The Nickel Report

Last week marked the conclusion of the 28th Conference of Parties (COP28) to the United Nations Framework Convention on Climate Change (UNFCC) in Dubai, United Arab Emirates (UAE). As we previously discussed, the expectations were COP28 would tackle a range of critical issues toward achieving the climate goals set out in the Paris Agreement. Below is an overview of the most significant developments coming out of Dubai, as reflected in the COP28 agreement, and the expectations for future climate action.

On May 17, 2023, the US District Court for the District of Massachusetts granted summary judgment to federal government defendants and intervenor Vineyard Wind in the first of four lawsuits pending in that court challenging the development of Vineyard Wind, a 62-turbine offshore wind project being built off the coast of Massachusetts, approximately 14 nautical miles south of Nantucket and Martha’s Vineyard at its nearest point. Vineyard Wind—which is slated to be the nation’s first commercial-scale offshore wind project, with capacity to power over 400,000 homes and businesses—has been under development for several years and has met opposition from a range of constituencies, including local residents and the fishing industry.

As previously forecast, the winds of change are heading to the home of America’s offshore energy industry. On February 22, 2023, the US Department of the Interior’s (DOI) Bureau of Energy Management (BOEM) announced the first-ever offshore wind lease sale in the Gulf of Mexico (GOM). The proposed GOM sale comes in the middle of the comment period on the agency’s proposed changes to the offshore wind regulations.

The Proposed Sale Notice (PSN) includes 102,480 acres near Lake Charles, Louisiana, and two areas near Galveston, Texas, one comprising 102,480 acres, and the other comprising 96,786 acres (see the below image). BOEM appears to be interested in comments on regulations that would limit leasing near Galveston to a single area or potentially eliminate the sale of leases in either area.

As we described in a recent post, the Department of the Interior’s (DOI) Bureau of Ocean Energy Management (BOEM) announced the signature of its proposed Renewable Energy Modernization Rule in mid-January 2023. The proposed rule – which is intended to update and modernize the regulations governing wind energy development on the Outer Continental Shelf (OCS) – was published in the Federal Register on January 30, opening a 60-day comment period. 

As we described in a recent post, the Department of the Interior’s (DOI) Bureau of Ocean Energy Management (BOEM) announced the signature of its proposed Renewable Energy Modernization Rule in mid-January 2023. The proposed rule – which is intended to update and modernize the regulations governing wind energy development on the Outer Continental Shelf (OCS) – was published in the Federal Register on January 30, opening a 60-day comment period. 

On January 12, 2023, the U.S. Department of the Interior’s (DOI) Bureau of Energy Management (BOEM) announced the signature of a Notice of Proposed Rulemaking (NOPR) addressing the regulations governing wind energy development on the Outer Continental Shelf (OCS). As BOEM notes in the NOPR, the first OCS renewable energy regulations were promulgated in 2009 by the Minerals Management Service, the predecessor to BOEM.  Through the NOPR, BOEM intends to modernize its regulations by implementing reforms identified by the agency and recommended by stakeholders since 2010, when BOEM was established. 

On September 30, the US Fish and Wildlife Service (USFWS or Service) published proposed rule that would revise the regulations governing the issuance of eagle take permits (ETPs) under the Bald and Golden Eagle Protection Act.  87 Fed. Reg. 59,598 (September 30, 2022). In the preamble to the proposed rule, the Service acknowledges that its current ETP regulatory process, first established in 2009 and revised in 2016, is not working as intended.  In particular, the Service notes that “[w]hile there are more than 1,000 wind-energy projects on the landscape, the Service has received fewer than 100 applications from those projects and has currently issued only 26 permits since the promulgation of the 2016 Eagle Rule.”  87 Fed. Reg. at 59,602.

The US Fish and Wildlife Service’s (USFWS or the Service) revocation of the Trump administration’s Migratory Bird Treaty Act (MBTA) rule took effect last Friday, December 3.  On the same date, the public comment period closed on the Service’s Advanced Notice of Proposed Rulemaking (ANPR), in which USFWS announced its plan to issue a proposed regulation codifying an interpretation of the MBTA that prohibits incidental take, and to propose a system of regulations to authorize the incidental take of migratory birds under certain conditions.

On October 4, 2021, the US Fish and Wildlife Service (FWS or the Service) published a final rule revoking its January 7, 2021, Migratory Bird Treaty Act (MBTA or Act) rule. 86 Fed. Reg. 54,642  (Oct. 4, 2021) (Rule or Revocation Rule). The January 7 rule was issued at the end of the Trump administration and established that the MBTA does not prohibit incidental (unintentional) take of migratory birds.  86 Fed. Reg. 1134 (Jan. 7, 2021). In the preamble to the Rule, which lists an effective date of December 3, 2021, the Service explained that “[t]he immediate effect of this final rule is to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” 86 Fed. Reg. at 54,642.  On the same day it published the Revocation Rule, FWS also published an Advanced Notice of Proposed Rulemaking (ANPR), requesting public input that will be used to develop proposed regulations to authorize the incidental take of migratory birds under prescribed conditions, 86 Fed. Reg. 54,667 (Oct. 4, 2021), and issued a Director’s Order clarifying the Service’s current enforcement position.

On May 7, the US Fish and Wildlife Service (USFWS or Service) under the new Biden administration published a proposed rule to revoke a final rule issued during the final weeks of the Trump administration, 86 Fed. Reg. 1134 (Jan. 7, 2021) (January 7 rule), which excluded incidental take from the prohibition against take under the Migratory Bird Treaty Act (MBTA or Act). 86 Fed. Reg. 24,573 (May 7, 2021) (Proposed Rule). This proposal is the latest development in a series of efforts by recent presidential administrations to implement competing interpretations of the MBTA, as we have reported in previous articles. If USFWS revokes the January 7 rule as proposed, the regulated community will once again face uncertainty regarding its exposure to criminal enforcement under the MBTA for unintentional take of protected birds associated with a wide range of productive activities.  Notably this could include the operation of wind turbines, an activity that the current administration otherwise presumably wants to encourage as part of its effort to expand the use of renewable energy to address climate change.

On Sunday, April 12, Virginia Governor Ralph Northam signed into law the Virginia Clean Economy Act and the Clean Energy and Community Flood Preparedness Act. These two new laws will require Virginia to transition to 100 percent carbon-free energy by 2050 and join the Regional Greenhouse Gas Initiative (RGGI), among other things.

On Wednesday, February 7, Congressman Alexandria Ocasio-Cortez (D-NY) introduced a federal resolution to recognize a “duty” of the federal government to create a Green New Deal (GND). This blog discussed the GND in a post on the Select Committee on the Climate Crisis on January 31.

Addressing climate change may be a primary focus of the resolution, but “green” is perhaps a misnomer, as the resolution calls for action on issues well beyond climate or the environment generally.

One of the first orders of business for Speaker of the House Nancy Pelosi (D-CA) was to reinstate the Select Committee on the Climate Crisis. This committee previously existed from 2007-2011 as the House Select Committee on Energy Independence and Global Warming but was not renewed by Republicans when they gained control of the House in the 112th Congress. The new Select Committee will be chaired by Congresswoman Kathy Castor (D-FL).

Since President Trump’s election, his Administration has emphasized cooperative federalism and has opened the door for more state responsibility.  California is walking through that door, and has positioned itself, according to its elected officials, at the vanguard of the so-called “resistance” to the Administration and its policies, real and perceived.  This is particularly clear on environmental, energy, and natural resource matters.  Last week illustrates the growing divide between California and the federal government in these areas.