Siting and Permitting Reform in Washington — Report to the Washington Department of Commerce (Beveridge & Diamond, 2024)
Summary
Report by Beveridge & Diamond, PC, dated June 2024, to the Washington Department of Commerce under RCW 43.394.020(3)(a), on siting and permitting reform in Washington. The executive summary says the report analyzed permitting models from a number of states, the federal government, and the European Union, and that its recommendations are process-oriented only. It concludes that permitting in Washington is often too slow and too unpredictable. It recommends that SEPA processes designate the lead agency within 14 days after receipt of the application, determine within 30 days of submission whether the SEPA Checklist is complete, and issue the final EIS no more than two years after the determination of significance.
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SITING AND PERMITTING REFORM IN
WASHINGTON:
A REPORT TO THE WASHINGTON
DEPARTMENT OF COMMERCE
UNDER RCW 43.394.020(3)(a)
BEVERIDGE & DIAMOND, PC
JUNE 2024
SITING AND PERMITTING REFORM IN WASHINGTON:
A REPORT TO THE WASHINGTON DEPARTMENT OF COMMERCE
UNDER RCW 43.394.020(3)(a)
BEVERIDGE & DIAMOND, PC
JUNE 2024
Primary Authors
Eric Lee Christensen
Christopher M. Bolte
Katherine S. O’Keefe
Jesse C. Miles
Joseph R. Ruggiero
Jason Frank
Technical Support
Kevin D. Fitzgerald
Natasha L. Johnston
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................................. I
EXECUTIVE SUMMARY .......................................................................................................... 1
BACKGROUND: GOALS AND LEGISLATIVE MANDATE FOR THIS REPORT, HOW
IT WAS PREPARED AND HOW IT RELATES TO WASHINGTON’S CLIMATE
MANDATES .................................................................................................................................. 5
A. STUDY GOALS...................................................................................................................... 5
B. STUDY BACKGROUND .......................................................................................................... 8
1. Legislative Mandate .................................................................................................... 8
2. How This Report Was Developed ............................................................................. 10
C. WASHINGTON’S AGGRESSIVE CLIMATE GOALS: RAPID DEVELOPMENT OF CARBON-FREE
RESOURCES IS ESSENTIAL TO MEET THESE GOALS ................................................................... 11
PERMITTING CLEAN ENERGY INFRASTRUCTURE IN WASHINGTON TODAY .. 13
A. THE PROJECT DEVELOPMENT CYCLE AND ATTRACTING CAPITAL INVESTMENT IN THE
CLEAN ECONOMY ...................................................................................................................... 13
B. KEY PERMITTING ISSUES ................................................................................................... 17
C. THE EFSEC PROCESS ........................................................................................................ 20
1. Background ............................................................................................................... 20
2. HB 1812, Modernizing the EFSEC Process .............................................................. 22
3. Criticisms of EFSEC ................................................................................................. 23
D. LOCAL PERMITTING PROCESSES AND CRITICISMS.............................................................. 28
1. Growth Management Act .......................................................................................... 28
2. Shoreline Management Act ....................................................................................... 30
3. Police Powers and Zoning ......................................................................................... 31
4. Criticisms of Local Permitting Processes .................................................................. 31
E. THE CONSOLIDATED PERMITTING PROCESS ....................................................................... 34
F. THE HEAL ACT: ENVIRONMENTAL JUSTICE IN WASHINGTON .......................................... 37
G. TRIBAL CONSULTATIONS ................................................................................................... 38
MODELS FOR REFORM FROM OTHER JURISDICTIONS ............................................ 38
A. FEDERAL PERMITTING REFORMS ....................................................................................... 38
1. FAST 41 and the Federal Permitting Improvement Steering Council ...................... 38
a. Background ............................................................................................................... 38
b. FAST-41 Timeline .................................................................................................... 39
2. Regulatory and Permitting Information Desktop Toolkit ......................................... 41
3. Federal NEPA Reform .............................................................................................. 41
4. Nationwide Permits under the Bald and Golden Eagle Protection Act ..................... 42
5. Expanded NEPA Categorical Exclusions for Transmission ..................................... 42
6. EPA Permitting Dashboard ....................................................................................... 43
7. Conservation Leasing ................................................................................................ 43
8. Federal-State Modern Grid Deployment Initiative ................................................... 44
B. STATE PERMITTING REFORMS ............................................................................................ 46
1. California ................................................................................................................... 49
2. New York .................................................................................................................. 51
i
3. Illinois ........................................................................................................................ 53
4. Michigan .................................................................................................................... 55
5. Minnesota .................................................................................................................. 56
6. State Energy Authorities ........................................................................................... 58
7. Track Record to Date ................................................................................................ 59
8. A Negative Example: Ohio ....................................................................................... 60
C. EUROPEAN UNION RENEWABLE ENERGY DIRECTIVE ........................................................ 61
PERMITTING REFORM RECOMMENDATIONS .............................................................. 62
A. ACROSS-THE-BOARD REFORMS ......................................................................................... 62
B. PERMITTING OVERSIGHT AND INFORMATION CLEARINGHOUSE ......................................... 67
C. EFSEC REFORMS .............................................................................................................. 72
D. LOCAL GOVERNMENT REFORMS ........................................................................................ 75
E. WASHINGTON RENEWABLE ENERGY AUTHORITY ............................................................. 76
CONCLUSION ........................................................................................................................... 78
APPENDIX A ............................................................................................................................ A-1
APPENDIX B ............................................................................................................................ B-1
APPENDIX C ............................................................................................................................ C-1
APPENDIX D ............................................................................................................................ D-1
APPENDIX E ............................................................................................................................ E-1
APPENDIX F .............................................................................................................................F-1
APPENDIX G ............................................................................................................................ G-1
APPENDIX H ............................................................................................................................ H-1
ii
EXECUTIVE SUMMARY
Many states, along with the Biden Administration and foreign governments, have
adopted ambitious goals to decarbonize their electricity sectors and, in many cases, to
decarbonize their entire economies, by mid-century. To reach these goals will require a rapid
build-out of new renewable energy generation, electric transmission, and other clean economy
infrastructure. A consensus across a broad range of interests and perspectives has now developed
that current permitting processes are too slow and unpredictable to permit the needed build-out,
undercutting the environmental goals these laws were originally enacted to achieve.
In this report, we have analyzed permitting models from a number of states, the federal
government, and the European Union; consulted a variety of experts involved in permitting clean
infrastructure; and considered a broad range of studies recommending reforms to permitting
processes. This report builds on the 2022 Low-Carbon Energy Project Siting Improvement
Report, in which the Departments of Commerce and Ecology engaged a broad cross-section of
Tribes and stakeholders to develop recommendations for improving siting processes in
Washington. We emphasize that our recommendations are process-oriented only. We have not
been asked to recommend changes to any of Washington’s substantive environmental laws and
have not done so.
Based on this investigation, our conclusions and recommendations include the following:
Washington’s Permitting Processes Require Significant Reform: Permitting in Washington
is often too slow and too unpredictable, especially for large renewable generation projects
and electric transmission infrastructure that is essential to meet decarbonization goals.
Permitting processes are unnecessarily delayed for a number of reasons, but the most
important are a lack of specific timelines for completing permitting, lack of clarity about
1
mitigation and other requirements that might arise during permitting, and uncertainty about
how many studies and surveys will be required over what time period.
Recommended Reforms
Based on our investigation, we recommend the following measures to improve permitting
processes in Washington:
All permitting processes should:
o Be adequately staffed, including staff with expertise in project management and
community engagement that can keep permitting processes moving forward as
efficiently as possible and ensure that involved agencies coordinate their efforts to the
greatest extent possible.
o All SEPA processes should incorporate the following:1
The lead agency should be designated within 14 days after receipt of the
application.
A determination whether the SEPA Checklist is complete should be made
within 30 days of submission, and the adequacy of any documents filed to
address gaps in the initial Checklist determined within seven days.
The determination of significance should be made within 60 days of receipt of
the complete SEPA Checklist and the project proponent should be provided
the opportunity to revise its plans or propose mitigation that would avoid
impacts and thereby avoid a full Environmental Impact Statement (“EIS”).
The final EIS should be issued no more than two years after the determination
of significance, with shorter periods for projects that have less impact or are
subject to a non-project environmental review.
Building on the existing process adopted in HB 1216, non-project reviews
should be conducted for all clean energy technologies that are expected to be
widely deployed in Washington.
Issues should be identified to the greatest extent possible in the pre-
application and scoping stages and new issues should not be inserted into late-
stage processes absent clear justification demonstrating that they could not
have been raised earlier.
1
Many of these reforms have already been adopted in, for example, HB 1812 or HB 1216. We recommend that they
apply in all SEPA processes, not just in, for example, the EFSEC or Consolidated Permitting process.
2
The Social Cost of Carbon metric should be used in all SEPA processes where
greenhouse gas emissions are an issue.
o Standardized Mitigation: Standard mitigation measures should be developed that can
be easily adopted by project developers for commonly encountered environmental
impacts.
o Standardized Permits & Categorical Exclusions: Washington should adopt
standardized permits, similar to the nationwide permits recently adopted by the U.S
Fish & Wildlife Service (“USFWS”) for bald and golden eagle protections, that
include clear requirements that project proponents can meet to avoid full permitting
processes. Similarly, categorical exclusions like those recently proposed by the U.S.
Department of Energy that avoid environmental review processes for common
transmission construction that poses little risk to the environment, should be adopted.
Reforms Involving New or Existing Agencies:
Permitting Oversight and Information Clearinghouse: Washington should have an agency
charged with the following functions:
o Permitting Dashboard: A permitting dashboard should be created to track the
progress of permitting for clean energy infrastructure, which would include a process
for all involved agencies to develop a permitting timetable that would be altered only
in limited circumstances.
o Mapping: Maps and other information relevant to siting should be assembled in one
place so that project developers can easily identify the best opportunities for
renewable energy development with the least conflicts likely to arise.
o Least-Conflict Process: Using existing models, the agency should assemble interested
parties to identify areas of agreement concerning where projects should be sited
without threats to protected resources.
o Renewable Energy Zones: Based on the least-conflict process, non-project
environmental reviews required by HB 1216, and other relevant information,
Renewable Energy Zones should be established where renewable energy
development should be concentrated based on quality of renewable resources and low
likelihood of permitting conflicts.
o Technical Assistance: Technical assistance would be provided to Tribes, local
agencies, and overburdened communities to help them manage permitting processes,
understand renewable technologies (especially novel technologies), and identify
workable mitigation measures.
3
o Pre-Application Roundtable: The agency would convene all interested parties,
affected local and state agencies, and the project proponent in a pre-application
process to identify all issues that could create conflict and to develop agreed
mitigation strategies.
o Community Benefits: Working with the Tribes, underrepresented and overburdened
communities, organizations representing those communities, and the Environmental
Justice Council, the agency would develop a set of standard community benefits
agreements and labor agreements that could be adopted by project developers to
ensure environmental justice goals are met as efficiently as possible.
EFSEC Reforms: In addition to recent reforms, these additional reforms should be
adopted:
o Clear Standard for Approval: The Energy Facility Siting Evaluation Council’s
(“EFSEC”) governing statute should be amended to provide clear direction that
EFSEC must approve projects if they meet relevant standards for protection of the
environment, historical and cultural resources, and provide sufficient benefits to
local and overburdened communities.
o EFSEC Decisionmakers: EFSEC decisions should be made by a three-member
panel of individuals with relevant knowledge and experience, who are appointed
by the Governor and approved by the Senate, and who are specifically assigned
the duty of determining whether a project should be recommended for approval
based on the standard specified in the previous bullet point.
o Technology-Specific Standards: EFSEC should adopt technology-specific
requirements that wind, solar and other renewable technologies must meet to
qualify for permits and permits should be granted if these standards are met.
o Mediation: EFSEC should employ mediation and other informal mechanisms to
settle disputes to avoid expensive and time-consuming formal adjudications and
its governing statute should be amended to facilitate this goal.
Local Government Reforms: Legislation should be adopted to:
o Standard Conditions: Set specific setbacks and other standards for renewable
energy development that the local government could adopt or ease, but could not
make more restrictive.
o Limit Moratoria: Local governments would not be permitted to enact moratoria
barring renewable energy development for those technologies with mitigation
measures specified by statute. Nor would they be permitted to “move the
goalposts” on regulatory requirements.
4
o Standard Regulation: Local governments would be permitted to require permits,
impact fees, and other ordinary development regulations, but these could not
place unique burdens on renewable energy or clean infrastructure projects.
Washington Renewable Energy Authority: A new authority should be created that would:
o Transmission: Be empowered to work with state and federal agencies, Tribes, and
planning bodies to identify high-priority transmission corridors in Washington,
particularly corridors necessary to connect Renewable Energy Zones with
population centers, and to obtain property rights and permits necessary to
construct transmission. Transmission rights would then be sold to utilities or
developers.
o Renewable Energy Permitting: Be authorized to obtain permits for renewable
energy development, focusing on brownfields, degraded lands, and government
lands. Once all permits are obtained, the authority would sell “build-ready”
projects (that is, sites with all permits and land rights secured, so that construction
can begin immediately) to utilities or developers.
BACKGROUND: GOALS AND LEGISLATIVE MANDATE FOR THIS REPORT, HOW
IT WAS PREPARED AND HOW IT RELATES TO WASHINGTON’S CLIMATE
MANDATES
A. Study Goals
A recent report from the Bipartisan Policy Center summed up the emerging consensus on
permitting reform issues:
There is growing understanding that an unnecessarily slow environmental review process
produces worse environmental outcomes, rather than better. America’s current permitting
process helps to lock-in the status quo of energy infrastructure by hamstringing new
development and improvements. With drastic scaleup of clean energy technologies
needed, reforming the permitting process can align both the desire for improved
environmental outcomes and energy sector growth by unlocking a wave of more
sustainable project development. This approach requires recognizing that some historical
arguments against permitting reform need to be reconsidered, while also acknowledging
the importance of a clear, transparent review process for projects to ensure safety.2
The report aptly describes Washington’s current permitting dilemma. Washington has
adopted aggressive greenhouse gas (“GHG”) reduction goals that will require large expansions
2
X. Fishman et al., Finding the Goldilocks Zone: A Synthesis Report Based on Seven Roundtable Discussions, at 2
(Bipartisan Policy Center, January 2024).
5
of infrastructure to support a decarbonized economy, including new renewable energy resources,
a substantially expanded electric transmission system, the construction of industrial facilities to
produce sustainable aviation fuel, energy conservation equipment, equipment to support electric
vehicles and renewable energy generation, and facilities to treat and recycle these products when
they reach the end of their useful life.
But recent experience demonstrates that Washington’s processes for permitting this
infrastructure in many cases are unpredictable, expensive, and can take many years, creating a
major barrier to this needed investment. A recent example is the Horse Heaven Clean Energy
Center, a combined solar-wind-battery storage project that would, if approved, be Washington’s
largest source of carbon-free power. It took EFSEC more than three years to process the
application for the Horse Heaven project from the time a final application was submitted until
EFSEC’s recent recommendation to approve a substantially scaled down project. EFSEC’s
recommendation was recently rejected by Governor Inslee and sent back to EFSEC, so final
resolution of the application may still take another 90 days, plus whatever time is needed to
resolve any resulting litigation.
Reflecting on this experience, the founder and CEO of Scout Clean Energy, the sponsor
of the Horse Heaven project, stated publicly: “It’s just too risky to invest in Washington.”3
Similarly, one representative of an independent renewable energy developer we interviewed
described industry participants as “terrified” of investing in electric transmission infrastructure
given that proposals for new transmission infrastructure almost always result in local opposition
and that recent high-profile transmission projects in the region have taken from 12 to 20 years to
3
See Conrad Swanson, How An Endangered Hawk Could Topple Plans for Washington’s Largest Wind Farm,
Seattle Times, Feb. 21, 2024.
6
fully permit.4 Given the level of investment needed to meet Washington’s decarbonization goals,
policymakers should be concerned that energy developers have reached these conclusions.
The aim of this study is to recommend reforms to the permitting process that will
reassure investors by creating a process that is more predictable and less time-consuming, while
not compromising Washington’s laws protecting the environment, public health, cultural
resources, and other protected values. The Bipartisan Policy Center calls this the “Goldilocks
Zone” of permitting reform, in which the environment, public health, cultural resources, and
overburdened communities are adequately protected, but permitting processes are not so
burdensome as to slow needed investment in green energy and infrastructure. Accordingly, this
study identifies the challenges with Washington’s permitting processes that are causing
unnecessary delays, expense and unpredictability, and recommends improvements in these
processes based on permitting reforms that the federal government, other state governments, and
the European Union have enacted.
4
The Boardman-to-Hemingway transmission project, which will connect a substation located near Hemingway
Butte in southwest Idaho to a substation near Boardman, Oregon, and would help carry renewable energy from
Idaho into Oregon and Washington, will take twenty years to permit and construct. The need for the line was first
identified in 2006 and final litigation over the project’s permits was recently settled and a final permit was issued.
The project’s in-service date is now anticipated in 2026. See B2H History - Idaho Power. Puget Sound Energy’s
Energize Eastside project took twelve years to permit, largely because of determined opposition from property
owners along the Energize Eastside route, even though it is a relatively modest project, involving construction of a
single substation and upgrades to 16 miles of an existing transmission line. See https://energizeeastside.com/.
7
B. Study Background
1. Legislative Mandate
This report is prepared at the direction of the Washington Legislature, which, in 2023,
directed the newly formed Interagency Clean Energy Siting Coordination Council (“ICESCC”)
to:
(a) Advise the department of commerce in:
(i) Contracting with an external, independent third party to:
(A) Carry out an evaluation of state agency siting and permitting processes for
clean energy projects and related federal and state regulatory requirements, including the
energy facility site evaluation council permitting process authorized in chapter
80.50 RCW;
(B) Identify successful models used in other states for the siting and permitting of
projects similar to clean energy projects, including local and state government programs
to prepare build ready clean energy sites; and
(C) Develop recommendations for improving these processes, including potential
policy changes and funding, with the goal of more efficient, effective siting of clean
energy projects; and
(ii) Reporting on the evaluation and recommendations in (a)(i) of this subsection to the
governor and the legislature by July 1, 2024.5
The Washington Departments of Commerce (“Commerce”) and Ecology in 2022 jointly
prepared a report, entitled Low-Carbon Energy Project Siting Improvement Report (“Low-
Carbon Siting Report”),6 which is the starting point for this study. The Commerce-Ecology
report was based on consultation with industry, local governments, Native American Tribes, and
5
RCW 43.394.020(3)(a).
6
Shorelands and Environmental Assistance Program, Washington Department of Ecology and Energy Division,
Washington Department of Commerce, Low-Carbon Energy Project Siting Improvement Report: Report and
Recommendations for Improving Siting and Permitting of Industrial Clean Energy Facilities, Publication No. 22-06-
013 (Nov. 2022).
8
other interested parties, and sets forth a series of recommendations for improvement of the siting
process from a variety of perspectives.
Commerce is also preparing studies on renewable energy development in Washington’s
rural areas7 and on a planning and evaluation process for potential offshore wind development
off Washington’s coast.8 We therefore touch only lightly on those subjects.
For purposes of this report, we used the term “clean energy projects” as it was defined in
House Bill 1216. The Legislature broadly defined “clean energy projects” to include clean
energy product manufacturing facilities, electrical transmission facilities, facilities to produce
non-emitting electric generation or electric generation from renewable resources, energy storage
facilities, biofuel and biomass facilities, facilities to produce sustainable aviation fuel, and
facilities that manufacture products used in clean energy facilities or energy conservation,
facilities that produce semiconductors, and projects or facility upgrades undertaken by
emissions-intensive, trade-exposed industries to reduce greenhouse gas emissions. We suggest
that the Legislature consider broadening this definition to include other types of facilities that are
likely to be necessary in a decarbonized economy, including, for example, carbon sequestration
projects and end-of-life facilities such as EV battery recycling plants. In addition, it would be
useful to include a catch-all for technologies that produce significant reductions in greenhouse
gas emissions GHGs over standard industrial processes so that technologies that are not yet fully
developed can in the future benefit from HB 1216’s Consolidated Permitting Process.
7
The report is mandated by Section 307 of HB 1216 and is due by December 1, 2024.
8
The Department of Commerce issued a Request for Proposals to develop recommendations for a planning and
evaluation process for offshore wind projects in October 2023.
