE and BLM, the Supplement to the Draft EIS is in response to comments received and will be directed toward:

  1. developing criteria for identifying solar zones;
  2. developing incentives for encouraging developers to site projects in such zones; and
  3. the creation of a variance process for projects outside such zones.

The Supplement itself will not establish additional solar energy zones, but is expected to identify and prescribe the criteria for doing so in the future. In addition, the Supplement will require additional surveys of biological and cultural resources in the solar energy zones and provide for a more detailed analysis of transmission issues.  

These power transmission issues may prove difficult to contain in a narrow, or targeted, Supplement because of their breadth and complexity. Further analysis of the issue may also prove particularly complex in light of the Federal Energy Regulatory Commission’s (FERC) July 21, 2011 Order – the so-called “Power Line Rule” – which changes FERC’s planning and cost allocations for transmission projects.

A Final EIS will follow the Supplement. The Final EIS must contain an adequate response to the public comments submitted as well as compliance with other legal (state and federal) requirements. Many of the solar energy zones and lands where solar projects have been approved provide habitat for myriad of wildlife and plants species, some of which are protected by the Endangered Species Act and other federal and state wildlife laws. Projects often involve decisions by multiple jurisdictions. For purposes of the Final EIS, compliance with federal requirements will be determined by the BLM and the DOE before the Decision Record is signed. This may be scant comfort to project developers, since challenges on a number of theories could still be brought by third parties, either to the Final EIS itself or to projects approved subsequently that relied in part on the environmental analysis in the Final EIS.