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New and Notable Additions

LPDD February Newsletter

New LPDD Model Laws

This month, the LPDD team published six new pieces of model legislation touching on the federal permitting process for renewable energy, a timely subject that the last Congress took a deep interest in, and the present Congress may soon revive. These six laws join two others published in December and January to make eight recent publications by our team on this subject. All eight are summarized below:

  • Two Model Laws Addressing Reviews Under NEPA and the Endangered Species Act (ESA)

    • Model Law Authorizing Joint Reviews Under NEPA and ESA: This model law offers improvements to the interagency consultation process under Section 7 of the Endangered Species Act. To facilitate efficient environmental review and permitting of electric infrastructure that will drive decarbonization, it provides language that allows agencies to develop programmatic analyses for infrastructure-types (e.g., wind generation) over broad geographic areas that fulfill agencies’ NEPA and ESA responsibilities.
    • Model Law Enhancing ESA Consultation and Permitting Procedures: This model law would provide for conducting joint regional reviews of renewable energy projects under both NEPA and ESA in order to avoid arduous, duplicative review processes. In general, the proposed statutory language is intended to: (i) assure that, to the maximum extent practicable and consistent with Federal law, the ESA requirements for a project or series of projects are satisfied in conjunction with the NEPA review; and (ii) endorse and encourage a programmatic, region-wide approach to consultations under ESA Section 7 (where a federal agency is authorizing, funding or carrying out a project) and incidental take permitting under ESA Section 10, to the extent they deem it appropriate to do so. This model law and the accompanying memorandum were drafted by J. Kevin Healy and Robert Tuchman of the Bryan Cave Leighton Paisner law firm.

  • Two Model Laws Addressing Liability for Renewable Energy Projects Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA):

    • CERCLA Liability Limitation for Renewable Energy and Carbon Capture: This model law would amend CERCLA to limit liability for persons who own, operate, lease property for, construct or finance certain renewable energy and carbon capture projects. Under the model law, a developer who wants to construct and operate a renewable energy or carbon capture project on or adjacent to contaminated property (e.g., a brownfield, Superfund site, abandoned mine) would ask for a determination from EPA, a State or Indian tribe. The EPA determination would include potential conditions on development, which, if abided by, would shield the developed from liability as an owner or operator under CERCLA § 107. This model law was written by Frank Fritz, a senior fellow and adjunct professor at William S. Boyd School of Law in Las Vegas, Nevada.
    • Model Law Exempting Renewables on Brownfields from CERCLA Liability: This model legislation provides liability protections under CERCLA specifically for wind and solar energy developers on contaminated sites. This model legislation builds on existing liability protections for "bona fide prospective purchasers" (BFPPs) of brownfields sites, which protections currently provide EPA discretion in determinations as to individual applicability, and necessarily include the involvement of EPA where a brownfields developer seeks definitive liability protection. The proposed language adds a statutory exemption for wind and solar energy developers, in line with the BFPP provisions, and removes the need for EPA enforcement discretion as to imposition of CERCLA liability.

  • Model Law Amending the National Environmental Policy Act (NEPA) to Require Evaluating the Positive Impacts of Projects: Under current law, the potential benefits of projects necessary to achieve a decarbonized economy may not be fully disclosed in the NEPA process. NEPA is the process through which agencies consider the potential environmental impacts of projects and provide the public an opportunity to comment on those projects. The Council on Environmental Quality (CEQ) has interpreted NEPA to require consideration of both beneficial and adverse impacts, even though it is not explicitly stated in the statute. Nevertheless, agencies tend to provide detailed analysis of only the adverse environmental impacts of projects in the immediate term and provide limited discussion about the project’s potential benefits over the long term. This model law revises NEPA to require federal agencies to fully consider the positive (or beneficial) impacts, in addition to the negative impacts, of proposed projects.

  • Model Law Amending the Coastal Zone Management Act (CZMA) to Facilitate Offshore Renewables Permitting: This model document proposes potential amendments to the CZMA to facilitate the permitting of offshore renewable energy facilities.  The first part of the document provides a brief overview of the relevant provisions of the CZMA, and the second part proposes amendments to facilitate the permitting of offshore renewable energy facilities. Specifically, the model law proposes exempting renewable energy projects from the CZMA's consistency provisions, or else incorporating language encouraging planning for renewable energy projects and allowing for easier federal agency override of state objections to a project.