9
2. How This Report Was Developed
Commerce contracted with Beveridge & Diamond, PC (“B&D”), a national
environmental law firm, to provide the report mandated by the Legislature. Established 50 years
ago by pioneers in the then-emerging field of environmental law, B&D is the nation’s leading
environmental law firm. B&D assists clients to comply with the full range of local, state, federal
and international environmental laws. It assists a broad range of private companies and
government agencies to obtain the permits required to construct major projects, including clean
energy projects such as utility-scale battery storage projects and sustainable aviation fuel
production facilities. B&D also assists these clients to navigate the nation’s complex system of
energy regulation to, for example, obtain rights to transmission service on the nation’s high-
voltage grid, to obtain approvals necessary to construct energy facilities on federal lands, and to
comply with the rapidly evolving world of climate law. B&D’s Seattle office, opened in 2017,
features several of the region’s leading practitioners in energy and environmental law.
In cooperation with Commerce, B&D agreed to develop this report using the following
resources:
B&D practitioners from around the United States who helped identify permitting
practices from state governments, the federal government, and certain foreign
governments, that have substantially improved the speed and efficiency of permitting,
particularly for clean energy resources.
Starting with the recommendations contained in the Low-Carbon Siting Report, review
relevant studies and policy papers to identify problems with existing permitting processes
and reforms that may overcome these problems.
Interview renewable energy developers, environmental advocates, renewable energy
advocates, permitting professionals, regulators, and think tank experts to identify
preferred approaches to permitting.
Describe relevant federal laws, including laws that constrain action by the State of
Washington and those that can be harnessed to advanced decarbonization of
Washington’s economy.
10
Review the relevant permitting laws and approaches from other jurisdictions and identify
particular features that can be adapted to Washington’s permitting process to improve the
speed and efficiency of permitting while honoring commitments to environmental
protection, environmental justice, and tribal treaty rights.
Share drafts with relevant state agencies and take comments from those agencies into
account.
Identify a set of recommended best practices for permitting in Washington.
C. Washington’s Aggressive Climate Goals: Rapid Development of Carbon-
Free Resources Is Essential to Meet These Goals
Over the last two decades, the State of Washington has adopted increasingly aggressive
goals for reducing the state’s GHG emissions and has adopted legislation that sets GHG limits,
and requires substantial reductions in GHG emissions, across all sectors of the economy.
Specifically, Washington has enacted statutory limits to reduce its statewide GHG emissions by
95% over 1990 levels by 2050. For the electricity sector, Washington law mandates carbon
neutrality by 2030, with a carbon-free grid by 2045.9 The Legislature has mandated that the
Utilities & Transportation Commission (“UTC”), Commerce, EFSEC, Ecology and all other
state agencies “must incorporate” Washington’s goal of 100% clean electricity into “all relevant
planning” and must “utilize all programs authorized by statute” to achieve the 100% clean goal.10
Currently, electricity consumed in Washington comes primarily from hydroelectric power
(about 54%), with smaller but significant contributions from natural gas (10%), coal (8.6%),11
wind (8%), and nuclear (4%), and smaller contributions from solar, biomass and other renewable
resources, with nearly 13% from “unspecified” market purchases.12 To replace retiring fossil-
fired generation and to meet this expected new demand will require huge investments in new
9
We describe the most important Washington statutes addressing climate issues in Appendix A.
10
RCW 19.405.050(4),
11
Washington’s last coal-fired plant, Unit 2 of the Centralia generation plant is set to retire at the end of 2025.
12
See https://www.commerce.wa.gov/growing-the-economy/energy/fuel-mix-disclosure/.
11
renewable energy. Transmission resources will need to be added to Washington’s energy
portfolio to meet these expected increases in electricity demand while at the same time meeting
decarbonization goals.
To achieve these goals will require a major expansion of Washington’s renewable energy
generation fleet and transmission infrastructure. Washington’s 2021 State Energy Strategy
(“SES”)13 notes that GHG emissions from transportation accounts for 45% of the state’s GHG
emissions, while emissions from buildings accounts for 23%, and electricity production accounts
for only 16%. The SES contemplates that electrification will be a one of the most important
strategies to reduce GHG emissions from both transportation and buildings. The SES projects
that these new demands, combined with ordinarily-expected increases in electricity demand, will
result in increased electricity demand of 13 to 20% over 2020 levels by 2030, and 92% over
2020 levels by 2050.
Recent trends suggest that the SES may well have underestimated future demands. In
May 2024, a regional industry forecast projected that electricity demand will increase from about
23,700 average megawatts (aMW) in 2024 to about 31,100 aMW in 2033, an increase of 7,400
aMW, or over 30% in the next 10 years.14 This is a substantial increase in the forecast from only
one year ago, which projected demand to increase by 24% in 10 years.15 Other recent reports
agree that current projections may well underestimate future needs because of growing electricity
13
https://www.commerce.wa.gov/growing-the-economy/energy/2021-state-energy-strategy/.
14
Pacific Northwest Utilities Conference Committee, Northwest Regional Forecast of Power Loads and Resources:
August 2024 through July 2034 (May 2024).
15
Id.
12
demand from data centers, especially those used to support artificial intelligence, and hydrogen
fuel facilities, as well as from electrification efforts.16
PERMITTING CLEAN ENERGY INFRASTRUCTURE IN WASHINGTON TODAY
A. The Project Development Cycle and Attracting Capital Investment in the
Clean Economy
Sound permitting reform should recognize the myriad difficulties developers of
renewable energy projects face, and how permitting processes that cause undue delay and
uncertainty can create a serious drag on development. Accordingly, we provide a brief
description of the process for developing a typical utility-scale renewable energy generation
facility. The following graphic, from the Solar Energy Industries Association, shows a typical
project development timeline for a utility-scale solar project:
16
Id.; Electric Power Research Institute, White Paper, Powering Intelligence: Analyzing Artificial Intelligence and
Data Center Energy Consumption (May 2024); J. Wilson & Z. Zimmerman, The Era of Flat Power Demand is
Over, Grid Strategies at 3 (Dec. 2023).
13
We note that other types of clean energy projects face many, but not all, of the same difficulties.
Projects not involving energy generation, for example, generally do not need to obtain
transmission interconnections:
Locating Economic Resources: To develop an economic project, a developer must first
locate areas with sun, wind, geothermal or other renewable resources that can, with
reasonable assurance, be developed economically. Generally, at least one year of
meteorological readings from a specific site are necessary to provide assurance that
available renewable resources are productive enough to ensure an economical project. In
addition, the proposed facility generally must be located near existing electric
transmission lines. It can be extremely expensive – often $1 million per mile or more – to
construct high-voltage lines, so a project that is otherwise economically viable may not
be able to support construction of a long tie line to connect with the existing transmission
system.
Land Rights: Once a site with renewable resources that can be developed economically is
identified with sufficient certainty, the project developer must obtain rights to use the
land. On private lands, this generally requires the developer to pay for options that can be
exercised once permits and financing are obtained. On public lands, development rights
generally require the developer go through a lengthy process requiring extensive
environmental reviews and may also involve competitive bidding on leases or other
lengthy and, at times, expensive administrative processes.
Power Purchase Agreement: A project will not be viable until the developer obtains a
commitment from an electricity buyer to purchase the power produced by the project. In
Washington, because utilities in almost all cases control access to retail markets, the
developer must obtain a contract to sell power to a utility.17 Often, this requires winning a
competitive bidding process that requires the project developer to have obtained land
rights, have made substantial progress in obtaining transmission rights, and have most or
all permits necessary to develop the project in place.
Transmission Rights: To move power from the generator to the purchaser, it is necessary
for the project developer to obtain rights to transmit power over the nation’s electric
transmission grid. To transmit power on the interstate grid, the developer must file an
interconnection application with the transmission utility or utilities that will move its
power. With rapidly growing demand for renewable energy resources in recent years, the
interconnection process is not functioning efficiently. Projects must now wait a national
average of approximately five years to make it through the study process triggered by an
interconnection request and to successfully interconnect with the transmission grid,18 and
17
See Appendix C discussing utility regulation in Washington.
18
E.g., J. Rand et al., Lawrence Berkeley National Laboratory, Queued Up: Characteristics of Power Plants
Seeking Transmission Interconnection As of the End of 2022 (April 2023).
14
delays have recently gotten worse.19 The Federal Energy Regulatory Commission
(“FERC”) is actively addressing these problems, both through reforms of the
interconnection process and through transmission planning reform. But even if these are
successful, it will likely take several years to see tangible results.20
Transmission Permitting: When an energy project developer applies for rights to transmit
power on the electric grid, its application triggers a series of engineering studies that
identify any upgrades needed on the transmission system to accommodate the power that
would be produced by the developer’s project, as well as equipment necessary to reliably
move power from the generator to the point of interconnection with the existing grid.
Generally, the new generation facility cannot start generating power, or may generate
only at reduced capacity, until these upgrades and interconnection equipment are
installed. While the upgrades and protective equipment are required to meet mandatory
reliability standards, permitting those facilities is generally within the purview of state
and local governments. Delays in permitting necessary transmission facilities therefore
can substantially delay interconnection of new renewable generators, adding delays on
top of the already lengthy transmission study process. This process is discussed in more
detail in Appendix C.
Equipment, Engineering, and Construction Contracts: With growing demand for wind
turbines, solar cells, and other key equipment, project developers often must get in
factory queues for such equipment, which may require that they order the equipment
months or even years in advance. Similarly, experts with the specialized knowledge
necessary to design renewable generators and necessary supporting facilities like
substations, switchyards, and interconnection facilities, are in high demand, and a project
developer may have to get in line to obtain these services.
Financing: While financing for renewable energy projects is now available from many
financial institutions, these institutions generally require the power purchase agreement,
land rights, equipment and engineering contracts, transmission rights, as well as all
necessary permits to be in place to ensure repayment of financing.
Because financial institutions are reluctant to loan money to a project before everything
necessary to assure repayment of the loan is in place, the project developer usually must fund the
whole range of upfront work necessary to get all land and contractual rights, power purchase
agreements, transmission rights, and required permits in place. This process can take years and
19
J. Rand et al., Lawrence Berkeley National Laboratory, Queued Up: 2024 Edition, Characteristics of Power
Plants Seeking Transmission Interconnection As of the End of 2023 (April 2024).
20
FERC’s transmission reform efforts are addressed in greater detail in Appendix C.
15
cost tens of millions of dollars, even more for a large project or a project with particular technical
challenges, like offshore wind.
Unforeseen permitting delays or other complications, such as unanticipated permit
conditions that force significant reductions in a project’s capacity, can add substantial costs to
this process, sometimes enough to kill an otherwise viable project. A recent study by the
Lawrence Berkeley National Laboratory found that about one-third of wind and solar projects for
which applications were submitted in the last five years were cancelled, and about half
experienced delays of six months or more. Average sunk costs for cancelled projects were about
$7.5 million for wind projects and $2.5 million for solar projects, and project delays cost about
$200,000 per megawatt (“MW”) for both wind and solar. The leading causes of cancellations
were local opposition, local ordinances and zoning, and problems obtaining grid
interconnection.21
In most cases, interconnection and transmission is a federal matter and, as noted above,
Washington can influence the speed of interconnection only by speeding up the permitting of
transmission upgrades that may be required for new projects to interconnect, and by participating
in transmission planning processes. On the other hand, many of the project developers we
interviewed identified the permitting process as the greatest source of uncertainty in project
development, and unforeseeable delays in permitting as one of the chief factors determining
whether a project can be built or fails before the development process is complete. Because
permitting, including permitting of transmission projects, is generally a state or local function,
Washington policy makers can make a substantial difference in expedited construction of clean
21
R. Nilson et al., Lawrence Berkeley National Laboratory, Survey of Utility-Scale Wind and Solar Developers (Jan.
2024).
16
energy projects by improving the speed and predictability of siting and permitting processes for
these projects.
B. Key Permitting Issues
Project developers must comply with a broad range of environmental laws requiring
study of environmental impacts, protection of public resources like air and water, wildlife
conservation, and preservation of historical and archaeological resources, summarized in
Appendix B. Certain types of projects must comply with additional regulatory regimes aimed at
ensuring safe aviation, navigation, fire safety, or other specific values. For example, wind energy
developers must ensure that wind towers are marked with lights complying with Federal
Aviation Administration (“FAA”) requirements, and that they do not interfere with radar or other
flight operations of the U.S. military. Developers of hydroelectric projects must obtain a FERC
license under Part I of the Federal Power Act, which is intended to ensure that hydroelectric
developments do not interfere with river navigation, are part of a plan to optimize development
of river systems, and otherwise comply with applicable environmental laws.22
Environmental analysis in nearly every case is a critical concern for project developers.
The federal National Environmental Policy Act (“NEPA”) was intended to incorporate
environmental considerations into all aspects of federal administrative processes.23 The most
important provision of NEPA requires federal agencies to prepare a full EIS if a proposed federal
action has a “reasonably foreseeable significant effect on the quality of the human
environment.”24 Preparation of an EIS often takes months or years and may encompass hundreds
or even thousands of pages of analysis, although recent federal legislation, discussed below, has
22
Federal Power Act Part I requirements are summarized in Appendix C.
23
See generally U.S. Environmental Protection Agency, Summary of the National Environmental Policy Act.
24
42 USC § 4336 (b)(1).
17
imposed both time and page limits in EISs. An Environmental Assessment (“EA”) is required if
the federal action “does not have a reasonably foreseeable significant effect on the quality of the
human environment.” EAs are generally more concise than EISs and less time-consuming to
develop. Finally, Categorical Exclusions are available for actions that agency concludes, after
following the required administrative process, that are not ordinarily expected to have a
significant environmental impact.25
Washington has adopted a state analogue to NEPA, the State Environmental Policy Act
(“SEPA”).26 SEPA extends the requirement for agencies to consider the environmental
consequences of their decisions to all state and local agencies in Washington. Hence, SEPA
applies to any permitting process in Washington, whether state or local. Like NEPA, SEPA
requires a full EIS for agency decisions anticipated to have significant environmental impacts. A
“Determination of Non-Significance” (“DNS”) may be issued for projects that are not expected
to have significant environmental impacts, and a “Mitigated Determination of Non-Significance”
(“MDNS”) may be issued for projects that have mitigated their environmental impacts so that
they are not expected to be significant. SEPA also allows for Categorical Exclusions for specific
types of agency actions not expected to have significant environmental impacts. One important
innovation adopted under SEPA is the “SEPA Checklist,” a form document that spells out all of
the different impacts a project sponsor should consider and document that are considered for
permitting under Washington law. Most permitting specialists consider the SEPA Checklist to be
an important and useful tool for preparing a project application.
25
42 U.S.C. § 4336c.
26
RCW Chapter 43.21C. See generally Department of Ecology, State Environmental Policy Act.
18
Twenty-nine federally recognized Native American Tribes have traditional homelands
and reservations in Washington. Under the Stevens Treaties, these Tribes have usufructuary
rights for fishing, hunting, and gathering on their usual and accustomed territories outside
reservation lands. In addition, several other Tribes have interests in Washington that may be
affected by permitting processes in this state. Tribes play a critical role in permitting processes,
as described in greater detail in Appendix D. In addition, millions of acres of land in Washington
are set aside as designated Wilderness or National Parks or are subject to regulation by federal
and state agencies like the U.S. Forest Service or the Washington Department of Natural
Resources (“DNR”), summarized in Appendix E.
This report does not propose changes to any of these substantive laws. Rather, we
recommend procedural changes to improve the process of permitting. The proposed reforms are
based on what we have heard from the many entities we have interviewed for this study, what we
have read in the many studies and white papers we have reviewed, which represent multiple
perspectives, including project developers, environmental groups, trade groups, permitting
experts, and attorneys with deep experience in energy project development. The consensus
among these informed observers is that, while some siting and permitting processes work well,
too often these processes are unnecessarily unpredictable, expensive, and time-consuming.
For the reasons we now discuss, these criticisms apply to varying degrees whether a
project developer elects to go through the EFSEC process or through the local permitting
processes. Whichever process is chosen, developers can face years-long delays with uncertain
outcomes, as we now explain in more detail. Developers now have a third option, the Ecology’s
new “Coordinated Clean Energy Permit Process.” Because it is so new, Ecology is still
19
developing regulations for the process and there is not yet a track record to judge how effective
this process is at reducing unnecessary permitting barriers.
C. The EFSEC Process
1. Background
In 1970, fearing that the region was bumping up against the limits of its vast
hydroelectric system, urgent construction of new nuclear and coal-fired plants was thought to be
needed to meet anticipated electricity demand. In response, the Legislature created EFSEC, then
known as the “Thermal Power Plant Site Evaluation Council.”27 EFSEC was empowered to
permit thermal power plants with a capacity of 250 MW or more. In 2001, the Legislature added
provisions allowing the developers of renewable energy projects of any size to seek EFSEC
approval as an alternative to going through the local permitting process. Over the years,
EFSEC’s mandate has been broadened to include authority to permit electric transmission lines,
natural gas and petroleum pipelines, and, more recently, emerging technologies like green
electrolytic hydrogen and biogas facilities as well as clean energy product manufacturing
facilities.
EFSEC is intended to provide a centralized permitting process that balances the statewide
need for abundant, affordable energy, environmental protection, and local concerns. EFSEC is
composed of representatives of a number of state agencies with interests in energy development
or environmental protection, and also includes, on a case-by-case basis, local officials from the
area where a project is proposed.
Applicants seeking EFSEC approval must pay a $50,000 deposit (potentially more) to
cover costs that arise during the process. The application must also provide technical studies,
27
1970 Wash. Laws Chapter 45 (1st Exec. Sess.).
20
biological studies, historical resource studies and other information to allow EFSEC to make an
informed decision. An applicant may request a pre-application review, in which case EFSEC
staff must review the applicant’s draft application and provide comments on additional studies,
or stakeholder or Tribal input, that should be included in a final application.28
When an application is received, EFSEC must notify a variety of potential stakeholders,
including legislators representing the city and county where the project would be located, the
department of archaeology and historical preservation, and potentially affected Tribes. EFSEC
must conduct an informational public hearing within 60 days of receiving the application at a
location as close as is practical to the proposed site. After this hearing, EFSEC is required to
conduct another public hearing to determine whether the proposed site is consistent with local
land use plans or zoning ordinances, although the informational public hearing and the land use
consistency hearings are often held simultaneously.
Once this process is complete, EFSEC must, within 12 months, formally recommend to
the Governor that the proposed project be approved or rejected, although this one-year deadline
is often extended to permit, for example, completion of environmental analyses or site surveys,
especially with large projects. If EFSEC recommends that a project be approved, it must submit
a draft certification agreement that specifies the terms and conditions of construction and
operation of the facility. The governor has 60 days from receipt of EFSEC’s recommendation to
1) approve the application and execute the draft agreement, 2) reject the application, or 3) direct
EFSEC to reconsider certain aspects of the draft certification agreement. If a project is certified
by the Governor, it greenlights the project. Certification binds the state, its agencies, and political
28
RCW 80.50.340, .380. The Legislature has provided for a specific pre-application process for electric
transmission facilities which requires EFSEC to consider electric transmission corridors designated by other
agencies. RCW 80.50.330.
21
subdivisions as to the approval of the site and construction and operation of the proposed energy
facility. The Governor’s final decision is subject to judicial review under the Administrative
Procedure Act, with expedited appeal directly to the Washington Supreme Court available.
If a project can demonstrate that it is without significant environmental impacts, or that
those impacts are mitigated to a non-significant level and the project is consistent with local land
use regulations, the project is eligible for expedited processing by EFSEC.29
EFSEC may preempt local rules. Initially, it must determine whether or not the proposed
site is “consistent and in compliance with city, county, or regional land use plans or zoning
ordinances on the date of the application.”30 But EFSEC is authorized to preempt local laws.31 If
it does so, it must “include conditions in the draft certification agreement to implement the
provisions of this chapter including, but not limited to, conditions to protect state, local
governmental, or community interests, or overburdened communities . . ., and conditions
designed to recognize the purpose of laws or ordinances, or rules or regulations promulgated
thereunder.”32
2. HB 1812, Modernizing the EFSEC Process
In 2022, Governor Inslee signed into law House Bill 1812, which amended EFSEC’s
governing statute in several important ways:
The list of facilities eligible for the EFSEC process was expanded to include “clean
energy product manufacturing facilities,” defined broadly to include facilities that
manufacture products used for clean energy facilities, charging and other
infrastructure related to electric vehicles, and facilities for the production of green
electrolytic hydrogen (hydrogen without a fossil fuel feedstock). The bill also
expanded the list of energy projects eligible for the EFSEC process to include
renewable natural gas and energy storage facilities.
