Approving and implementing clean energy projects can take time, often creating points of tension that result in years of litigation that can delay and even prevent a renewable energy project from ever breaking ground. Perhaps no state illustrates this developing conflict more than Nevada, where wide-ranging public lands ripe with renewable resources have increasingly become a battleground between stringent site permitting policy and the push for the renewable energy needed for a de-carbonized economy.
Further accelerating this conflict is a series of bills recently passed by Congress, each of which contains provisions that provide a runway of funding for renewable energy technologies to take off. These bills offer tools, in the form of investment and production tax credits and private-public partnerships, that can create parity between renewable energy technologies to reach a net-zero energy economy.
Organizations like ClearPath, a conservative-leaning renewable energy policy organization, said the current process for getting projects underway is burdensome, time-consuming and expensive. The company said without reform to the site permitting process, the opportunity to maximize funding available in what it calls ‘The Big 4 Energy Bills’ might be missed. These bills include the Energy Policy Act of 2020, the Infrastructure Investment and Jobs Act (commonly referred to as the Bipartisan Infrastructure Law), the Inflation Reduction Act, and the CHIPS and Science Act.
“Those four bills passed out of Congress all have different pieces that will be important in moving our economy forward,” said Landon Stevens, senior program director for the electricity sector at ClearPath. “Now the challenge shifts from, ‘Okay, we’ve now passed these bills and we have these incentives available to different sectors in the economy,’ [to] ‘How do we make sure that at the state and local level that the dollars are getting out the door and that communities and companies are aware of these different opportunities, so we can efficiently implement these bills moving forward?’ That’s the next half of the challenge.”
Stevens said the tax credits available in these bills have worked in the past, as evidenced by the head start the wind and solar industries have had over other renewable sources. But unless reforms are made to the site permitting process, the renewable energy projects that will benefit from these funding tools will not be brought online in time to effectively combat the climate crisis.
“When you get to the actual stage of putting steel in the ground and starting to build, then you have to go through the process of applying for permits and talking to the government about getting land use and doing environmental surveys,” Stevens said. “It’s that burden of permitting that is the major roadblock to getting these new technologies off the ground.”
Not everyone looks at it as a burden, however. A recent example of this conflict around permitting is found in Dixie Valley, where hot springs ideal for geothermal development also threaten the existence of the Dixie Valley toad. Proposed by Ormat Technologies, the Dixie Meadows geothermal project has been caught up in litigation since receiving initial approval from the Bureau of Land Management (BLM) in 2021. It’s approval sparked a sequence of lawsuits and back-and-forth rulings, as well as an emergency listing and protections for the Dixie Valley toad under the Endangered Species Act by the U.S. Fish and Wildlife Service.
“Ormat downsized their project on the erroneous belief that that would limit the environmental impacts of the project,” said Patrick Donnelly of the Center for Biological Diversity, who sued the BLM in conjunction with the Fallon Paiute-Shoshone Tribe to stop the geothermal project. “They convinced the judge to stay our case, while BLM and the Fish and Wildlife Service are evaluating this newer, smaller project.”
Ormat has said their smaller project will mitigate the harm to the toad and its habitat, a proposal still being considered today. But it’s this lengthy, cumbersome process that advocates like Stevens say get in the way.
“What we’re trying to stress is this idea of, ‘How can we take out some of that red tape and make this process as easy as possible, while at the same time ensuring that we’re protecting local communities, the environment and all of those things that we all are striving to do?” Stevens said.
But it’s just as important, Donnelly says, for proposed renewable projects to be held to the same permitting standards as those within the traditional fossil fuel industry.
“Renewable energy projects, despite the carbon intensity of the energy they produce, are inherently no more environmentally-friendly than the fossil fuel projects, in terms of the site-specific impacts,” Donnelly said. “Whether you’re looking at a solar farm, a wind farm or an oil field, you are putting a large amount of industrial infrastructure on previously undisturbed public lands and harming the habitat they’re in. We should build renewable energy, but it means the same level of scrutiny as everything else we do.”
Stevens said much of the permitting challenges stem from environmental protection and permitting laws that aren’t up to date with the latest technologies, on top of seemingly repetitive regulations that stack up on companies attempting to move these renewable projects forward quickly. Much of these frustrations can be attributed to what’s known as the NEPA process, regulations instituted under the National Environmental Policy Act that requires a rigorous assessment of environmental, social and economic impacts of a proposed project.
“You go through on one track with one permitting agency, and then you get to the end of that process and you have to start over with a different permitting agency to make sure that you’re hitting all the requirements,” said Stevens. “It’s not that we’re taking any of the environmental protections out, it’s just that we need to find ways to be more efficient. If there are projects where we know with fairly strong certainty that the impacts are going to be minimal, or whether they’re well understood and they’ve been approved in the past, we should move those along as quickly as possible.”
In response, ClearPath has called for solutions such as establishing federal criteria that would qualify certain types of renewable projects for immediate approval, as well as accelerating adjudication timelines to be determined within one year, among others. But reforms to the permitting process could be problematic. Donnelly stresses not only the critical role regulations like NEPA serve, but also the long-established legal procedures of the judicial system.
“There’s a reason environmental review statutes exist and it’s to ensure that we are fully analyzing [and] mitigating when necessary, the impacts of our actions,” Donnelly said. “The NEPA timeframe is probably as fast as it can possibly go already. The permitting of renewable energy is subject to many laws, including the Administrative Procedures Act, which has a six-year statute of limitations. The judiciary is going to take as long as they need to adjudicate cases.”
As an alternative solution, Donnelly pointed to the precedent established by the Desert Renewable Energy Conservation Plan (DRECP) for other western states like Nevada to follow. An agreement signed in 2016 between the BLM and the California Fish and Wildlife Service, the DRECP allocated either development or conservation designations for 10.8 million acres out of the 22.5 million total acres of public lands in desert regions throughout California.
Areas marked for development include 388,000 acres of Development Focus Areas (DFA), otherwise known as low-conflict locations with significant renewable energy potential. Nearly 40,000 acres of Variance Process Lands (VPLs) are areas where projects could be considered without any amendments to the DRECP. Unallocated Lands totaling 419,000 acres and Extensive Recreation Management Areas (ERMAs) totaling 35,000 acres can also be considered for renewable energy development, but would require amendments to the agreement for approval. This makes available, in total, over 800,000 acres of California desert for streamlined permitting of renewable energy projects.
Under the same DRECP agreement, however, millions of acres of public lands are also marked for protection from renewable project development. This includes nearly 4 million acres of California Desert Conservation Lands and 6.5 million acres of conservation designations for lands marked for their biological, cultural and natural resource significance. An additional 2.6 million acres are designated for protection as Special Recreation Management Areas and 903,000 acres of ERMAs.
While it’s not a perfect solution, Donnelly says, the lack of litigation surrounding projects being proposed and developed on lands under the DRECP demonstrates its effectiveness.
“No one was happy with the final deal, but nobody litigated either,” Donnelly said. “California has seen a decrease in the amount of conflict over solar in the desert after the DRECP went through. So the DRECP, in my mind, was a smashing success.”
The DRECP provides a blueprint for Nevada to follow that enables current site permitting structures to remain in place. This way, according to Donnelly, the red tape that is the current site permitting process ensures everyday Americans can have clean water to drink and clean air to breathe.
So while the climate crisis continues to accelerate the need for renewable energy, conversations like these are bound to continue as renewable projects seek to quickly break ground in western states like Nevada. And despite funding opportunities provided in the “Big 4 Energy Bills” to de-carbonize the energy economy, it’s critical – and legally required – to consider all trade-offs with renewable energy development.