  • Two Model Laws Addressing Permitting Requirements Pursuant to Avian Species Protections

    • Model Revisions to the Migratory Bird Treaty Act (MBTA) and the Bald and Golden Eagle Protection Act (BGEPA) for Permitting Renewable Energy: This model law proposes language to give the Fish and Wildlife Service explicit authority to grant incidental take permits for renewables and transmission lines under the MBTA and the BGEPA. The BGEPA prohibits anyone, without a permit issued by the Secretary of the Interior, from “taking” bald or golden eagles. The MBTA is intended to ensure the sustainability of populations of all protected migratory bird species covered under four specific international treaties. The MBTA and BGEPA, as currently enforced, have presented challenges for renewable energy projects, in some cases creating roadblocks for renewable energy project developers and/or operators if they are unable to perform their activities in compliance with the MBTA and BGEPA provisions. This model law explicitly grants authority to the Secretary of the Interior to issue Incidental Take Permits to renewable energy and transmission projects under the MBTA and the BGEPA. This will allow the U.S. to accelerate the development of such projects while minimizing or offsetting the potential impacts of such projects on migratory birds, bald and golden eagles, and their habitat.
    • Model Law on Protected Avian Species Permitting: Electric infrastructure that is critical to achieving a net zero economy may impact federally protected avian species.  To encourage construction of this infrastructure, project developers prefer certainty regarding both their potential liability for impacts to protected avian species and the actions that can be taken to avoid that liability.  As a result of textual differences among the three key federal avian protection statutes—the ESA, BGEPA, and MBTA—that certainty does not currently exist. This model document proposes amendments to the MBTA and the BGEPA that would give the U.S. Fish and Wildlife Service explicit authority to grant permits for incidental take caused by renewable power generation facilities and electric transmission and distribution infrastructure. Two key amendments are proposed.

New External Resources

modelclimatelaws.org is being continually updated with new, external legal resources. Below is a selection of recently added resources.

  • Minnesota's 100% Carbon-Free Electricity by 2040 Legislation: In February, Minnesota's legislature approved a bill requiring utilities in the state to provide electricity from 100% carbon-free sources by 2040. The bill also calls for utilities to generate at least 55% of their electricity from renewable energy sources by 2035. The bill still allows utilities to demonstrate cost-prohibitiveness to regulators throughout the process, and also allows utilities to buy renewable energy credits to meet the standard instead of generating the energy themselves. At the time of this writing, the bill is awaiting the governor's signature.
  • New York's Digital Fair Repair Act: In late December, New York enacted the Digital Fair Repair Act, putting requirements in place that would help citizens ensure their phones, tablets, and computers are able to be repaired, rather than simply replaced. It is the first such act passed in the United States. The Act requires original equipment manufacturers (OEMs) to make diagnostic and repair information for digital electronic parts and equipment available to independent repair providers and consumers if such parts and repair information are also available to OEM-authorized repair providers and servicers. After some last-minute lobbying, the final version of the law applies only to devices built after mid-2023, and also exempts electronics used exclusively by businesses or the government (in contrast with an original version passed in mid-2022). Notably, the legislation sailed through with wide bipartisan support, 59-4 in the Senate and 145-1 in the Assembly, marking a promising start for similar waste-reducing legislation in the United States.
  • Natural Gas Bans Expand to Oregon: In February, Eugene, Oregon, voted to become the first city in Oregon to ban the use of natural gas in new construction, continuing a trend that is taking root beyond California.
  • California Proposed Corporate Climate Disclosure Rules: The recently proposed "California Climate Corporate Data Accountability Act" would require all companies earning at least $1 billion in revenue and doing business in the state to provide information on their global carbon footprints starting in 2026, including emissions from direct operations, energy use and supply chains. The bill would be more stringent than the SEC's proposed climate disclosure rule, which would only apply to publicly traded companies and wouldn't require all of them to disclose supply-chain emissions, also known as Scope 3. With California's massive economic reach, this bill is a significant State-led effort to hedge against the possibility that an important SEC rulemaking might be derailed or delayed.
  • Maryland Leads on Natural Climate Solutions Loan Guarantee:  In 2021, Maryland passed HB 94, creating the Water Quality Revolving Loan Fund. In January of this year, using that fund, Maryland became the first state to approve a loan guarantee to finance “natural climate solutions,” which are practices that reduce and store carbon in forests, grasslands, farmland, and wetlands. The $2.5 million loan guarantee was granted specifically to the American Forest Foundation, a conservation group, to assist landowners in implementing practices that enhance the role forests play in protecting water quality and sequestering carbon.
  • New Jersey's Low-Carbon Concrete Tax Incentive: In January, New Jersey enacted S287, creating a first-in-the-nation tax credit for the utilization of low-carbon concrete. The new law gives businesses a credit of up to 5% of a project’s total concrete cost if they use materials with low levels of embodied carbon dioxide emissions. An extra 3% credit is available to companies that deliver concrete made with carbon capture, utilization, and storage technology.
  • Evergreen Report on 100% Clean Power Post-IRA: In January, the Evergreen Collaborative and NRDC published a paper outlining the roadmap towards 80 percent clean power by 2030 and 100 percent clean electricity by 2035, building on the passage of the Inflation Reduction Act (IRA). On the federal side, the report outlines potential EPA and FERC regulations, as well as implementation of the IRA and recent federal infrastructure bill. At the state level, the report outlines the need for ambitious Clean Energy Standards, as well as potential PUC actions, and ways states can facilitate a just transition in this process.
  • Identifying Opportunities for Building Code Updates: As a result of the Bipartisan Infrastructure Law and the Inflation Reduction Act, nearly $1.3B in new federal funding opportunities are expected to be made available in the next five years to help states update their building energy codes. To leverage this opportunity,  ACEEE published a January brief identifying the 10 states with the most to gain from this effort: Louisiana, North Carolina, Minnesota, Virginia, Arkansas, Tennessee, South Carolina, Wisconsin, Kentucky, and Oklahoma. This list was derived from estimates of the energy cost savings expected from energy code updates, existing building-energy related greenhouse gas emissions, construction activity, and existing state climate policies with specific GHG emissions targets. This report serves as a guide and call-to-action for policymakers and advocates in these jurisdictions.