29
RCW 809.50.075; WAC 463-43-070.
30
RCW 80.50.090(2).
31
RCW 80.50.110(2); WAC 463-28-030, -080.
32
RCW 80.50.100(2).
22
Electric transmission projects eligible for the EFSEC process were expanded to
include any electric line with a capacity of 115 kV or greater that will cross two or
more jurisdictions with land use plans or zoning ordinances, eliminating the previous
requirement that the transmission line could not be in an existing transmission
corridor.
The requirements for EFSEC to consult with state and local government agencies and
with federally recognized Tribes is spelled out in some detail, especially for Tribal
consultations.
The composition of EFSEC council members was changed modestly, and the EFSEC
chair was empowered to hire a staff director, and the director was empowered to hire
additional professional and administrative staff. EFSEC’s power to hire consultants
was also expanded. In addition, EFSEC was formally separated from the Utilities and
Transportation Commission.
The provision allowing expedited treatment for projects with no significant
environmental impacts was modified so that a project proponent seeking such
treatment will be notified if EFSEC preliminarily determines that the project is not
eligible for expedited treatment and will be given the opportunity to revise its
proposal to qualify for expedited treatment.
3. Criticisms of EFSEC
We have heard several consistent criticisms of EFSEC from a broad spectrum of project
developers, industry trade groups, and environmental organizations. The primary criticisms are:
Lengthy and Unnecessary Delays: Recent applications, especially for large projects,
have taken three years or more from the time a final application is submitted for the
EFSEC process to be completed. The process is often considerably longer if pre-
application consultations and preliminary project work are considered. For example,
the proposed Horse Heaven Hills project began on-site wildlife surveys in 2016 and
has been involved in consultations with state and federal agencies and Tribes since
February 2017.33 EFSEC’s final recommendation to the Governor to approve the
project, with conditions that will reduce its capacity by at least half, were delivered to
Gov. Inslee on April 29, 2024,34 more than three years after the final application was
submitted and more than seven years after pre-application consultation processes
were started. On May 23, 2024, Governor Inslee rejected EFSEC’s recommendation
and directed the agency to reconsider the conditions it imposed on its
recommendation for approval within 90 days.35 Delays are attributed to several
factors, including repeated requests for information on environmental or other
conditions from project developers (often involving lengthy delays to collect the
33
See Scout Clean Energy Application for EFSEC Site Certification, at Table 1.12-1 p. 1-57 (Feb. 2021).
34
Report to the Governor on Application Docket No. EF 220011 (April 29,2024).
35
See Letter from Governor Inslee re Horse Heaven Wind Farm Project EFSEC Recommendation.
23
required information), time-consuming formal adjudication processes, overstretched
staff, and lack of project oversight such as agreed deadlines for agency review of
project applications. In addition, many of those we interviewed asserted that there is a
lack of clear guidance from the involved agencies concerning protocols and
expectations for field surveys and environmental studies, which contributes to the
process of repeated demands for information and lengthens the timeline for the site
certification process.
The chart below summarizes the length of the EFSEC process for renewable energy
projects over the last several years:36
Project Name Pre- Proposed Application Approved Recommendation
Application Capacity Capacity to Governor
Activities
Badger Mountain October 5,
2019 200 MW TBD TBD
Solar37 2021
160 MW solar
38 February
Carriger Solar 2020 63 MW TBD TBD
20, 2023
battery
October 16,
Columbia Solar39 2017 25 MW 25 MW August 21, 2018
2017
180 MW November
(revised to 3, 2006
Desert Claim Wind
2002 190 MW and Revised 190 MW December 4, 2009
Power Project40
finally 100 January 29,
MW) 2009
January 19,
Goose Prairie Solar41 2019 80 MW 80 MW October 19, 2021
2021
High Top and Ostrea April 7, 80 MW
2020 80 MW each February 17, 2023
Solar Project42 2022 each
500 MW solar
December
Hop Hill Solar43 2021 500 MW TBD TBD
22, 2022
battery
36
We understand that EFSEC has recently adopted a standardized application for solar projects, which may help
explain why recent solar projects have generally been approved within one year or less of the final application.
However, we were unable to locate sufficient information to evaluate this program.
37
See Badger Mountain Solar Energy Project Application for Site Certification.
38
See Carriger Solar Project Application for Site Certification.
39
See Columbia Solar Projects Washington EFSEC Application for Site Certification; Report to the Governor on
Application No. 2017-01.
40
See Desert Claim Wind Power Project Application for Site Certification; Desert Claim Wind Power Project
Revised Application; Desert Claim Wind Power Project – Recommendation of Approval.
41
See Goose Prairie Solar Application for Site Certificate; Goose Prairie Solar Revised Application for Site
Certificate; Report to the Governor on Application No. 2021-01.
42
See High Top and Ostrea Application; Report to the Governor on Application No. EF-220212.
43
See Application for Site Certification Hop Hill Solar and Storage Project.
24
Estimated
Horse Heaven Wind February 8,
2016 1,150 MW ~50% April 29, 2024
Project44 2021
reduction45
Kittitas Valley Wind January 12, 97.5 – 195
2002 200 MW May 2, 2007
Power Project46 2003 MW
Wallula Gap Solar February
2021 60 MW TBD TBD
Project47 23, 2024
470 MW solar
Wautoma Solar May 20,
2021 470 MW TBD TBD
Energy Project48 2022
battery
Limited to
Whistling Ridge 75 MW (50 March 10,
2003 35 January 4, 2012
Energy Project49 turbines) 2009
turbines
273 MW
Wild Horse Wind March 8, wind
2002 312 MW May 25, 2005
Power Project50 2004 500 kW
solar
Lack of Coordination in Process: Project developers and permitting experts we
interviewed asserted that EFSEC lacks expertise in project management, with the
result that project reviews by different agencies are often uncoordinated, contributing
to unnecessary delays. HB 1812 authorizes EFSEC to acquire new staff and EFSEC
has been emphasizing employees with project management skills, and the agency
reports that it has hired eight new staff with such expertise.
Lack of Expertise and Staff: While agency personnel who participate in the EFSEC
process generally have deep expertise related to the agency’s mission (for example,
Washington Department of Fish and Wildlife (“WDFW”) personnel tend to have
deep expertise in wildlife conservation issues), many developers we interviewed
criticized the departmental representatives who participate in the EFSEC process for
having limited expertise in energy project development.51 In addition, EFSEC has had
insufficient staff to keep the application process moving expeditiously. One
interviewee expressed concern that the shortage of staff may be exacerbated by the
Legislature’s recent expansion of projects eligible for EFSEC consideration in HB
44
See Scout Clean Energy Application for EFSEC Site Certification; Report to the Governor on Application Docket
No. EF-220011.
45
Governor Inslee remanded to EFSEC to reconsider limitations placed on the project. See Letter from Governor
Inslee re Horse Heaven Wind Farm Project EFSEC Recommendation.
46
See Application for Site Certification for the Kittitas Valley Wind Power Project; Kittitas Valley Wind Power
Project – Recommendation of Approval.
47
See Wallula Gap Solar Project Application for Site Certification.
48
See Wautoma Solar Energy Project Application for Site Certification.
49
See Whistling Ridge Energy Project Application for Site Certification; Whistling Ridge Energy, LLC –
Recommendation Package for Approval.
50
See Wild Horse Wind Power Project EFSEC Application; Wild Horse Wind Power Project Special Meeting.
51
In EFSEC’s early years, agency representatives were expected to have significant energy expertise and were also
expected to act independently of their agency.
25
1812, although HB 1812, as noted, authorizes EFSEC to add staff and it has been
doing so.
Lack of Mechanism to Balance Interests: The governing statute directs EFSEC to
“report to the governor its recommendations as to the approval or rejection of an
application for certification within twelve months” of receipt of an application for
certification, but provides little or no binding guidance as to what applicants must
demonstrate to receive a recommendation for approval.52 Further, as a council of
agency designees, EFSEC may provide an efficient venue to resolve each agency's
individual concerns and requirements based on its own mission and priorities, but it is
ill-suited to evaluate projects relative to overarching state policies, including the
state's climate and clean energy requirements. The EFSEC Council is composed of
representatives from Ecology, WDFW, Commerce, the UTC, and DNR, and the
substantive analyses of EFSEC applications are performed by these agencies
(primarily Ecology and WDFW), along with the Department of Archaeological and
Historical Preservation (“DAHP”). Because these agencies are mission-driven, they
tend to recommend conditions on certification that maximize protection for, for
example, wildlife species, while failing to consider the extent to which these
conditions would hinder clean energy project development, either in a particular case
or in the wider context. This view was expressed universally by the developers, trade
groups, and permit specialists we interviewed.
The treatment of mitigation measures for ferruginous hawks included in EFSEC’s
recommendations for the Horse Heaven project illustrate the problem. At the outset, it
should be noted that the ferruginous hawk has been listed as “endangered” in
Washington and the species has experienced precipitous declines in the state over the
last three decades, primarily due to the loss of sage-steppe habitat to agricultural
development and sprawling urban development, as well as habitat loss in the Great
Plains and other habitat areas outside Washington, where the birds spend the majority
of their time.53 But the species as a whole is not endangered. The Cornell Lab of
Ornithology rates the species as of “low conservation concern,” noting that its overall
population increased approximately 1% per year from 1996 through 2019 based on
the results of the North American Breeding Bird Survey.
Although WDFW has identified loss of sage-steppe habitat loss as the primary culprit
for the decline of ferruginous hawks in our state, EFSEC missed the opportunity to
directly address that problem by requiring Horse Heaven to mitigate its impacts by
preserving or restoring sage-steppe habitat. Instead, at WDFW’s recommendation,
EFSEC imposed a 2-mile buffer around all ferruginous hawk nests, even though no
52
RCW 80.50.100. The statute’s statement of legislative intent, set forth at RCW 80.50.010, states that the
Legislature intends EFSEC to “balance” demands for clean energy against “the broad interests of the public” based
on a list of six “premises.” Statements of legislative intent are generally viewed as precatory, and, while a useful
guide to interpreting a statute if it is ambiguous, do not create binding obligations on an agency. Even if it were
binding, the “balancing” language in RCW 80.50.010 provides little assurance that, if a project developer avoids or
adequately mitigates environmental impacts, its project will be approved.
53
See G. Hayes & J. Watson, WDFW, Periodic Status Review for the Ferruginous Hawk (Aug. 2021).
26
active nests have been identified in the project area since 2019 and, sadly, the record
suggests that, because of habitat loss, they are unlikely to be used again. If this
condition had been approved by Governor Inslee, it would have forced the Horse
Heaven project to reduce its proposed capacity by 50% or more.54 The two-mile
buffer is more restrictive than those imposed by other agencies managing ferruginous
hawk habitat, notably including the U.S. Fish & Wildlife Service, which recommend
setbacks of 0.5 to 1 mile for active nests.55 The area restricted under the WDFW’s 2-
mile buffer is about sixteen times larger than the 0.5-mile buffer and about four times
the size of the 1 mile buffer.
EFSEC could have adopted mitigation measures that would have resulted in less
drastic reductions in project capacity but likely would have been at least as effective
in protecting ferruginous hawks. For example, rather than simply barring any
development within a two-mile radius of hawk nests, EFSEC could have required
monitoring of nests and adaptive management if any of those nests are occupied in
the future. If the nest is used, the project operator could be required to shut down
wind turbines within a reasonable radius of the nest until the hawks have fledged and
migrated. Generally, this would occur in the spring when wind turbines are often
scheduled for maintenance anyway, and this would allow the turbines to produce
when hawks are absent in Washington and when nests are not occupied. As Governor
Inslee concluded, “[t]he outright prohibition of turbine locations should be replaced
with mitigation in the form of operational conditions that allow for build-out of the
vast majority of the proposed Project.” The far more extreme approach taken by
EFSEC, however, will force a drastic reduction in renewable energy capacity with, at
best, marginal benefits to ferruginous hawks.
The EFSEC statute assigns EFSEC’s director administrative authority only, and there
is no structural mechanism for balancing conditions recommended by the agencies
involved in the process against the state’s overarching goals for developing clean
energy projects. To put it another way, EFSEC lacks a mechanism to balance the
state’s interest in expanding clean energy projects against the project’s impacts on
wildlife, aesthetics, and other resources. Because urgent action is needed to avoid the
worst effects of climate change, including damage to Washington’s environment and
wildlife, the lack of an effective balancing mechanism could result in counter-
productive decision-making, causing EFSEC to reject projects that would have a net
positive impact on Washington’s natural resources when their effects on climate
stabilization, along with required mitigation measures, are taken into account.
Lack of Predictability: The EFSEC process is generally centered around developing
an extensive environmental analysis, without particularized parameters to guide
avoidance of environmental impacts, mitigation, or limits on how much information
54
See Conrad Swanson, Plans for WA’s Largest Wind Farm Slashed in Half, Seattle Times, April 17, 2024.
55
See, e.g., Laura A. Romin and James A. Muck, Utah Field Office Guidelines for Raptor Protection From Human
and Land Use Disturbances, Table 2 at 29 (Jan. 2002); U.S. Fish and Wildlife Service, Region 6 Wildlife Buffer
Recommendations for Wind Energy Projects at 1 (Mar. 31, 2021); Wyoming Ecological Services Field Office,
Protections for Raptors, Table 1 at 5 at (Mar. 9, 2022).
27
must be provided. As a result, even after agency concerns are identified in the pre-
application process and project developers design their projects to avoid identified
impacts, it is difficult for project developers to predict what additional concerns will
be identified, what additional studies or surveys will be demanded, what level of
mitigation will be required, and whether changes to the project to address these
concerns will render the project uneconomic. Developers we interviewed also
asserted that agencies often “move the goalposts” by relying on guidance or other
documents that have not been published, subject to agency review, or peer review by
scientists. These documents sometimes appear well after an application has been
received and accepted by EFSEC, adding substantial uncertainty to the process.
D. Local Permitting Processes and Criticisms
In Washington, counties and cities have permitting and regulatory authority for activities
within their jurisdictions. Historically, renewable energy projects were permitted at the local
level, with EFSEC as an alternative process, generally relied upon by developers facing barriers
to project approval at the local level or approvals across multiple jurisdictions.
Although specifics vary by jurisdiction, counties, cities and towns generally regulate
development, including energy development, under the following legal regimes:
1. Growth Management Act
The Growth Management Act (“GMA”) is the primary statutory framework for local land
use planning and development in Washington.56 The GMA identifies fifteen non-prioritized
goals, which are sometimes in tension, to guide local land use plans and development
regulations.57 The GMA also requires 29 fast-growing cities and counties to adopt
comprehensive plans to ensure those cities and counties will be able to effectively provide urban
services, infrastructure, water and other resources to accommodate projected population
growth.58
56
RCW 36.70A
57
RCW 36.70A.020.
58
RCW 36.70A.210.
28
The plans must contain elements of, for example, land use, housing, capital facilities,
rural development for counties, transportation, and climate change and resiliency.59 Optional
elements include economic development, parks and recreation, conservation, solar energy,
subarea plans, and ports.60 Cities and counties must periodically review these plans and revise
them if necessary. The 2024 Legislature adopted legislation requiring climate mitigation,
including reduction of GHG emissions, to be added as a mandatory element of comprehensive
plans.61
In addition, all cities and counties must designate natural resource lands and adopt
regulations governing the use of these lands. Cities and counties must also adopt critical area
regulations. The GMA defines five types of critical areas: (1) wetlands; (2) critical groundwater
recharging areas that may impact aquifers used for potable water; (3) frequently flooded areas;
(4) geologically hazardous areas; and (5) fish and wildlife habitat conservation areas. The
function of these areas must be protected using the best available science.62
Policies developed under the GMA can have substantial impacts on clean energy project
development and, like any other type of development, clean energy projects can have substantial
local impacts. For example, buffers around critical areas generally preclude development or at
least require potentially expensive mitigation measures. Similarly, comprehensive plans may
result in restrictions on clean energy development in areas that are zoned to preclude such
development. Often, clean energy projects can be developed only with a conditional use permit,
which requires the project developer to apply for a permit from the relevant county or city. Some
counties do not have zones that allow for renewable energy development, so that such
59
RCW 36.70A.070.
60
RCW 36.70A.080, .085.
61
SB 6140 (effective June 6, 2024).
62
RCW 36.70A.170; RCW 36.70A.172
29
development is possible only with a zoning change. Generally, this requires the developer to seek
approval from EFSEC as the only practicable alternative.
Except for certain project-level disputes that are resolved by the Superior Courts under
the Land Use Petition Act,63 the Growth Management Hearings Board resolves disputes under
the GMA, including disputes about the adequacy of SEPA analyses connected with zoning or
permitting decisions under the GMA. The GMA provides the governor with authority to impose
sanctions on cities, counties, and state agencies that do not comply with the GMA as determined
by the Growth Management Hearings Board.64
2. Shoreline Management Act
The Shoreline Management Act (“SMA”)65 works similarly to the GMA. It requires all
39 Washington Counties and about 250 cities and towns to develop Shoreline Master Programs
that comply with the SMA’s mandates. Those mandates require localities to develop and adopt
Shoreline Master Programs to regulate development on shorelines, which includes lakes, rivers,
streams with more than 20 cubic feet per second of flow, wetlands, and floodplains, along with
lands 200 feet shoreward of these water bodies. The SMA also mandates protection of
“shorelines of statewide significance,” which includes Puget Sound, Hood Canal, the state’s
large rivers and lakes, and associated wetlands. Restrictions arising under the SMA can limit
clean energy projects within the buffer zones and also may limit development of clean energy
projects relying on, for example, small hydroelectric dams or tidal energy.
63
RCW 36.70C.
64
RCW 36.70A.340-.345.
65
RCW Chapter 90.58.
30
3. Police Powers and Zoning
In addition to the requirements of the GMA and SMA, local governments possess their
own police powers, which are exercised in a variety of ways that may impact development of
renewable energy resources. For example, city and county governments frequently require major
projects to address impacts on traffic, roads, schools, and generally require building permits and
grading permits for any construction activity.
For developers seeking a project permit, zoning is the most important exercise of these
police powers. Zoning is a tool of local police power authority that implements the community’s
vision of how it should develop. In communities that fully plan under the GMA, zoning and
other development regulations are subordinate to the comprehensive plan and implement local
land use policies it contains. Each jurisdiction in Washington has its own county, city, or
municipal code. These codes impose regulations on subjects such as land use, building and
construction, environmental protection and historic preservation, and may provide zoning
maps.66
Planning and zoning can impact where clean energy project development may occur and,
where allowed, a special use permit is generally required, creating the consequences discussed
above. And, like any construction project, a clean energy project will have to pay impact fees
and address impacts on traffic, schools, and other local interests.
4. Criticisms of Local Permitting Processes
Local opposition to renewable energy is growing nationwide, placing many areas of the
country entirely off limits to renewable energy development and creating permitting barriers,
66
See e.g., Seattle Municipal Code, available at https://library.municode.com/wa/seattle/codes/municipal_code.
County and city codes and other relevant information is available on the website of the Municipal Research and
Services Center at https://mrsc.org/
31
delay and expense for developers seeking to expand the nation’s supply of carbon-free power.
An increasing number of localities, and at least two states, have made renewable energy
development off limits in their jurisdictions.67 Local opposition unchecked by any countervailing
emphasis given to statewide and nationwide goals for renewable energy development has
become a major impediment to the achieving the nation’s decarbonization goals.68
Local opposition has become a major barrier to renewable energy development in at least
some Washington localities and in the EFSEC process, as well. These problems are not
universal. We have heard from many developers that Washington counties and cities have
successfully permitted some renewable energy projects with little delay or unnecessary burden.
Further, local permitting processes are generally faster and less burdensome than the EFSEC
process. In addition, local processes, if done well, can lead to reasonable accommodations of
local concerns while allowing renewable project development to proceed at the pace needed to
meet decarbonization goals.
