On June 7, 2013, President Obama issued the attached memorandum for heads of executive departments and agencies captioned “Transforming Our Nation’s Electric Grid Through Improved Siting, Permitting, and Review.” 78 Fed. Reg. 35539 (June 12, 2013). The memorandum states, “Countries that harness the power of clean, renewable energy will be best positioned to thrive in the global economy while protecting the environment and increasing prosperity.” As such, modernizing and expanding the electric transmission grid is necessary in order to “ensure the growth of America’s clean energy economy and improve our energy security.”
The memorandum directs federal agencies to take a number of steps to improve siting, permitting, and review of transmission projects. Recognizing that a project may cross many governmental jurisdictions, the memorandum stresses the need for “robust collaboration” among federal, state, local, and tribal governments. In addition, section 5 of the memorandum explicitly says that it “shall be implemented consistent with Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)” as well as with the Presidential memorandum of November 9, 2009, on Tribal Consultation.
To promote collaboration within the federal government, the memorandum assigns a number of tasks to the Steering Committee on Federal Infrastructure Permitting and Review Process Improvement (Steering Committee), which was established by Executive Order 13604, “Improving Performance of Federal Permitting and Review of Infrastructure Projects.” 77 Fed. Reg. 18887 (Mar. 28, 2012). The agencies that are represented on the Steering Committee include the Departments of Defense, Interior, Agriculture, Commerce, Transportation, Energy, Homeland Security, and Army, the Environmental Protection Agency, and the Advisory Council on Historic Preservation.
The memorandum builds on work previously done to identify and designate energy right-of-way corridors on federal lands pursuant to section 368 of the Energy Act of 2005. PL 109-58; 42 U.S. C. § 15926. Section 368 of that Act directs the Secretaries of the Interior and Agriculture to designate corridors on federal lands under their respective jurisdictions in the eleven contiguous western states for “oil, gas, and hydrogen pipelines and electricity transmission and distribution facilities.” The memorandum notes that, in 2009, the Secretaries of the Interior and Agriculture did designate such energy corridors. The memorandum does not mention the facts that the decisions designating those energy corridors were announced on January 14, 2009, that those decisions were challenged in court by a number of environmental organizations, and that the litigation was settled in July 2012. The settlement agreement is available at http://corridoreis.anl.gov/documents/docs/Settlement_Agreement_Package.pdf. Pursuant to the settlement agreement, the future revision of the system of designated energy corridors is to be conducted according to certain principles, including the facilitation of renewable energy projects, the avoidance of environmentally sensitive areas to the “maximum extent practicable,” and the use of an “open and transparent process incorporating consultation and robust opportunities for engagement by tribes, states, local governments, and other interested parties.”
Section 1(a) of the Presidential memorandum sets out principles for establishing energy corridors, principles that are consistent with the settlement agreement and which provide a considerable amount of detail. Section 1(b) directs the Secretary of Energy to assess and synthesize current research and prepare a “Transmission Corridor Assessment Report” for the Steering Committee on how best to facilitate renewable energy resources and improve grid resiliency. This report is to be prepared in two installments: the first part, dealing with the western states, is to be completed by December 2013; the second part, dealing with the other states, is to be completed by April 2014.
Section 2 of the memorandum directs a detailed series of actions with timeframes for reviewing the existing designated energy corridors in the western states to analyze the need for additions, deletions, and revisions. An implementation plan is to be completed by November 2014, followed by coordinated land use planning and environmental and cultural resource review. Section 3 of the memorandum directs the Secretaries to analyze the need for energy corridors on federal lands in the states other than those designated as “western,” and provide recommendations to the Steering Committee by September 2014.
Section 4 of the memorandum directs the agencies that are members of the Steering Committee to develop an “integrated, interagency pre-application process for significant onshore electric transmission projects requiring Federal approval.” A number of objectives for such a process are listed, including: early engagement of state, local, and tribal governments; increased use of integrated planning; early identification of issues that are likely to result in a project not being permitted; and better environmental and cultural resource outcomes. A plan for this process is due by September 30, 2013.
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