Spotlight on Equity: In January, EPA released a new playbook for confronting the concentration of pollutants in low-income and minority communities across the country. The Cumulative Impacts Addendum details how the federal government considers pollution and climate change in frontline communities when enforcing environmental statutes. The new Addendum provides detail and analysis on the Agency’s legal authority to address the cumulative impacts of fossil fuel pollution affecting communities with environmental justice concerns. The addendum provides examples of the agency’s legal authorities on permitting, regulations, cleanup, emergency response, funding, planning, state oversight and grants to help protect communities burdened by industry.

Also in January, following a similar measure in the City of Los Angeles, the Los Angeles County Board of Supervisors officially approved an ordinance to prohibit new oil and gas wells and phase out current drilling in unincorporated areas of one of the nation’s most densely populated counties, a significant move for L.A. County's frontline communities.

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This update highlights and summarizes recent additions to the Legal Pathways to Deep Decarbonization (LPDD) website, which houses actual and model laws addressing the causes of climate change in the United States.

The Legal Pathways to Deep Decarbonization Model Law Project (LPDD-MLP) is a pro bono effort to draft model laws for use by legislators at the federal, state and local levels to support their efforts to achieve deep reductions in fossil fuel use and greenhouse gas emissions. The project is based on recommendations from the groundbreaking book Legal Pathways to Deep Decarbonization in the United States (Michael Gerrard and John C. Dernbach, eds., 2019). The work is supported by Columbia University's Sabin Center for Climate Change Law and Widener University Commonwealth Law School’s Environmental Law and Sustainability Center. Dozens of law firms and individual lawyers are contributing to this pro-bono effort as drafters, peer reviewers or in reaching out to policymakers.

Our website, modelclimatelaws.org, contains over 70 model laws that are a starting place for discussion and collaboration among elected officials, non-profit groups, and the private sector for enabling the U.S. to address climate change by reducing U.S. GHG emissions to zero by 2050 or earlier. The site includes several Top 10 lists for some of the key categories, like electric vehicles, PUC’s, buildings and other topics as a short-hand introduction. In addition, the site references hundreds of other actions that states and other governmental bodies have taken to move towards decarbonization more rapidly. By providing policymakers the tools to achieve deep decarbonization, the Project will help achieve a restructuring of the energy economy, thus alleviating the worst effects of climate change, which are disproportionately suffered by marginalized communities, while providing such positive benefits as economic security, social equity, and environmental justice (EJ).

Please contact us to talk about getting involved in drafting and peer reviewing legislation, to provide suggestions and feedback on the drafts and to talk about how we can help you support your climate change efforts.

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