However, significant problems can arise in local permitting processes, often with little
warning. Among tactics that are strongly criticized by project proponents are:
Unpredictable Moratoria: After a project application is received by a local government,
that government enacts a moratorium of uncertain duration, placing the project in limbo
and potentially killing it through delay.69 Project developers and permit specialists we
interviewed cited several examples of this occurring both in Washington and in
neighboring states. Columbia University’s Sabin Center on Climate Change Law recently
67
A recent USA Today article includes an interactive map showing graphically the rapid rise of local restrictions on
renewable energy development. US Counties are Blocking the Future of Renewable Energy: These Maps, Graphics
Show How, USA Today (Feb. 4, 2024, updated Feb. 27, 2024).
68
See, e.g, M. Eisenson, Sabin Center for Climate Change Law, Columbia Law School, Opposition to Renewable
Energy Facilities in the United States (May 2023 Ed.); I. Ko et al., Rural Backlash Could Impede Climate
Ambition, Univ. of Penn. Regulatory Review (Jan. 22, 2024).
69
Counties and cities are permitted to enact moratoria for up to six months subject to public hearing. Moratoria can
be extended to one year if a work plan is developed for studying the issue given rise to the moratorium. A
moratorium can be extended for additional six-month periods subject to public hearing and appropriate findings of
fact. RCW 35A.63.200; RCW 36.70A.390.
32
identified moratoria that have been imposed on solar development in Klickitat, Grant,
Kittitas, and Yakima Counties.70
Unreasonable conditions: Localities have attempted to place large zones off-limits to
clean energy project development in the name of protecting, for example, farmlands and
critical areas, with little heed either to statewide decarbonization goals or mitigation
strategies that could avoid or minimize impacts to those areas. For example, one Pacific
Northwest county imposed seven-mile buffer zones around multiple areas of concern,
effectively making the county off-limits to renewable energy development. While the
individual we interviewed did not identify the specific county referred to, we believe this
likely refers to Douglas County, which adopted ordinances requiring energy generation
facilities to “be located at least 7 miles from” urban growth boundaries, town or city
limits, or the boundaries of local airports, and from “habitat associated with sensitive,
candidate, threatened or endangered plants or wildlife as identified on state and federal
lists.71
Lack of Information: Local governments and local citizens often lack information about
renewable energy developments, especially those involving new technologies like utility-
scale battery storage. For local governments, the reaction can be to take drastic actions
like placing moratoria on specific types of development as a means of ensuring that lack
of information does not create unintended consequences for the local community. For
local citizens, lack of information may lead to uninformed opposition, unnecessary delays
in permitting, political pressure on officials to deny permits that they would otherwise
approve, and litigation with little or no basis. For example, persistent rumors, apparently
gleaned from internet conspiracy sites, suggesting that solar panels leach huge amounts
of toxic chemicals have repeatedly appeared in solar energy permitting processes our firm
has been involved with, despite reams of scientific evidence demonstrating that this
concern is without basis. Lack of information can also lead to over-reaction when there is
legitimate cause for concern. For example, utility-scale battery storage facilities, at least
using certain batteries chemistries, present unique fire hazards. But the generally-
accepted solution72 is to install protective firewalls and other protective equipment, to
provide communications devices that alert plant operators and fire department personnel
if hazardous conditions develop, and, if the local fire department lacks necessary training
or equipment, providing funding for that training and equipment. An outright ban on
these facilities, on the other hand, undermines electric reliability and grid resiliency for
everyone.
Public Participation Plans. Some but not all localities lack well-developed public
participation policies, which can complicate permitting processes. Without a specific
70
M. Eisenson et al., Opposition to Renewable Energy in the United States: June 2024 Edition, Sabin Center for
Climate Change Law (June 2024).
71
DCC 18.16.355(B)–(C). These restrictions were addressed in EFSEC’s Land Use Inconsistency Order concerning
the Badger Mountain Solar Project. Order Finding Project Inconsistent With Local Land Use Regulations, EFSEC
Docket No. EF-210747, Order No. 881 (issued March 13, 2022).
72
We note that Washington follows the International Fire Code. WAC 51-54A-003. Section 1207 of the
International Fire Code addresses fire hazards for electric energy storage systems.
33
policy in place, developers are sometimes left to develop a process for notifying
potentially affected parties with little guidance from the relevant governing body, which
can lead to unnecessary distrust, opposition that arises late in the process, and even
litigation over public notice requirements. In addition, one of the advantages of local
processes repeatedly noted by developers we interviewed is that it helps developers
identify community concerns and to develop appropriate mitigation measures and
community benefits agreements. These processes can be unnecessarily complicated if a
well-developed public participation plan is not in place.
Local Benefits. While local communities should reasonably expect to benefit from
development in their communities, there is little standardization of how community
benefits are provided by developers. There is also concern that overly generous payments
to individuals or communities impacted by project development will result in higher
electric rates to consumers, which undercuts Legislative goals favoring least-cost energy
planning, as well as undermining efforts to reduce energy burdens on disadvantaged
communities.
One example of an extremely drawn out local permitting process is Puget Sound Energy’s
Energize Eastside transmission project. Although the project involved relatively modest
upgrades – a single substation and upgrades to about 16 miles of transmission lines – the project
required Conditional Land Use permits from four different cities and a SEPA process that took
nearly three years. Altogether, obtaining the necessary permits took twelve years and the project
is only now beginning construction. As noted, HB 1812 provided an option for transmission
projects involving lines of 115 kV or more and passing through more than one jurisdiction with
land use or zoning ordinances to go through the EFSEC process rather than local processes, so an
effective EFSEC process offers hope of a shorter and more predictable permitting process.
E. The Consolidated Permitting Process
The Legislature is cognizant that delays and inefficiencies in permitting imperil its
ambitious goals for addressing climate change. In response to these concerns, it has recently
adopted major legislation aimed at addressing permitting problems, including SB 1812,
discussed above, and several other bills, discussed in Appendix H. Of most importance, in 2023,
34
the Legislature adopted HB 1216, which creates a new coordinated permitting process for “clean
energy projects,” defined broadly as discussed above.
The Coordinated Permitting Process73 is voluntary process available to clean energy
projects that do not seek EFSEC approval. Ecology acts as the central point of contact using the
following process:
Initial Assessment: Ecology must, within 60 days of receiving a request for treatment
under the coordinated permitting process, conduct an initial assessment of the state and
local permits required for approval of the proposed project, the information anticipated to
be required, the level of anticipated SEPA review and the estimated time required for that
review, and inform the applicant in writing of these determinations.
Application: Following receipt of the initial assessment, a project proponent may submit
an application to participate in the coordinated permitting process, which must include a
detailed description of the proposed project, information on proposed mitigation
measures, a description of the proponent’s efforts to engage with Tribes, local
governments, and overburdened communities. If Ecology determines that the project
“raises complex coordination, permit processing, or substantive permit review issues,”
the project may be processed under the coordinated permitting process.
Work Plan: Within 30 days of receiving a complete application that is eligible for the
coordinated permitting process (or longer if agreed upon with the project proponent),
Ecology must, in consultation with the project proponent, local government, and
permitting agencies, develop a schedule for permit processing, and invite relevant federal
agencies and Tribes to participate. Once the permitting schedule is complete, Ecology
publishes the permitting process schedule, shares it with the project proponent,
participating state agencies, the SEPA lead agency, participating cities and counties, and
the public. Thereafter, if any agency is unable to meet a timeline in the work plan, it must
notify Ecology and Ecology may amend the timeline or otherwise propose a solution to
the delay.
Coordination and Acceleration of Permitting: When a clean energy project is eligible for
the coordinated permitting process, local governments are required to enter into an
agreement with Ecology or the project proponent to expedite the permitting process and
the project proponent must enter into a development agreement with the local
government. Ecology must also facilitate in-depth consultations with Tribes and with
state agencies with permitting responsibilities.
73
See Ecology’s Clean Energy Coordinated Permitting Process page: https://ecology.wa.gov/regulations-
permits/sepa/clean-energy/clean-energy-coordinated-permit-process#:~:text=Ecology%20has%20established%
20a%20new,agencies%20may%20also%20be%20involved..
35
Other notable provisions of HB 1216 include:
Nonproject Reviews: HB 1216 requires Ecology to prepare nonproject environmental
impact statements (equivalent to a “programmatic EIS” under NEPA) for three types of
clean energy projects, including projects with battery energy storage: green electrolytic or
renewable hydrogen projects, utility-scale solar energy projects, and onshore utility-scale
wind projects. The nonproject environmental impact statements are to consider issues
common to developments of the specified types of renewable energy projects, including
historic and cultural resources, protected species, landscape scale habitat connectivity and
wildlife migration corridors, environmental justice and overburdened communities,
cultural resources relevant to tribal rights, land uses, and military installations and
operations. The scope of the nonproject reviews is to be developed by Ecology in
collaboration with stakeholders, including Tribes. Clean energy project proposals that
follow the recommendations of nonproject environmental reviews will be required to
conduct environmental analyses only with respect to project-specific impacts and not to
the general impacts address in the non-project reviews.
Opportunity to Revise Application: After the applicant for a clean energy project submits
the SEPA checklist, the lead SEPA agency provides an anticipated determination of
significance and opportunity for the applicant to withdraw and revise the checklist so that
the applicant might obtain an MDNS or DNS. If the lead agency determines that an EIS
is required, it has 24 months to prepare the final EIS from the time of that determination.
The time limit may be extended if the applicant agrees.
Renewable Energy Zones: Based in part on the results of the nonproject environmental
reviews, the ICESCC must recommend to the Legislature and Governor areas to
designate as “clean energy preferred zones,” and to recommend regulatory, tax,
environmental, and other benefits that should accrue to projects in these zones.
Demonstration of Need: Prohibits local governments from requiring a demonstration of
need for clean energy projects, although the applicant may be required to submit
documentation from FERC, the UTC, or another relevant agency supporting the need for
the project. Notably, several interviewees identified local requirements to demonstrate
need for a project to be problematic for clean energy projects.
Meteorological Equipment: Bars local governments from prohibiting the installation of
wind and solar resource evaluation equipment necessary for the design and
environmental planning of a renewable energy projects.
Pumped Storage: Directs Washington State University’s energy program to carry out a
process to identify issues and interests that may affect the siting of pumped storage
projects. This is important because pumped storage is the only technology currently
available to store electricity over a time horizon longer than several hours.
36
F. The HEAL Act: Environmental Justice in Washington
In 2021, Washington enacted the Healthy Environment for All Act (“HEAL Act”). The
HEAL Act aims to “reduce environmental and health disparities in Washington state and
improve the health of all Washington state residents,” and particularly to address communities of
color and low-income communities that bear a disproportionate share of environmental burdens.
For purposes of this report, the HEAL Act is important because it creates an additional layer of
review and a new set of considerations that must be addressed in the permitting process.
The HEAL Act contains six key elements:
Certain Washington agencies, generally those with significant permitting or other
responsibilities related to overburdened communities, must incorporate environmental
justice goals into decision-making. Other agencies may adopt those goals voluntarily.
Agencies must develop equitable community engagement and public participation plans
that incorporate overburdened communities into the decision-making process.
Agencies must conduct environmental justice assessments when considering significant
agency actions.
The Environmental Justice Council (“EJC”) is created and tasked with advising agencies
on incorporating environmental justice principles into agency activities.
Agencies are required to consult with federally-recognized Tribes.
Environmental justice principles must be incorporated into agency budgeting processes.
The starting point for environmental justice analysis is the Environmental Health Disparities
map, a tool developed jointly by several Washington agencies, the University of Washington,
and public interest advocates.74 The HEAL Act provides funding to keep the Environmental
Health Disparities Map up to date.
74
See https://doh.wa.gov/data-and-statistical-reports/washington-tracking-network-wtn/washington-environmental-
health-disparities-map.
37
G. Tribal Consultations
Tribal consultations are a point of concern for project developers, state agencies, and the
Tribes themselves. Project developers and permitting consultants have expressed frustration in
finding the correct contacts for Tribes, and in Tribal issues often surfacing late in the permitting
process. State agencies share similar concerns, and also are concerned that, under the Centennial
Accord, many Tribes reasonably expect consultations to take place between the Tribe and the
Governor, which complicates agency consultation processes. Finally, there has been a surge of
interest in recent years for developing renewable energy projects on Tribal lands. Although
recent legislation mandated Tribal consultations in permitting and other processes, the mechanics
and timing of consultations remains problematic in many cases.
MODELS FOR REFORM FROM OTHER JURISDICTIONS
We have reviewed siting laws from a number of other jurisdictions, including the
European Union, the U.S. federal government, and many states. We summarize below permitting
regimes that we believe should serve as models for Washington’s permitting reform efforts. The
states were chosen primarily because they face the same dilemma as Washington—they have
adopted aggressive decarbonization mandates, all requiring decarbonization of their state
economies by mid-century, but have realized that existing permitting practices create barriers to
constructing the infrastructure necessary to achieve these goals. We also include on example of a
reform that has failed, Ohio’s SB 52.
A. Federal Permitting Reforms
1. FAST 41 and the Federal Permitting Improvement Steering Council
a. Background
Enacted on December 4, 2015, the Fixing America’s Surface Transportation Act (“FAST
Act”) created the FAST-41 process and the Federal Permitting Improvement Steering Council
38
(“FPISC”) for project oversight.75 FAST-41 intends to improve early consultation and
coordination among government agencies, increase transparency through the publication of
project-specific timetables with completion dates for all federal authorizations and environmental
reviews, and increase accountability through consultation and reporting on projects. FPISC has
representatives from fifteen federal agencies.
FAST-41 coverage provides project developers with a comprehensive, integrated federal
permitting timetable publicly posted on the federal infrastructure permitting dashboard. FAST-41
requires that agencies establish and maintain timetables and consult with the project developer
on any timing changes.
Projects eligible for FAST-41 treatment include:
Projects in one of eighteen “covered project” sectors76 that are (1) subject to NEPA; (2)
likely to require a total investment of more than $200 million; and (3) do not qualify for
an “abbreviated authorization or environmental review process” under an applicable law.
Projects FPISC elects to cover, which must be: (1) subject to NEPA; and (2) of a size and
complexity that makes it, in the opinion of FPISC, likely to benefit from enhanced
oversight and coordination.
Tribal-developed projects that are within one of the eighteen covered project sectors and
are subject to NEPA, but the project need not meet the $200 million threshold.
Infrastructure to support carbon capture and sequestration projects.
b. FAST-41 Timeline
The accelerated and monitored timeline is core to the FAST-41 program. A project
developer submits the notice of a proposed FAST-41 “covered project” to the FPISC executive
75
Full text of the FAST Act is available here.
76
“Covered project” sectors are renewable energy production, conventional energy production, electricity
transmission, surface transportation, aviation, ports and waterways, water resource projects, broadband, pipelines,
manufacturing, mining, carbon capture, semiconductors, artificial intelligence and machine learning, high-
performance computer and advanced computer hardware and software, quantum information science and
technology, data storage and data management, and cybersecurity.
39
director and facilitating agency. The executive director must add this project to the permitting
dashboard within 14 days of receipt unless the facilitating/NEPA lead agency determines the
project does not qualify. The facilitating agency must identify all federal and non-federal
agencies likely to have any review, financing, or permitting responsibility for the project and
invite them to participate within 21 days of the dashboard posting. A lead agency for NEPA
purposes must be identified within 60 days. States may opt in to participate in the FAST-41
process.
The lead agency must establish a comprehensive permitting timetable based on the
executive director’s recommended performance schedule that includes intermediate and final
completion dates for action on all federal environmental reviews and authorizations to begin
construction.77 This timetable requires cooperating agency concurrence and the FPISC executive
director and Office of Management and Budget resolve timetable disputes. FPISC posts the
permitting timetable on the dashboard in accordance with interagency and project developer
consultation and public disclosure requirements.
The FPISC executive director administers the timetable, including processing extension
requests and resolving interagency and developer issues. Agencies seeking to extend an agreed-
upon deadline must seek approval for the extension from FPSIC at least thirty days prior to the
deadline, which encourages agencies to carefully manage timelines. There is no specific deadline
in FAST-41 for final agency action, although the publication of timelines in the dashboard
encourages timely agency action and has provided Congress with clear information about
permitting timelines. These publications have informed a number of amendments to FAST-41
since it was initially adopted.
77
The Permitting Dashboard can be found at https://www.permits.performance.gov/.
40
2. Regulatory and Permitting Information Desktop Toolkit
The United States Department of Energy (“DOE”) developed the Regulatory and
Permitting Information Desktop (“RAPID”) toolkit to provide permitting information, best
practices, and reference material for renewable energy and bulk transmission project
development.78 The toolkit makes regulatory and permitting information accessible from a single
location by providing an overall analysis of the permitting process, centralized contact
information for federal and state regulators, best practice information, reference material, and
links to permit applications, manuals, and related information.
Of note, as part of the RAPID Toolkit, the FPISC has identified best practices for
effectively permitting renewable energy and bulk transmission projects.79 These practices
include coordinating permitting for the projects, developing landscape-scale mitigation plans,
drafting memorandums of understanding (“MOU”) for interstate transmission siting, online
permitting systems, public involvement, purpose and need statements, and general tips.
3. Federal NEPA Reform
Congress included NEPA reforms in the Fiscal Responsibility Act, passed in late May
2023. The new statute largely codifies practices that have been developed since NEPA’s
adoption in 1969, including a requirement that a lead agency be designated where two or more
federal agencies are involved.
The new statute also imposed two important requirements. First, EISs are required to be
completed within 2 years after an agency determines that a proposed federal action will have
significant environmental impacts. Second, environmental assessments (“EA”) and EISs are
78
The toolkit can be found at https://openei.org/wiki/RAPID.
79
Available at https://openei.org/wiki/RAPID/Best_Practices?technology=Transmission.
41
limited to 75 and 150 pages, respectively, plus appendices, with limited exceptions for complex
projects.80
4. Nationwide Permits under the Bald and Golden Eagle Protection Act
The FWS recently published a final rule creating general permits under the Bald and
Golden Eagle Protection Act (“BGEPA”) authorizing incidental take of eagles associated with
the operation of wind farms, power lines, and other activities. The FWS issues incidental take
permits upon the project applicant’s demonstration that eligible projects and power lines pose a
low risk of eagle take.
For onshore wind, if turbines are located at least two miles from a golden eagle nest and
at least 660 feet from a bald eagle nest, any incidental take is automatically authorized up to
specific thresholds. Operators must conduct monitoring to examine eagle take and provide
adaptive management measures if the project exceeds take thresholds. For power lines,
applicants must develop either a reactive retrofit strategy, a proactive retrofit strategy, a collision
response strategy, or a shooting response strategy.81
5. Expanded NEPA Categorical Exclusions for Transmission
The DOE issued a proposed rulemaking on November 16, 2023, to add categorical
exclusions for certain energy storage systems and to revise categorical exclusions for upgrading
and rebuilding transmissions lines.82 DOE establishes and revises categorical exclusions that are
supported by a record showing that actions normally do not have significant impacts,
individually or cumulatively. The proposed revisions would expand transmission categorical
80
The President’s Council on Environmental Quality adopted regulations implementing these statutory changes on
May 1, 2024. CEQ, National Environmental Policy Act Implementing Regulations Revisions Phase 2, 89 Fed. Reg.
35442 (May 1, 2024).
81
Final rule available at https://www.govinfo.gov/content/pkg/FR-2024-02-12/pdf/2024-02182.pdf.
82
Proposed rule available at https://www.federalregister.gov/documents/2023/11/16/2023-25174/national-
environmental-policy-act-implementing-procedures.
42
exclusions to a class of actions normally requiring an EA, and to a class of actions normally
requiring an environmental impact statement. If implemented, the categorical exclusion for
upgrading and rebuilding existing powerlines would truncate the permitting timeline and greatly
expedite the permitting process. Recent studies indicate that new technologies could, using this
process, significantly expand the capacity of the existing transmission system without requiring
major construction.83
6. EPA Permitting Dashboard
On April 2, 2024, EPA announced that it will launch a new centralized website,
epa.gov/permits, that will display the status of EPA permits for large scale infrastructure
projects, as well as providing centralized information about EPA permitting programs,
environmental justice permitting information, and information about funding provided to EPA
under the Inflation Reduction Act to improve its permitting efficiency.84
7. Conservation Leasing
On May 9, 2024, the Bureau of Land Management (“BLM”) published the Public Lands
Rule, which aims to protect and restore public lands using science and data-based decision-
making processes. The rule was enacted partly pursuant to the BLM’s statutory mandates to
manage public lands “under principles of multiple use and sustained yield” under 43 U.S.C.
1732(a) and to “take any action necessary to prevent unnecessary or undue degradation” of
public lands under 43 U.S.C 1732(b).
