1. NEPA Revival in California: Strategies and Lessons from the Renewable Energy Boom Environmental Law Institute Seminar, April 29, 2010 David J. Lazerwitz Farella Braun + Martel LLP

2. 2 NEPA Revival in California NEPA “major federal action” triggers Applications for FLPMA rights-of-way on BLM land Federal funding (federalizing state projects) Substantial expansion in federal projects 223 solar applications filed on BLM land (107 in CA) 200 wind applications, doubling existing projects ARRA funding (48 solar projects) Overview Why is this happening? Impacts on federal agency NEPA compliance NEPA constraints and solutions?

3. 3 Why the Recent Boom in Applications? Market forces – convergence of energy costs Government intervention in the market Direct investment and incentives (ARRA) Policy drivers (RPS requirements and GHG goals) Results: Utilities are scrambling for renewable supplies Looking to independent power producers Spreading risk over numerous technologies But RPS goals not being met 5.3% renewable use (28% target across RPS states) Strict time constraints set by ARRA and PPAs

4. 4 Attraction of the Federal Public Lands Utility-scale solar and wind siting characteristics are well represented on the federal public lands: Remaining open/undeveloped lands (256M acres) Contiguous tracts/generally favorable slopes Major utility transmission corridors Proximity to major electricity markets in the West Density of resource availability Private land constraints Limited state lands available for leasing

5. 5 Solar insolation/radiation on BLM lands in six Southwestern States KWh/Square Meter/Day Source: NREL/BLM Solar Resources on BLM Lands

6. 6 Challenges for BLM’s Management Administrative burden Establishing priority/avoiding speculation Approximately 60 over-filed applications Navigating FLPMA, NEPA, ESA, NHPA review Addressing new, complex and evolving technologies Transmission needs Environmental issues and challenges Species (plants and animals) Resource needs (water, access) Multiple use management and protected lands

7. 7 NEPA Compliance Hurdles Lack of existing cohesive federal policy BLM/DOE solar program and PEIS (initiated 2008) Develop programmatic policies and BMPs Identify suitable and excluded lands Study Solar Energy Study Areas (670,000 acres) to potentially establish Solar Energy Zones Backlog of applications and timing ARRA requires “expeditious” NEPA review Average EIS at 3.4 years (Nat’l Ass’n of Env. Prof) Likelihood of public interest litigation at certain sites Coordination with state agencies and CEQA

8. 8 Towards a NEPA Solution… BLM current efforts and “natural selection” Fast-track efforts (9 in CA, 8 at DEIS stage) Significant reduction in projects moving forward (107 filings since 2003 in CA, down to 52 today) Site-specific tiering to PEISs far from clear Need for RMP amendments Wind projects experience under PEIS Is the PEIS process assisting or hampering review? Coordinated federal and state efforts Renewable Energy Action Team and DRECP CEQA coordination Legislative options for a “fix”?