The Department of Energy (“DOE”) recently issued a notice of proposed rulemaking (“NOPR”) that could result in significant changes to the DOE’s regulations under the National Environmental Policy Act (“NEPA”). Proposed on November 16, 2023, the NOPR includes a new categorical exclusion for certain energy storage systems as well as revisions to existing exclusions for solar photovoltaic (“PV”) facilities and upgrades, and rebuilds of transmission lines on previously disturbed or developed land.
The suggested inclusion of a categorical exclusion for some energy storage systems is one of the noteworthy features of the NOPR. This designation would offer the advantage of excluding such systems from further NEPA review, reducing procedural burdens and streamlining the approval processes.
The proposed changes also target existing categorical exclusions, specifically those pertaining to solar PV facilities and transmission line rebuilds and upgrades. These modifications, if adopted, could have wide-ranging impacts, particularly for projects that may be situated on land that has been previously disturbed or developed.
The NOPR’s proposed modifications represent an effort by the DOE to modernize the NEPA regulations to better align with the current energy landscape. They reflect the growing prominence of energy storage and solar PV facilities.
As part of an ongoing dialogue, the DOE is seeking public input on this NOPR. Legal professionals keeping track of regulatory shifts in energy sector should follow this conversation closely. More details on the proposed changes can be found here.
The preliminary discussion surrounding this NOPR signals the continuation of an evolving regulatory environment in the energy sector. These potential changes underline the critical need for energy producing corporations and their legal teams to stay abreast of legislative and regulatory developments.