83
E.g., U.S. Department of Energy, Pathways to Commercial Liftoff: Innovative Grid Deployment (April 2024); M.
O’Boyle et al., Supporting Advanced Conductor Deployment: Barriers and Policy Solutions, GridLab & Goldman
School of Public Policy, University of California at Berkeley (April 9, 2024).
84
News Release, EPA Launches New Website to Improve Transparency in Permitting (April 2, 2024) (available at
https://www.epa.gov/newsreleases/epa-launches-new-website-improve-transparency-permitting).
43
To carry out its statutory mandate, and most relevant for renewable energy project
development, the rule establishes two types of conservation leases: restoration leases and
mitigation leases. Qualified individuals, businesses, non-governmental organizations, Tribal
governments, conservation districts, and State fish and wildlife agencies may use restoration and
mitigation leases to restore public lands or to mitigate impacts from authorized activities on
public lands. These leases will be issued and overseen directly by the BLM and will not interfere
with existing rights, or state or Tribal land use management. Restoration and mitigation leases
also will not preclude subsequent uses of lands so long as those uses are compatible with the
leased restoration or mitigation activities.
Renewable energy developers will most likely apply for mitigation leases in instances
where projects proposed on public lands present unavoidable impacts to wilderness or recreation
resources. In such cases, the BLM may determine that compensatory mitigation is appropriate
and lease an area in a different location to the developer in order to protect or restore resources
for the duration of a project’s impacts.
Conservation leases under the Public Lands Rule complement the BLM’s Renewable
Energy Rule, published on May 1, 2024. According to the BLM, that final rule “reduces acreage
rents and capacity fees, improves the BLM’s application process, and delivers greater
predictability for how the BLM will administer future solar and wind project authorizations.”
8. Federal-State Modern Grid Deployment Initiative
In May 2024, the Biden-Harris Administration launched the Federal-State Modern Grid
Deployment Initiative (the “Initiative”).85 The Initiative recognizes that deployment of new
85
Federal-State Modern Grid Deployment Initiative, WHITE HOUSE (May 2024), https://www.whitehouse.gov/wp-
content/uploads/2024/05/Federal-State-Modern-Grid-Deployment-Initiative-Principles_formatted.pdf; Fact Sheet:
Biden-Harris Administration Launches Federal-State Initiative to Bolster America’s Power Grid, WHITE HOUSE
44
transmission assets—necessary to meet growing energy demands and accommodate the
deployment of new generation—requires a significant amount of time and resources. It therefore
promotes state and federal cooperation to achieve additional capacity on the existing grid via
installation of high-performance conductors and Grid Enhancing Technologies (“GETs”). GETs
include dynamic line ratings, a blanket term encompassing technologies and methodologies that
assess real-time data to determine, and optimize, line capacity.
21 states have signed on to the Initiative: Arizona, California, Colorado, Connecticut,
Delaware, Hawai’i, Illinois, Kentucky, Maine, Maryland, Massachusetts, Michigan, New Jersey,
New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Washington, and
Wisconsin. In exchange for policy, technical, and analytical assistance from the federal
government, these states have committed to prioritizing the adoption of modern grid solutions to
increase capacity on existing infrastructure.
To achieve the goals of the Initiative, $10.5 billion in competitive grant funding has been
made available through the Grid Resilience and Innovation Partnership (“GRIP”) program.86 The
Initiative complements other recent transmission-modernization efforts, including FERC’s Order
1920, which mandates long-term regional transmission planning and requires transmission
providers to consider the use of advanced conductors and GETs in their planning processes.87
BRIEFING ROOM (May 28, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/2024/05/28/fact-
sheet-biden-harris-administration-launches-federal-state-initiative-to-bolster-americas-power-grid/.
86
Fact Sheet: Biden-Harris Administration Announces Key Actions to Strengthen America’s Electric Grid, Boost
Clean Energy Deployment and Manufacturing Jobs, and Cut Dangerous Pollution from the Power Sector, WHITE
HOUSE BRIEFING ROOM (April 25, 2024), https://www.whitehouse.gov/briefing-room/statements-releases/
2024/04/25/fact-sheet-biden-harris-administration-announces-key-actions-to-strengthen-americas-electric-grid-
boost-clean-energy-deployment-and-manufacturing-jobs-and-cut-dangerous-pollution-from-the/; Grid Resilience
and Innovation Partnerships (GRIP) Program, DEPARTMENT OF ENERGY GRID DEPLOYMENT OFFICE,
https://www.energy.gov/gdo/grid-resilience-and-innovation-partnerships-grip-program. (last visited May 31, 2024).
87
Fact Sheet: Building for the Future Through Electric Regional Transmission Planning and Cost Allocation,
FEDERAL ENERGY REGULATORY COMMISSION (May 13, 2024), https://www.ferc.gov/news-events/news/fact-sheet-
building-future-through-electric-regional-transmission-planning-and.
45
B. State Permitting Reforms
Several states with aggressive decarbonization timelines like those adopted in
Washington have recently enacted permitting reforms aimed at speeding the development of
renewable energy and other infrastructure projects necessary to achieve these states’
decarbonization goals. We here briefly describe the legislation, as well as proposed legislation
that is worthy of notice.
Several states have adopted processes similar to Washington’s EFSEC process. The
following chart summarizes the laws governing those states’ processes:
STATE Agency Standard for Preemption of Other Time Limit
Action Local Permits for Action?
Ordinances? Required?
California State Energy Yes (PRC Yes (PRC Possibly (PRC Certification
Resources 25545.8, 25545.1(b)) 25545.1(b)(2)) process must
Conservation 25545.9) be complete
and within 270
Development days of
Commission88 complete
application
(PRC
25545.4(e))
Connecticut Connecticut Yes (R.C.S.A. No (Conn. Yes One year after
Siting § 16-50j-59) Gen. Stat. § complete
Council89 16-50t(b)) application for
transmission
lines, 180 days
for all other
facilities
(Conn. Gen.
Stat. § 16-50p)
88
Cal. Public Resources Code (“PRC”) § 25545, available at https://leginfo.legislature.ca.gov/faces/codes_
displayText.xhtml?lawCode=PRC&division=15.&title=&part=&chapter=6.2.&article=.
89
Connecticut General Statutes (“Conn. Gen. Stat”) chapter 277a, available at https://www.cga.ct.gov/current/pub/
chap_277a.htm#sec_16-50j; Regulations of Connecticut State Agencies (“R.C.S.A.”) title 16, available at
https://eregulations.ct.gov/eRegsPortal/Browse/getDocument?guid={409EE155-0200-C014-8F51-
8588DD14E405}.
46
Massachusetts Energy Yes (980 Yes (164 No (164 MGL Six months
Facilities CMR 6.03; MGL 69K) 69K) from date of
Siting Board90 164 MGL complete
69O) application
(980 CMR
6.05(1))
Michigan Michigan Yes (MCL Yes (MCL Potentially One year after
Public Service 460.1226(7)) 460.1231) (MCL a complete
Commission91 460.1231(5)) application is
filed (MCL
460.1226(5))
Minnesota Minnesota Yes (Minn. Yes (Minn. Yes (Minn. Final decision
Public Utilities Stat. § Stat. § Stat. § on application
Commission92 216E.03(7)) 216E.10(1) 216E.10(2)) within 60 days
of ALJ report
(Minn. Stat. §
216E.03(9))
New Site Evaluation Yes (RSA § No Yes, Within one
Hampshire Committee93 162-H:16; application year after
N.H.A.R. Site must contain receipt of
301.03) evidence of complete
other application
applicable (N.H.A.R. Site
permits (RSA 301.12)
§ 162-H:7-a,
162-H:16;
N.H.A.R. Site
301.03(c)(6)b)
New York Office of Several (N.Y. Yes (N.Y. No (N.Y. Six months to
Renewable Exec. Law § Exec. Law § Exec. Law § one year,
Energy Siting94 94-c[3](b); 19 94-c[6]) 94-c[4], [6]) depending on
project (19
90
Massachusetts General Laws (“MGL”) chapter 164 § 69H, available at https://malegislature.gov/Laws/
GeneralLaws/PartI/TitleXXII/Chapter164; Code of Massachusetts Regulations (“CMR”) title 980, available at
https://www.mass.gov/law-library/980-cmr.
91
Michigan Compiled Laws (“MCL”) Chapter 460.1221–32, available at https://www.legislature.mi.gov/Laws/
MCL?objectName=MCL-460-1226-ADDED.
92
Minnesota Statutes (“Minn. Stat.”) § 216E, available at https://www.revisor.mn.gov/statutes/cite/216E; Minnesota
Administrative Rules (“Minn. R.”) chapter 7854, available at https://www.revisor.mn.gov/rules/7854/. On March 7,
2024, Minnesota introduced HF 4700, which requires the state to transition to a carbon-free electric grid by 2040. If
adopted, the statute would replace Minnesota’s existing permitting system with expedited processes under “major”,
“minor”, and “local” review standards. The statute also provides for expedited review of permits for minor
alterations and exempts certain smaller projects. The current version of the bill is available at https://www.
revisor.mn.gov/bills/bill.php?f=HF4700&y=2024&ssn=0&b=house.
93
New Hampshire Revised Statutes Annotated (“RSA”) § 162-H, available at https://www.gencourt.state.nh.
us/rsa/html/XII/162-H/162-H-mrg.htm; New Hampshire Administrative Rules (“N.H.A.R.”) Site 100, available at
https://www.gencourt.state.nh.us/rules/state_agencies/site100-300.html.
94
New York Executive Law (“N.Y. Exec. Law”) § 94-c, available at https://www.nysenate.gov/legislation/
laws/EXC/94-C; 19 New York Codes, Rules and Regulations (“N.Y.C.R.R.”) Part 900, available at https://ores.ny.
gov/system/files/documents/2020/09/draft-regulations-chapter-xviii-title-19-subparts-900-1-900-5-900-7-900-
14.pdf.
47
N.Y.C.R.R. § N.Y.C.R.R. §
900-2) 900-9.1)
Ohio Ohio Power Yes (ORC Yes (ORC No (ORC Ninety days
Siting Board95 4906.10) 4906.13) 4906.13(B)) after receipt of
complete
application
(ORC
4906.03(E))
Oregon Energy Facility Several (ORS Effectively No (ORS Varies by
Siting 469.501; ORS (ORS 469.401; 469.401(1)) project (ORS
Council96 469.503; OAR “applicable 469.370(9))
345-022-0000 substantive
through 0120; criteria”
OAR 345-025- include
0500, 0580; ordinances in
OAR 345-023- effect on date
0000) of application.
OAR 345-022-
0030)
Rhode Island Energy Facility Yes, and Effectively No, agencies Final decision
Siting Board97 decision sent (advisory provide within sixty
to legislature opinions sent advisory days of
to be affirmed by other state opinions (R.I. conclusion of
(R.I.G.L. § 42- agencies or Gen. Laws § final hearing
98-11(c)) zoning boards 42-98-7(a)(2)) (R.I. Gen.
do not need to Laws § 42-98-
be followed, 11(c))
R.I. Gen. Laws
§ 42-98-11(c))
Vermont Vermont Yes (30 Yes (City of No (24 V.S.A No stated
Public Utilities V.S.A. § South § 4413(b)) timeline
Commission98 248(b)) Burlington v.
Vermont Elec.
Power Co.,
Inc., 133 Vt.
438, 344 A.2d
19 (1975); 24
VSA § 4413
(b))
Washington Energy Facility None – Yes No One year from
Siting Recommendati receipt of
95
Ohio Revised Code (“ORC”) Chapter 4906, available at https://codes.ohio.gov/ohio-revised-code/chapter-4906.
96
Oregon Revised Statutes (“ORS”) Chapter 469, available at https://www.oregonlegislature.gov/bills_laws/ors/
ors469.html; Oregon Administrative Rules (“OAR”) Chapter 345, available at https://secure.sos.state.or.us/oard/
displayChapterRules.action?selectedChapter=79.
97
Rhode Island General Laws (“R.I.G.L.”) § 42, available at http://webserver.rilin.state.ri.us/Statutes/TITLE42/42-
98/INDEX.HTM; Rhode Island Code of Regulations (“R.I.C.R.”) title 445, available at https://ripuc.ri.gov/sites/g/
files/xkgbur841/files/efsb/EFSB2/SB2018_05_Rule_Practice.pdf.
98
Title 30 Vermont Statutes Annotated (“V.S.A.”) § 248, available at https://legislature.vermont.gov/statutes/
section/30/005/00248.
48
Evaluation on to (RCW (RCW complete
Council99 Governor 80.50.110) 80.50.120) application
(RCW (80.50.100(1)(
80.50.100) a))
We now describe permitting reforms adopted in several states we view as particularly
useful models, involving both EFSEC-style processes and other processes.
1. California
Recognizing the need to expedite permitting of renewable energy facilities and
supporting infrastructure, California in 2022 adopted AB 205, which includes provisions that
centralize permitting of critical facilities and subject the permitting process to specific deadlines.
California’s expedited permitting process has the following features:
Eligible facilities: The new permitting process is available to:
o Solar and wind generation with a capacity of 50 MW or more and appurtenant
facilities, as well as facilities with a capacity of 50 MW or more using any source of
thermal generation other than fossil fuels or nuclear power.
o Energy storage systems with a capacity of 200 MWh or more.
o “Discretionary projects,” which are those requiring a capital investment of at least
$250 million and that will manufacture or produce components or specialized
products used in renewable generators or energy storge projects.
o Electrical transmission lines carrying power from a covered renewable generator or
storage project to a point of interconnection with the existing electric transmission
system.
Centralized Authority: Developers of eligible projects may submit an application to the
State Energy Resources Conservation and Development Commission, more commonly
referred to as the California Energy Commission (“CEC”), to have their application
treated in accordance with AB 205. Certain small renewable projects may also seek CEC
certification. The CEC is empowered to permit construction of such facilities, and the
permit is “in lieu of any permit, certificate or similar document required by any state,
local, or regional agency, or federal agency to the extent permitted by federal law,”100
99
Chapter 80.50 Revised Code of Washington (“RCW”), available at https://app.leg.wa.gov/RCW/default.aspx?
cite=80.50&full=true.
100
Cal. Public Resources Code § 25545.1(b)(1).
49
although the authority of regional water quality and air quality boards remain, as does the
permitting authority of certain agencies regulating coastal development. Projects subject
to the CEC process must also pay lease fees to the State Lands Commission if their
projects occupy state lands.
Specific timelines: AB 205 imposes a number of specific deadlines on the CEC. The CEC
must, within 30 days of receiving an application, determine whether the application is
complete and, if not, notify the project developer of any deficiency. The project
developer must respond within thirty days and the application is considered complete
immediately upon receipt of the requested information. The certification process must be
completed within 270 days after the application is deemed complete, although the
deadline may be extended under limited circumstances. For example, the timeline can be
extended if the project developer proposes substantial changes to the project, new
information comes to light that could not have been known when the project application
was accepted, or additional time is necessary to conduct required surveys.
Within the 270-day period, the CEC is required to conduct a public outreach
process. It must conduct an initial public information meeting between ten and thirty days
after the application is deemed complete, and a public workshop in the community
nearest the project must be conducted within 60 days. A meeting to scope the project’s
environmental impact analysis must be conducted within 30 days of when the project
application is complete, and a hearing must be held 30 to 60 days after notice that the
draft environmental report is complete. Some of these meetings can be combined. The
CEC must certify the environmental report within 30 days after it is finalized.
Native American Tribes that are “culturally and traditionally associated with” the
project’s geographic location must be notified and a tribal consultation process must
follow. In addition, the CEC “shall take feasible measures to avoid or minimize adverse
impacts to tribal cultural resources.”101
Protections for Local Interests: AB 205 declares eligible projects to be projects of
statewide significance and the state interest is sufficiently strong to justify preemption of
local regulation. Nonetheless, several protections for local interests are built into the law.
First, as noted above, the CEC is required to notify local governments in the project area,
and they may participate in the CEC process. Second, the CEC may not approve a project
unless it determines that the project will produce “an overall net positive economic
benefit to the local government.”102 In addition, the project developer is required to enter
into a community benefits agreement that will provide benefits to the local community,
that must include job training and other economic benefits, and may also address benefits
to local amenities such as parks.
101
Cal. Public Resources Code § 25545.9
102
Id.
50
Labor Protections: The project developer must also enter into an agreement with a
relevant organization to assure that prevailing wages are paid, that an apprenticeship
program is in place, and that other labor protections are observed.
Appeals: AB 205 requires the California Judicial Council to adopt court rules requiring
appeals of CEC decisions under that law to be completed within 270 days of the filing of
the CEC’s certified administrative record with the reviewing court.
2. New York
In 2020, the State of New York enacted the Accelerated Renewable Energy Growth and
Community Benefit Act,103 which created an Office of Renewable Energy Siting (“ORES”) to
provide a consolidated permitting process for renewable energy projects in the state. ORES is
charged with developing uniform standards and conditions for each category of renewable
energy project within its purview that are designed to “avoid or minimize, to the maximum
extent practicable, any potential significant adverse environmental impacts related to the siting,
design, construction and operation of” large renewable generators.104 These uniform standards
and conditions are intended to identify the environmental impacts of each major source of
renewable energy (e.g., solar, wind, geothermal, energy storage) and to provide generic standards
for the developers of each type of project to meet.
In addition, once an application is received from project developer, ORES is required to
review the site-specific environmental impacts of the project and, to the extent possible,
condition the project to avoid those impacts or, if the impacts cannot be avoided, to mitigate
them through established programs for off-site mitigation. This includes a requirement to achieve
“a net conservation benefit to any impacted endangered or threatened species,” which can be
achieved by off-site mitigation.105
103
The Act was included as Part JJJ of SB 9508-B.
104
N.Y. Exec. Law § 94-c(3)(c), replaced by Section 138 of the RAPID Act.
105
N.Y. State Fin. Law § 99-hh(3), replaced by Section 138 of the RAPID Act.
51
On April 20, 2024, New York further clarified ORES’s responsibilities through adoption
of the RAPID Act.106 The RAPID Act moves ORES to the New York Department of Public
Service and replaces much of the language discussed above with new statutory text clarifying
ORES’s various responsibilities.
Other key elements of New York’s program include:
Eligible Projects: Renewable energy projects, including appurtenant facilities and
transmission tie lines up to ten miles in length, are required to go through the ORES
process if they have a capacity of 25 MW or more. Projects of between 20 and 25 MW
may voluntarily seek to use the ORES process. Projects that are subject to a federal
licensing scheme (primarily hydroelectric power projects) are exempt, and the New York
State Department of Environmental Conservation retains its authority to issue permits
where it has been authorized to do so under a federal environmental law such as the
Clean Air Act or Clean Water Act.
Deadlines: ORES has 60 days to determine if an application is complete and, if it is not,
it must notify the project developer in writing within 60 days of any deficiency. If it fails
to meet this deadline, the application is deemed completed. Within 60 days after the
application is complete, ORES must initiate a public hearing process that includes
notification of relevant local agencies and newspapers and publication of the notice on
ORES’s website. ORES has one year from the date the application is deemed complete to
issue or deny a permit for construction, with the deadline reduce to six months if the
project is proposed for a brownfield, landfill, abandoned energy generation site, or former
commercial or industrial site. A parallel provision of the statute requires the New York
Public Service Commission to complete its review of major utility-developed
transmission projects within one year of receiving a complete application, subject to
limited exceptions allowing an extension of the one-year period. The period is reduced to
nine months for transmission constructed within existing rights of way, including
transportation and canal rights of way as well as transmission and distribution rights of
way, subject to expansion of the right of way if necessary to meet regulatory
requirements.
Local Regulation: As part of the ORES process, ORES examines whether the project
complies with relevant local laws and regulations. After receiving notification, a local
agency may submit a statement addressing whether the proposed project complies with
local laws and regulations. ORES may hold a hearing to decide that question. If the
project meets local requirements, ORES may approve the project. If it does not, ORES
may exempt the project from local requirements if it concludes that the local
requirements are unreasonably burdensome and are inconsistent with New York’s
106
The RAPID Act was enacted as part of budget legislation. The statute is contained in Article VII, Part O, of the
budget enactment.
52
decarbonization goals, which are similar to Washington’s. ORES must require the project
developer to enter into a community benefit agreement with the host community.
Fee: Applicants are required to pay fees to support processing of their applications, with
the size of the fee based on the size and type of project. Fees are deposited in an account
dedicated to fund local agencies who wish to intervene in the ORES process.
Development Incentives: The New York law authorizes the New York State Energy
Research & Development Authority (“NYSERDA”) to develop a program aimed at
providing incentives for development of renewable energy facilities on previously-used
land and on sites that are difficult to develop consistent with applicable law. Under this
program, NYSERDA can undertake the process of permitting projects on such sites, then
sell the site, along with permits and other necessary land and transmission rights, in
“shovel ready” condition to private developers. NYSERDA can also provide incentives to
local communities and property owners to encourage them to accept renewable energy
developments.
Environmental Mitigation: The legislation establishes a mitigation bank fund for
threatened and endangered species, funded by ORES applicants with a relevant
mitigation requirement included in their permit to construct. The fund is intended to
provide a readily-accessible mitigation alternative for project developers whose projects
may affect threatened or endangered species and those impacts cannot be avoided
through conditions on the project.
Agricultural Lands: The RAPID Act adds a requirement for several state agencies, along
with local governments, agricultural groups, and interested parties to, within one year,
develop recommendations for the protection and minimization of impacts to agricultural
lands in the ORES process.
3. Illinois
In early 2023, Illinois enacted legislation aimed at limiting overly restrictive local zoning
ordinances on development of renewable energy in the state. The Illinois legislation, HB 4412,
takes a much different approach than the bills in New York or California. Rather than
centralizing the permitting process in a single state authority, the Illinois bill places limitations
on how local agencies can regulate wind or solar energy development.
HB 4412 amends Illinois’s Counties Code, which is the statute providing regulatory
authority to county governments, to define the maximum limits of their authority to regulate
commercial-scale wind and solar projects. For solar projects, counties are permitted to establish a
53
setback of 150 feet from occupied dwellings and 50 feet from public rights of way, but may not
establish more restrictive setbacks. Counties may require the solar farm to be surrounding by a
fence of between six and 25 feet and may require vegetative screening of the solar site, but may
not require earthen berms.
For wind energy, the permitted setbacks are based on the wind generators’ maximum
blade height. Setbacks from occupied buildings and wildlife areas are limited to 2.1 times blade
height, and setbacks from homes of residents that have contracted with the project developer for
an easement or other land right are 1.1 times blade height. Counties may limit shadow flicker in
occupied buildings to 30 hours per year. Blade height restrictions may not be more restrictive
than those established by the FAA.
Counties are barred from prohibiting renewable energy through moratoria, and may not
prohibit development on agricultural lands, although they may require solar developers to follow
guidelines for pollinator preservation and other standard agrovoltaic practices. Counties may
charge fees and impose construction conditions on renewable energy developers only if the fees
and conditions are consistent with fees and conditions that are imposed on other types of
development in the county.
Counties must hold a hearing on a renewable energy project within 45 days after
receiving a complete application and must make a determination on the application within 30
days after the hearing. The County may require wildlife mitigation if consistent with
recommendations made by state and federal wildlife officials based on standard mapping
protocols.107
107
On May 21, 2024, Colorado Gov Polis signed SB 24-212, which provides technical assistance to Colorado Tribes
and counties by providing model codes and similar resources to govern renewable energy and transmission
development. In 2023, Colorado passed legislation easing permitting barriers to rooftop and behind-the-meter solar
generation. See Colorado HB23-1234 (signed May 11, 2023).
54
4. Michigan
In November 2023, to be effective on November 29, 2024, Michigan enacted HB 5120.
The new statute creates a process by which the Michigan Public Service Commission (“MPSC”)
may preempt local laws and regulations that unduly restrict renewable energy development.
Eligible Facilities. The Michigan statute applies to solar facilities with a nameplate
capacity of 50 MW or more, wind facilities with a nameplate capacity of 100 MW or
more, and energy storage facilities with a nameplate capacity of 50 MW or more and an
energy discharge capacity of 200 MWh or more. In each case, the facility is defined to
include all appurtenant facilities, including generation tie lines, access roads, wires,
foundations, and the like.
Local Government Consultation: A project developer may voluntarily seek local
government approval using the following process: the project developer, with at least 30
days advance notice which must include the facility site plan, holds a public meeting in
the relevant locality. At least 60 days before the public meeting, the project developer
must offer to meet with the chief elected official of the relevant local authority. If the
elected official notifies the project developer that it has a compatible ordinance, the
project developer may file for approval with that ordinance. The local government
agency must approve or deny the application within 120 days after receipt, which may be
extended up to an additional 120 days if both the project developer and the local
government agree.
The applicant may file an application with the MPSC if: (a) the local government
fails to act within the 120-day deadline; (b) if the proposal meets defined setbacks and
other requirements specified in the statute (which are very similar to the standards
specified in Illinois) but the local government denies the application anyway, which
makes the statutory standards the most restrictive that can be adopted by the local agency;
or, (c) the local government amends the applicable ordinance after the local government
has notified the project developer that a compatible local ordinance is available.
MPSC Application: As an alternative to the local consultation process (although MPSC
may order the project developer to go through the local consultation process), the project
developer may submit an application to the MPSC. The application must include
information covering a broad range of issues, including efforts the project developer has
undertaken to consult with local agencies and environmental regulators, evidence of the
project’s impact on telecommunications signals, stormwater management plans,
emergency response plans, and decommissioning plans, including minimum financial
assurances.
Deadlines. The MSPC has 60 days to determine if the application is complete and, if it
fails to notify the applicant in writing of any deficiencies within the 60-day window, the
55
application is considered complete by default. The MPSC must make a final decision
within one year of receiving the final application.
Deposits. The project developer must make a one-time grant of up to $75,000 per
affected local government, not to exceed $150,000 in total, to allow affected local
governments to participate in the required administrative hearing before the MPSC.
Granting the Application: The MPSC “shall grant the application and issue a certificate”
if it determines that seven specific criteria are met. These are:
o That the public benefits of the project, to include tax benefits, community
benefits, job creation, and energy benefits, justify construction.
o That the project complies with Michigan’s Natural Resources and Environmental
Protection Act.
o That the applicant has considered and addressed impacts to environmental
concerns, including sensitive habitats and waterways, wetlands, floodplains,
parks, historic sites, and threatened and endangered species.
o The applicant has entered into required community benefits agreements and labor
agreements.
o The applicant will meet U.S. Department of Labor apprenticeship requirements,
will pay prevailing wages, and, to the extent permitted by law, will enter into a
project labor agreement or collective bargaining agreement.
o The project will not “unreasonably diminish” farmland, including prime farmland.
o The project does not present an unreasonable threat to health and safety. This
requirement is met if the project meets the setback and other requirements set
forth in the statute.
If the MPSC issues a certificate, local zoning ordinances are preempted.
5. Minnesota
Minnesota passed, and Governor Walz signed, a sweeping package of climate laws in
2023, including requiring the state to generate 100 percent of its electricity from carbon-free
sources by 2040. In May of 2024, Governor Walz signed the Minnesota Energy Infrastructure
56
Permitting Act.108 The act reduces procedural requirements, consolidates environmental review
authority for energy projects to the Minnesota Public Utilities Commission, limits certain
contested case hearings, and exempts all wind and solar projects and some transmission lines
from the requirement to obtain a certificate of public convenience and necessity, which is
otherwise required for electricity infrastructure.
Site and Route Permit Process: The act divides site and route permitting into “major” and
“standard” review processes. At least 30 days prior to submitting an application, an applicant
must notify affected local governments, affected Tribal governments, and state technical
resource agencies and seek preapplication feedback. The commission must determine whether an
application is complete within ten working days of its receipt and hold public hearings and
receive comments thereafter. Under Major Review, the commission must make a final decision
on an application within one year of the date it determines an application is complete, and within
six months of a complete application determination under standard review. Standard review is
available for projects less than 80 MW, natural gas facilities, certain high voltage transmission
lines, solar facilities, wind facilities, and energy storage facilities.
Certificates of Need: Minnesota requires a certificate of need issued by the public utility
commission prior to the construction of large energy facilities. The act modifies the definition of
“large energy facility” with respect to transmission lines. A certificate of need is required for
lines with a capacity of 300 kV or more and greater than one mile in length in Minnesota, or with
a capacity of 100 kV or more and greater than ten miles of length or that crosses a state line. The
act also retains certificate of need exemptions for wind and solar facilities and adds exemptions
108
Available at https://www.revisor.mn.gov/bills/text.php?number=SF4942&type=bill&version=4&session=ls93&
session_year=2024&session_number=0.
57
for energy storage systems and transmission lines that directly interconnect wind or solar
facilities.
6. State Energy Authorities
Three Western states have recently created energy authorities that are aimed at promoting
new and renewable technologies such as carbon capture and advanced nuclear generation,
improving transmission planning, identifying transmission corridors, and providing information
to project developers aimed at reducing conflicts that might otherwise slow or halt project
permitting. New Mexico established its Renewable Energy Transmission Authority in 2007,109
Wyoming created the Wyoming Energy Authority in 2020,110 and Colorado created the Colorado
Electric Transmission Authority in 2021.111 While each of these authorities have unique
characteristics, they were all formed to promote the development of electric transmission and to
encourage the development of renewable energy resources.
These state authorities each:
Engage in transmission planning activities aimed at promoting renewable energy and
economic development and increasing grid reliability.
Identify and establish electric transmission corridors within the relevant state, working
with other states and the federal government to coordinate development of transmission
corridors.
Promote non-wires alternatives and new transmission technology to maximize the
efficient use of the existing transmission system, including in at least one case the use of
energy storage to reduce transmission loads.
May issue government bonds to support transmission and other projects and may collect
fees and other charges from operating or leasing facilities in order to finance future
projects.
109
NM Stat. Chapter 62, Art. 16A; https://nmreta.com/.
110
See Wyo. Stat. Ann. § 37-5-502 et seq.; https://wyoenergy.org/.
111
Colo. Stat. Ann. Title 40, Art. 42.; https://www.cotransmissionauthority.com/.
58
May exercise the power of eminent domain to acquire property for rights of way
necessary for the construction of linear facilities like transmission lines.
May enter into partnerships with public or private entities to develop projects. The
Colorado Transmission Authority is considered a “provider of last resort,” which steps in
to build priority transmission projects when no other developer is willing to step in.
Provide information to developers, landowners, and other interested parties. The
Wyoming Energy Authority, for example, provides guides to the permitting process for
wind and solar developers. The Wyoming authority also provides studies and other
support for alternative technologies like geothermal power and for new technologies like
hydrogen.
7. Track Record to Date
Because these laws are recent, none have an extensive track record. However, a recent
study concluded that the New York process has worked well, with the eight renewable energy
projects reviewed through ORES taking less than eight months on average to receive a permit,
with only one taking a full year.112 On the other hand, a recent report from New York’s
Comptroller, which reviewed 15 projects reviewed by ORES found that, while the time to review
completed applications took one year or less, the time from initial application until an application
is deemed complete was generally much longer, an average of three years. The Comptroller
recommended that the time from initial application to issuance of a permit, as well as the time
from final application to permit, be tracked.113 We have been unable to locate any quantitative
analyses of the other state laws we discuss above, but anecdotal evidence gathered through our
interviews suggests that the processes in Illinois and California have improved permitting
timelines significantly.
112
J. Arnold & M. Beck, Canadian Climate Institute, Permitting reform for clean energy projects in New York and
California Promising changes at the state level may hold useful lessons for Canada (Nov. 14, 2023)
113
Office of the New York State Comptroller, Office of Renewable Energy Siting: Application Review and Site
Permitting for Major Energy Projects, Report No. 2023-S-52 (April 2024).
59
8. A Negative Example: Ohio
Major energy facilities in Ohio obtain permits through the Ohio Power Siting Board
(“OPSB”), a body similar to EFSEC. Like EFSEC, an OPSB permit preempts any local laws or
ordinances that would interfere with construction of an energy facility that is supported by a
demonstration of statewide need. Before 2021, OPSB’s authority extended to permitting utility-
scale wind and solar generators. In 2021, Ohio enacted SB 52, which requires the proponent of a
wind or solar facility to submit an application to the county or counties where the facility will be
located and provides the counties an opportunity to respond by declaring all or parts of their
counties off-limits to renewable energy development. Notably, SB 52 does not apply to other
types of energy facilities, such as fossil-fired generators and petroleum pipelines.
The result has been a near-total elimination of utility-scale renewable generation in Ohio.
Many counties have declared all or large parts of their counties off limits to renewables
development, which has slowed renewable energy development to a crawl. In 2022, only five
applications for utility-scale renewable projects were filed in Ohio and, in 2023 that number
dropped to four.114 Notably, a number of these projects filed applications with the OPSB before
SB 52 was enacted, so were not subject to the same local restrictions that applied to applications
for projects submitted after SB 52’s effective date.
114
B&D has represented the Allen-Auglaize Coalition for Reasonable Energy, a local citizens group supporting
renewable energy development in Ohio, on a pro bono basis. We assisted the Coalition in proceedings before the
OPSB and now the Ohio Supreme Court concerning the Birch Solar project, a utility-scale solar generator. Although
the OPSB concluded that Birch Solar met every substantive statutory requirement for, for example, protection of the
environment and historical resources, the OPSB nonetheless rejected Birch Solar’s application solely on the basis of
local opposition. The OPSB’s decision has been challenged in the Ohio Supreme Court, and the Allen-Auglaize
Coalition, along with a diverse group of amicus curiae including the Ohio Chamber of Commerce, the Ohio
Manufacturer’s Association, and the Ohio Environmental Council, have filed briefs supporting reversal of the
OPSB’s decision.
60
C. European Union Renewable Energy Directive
The European Union’s Renewable Energy Directive (“Directive”), entered on November
20, 2023, is a legal framework developed with the overall goal of obtaining 42.5% of energy in
the European Union from renewable sources by 2030.
While the Directive includes a variety of requirements and tools to achieve this goal,
most relevant to permitting is developing a framework for expediting permitting of renewable
energy projects. The Directive highlights a need to streamline administrative procedures and
develop staffing and expertise so as to facilitate relationships between governments and
developers.
The directive targets “Renewables Acceleration Areas” (“RAAs”), areas particularly
suited for renewable energy development, which are eligible for streamlined permitting. The
Directive requires Member States to develop plans for the development of specific types of
renewable energy projects, with the aim of minimizing environmental impact. These areas,
which should avoid protected regions and incorporate restoration and mitigation measures, are
tailored to the requirements of the renewable technologies they host, with the combined size of
these areas being sufficient to meet the needs of the chosen technologies.
The Directive also focuses on the procedures for projects that are not part of these
renewable acceleration areas. It directs member states to adopt permitting procedures that do not
exceed two years, except in cases of offshore renewable energy projects. It also directs member
states to adopt a single procedure that combines all relevant assessments for any particular
renewable energy project. The Directive also directs member states to adopt similar streamlining
procedures for solar energy projects, associated storage, and heat pumps.
61
PERMITTING REFORM RECOMMENDATIONS
Based on the recommendations contained in the Low-Carbon Siting Report, legislation
from other jurisdictions discussed in Section IV, the many studies we have reviewed,115
interviews we have conducted,116 and the recommendations contained in previous reports issued
by Washington agencies, we recommend the following reforms to Washington’s permitting
processes.
At the outset, however, we note that we do not recommend changes to the basic structure
of Washington’s permitting system: that is, the three options currently available to entities
seeking to permit clean energy infrastructure and clean energy product manufacturing facilities
in Washington should remain: EFSEC, Ecology’s Coordinated Permitting Process, and the local
county/city process. Project developers should remain free to choose the permitting path that best
fits their project. Further, the legislation recently adopted in Washington, discussed in Section
III, contains many desirable features and we propose retaining those but building on them.
Our specific recommendations are:
A. Across-the-Board Reforms
Several reforms are recommended for all permitting processes.
Personnel: We heard from project developers, permitting consultants, and permitting
agencies alike that permitting agencies lack sufficient personnel to address the volume of
project applications they are expected to process. In addition, project developers and
permitting consultants consistently criticized permitting agencies for lack of expertise in
project management and energy project development, resulting in uncoordinated and
unnecessarily lengthy permitting processes. To address this concern, all permitting
agencies should:
o Hire Sufficient Personnel. Agency staffing should be optimized by hiring
sufficient personnel to address the volume of project applications reasonably
expected to be received by that agency. To the extent agencies experience spikes
115
A list of studies we have reviewed for this report is provided in Appendix F.
116
A list of the entities whose employees or representatives we have interviewed for this report is provided in
Appendix G.
62
in applications, they should be authorized to retain consultants to assist in
processing those application spikes, with the option for applicants to pay for the
necessary consultants.
o Hire/Train Project Managers. To coordinate permitting processes by ensuring
that all involved agencies are working in tandem and according to schedule,
employees with expertise in project management should be hired and salaries
should be high enough to retain these individuals. In addition, the state should
consider project management training programs that would allow current
employees, who often have deep expertise in areas related to clean energy project
permitting, to acquire project management expertise.
o Hire/Train Consultation Specialists. In light of emerging federal and state
policies related to environmental justice and reducing environmental and
economic burdens on overburdened communities, most notably the HEAL Act,
the state should encourage hiring of individuals with experience and cultural
understanding to engage Tribal, people of color and overburdened communities.
In addition, the State should provide training to existing staff on best practices for
engaging these communities.117
o Budget Line Item. Agencies with permitting responsibilities should submit
budget line items for their permitting functions. This helps assure policy-makers
that the agencies have adequate resources to carry out permitting responsibilities
and also ensures that permitting budgets are not raided to pay for other agency
priorities.
o Shared understanding of costs and resourcing adequately. Agencies with
permitting responsibilities should have clear, up-to-date, and justifiable budgeting
documentation for their permitting functions and should submit budget requests to
meet demand as needed. Policy-makers and agencies should have a shared
understanding of the costs and resource needs to enact permit policies; and the
legislature should allocate adequate resources for agencies to carry out permitting
responsibilities.
SEPA Reforms. To ensure that the SEPA process is as efficient as possible while still
attaining SEPA’s goals, all SEPA processes should:
o Lead Agency. The lead agency for SEPA purposes should be identified within
fourteen days of submission of the SEPA checklist.
o Acceptance of SEPA Checklist. The lead agency should, within 30 days after
receipt of the SEPA checklist, identify deficiencies and any additional
information that is required and notify the project proponent of those deficiencies.
117
See, e.g., Community Engagement Values and Guidance Adopted by the Environmental Justice Council (August
25, 2023).
63
Within 7 days of receiving the additional information, the lead agency should
determine whether the information is sufficient and inform the project proponent.
Additional information submissions should follow the same 7-day process. To
coordinate HEAL Act requirements with SEPA, environmental justice concerns
should also be addressed in the checklist.
o Determination of Significance. Within 60 days of receiving a complete SEPA
checklist, the lead agency should inform the project proponent of its
determination whether the project threatens significant environmental impacts that
require a full EIS. With the information in hand, the project proponent should be
permitted to revise its proposal to avoid the identified impacts, either through
project redesign or mitigation, so that the project can receive a determination of
non-significance or mitigated determination of non-significance.118
o EIS Deadlines and Length Limitations. If a project requires an EIS, the EIS
process, including any required environmental justice assessment, should be
completed in all cases in no more than 24 months.119 For projects employing a
technology or system for which a nonproject environmental review has been
performed, the EIS process should be limited to site-specific impacts that have not
been addressed in the non-project review, and should be completed in no more
than six months and limited to no more than 150 pages plus appendices. Similar
time and page limits should apply to projects constructed on brownfields, existing
rights of way, or other areas that are already significantly disturbed. These
deadlines may be extended with the project proponent’s agreement, which allows
the proponent to, for example, account for delays in obtaining transmission
interconnection rights and also to ensure that a record is developed that will pass
muster in an appeal of a permit decision.
o Upfront Disclosure. Building on existing pre-application processes, project
proponents and permitting agencies should be required to engage Tribes,
localities, and overburdened communities through disclosure of proposals and
potential impacts. Agencies, Tribes, and non-governmental organizations or
individuals with concerns about a project, in turn, should be encouraged to
identify those concerns as early as possible in the process. All such concerns
should be identified in the pre-application process and scoping process. Concerns
that are not identified in those stages should not be considered in later stages of
analysis unless the party attempting to raise a new issue or facts demonstrates that
118
Currently, RCW 43.21.033 requires the threshold determination to be made within 90 days, subject to certain
exceptions. For “clean energy projects,” RCW 43.21C,530(2)(a), requires that, prior to making its determination of
significance, the lead agency provide the applicant with a written statement anticipating its significance
determination and allow the applicant to withdraw and revise its application. The lead agency has thirty days after
the resubmission to revise its significance determination unless the applicant has substantially changed its project.
119
HB 1216 added a deadline of twenty-four months from the determination of significance for completion of the
EIS for clean energy projects, with an additional extension of up to 24 months if the applicant agrees and the revised
schedule is publicly posted. RCW 43.21C.530(3)
64
the concerns could not reasonably have been discovered and identified in the pre-
application or scoping process.
o Social Cost of Carbon. To ensure that the value of GHG reductions is accurately
reflected in SEPA processes, all SEPA and environmental justice analyses (and
other analyses involving GHGs such as utility integrated resource planning)
should incorporate the Social Cost of Carbon if the analysis involves a project that
could either significantly reduce or significantly increase GHG reductions. The
Social Cost of Carbon is a science-based metric that identifies the per-ton cost of
GHG emissions arising from climate impacts like sea level rise, increasingly
violent weather, and droughts. To ensure uniformity, the Social Cost of Carbon as
determined by the federal Interagency Working Group on the Social Cost of
Carbon should be used in all SEPA analyses.
o Nonproject Environmental Reviews. In addition to those already mandated by
HB 1216, responsible agencies should continue to conduct non-project
environmental reviews for renewable energy technologies or clean technologies
that are likely to be deployed at multiple sites across the state. Such technologies
might include, for example, electric generation fueled by biomass or biogas and
emerging carbon capture technologies, such as the geological storage technology
developed by the Pacific Northwest National Laboratory that sequesters carbon
deep in basalt formations, which are common across much of Washington.120
The timelines suggested above are already included in the Coordinated Permitting
Process via HB 1216, except for the six-month time limit for brownfield sites, which is borrowed
from New York’s legislation. Shorter timelines for completion of the environmental assessment
process are included in legislation from several other states discussed above and the 24-month
limit has been adopted here in Washington in HB 1216, in federal NEPA reform legislation, and
in the European Union. In addition, the suggested page limits mirror the page limits adopted in
recent federal legislation reforming NEPA.
Standardized Mitigation. For projects with unavoidable impacts, standardized mitigation
requirements should be developed for both environmental and environmental justice
impacts. For example, mitigation for loss of wetlands through wetlands mitigation banks
– that is, where the project causes the loss of some wetlands, the project proponent pays
for specified acreage to be added to a wetlands restoration project – is a well-recognized
form of mitigation. Where possible, the responsible Washington agencies should develop
120
See Courtney Flatt, Could the Northwest’s basalt rocks help slow climate change? Oregon Public Broadcasting
(June 4, 2023) (available at: https://www.opb.org/article/2023/06/04/could-the-northwests-basalt-rocks-help-slow-
climate-change/).
65
standard mitigation measures based on the best available science and in consultation with
all interested communities. For example, New York provides a mechanism for project
developers to fund wildlife protection measures where impacts to threatened or
endangered species cannot be avoided. In Washington, mitigation for renewable energy
development in the Columbia Basin could take the form of purchasing marginal farmland
or degraded sage steppe habitat,121 that would then be restored to support ecosystem
functions, with a specific acreage ratio (for example, two acres of restoration for each
acre disturbed, similar to common wetlands mitigation requirements) required. Other
examples might include: (1) mitigation measures for farmland used for solar
developments based on agrivoltaics,122 as appropriate for growing conditions in our state,
and newly-adopted legislation123 encouraging pollinator habitat in landscaped areas; and,
(2) for unavoidable impacts on anadromous fish habitat, mitigation through support of
restoration of riparian areas, which are critical habitat for juvenile fish.
Expanded Use of Standardized Permits and Categorical Exclusions. The USFWS
recently issued nationwide permits governing protection of raptors under the BGEPA and
allied legislation, as discussed above. WDFW should adopt these, or similar standard
permits, because they allow renewable energy projects to proceed without further
permitting if the projects meet the conditions specified in the permit and the conditions
are supported by NEPA analysis. Those conditions are developed to assure protection of
the species if the specified conditions are met. Similarly, the U.S. Department of Energy
recently revised its list of categorical exclusions, which exempt the excluded activities
from environmental review, to address new technologies like energy storage and
advanced technologies that allow existing transmission lines to carry increased power
flows. Similar categorical exclusions should be adopted under SEPA to allow deployment
of these kinds of technologies.
Standards and Protocols for Environmental and Cultural Surveys. One complaint we
have heard from a number of developers and consultants is that expectations for how
field surveys are to be conducted are unclear, resulting in repeated redos of surveys, with
attendant expense and delay. To address this, responsible Washington agencies should set
forth and abide by clear standards and protocols for field surveys and environmental
justice analyses. One example of such guidance recommended to us by a project
developer is the Minnesota Department of Natural Resources’ recently-issued
Commercial Solar Siting Guidance document.
Consolidated Permits. The Legislature has directed the ICESCC to pursue development
of consolidated clean energy permits similar to the Joint Aquatic Resource Application
121
As discussed above, the Biden Administration’s recent public lands initiative would allow conservation leasing
on BLM lands. Because significant portions of the sage steppe ecosystem in Washington are located on BLM lands,
this offers a new opportunity for developers to lease and preserve sage steppe habitat, or to restore degraded habitat
on leased public lands.
122
See, e.g., U.S. Department of Energy, Solar Energy Technologies Office, The Potential of Agrivoltaics for the
U.S. Solar Industry, Farmers, and Communities (April 17, 2023) (available at: https://www.energy.gov/eere/solar/
articles/potential-agrivoltaics-us-solar-industry-farmers-and-communities).
123
SSB 5934, signed by Gov. Inslee on March 28, 2024.
66
and also to explore consolidated clean energy permits.124 We generally believe such
consolidated permitting processes increase the speed and efficiency of permitting, but we
have not further analyzed these options because they are outside the scope of this report.
B. Permitting Oversight and Information Clearinghouse
We recommend the adoption of several measures that are aimed at improving the
permitting process at all levels. These functions could reasonably be housed in Governor’s
Office for Regulatory Innovation and Assistance (“ORIA”) or in the ICESCC, if those bodies are
provided with any necessary legislative authorization and are given sufficient personnel and
resources to carry out these functions. We refer to the agency that would be assigned these
project oversight functions as the “permitting oversight body.” Another alternative worthy of
consideration would be the creation of a cabinet-level Department of Energy, Climate, and the
Environment, that would house this and other agencies with responsibilities relevant to energy
and climate.
The functions assigned to the permitting oversight body are aimed at improving pre-
application and other upfront processes to surface potential problems as much as possible before
a final permit application is filed, and to support Tribes, local government agencies, and
interested individuals by providing information and technical support related to clean energy
projects.
The specific functions performed by the permitting oversight body would include:
(a) Washington Permitting Dashboard
Implement a Washington State permitting dashboard based on the federal FAST-41
model. The dashboard would:
o Track the progress of all proposed clean energy projects through the permitting
process, with the possible exception of smaller generators (under 20 MW capacity,
124
RCW 43.394.020(3)(b)-(c).
67
for example) moving through local permitting processes. A state permitting
dashboard establishes deadlines and provides transparency to the public, stakeholders,
and lawmakers that keeps agencies accountable and assists the legislature in
identifying areas of improvement for permitting. In addition, the dashboard will
reveal agencies that are chronically late in meeting permitting deadlines and
corrective action, such as assigning management personnel to ensure timely action or
providing additional resources, can be taken.
o Require state agencies involved in a project subject to the FAST-41 process to
participate in the federal dashboard applicable to such projects. Currently, state
agencies are allowed to participate in the FAST-41 process, but are not required to do
so.
o Guided by a project management expert, include specific deadlines for each involved
agency to act, coordinate agency actions involving studies to avoid duplication and
minimize the time required for studies, and designate individuals from each involved
agency to be responsible for that agency’s involvement in a particular project. If an
agency anticipates that it will not meet a deadline, it may seek an extension but must
do so at least thirty days prior to the deadline. Deadlines would include: a specific
date by which an agency must declare an application complete or else seek additional
information from the applicant, deadlines to complete all required environmental
analysis consistent with other deadlines recommended below, coordinate with state
and federal agencies involved in environmental analysis to ensure the maximum use
of existing information (notably including information developed in ongoing non-
project environmental analyses) and minimize duplication of information
requirements, and final deadlines for each agency to act.
(b) Information Clearinghouse
To assist project developers, local governments, Tribes, and the public in understanding
the technical aspects of clean energy infrastructure, to help identify sites that are most likely to
be free of conflicts, and to maximize the value of pre-application procedures, the permitting
oversight body would provide the following services:
i. Mapping. A great deal of mapping information already exists, including, for
example, DNR’s clean energy screening function,125 Washington State University’s work
125
DNR Clean Energy Parcel Screening website, https://www.dnr.wa.gov/cleanenergymap.
68
on the least-conflict solar process,126 similar work done by federal agencies,127 and maps
identifying protected lands, private lands, lands with high potential for renewable energy
development, existing transmission lines, etc. In addition, both the state and federal
governments have published maps identifying environmental justice communities.128
This information should be gathered in one place to create a one-stop shop to help project
developers identify sites that will present the lowest potential for conflict, and to assist
state and local agencies, Tribes and other interested parties to identify areas of concern
and suggest measures to avoid or mitigate those concerns as early in the process as
possible, and to identify overburdened communities that must be taken into account in
project planning and assessment, as well as assisting developers to address environmental
justice requirements. Of course, appropriate measures will need to be in place to protect
confidential information (locations of sensitive Tribal cultural resources, for example). In
addition, to the extent conflicting maps exist – we have heard from developers that
habitat maps for sensitive species, for example, sometimes conflict – the permitting
oversight body would work to resolve these conflicts and provide definitive maps.
ii. Least-Conflict Process. Building on the least-conflict work already carried out by
Washington State University with respect to solar development on the Columbia
Plateau,129 the permitting oversight body should convene appropriate sets of stakeholders
126
Washington State University Energy Program, Report to the Washington Legislature: Least-Conflict Solar Siting
on the Columbia Plateau (June 2023);
127
See, e.g., BLM Solar Energy Zones website: https://blmsolar.anl.gov/competitive/other-procedures/sez/
128
See, e.g., Washington Environmental Health Disparities Map website: https://doh.wa.gov/data-and-statistical-
reports/washington-tracking-network-wtn/washington-environmental-health-disparities-map.
129
See note 123, supra.
69
and Tribes to identify least-conflict areas for other clean energy technologies and in other
parts of the state if those technologies are likely to be deployed widely across the state.130
iii. Renewable Energy Zones. Using maps, areas that have been identified by state
and federal land management agencies for priority renewable energy development, input
from interested Tribes and stakeholders, and the results of the mapping and least-conflict
processes recommended above, the permitting oversight body would identify Renewable
Energy Zones, areas characterized by strong solar, wind or other renewable resources,
that can be linked to existing transmission infrastructure with relatively modest effort,
and that have the least potential for conflict in the permitting process. The permitting
oversight body could be delegated authority to name Renewable Energy Zones or it could
recommend to the Legislature new Renewable Energy Zones beyond those that the
Legislature may designate in response to recommendations required from the ICESCC by
Section 302(7) of HB 1216. Renewable energy development would then be prioritized in
these zones by, for example, transmission development facilitated by the Washington
Renewable Energy Authority (discussed below), preparation of non-project
environmental analyses covering the zones, and other measures to expedite permitting in
these zones.
iv. Technical Assistance. Many local governments, members of the public (including
members of overburdened communities), and Tribes have expressed concerns that they
lack expertise and understanding of renewable energy and clean economy technologies.
The permitting oversight body would collect information on technologies that are most
130
The Legislature recently mandated a similar process to help identify desirable sites for geothermal energy
development. See SB 6039, signed by Gov. Inslee on March 28, 2024.
70
commonly being sited in Washington, including information gleaned from non-project
environmental reviews, and provide that information to interested parties through its
website, with assistance provided to understand the information where needed. The
permitting oversight body would also provide expert advice to local governments and
Tribes concerning these technologies, including potential environmental impacts and
common mitigation measures.
v. Pre-Application Roundtable. For projects in the planning and pre-application
phase of development, the oversight body should provide contact information for key
government bodies, Tribes, community-based organizations, non-governmental
organizations, and other interested parties, to facilitate early resolution of potential
disputes. For Tribes that prefer government-to-government contact rather than direct
contact with project developers, a mechanism is needed to ensure that there is a
consistent and reliable conduit for communications with the Tribe that are relevant to a
proposed project. In addition, the oversight body should assist willing developers by
identifying known issues in the proposed project area that might create permitting
problems, and by facilitating meetings with the project developer and all interested
parties to identify and seek mutually agreeable solutions to objections that might
otherwise slow or derail the permitting process. Early, voluntary resolution of disputes is
much preferred by all parties as a way to avoid, for example, formal EFSEC
adjudications on disputed issues, which are expensive and time consuming, and can
create unpredictable outcomes.
71
vi. Community Engagement.
(a) Community Benefits and Labor Agreements. The permitting oversight body,
with assistance from interested organizations and individuals, would also provide
guidance to project developers and overburdened communities by developing a database
of standardized community benefits agreements and labor agreements, as well as tracking
the costs to project developers and consumers, and benefits of these agreements, and
determining whether benefits are reaching the intended beneficiaries. The oversight body
would also provide mediation services where necessary to facilitate agreements between
project developers and community representatives.
(b) Facilitation Services: The oversight body would provide project
proponents and agencies with guidance on best practices for engagement with Tribes,
overburdened communities, and local agencies. Where necessary, the oversight body
would provide translation services to ensure that immigrant communities and other
communities with a substantial number of non-native English speakers can be fully
represented in the permitting process.
C. EFSEC Reforms
Building on the changes to EFSEC enacted in SB 1812,131 we recommend the following
additional changes to RCW Chapter 80.50:
Standard for Project Approval: To set a clear statutory standard that developers must
meet and for when EFSEC must approve a project, we recommend new language, based
on language contained in the statutes for EFSEC equivalents in several states (Michigan,
California, New York) and the Legislature’s statement of intent in RCW 80.50.010. The
following language would be added to RCW 80.50.100 as a new subsection 3:
131
Section 1 of SB 1812 added language to the Legislature’s statement of intent for EFSEC (RCW 80.50.010) that
EFSEC should, for example, “encourage the development and integration of clean energy sources” in Washington.
But intent language is merely precatory and we recommend mandatory language clarifying how EFSEC should
exercise its authority.
72
The Council shall recommend that the Governor approve an application for an alternative
energy resource, a clean energy manufacturing facility, or an electric transmission facility
if:
(a) The public benefits of the applicant’s project, including the benefits of greenhouse
gas reductions (as measured using the social cost of carbon as determined by the federal
Interagency Working Group on the Social Cost of Carbon), tax benefits, community
benefits, job creation, and energy benefits, justify construction;
(b) The applicant’s project avoids, minimizes, or mitigates, to the maximum extent
practicable, any potential significant adverse environmental impacts related to the siting,
design, construction and operation of the project;
(c) The applicant’s project avoids or minimizes to the maximum extent practicable, any
potential significant adverse impacts on historical, archaeological, and cultural resources;
(d) The project, including mitigation measures, provides a net positive impact with
respect to threatened and endangered species that are reasonably expected to be affected
by the project;
(d) The applicant has entered into community benefit or labor agreements, or has
otherwise taken measures, to assure that the project minimizes impacts to overburdened
communities and vulnerable populations, as those terms are defined in RCW 70A.02.010,
and that a reasonable share of the project’s environmental and economic benefits are
provided to overburdened communities and vulnerable populations in the vicinity of the
project;
(e) The applicant’s project does not present an unreasonable threat to health and safety,
which standard shall be met if the project meets the requirements of the local standards
specified [RCW cite to legislation discussed below – proposal to limit local discretion on
renewable projects]; and,
(f) The applicant has agreed to reasonable requirements for project decommissioning that
ensure, to the maximum extent practicable, that project components are reused,
refurbished, or disposed of in a manner consistent with state and federal requirements for
waste disposal or recycling, and that lands affected by the project are restored to their
pre-project condition to the maximum extent practicable.
Additional recommendations include:
Reformulate EFSEC Governing Body: As noted, EFSEC is governed by a group of
agencies with specific missions. Many observers believe that, because the agency lacks
an independent director body charged with balancing the state’s overarching goals with
respect to clean energy against the goals of the agencies, EFSEC tends to pursue the
statutory missions of these agencies to the maximum extent, without adequate
counterbalance for statewide goals such as clean energy development. This balancing
73
function should be assigned to a specific individual or body within EFSEC that is
independent of both the agencies involved in regulating proposed projects and the
developers seeking to permit projects. We recommend that this function be assigned to
one to three paid directors with significant experience in the energy industry and with
related permitting issues, to be appointed by the Governor with the advice and consent of
the Senate. The requirements would be similar to those governing the Pollution Control
Hearings Board. RCW 43.21B.020. The director(s) would be tasked with making the
final decision under the standard set forth above, based on input from all agencies,
Tribes, local governments, individuals, and other interested parties involved in a
particular application.
Adopt Clear Standards: A common complaint about the EFSEC process is that it lacks
clear standards and instead relies on a drawn-out SEPA process to develop permit
conditions that are often arrived at on an ad hoc basis, creating great uncertainty for
project developers. To address this problem, in addition to the statutory language set forth
above, we recommend that EFSEC develop technology-specific standards that spell out
specific requirements for, for example, wind energy projects, battery storage projects, and
pumped storage projects. The Oregon Energy Facilities Council has adopted such
standards,132 which may serve as a template for revised EFSEC standards.133 In addition,
EFSEC should adopt standardized mitigation measures, as discussed above.
Standard Reforms: EFSEC should adopt the time limits, page limits, and other reforms
to the SEPA process discussed above. It should also employ standardized “nationwide”
permits (like those recently adopted for raptors by the USFWS), standard mitigation
procedures, and standardized survey protocols to the greatest extent possible. Finally, all
EFSEC projects should be included in the Washington Permitting Dashboard.
Minimize Contested Adjudications: A common denominator in EFSEC processes that
have been successful in issuing recommendations within the one-year statutory timeline
appear to be successful upfront resolution of disputes through, for example, revisions to
project proposals to avoid a SEPA determination of significance or informal resolution of
disputes. To encourage this approach, we propose two changes to the EFSEC statute.
First, the current statute requires that, before the Council issues its recommendation to the
Governor, it hold a public hearing “conducted as an adjudicative proceeding under
chapter 34.05 RCW, the administrative procedure act.” Given that the record has already
been developed at this stage, in many cases there is no good reason to require a formal
adjudication, which involves formal briefing, judicial-style procedural rules, formal
testimony, cross-examination, and other procedures typical of a court trial. The statute
should be amended to allow EFSEC to make its determination based on a non-
adjudicative public hearing. Any amendment should, of course, allow EFSEC the
discretion to conduct adjudicative hearings where necessary to resolve legal or other
132
See OAR Chapter 345, Title 24.
133
As noted above, EFSEC recently developed a standard application for solar facilities that may serve as a useful
model that can be expanded to other clean energy technologies. However, we have been unable to access sufficient
information about the solar application to make any specific recommendation about it.
74
disputes that require quasi-adjudicative processes. Second, EFSEC should offer
mediation services employing a trained mediator to encourage opposing parties to come
to agreement on specific concerns so as to minimize the use of formal adjudications to
resolve disputes. Adjudications were generally disfavored by both applicants and others
involved in EFSEC processes because they are expensive and time-consuming, with
unpredictable outcomes since disputes are resolved by a hearing officer’s opinion.
EFSEC could either retain its own trained mediation staff, similar to the model used at
FERC and other federal agencies with similar quasi-adjudicative processes, where a
mediation staff is available to help parties voluntarily resolve disputes. Another
alternative would be for a dedicated and trained mediation staff to be developed through
the Office of Administrative Hearings that could be available to other agencies, as well as
EFSEC.
D. Local Government Reforms
Based on recent legislation adopted in Illinois, Michigan and other states, we recommend
that the Legislature enact limits on the burdens local governments can impose on renewable
energy developments, that would include:
Maximum Setbacks/Buffers. Local governments would be permitted to require
setbacks or buffers up to a maximum but no more. For example, counties would be
permitted to establish a setback for solar projects of up to 150 feet from occupied
dwellings and for wind projects, require a setback of up to two times maximum blade
height from occupied dwellings, but no more. Similarly, local governments would be
permitted to impose the same buffers on such facilities as it imposes on other
developments to protect critical areas such as wetlands, but would not be permitted to
impose larger buffers.
No Moratorium. Except for specific technologies that are not addressed through
legislation, local governments would not be permitted to establish moratoriums on
renewable energy projects, electric transmission projects, or clean energy product
manufacturing facilities, but could require those projects to pay impact fees, obtain
construction and grading permits, and impose other requirements on the same basis as
the local government treats other developments. Local governments would also be
required to allow meteorological towers and other equipment and processes necessary
for identifying sites with strong renewable energy potential, with conditions imposed
on these activities no more restrictive than conditions imposed on other similar
activities. For technologies that are not addressed specifically by legislation, moratoria
would be limited to the time reasonably necessary for local governments to gather
necessary information to address the proposals, but in no case more than one year.
Agricultural Lands. Local governments would not be permitted to bar energy
developments on all agricultural lands, but could limit development on the highest-
value agricultural lands. In addition, local governments would be permitted to require
75
mitigation measures consistent with statewide requirements for, for example,
agrivoltaics and preservation of pollinators,134 and for decommissioning and restoration
of farmlands after a project reaches the end of its useful life.
Time Limits. Local governments would be required to process permits for smaller
renewable energy projects (25 MW capacity or below) within 60 days and within 120
days for larger projects.135
Transmission Corridors. Local governments would be required to permit construction
and operation of electric transmission facilities, lines to carry renewable natural gas,
and other linear facilities necessary for clean energy projects on corridors identified by
the Washington Renewable Energy Authority. Local governments would be permitted
to impose conditions on transmission, including construction of generator tie lines, that
are no more restrictive than conditions imposed on similar kinds of construction.
E. Washington Renewable Energy Authority
Based on models from New York, New Mexico, Wyoming, and Colorado, we recommend
that Washington create a Renewable Energy Authority (“WREA”) with the following powers:
Transmission Planning & Coordination: WREA would work with other states, the
Bonneville Power Administration, regional transmission planning bodies, Canadian
authorities, and relevant federal agencies to identify planned transmission projects that
may reach Washington or support transmission of renewable energy into Washington,
and to participate in the process of developing National Interest Electric Transmission
Corridors (“NIETCs”) 136 in the Pacific Northwest. WREA would work with these other
agencies and bodies to ensure that transmission corridors developed in Washington will
connect with these regional transmission lines in a manner that best serves Washington
electricity consumers. WREA would be empowered to enter into Memorandums of
Understanding or other appropriate contracts with these entities to promote development
of a cohesive transmission network. WREA should particularly focus on ensuring that
adequate transmission is available to import renewable energy from regions outside the
state that are likely to be important renewable energy sources. This would include, for
example, areas slated for development of offshore wind in California and Oregon (which
are likely to develop these resources several years before they may be developed on
134
See SB 5934 (signed March 28, 2024) (providing for protection of pollinators),
135
As noted above, the Illinois legislation we have used as a model includes much shorter timelines. We recommend
longer timelines based on our experience with Washington permitting processes taking into account the fact that the
legislation we recommend would foreshorten the time necessary to consider setbacks and other mitigation measures.
136
On January 8, 2024, the U.S. Department of Energy issued Guidance laying out a four-step process it will use to
define NIETCs and on May 8, 2024, issued its preliminary list of ten NIETCs, including a NIETC running from
southern Nevada to north-central Oregon that is designed to allow importation of renewable energy from the
southwest that will help the Pacific Northwest meet expected needs for carbon-free energy. It also includes a
corridor running from eastern Montana to the Great Plains, which may provide a conduit for electric customers in
the Pacific Northwest to access the strong wind and solar resources available in the Wyoming, Montana, and the
Dakotas.
76
Washington’s outer continental shelf), and areas with strong wind and solar resources in
Wyoming and Montana. The Legislature should consider either transferring these
authorities to WREA or else requiring WREA to work with EFSEC on issues where
EFSEC has assigned duties.137
Development of Transmission Corridors: WREA would be empowered to identify,
obtain rights of way or easements for, and obtain permits for transmission to be
constructed on key corridors. Key transmission corridors would connect Renewable
Energy Zones (discussed above) with population centers and/or existing transmission
infrastructure and would focus on new transmission corridors and on existing
transmission that requires major upgrades to accommodate the energy anticipated to be
generated in the Renewable Energy Zone. WREA would be provided with eminent
domain authority to assemble transmission corridors and with authority to enter into
Memoranda of Understanding and other documents necessary to formalize cooperative
arrangements. Once a transmission corridor is identified and permits are obtained,
WREA would sell the rights to develop to parties interested in constructing transmission.
WREA would focus on Renewable Energy Zones to help ensure that the new
transmission will be highly valuable and it therefore can recover its costs for identifying
and developing the corridor and obtain the permits necessary to construct transmission.
Corridors should also be available for other linear facilities that support GHG reductions,
including pipelines transporting biogas or landfill gas, carbon dioxide bound for carbon
sequestration facilities, green electrolytic hydrogen, and tie lines that connect renewable
generators with the existing or planned transmission grid.
Build-Ready Renewable Energy Development: WREA would be empowered to
identify sites with high renewable energy potential and obtain land rights (generally
option agreements), transmission rights, and permits for those sites, then sell the site to
project developers when the project is “build-ready,” with permitting completed and land
and transmission rights secured. WREA would focus on brownfields development (for
example, energy development on abandoned mines or industrial sites) and on other sites
likely to have minimal environmental impacts, such as highly degraded farmland,
degraded sage steppe habitat that could be allowed to recover while occupied by a
renewable energy facility, and industrial forest lands that have been subject to repeated
cycles of logging. In addition, WREA would be empowered to obtain development rights
on state and federal lands.
137
The Legislature has designated EFSEC as the authority to “consult with” federal and state agencies and Tribes
“regarding appropriate limits on federal authority” for siting of transmission corridors in Washington, designates
EFSEC as the “state authority” for purposes of the NIETC process, permits EFSEC to approve transmission
facilities on NIETCs, and to coordinate the state’s participation on NEPA analysis for electric transmission projects
“proposed or sited by a federal agency.” RCW 80.50.045. We note that Washington’s utilities and joint operating
agencies (Energy Northwest) have authority to build and operate transmission facilities, including the power of
condemnation. See, e.g., RCW 43.56.300(1)-(2) (joint operating agencies); RCW 54.16.020 & .040 (public utility
districts). Our recommendation essentially combines these authorities and adds the duty to develop transmission
corridors and to enter into MOUs with other entities involved in transmission planning and permitting, transmission
corridor development, and transmission construction.
77
CONCLUSION
Washington policymakers can gain significant insights from the approaches taken in
other jurisdictions facing a dilemma similar to Washington’s – the need to rapidly build out clean
energy infrastructure to address climate change without undermining laws aimed at protecting
the environment, cultural and historical resources, and other values, while at the same time
reducing burdens on overburdened communities. We believe the reforms laid out in this report
can build on significant reforms already adopted by Washington lawmakers and agencies to
achieve these goals.
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APPENDIX A
WASHINGTON CLIMATE LEGISLATION
The major legislative pillars of Washington’s efforts to reduce its GHG emissions are:
GHG Reduction Targets: In 2008, the Washington Legislature adopted a policy to limit
the state’s GHG emissions to 1990 levels by 2020, to 25% below 1990 levels by 2035,
and to 50% below 1990 levels by 2050.138 In 2020, the Legislature strengthened those
goals. It specified that the 1990 level of GHG emissions was 95.5 million metric tons,
and now requires the state to limit its GHG emissions to 45% below 1990 levels (50
million metric tons) by 2035, 75% below 1990 levels (27 million metric tons) by 2040,
and 95% below 1990 levels (5 million metric tons) by 2050 and thereafter.139 The 2008
legislation did not include legal mechanisms to achieve these goals, but directed the
Department of Ecology (“Ecology”) to promulgate rules requiring the reporting of GHG
emissions and also directed Ecology and other state agencies to recommend legislation
that would achieve these goals.140
Decarbonization of the Electricity Sector: In 2019, Washington adopted the Clean
Energy Transformation Act,141 which requires electric utilities to phase out all coal-fired
electric generators serving consumers in Washington by 2025 and requires utilities to
provide Washington electricity consumers with carbon-neutral electricity by 2030. It also
commits Washington to 100% non-emitting electricity sector by 2045.
Building Decarbonization: In 2019, Washington enacted energy performance and
benchmarking standards for large commercial buildings, aimed at reducing the GHG
138
Chap. 14, Wash. Laws of 2008 § 3.
139
Chap. 79, Wash. Laws of 2020 § 2, codified at RCW 70A.45.020.
140
Chap. 14, Wash. Laws of 2008 §§ 4-5.
141
RCW Chap. 19.405.
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emissions from both existing and future buildings.142 These were significantly amended
in 2022 and again in 2023.143 As amended, the law requires buildings with a floor area of
20,000 square feet or more to benchmark their GHG emissions and to meet GHG
intensity targets set by Ecology that become effective in 2026 for large buildings and in
2027 or 2028 for smaller buildings. The GHG intensity targets are set based on the
average energy use for specific building uses, with incentives provided for building
owners that exceed those targets by 15% or more.144 In late 2023, the City of Seattle,
Washington’s largest city, enacted a Building Efficiency Performance Standard that
creates more stringent requirements for buildings to reduce GHG generation.145
Methane and Hydrofluorocarbons (“HFCs”): In 2019, Washington enacted
legislation, which complements federal legislation with the same aim, intended to reduce
the state’s emissions of HFCs, a refrigerant that is also a powerful GHG.146 Legislation
has been enacted to address the state’s emissions of methane, another powerful GHG.
These include a requirement that Washington natural gas utilities offer a program where
consumers may purchase renewable natural gas,147 which is natural gas produced by
biological processes like decomposition of waste at landfills or from anaerobic digestion
of animal waste, as opposed to fossil natural gas. Legislation has also been enacted to
limit methane emissions from landfills148 and to facilitate the use of biogas and landfill
gas in Washington’s climate and clean energy programs.149
142
Chap. 285, Wash. Laws of 2019.
143
Chap. 177, Wash. Laws of 2022; Chap. 291, Wash. Laws of 2023.
144
RCW 19.27A.200-270.
145
SMC Chapter 22.295.
146
RCW Chapter 70A.60.
147
RCW 80.28.385-390.
148
RCW Chapter 70A.540.
149
See, e.g., RCW 19.285.030(21); RCW 70.65A.080.
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Reduction of GHGs from Transportation: Washington has adopted legislation to
reduce GHG emissions from transportation, which is the state’s largest source of GHG
emissions. The legislation works in two ways. First, the legislature has adopted several
measures to encourage the electrification of transportation or the use of alternative fuels.
2019 legislation authorizes electric utilities regulated by the UTC, which serve roughly
half of Washington’s citizens, to submit transportation electrification plans to the UTC
for approval,150 and to receive an incentive rate of return for construction of electric
vehicle charging equipment.151 Public Utility Districts (publicly-owned utilities that serve
the other half) are also authorized to adopt plans for the electrification of
transportation.152 The legislation also includes tax incentives and other measures to
encourage the electrification of the state’s vehicle fleet and ferries, and to encourage
alternative transportation fuels such as hydrogen and sustainable aviation fuel.153
To complement vehicle electrification, in 2021, the Legislature enacted and
Governor Inslee signed the Clean Fuel Standard,154 which requires motor fuels sold in
Washington to meet increasingly stringent limits on the GHG intensity of those fuels,
culminated in a requirement that such fuels in Washington have a carbon intensity 20%
below 2017 levels by 2038, with the limit decreasing yearly between 2022 and 2038.155
The program also includes a mechanism by which sellers of fuel with a low carbon
intensity, such as biofuels, that are below the required GHG intensity level can sell
credits to fuel sellers whose products are above the applicable limit as a means for the
150
RCW 80.28.365.
151
RCW 80.28.360.
152
RCW 54.16.430.
153
RCW 82.04.4496; 82.08.816.
154
RCW Chapter 70A.535.
155
RCW 70A.535,025.
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latter to achieve compliance.156 Notably, credits can be earned for vehicle
electrification.157 The program includes incentives aimed at encouraging the expansion
of biofuel production capacity in Washington.158
In November 2023, the Washington State Department of Transportation finalized
a Statewide Transportation Carbon Reduction Strategy (TCRS) as a requirement by
USDOT for state recipients of federal Carbon Reduction Program funds. The TCRS
builds on the State Energy Strategy, and describes the policy framework necessary to
reduce future transportation carbon emissions to meet state GHG reduction goals. The
strategy focuses on two categories that work together to reduce transportation emissions:
move people and goods more efficiently and equitably; and, electrify vehicles and switch
to low-carbon fuels. Together, the State Energy Strategy and TCRS create a statewide
plan for transportation carbon reduction.
Economy-Wide Cap-and-Invest Program: In 2022, Washington enacted the Climate
Commitment Act (CCA),159 which sets an economy-wide cap on the state’s GHG
emissions and requires all facilities that emit more than 25,000 metric tons of carbon
dioxide-equivalent to obtain credits to cover all their GHG emissions. The cap declines
over time so that statewide emissions are 95% below 1990 levels by 2050. Allowances
are purchased at quarterly auctions and the revenues from the auctions are to be directed
toward programs approved by the Legislature in the CAA, which are generally aimed at
improving the state’s climate resiliency, addressing problems in overburdened
156
RCW 70A.535,050.
157
RCW 70A.535,050(1)(c) & (d).
158
RCW 70A.535,025(6); RCW 70A.535,050(1)(b).
159
RCW Chapter 70A.45.
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communities, and improving access to vehicle charging stations and otherwise supporting
electrification of the state’s transportation sector.
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APPENDIX B
SUMMARY OF MAJOR STATE AND FEDERAL ENVIRONMENTAL LAWS
Subject Matter of Citation to Law Description of Key Notable Recent
Law Requirements Developments
Environmental National Requires federal agencies Congress included
Protection – Environmental to produce detailed NEPA Reforms in the
Federal Policy Act - 42 documentation concerning Fiscal Responsibility
U.S.C. §§ 4321 et major Federal actions that Act of 2023. The new
seq significantly affect the statute largely codifies
quality of the human practices that have been
environment. Also requires developed since
analysis of the NEPAs inception in
environmental impact of 1969, including a
the proposed action, requirement that a lead
alternatives to the proposed agency be designated
action, and any irreversible where two or more
damage to resources in the federal agencies are
event the proposed action involved.
is implemented. If The new statute also
triggered, the agency must imposed two important
conduct an Environmental requirements. First, that
Assessment (“EA”), and if EISs are required to be
appropriate, an completed within 2
Environmental Impact years after an agency
Statement(“EIS”), which is determines that a
a more intensive, lengthy federal action can have
process. major environmental
impacts. Second, that
EAs and EISs are
limited to 75 and 150
pages, respectively,
with limited exceptions
for complex projects
and appendices.
Environmental Washington State Covers any government
Protection – State Environmental action defined in the
Policy Act – statute’s rules that is not
Chapter 43.21C categorically exempt.
RCW When an applicable action
is proposed, the lead
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agency then evaluates
whether there will be a
significant environmental
impact and then issues a
determination of non-
significance, mitigated
determination of non-
significance, or
determination of
significance. Should the
agency issue a
determination of
significance, it must then
prepare a full
environmental impact
statement.
Clean Water – Clean Water Act Section 402 of the CWA On May 25th, the
Federal – 33 U.S.C. §§ governs discharges of Supreme Court issued
1251 et seq pollutants into waters of its decision in Sackett
the United States from v. EPA holding that the
point sources. Facilities Clean Water Act
discharging pollutants extends to wetlands
covered by Section 402 only if they have a
must obtain a NPDES continuous surface
Permit that sets forth connection to relatively
specific limits on the permanent bodies of
amounts of particular water. EPA has since
pollutants the facility is adopted regulations
allowed to discharge. that mirror this
Section 404 establishes a decision.
program to regulate the
discharge of dredged and
fill materials into waters of
the United States and is the
primary federal program
for wetlands protection. If
a project impacts wetlands
subject to federal
jurisdiction, it must obtain
a permit which limits the
amount of wetlands that
may be disturbed.
Clean Water – Water Pollution Regulates any discharges In September 2023,
State Control Act – Ch. of pollutants into waters EPA issued new rules
90.48 RCW that are not subject to governing state
federal regulation. The certifications under
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Department of Ecology CWA Section 401.
also exercises authority Among other changes,
under Section 401 of the the new rules provide
CWA to provide water procedures for
quality certifications to any establishing a
federally permitted projects “reasonable time” for a
that discharge pollutants state agency to process
into state waters. a request for
certification, which (by
statute) may not exceed
one year.
Coastal Coastal Zone Governs shorelines
Management – Management Act abutting saltwater.
Federal – 16 U.S.C. §§
1451 et seq
Coastal Shoreline Requires all counties and
Management – Management Act most towns and cities to
State – Ch. 90.58 RCW develop shoreline
management programs
with a focus on local
development and focus.
Historic and Antiquities Act of Provides for general legal
Archaeological 1906 – 16 U.S.C protection of cultural and
Resources – § 431 et seq natural resources of
Federal historic or scientific
interest on federal lands.
Historic and National Historic Created permanent
Archaeological Preservation Act institutions and creates a
Resources – of 1966, 16 clearly defined process for
Federal U.S.C. §§ 470a et historic preservation. Also
seq. requires states to take on
more responsibility for
historic sites. Section 106
requires federal agencies to
consider the impact of their
actions on historic
properties and provide an
opportunity for comment
on projects prior to
implementation.
Historic and Archeological Requires federal agencies
Archaeological and Historic to preserve historic and
Resources – Preservation Act archaeological objects and
Federal of 1974 – 16 materials that would
U.S.C.§§ 469 et otherwise be lost or
seq. destroyed as a result of
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their projects or licensed
activities or programs.
Historic and Native American Requires any entity that
Archaeological Graves Protection receives federal funding to
Resources - and Repatriation abide by certain
Federal Act – 25 U.S.C. requirements related to
§§ 3001 et seq. preservation and
repatriation when Native
American human remains
or cultural items are
located. Failure to comply
with the requirements can
result in civil or criminal
penalties.
Historic and American Indian Protects the rights of
Archaeological Religious Native Americans to
Resources - Freedom Act – 42 exercise traditional
Federal U.S.C. § 1996 religions by ensuring
access to sites, use and
possession of sacred
objects, and the freedom to
worship through
ceremonies and traditional
rites.
Wildlife Protection Endangered Governs protection of On March 28, 2024 the
- Federal Species Act – 16 threatened and endangered Federal Government
U.S.C. §1531 et species and their critical released three final
seq habitats. Once listed, the rules that significantly
ESA generally prohibits change the existing
the “take” of an legal landscape. First, it
endangered species. If a revised regulations for
government action, listing species and
including approval of a designated critical
permit, may affect a listed habitat to bolster
species or designated environmental
habitat, it must undertake a protections. Second, it
biological assessment. If revised consultation
this assessment shows requirements triggered
there is an adverse effect under Section 7,
on species or habitat, then expanding and
agency must obtain a clarifying the scope of
biological opinion that these requirements.
includes an incidental take Third, the government
statement, which can reinstated a rule that
authorize the take of the increases protections
species. for threatened species
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and granted a new
exception for Tribes
related to the take of
threatened species.
Wildlife Protection Migratory Bird Implements four
– Federal Treaty Act of international conservation
1918 – 16 U.S.C. treaties that the U.S.
§ 703 et seq. entered and is intended to
ensure the sustainability of
populations of all protected
migratory bird species.
Prohibits the take of any
protected migratory bird
species without prior
authorization by the
Department of Interior and
U.S. Fish and Wildlife
Service.
Wildlife Protection Marine Mammal Sets forth a national policy
– Federal Protection Act – to prevent marine mammal
16 U.S.C. §1361 species and population
et seq stocks from diminishing as
a result of human activities.
Imposes a general
prohibition on the taking
and importing of marine
mammals, subject to some
exceptions.
Wildlife Protection Bald and Golden Prohibits anyone without a On February 12, 2024,
– Federal Eagle Protection permit issued by the the United States Fish
Act - § 16 U.S.C. Secretary of the Interior & Wildlife Service
668 et seq from taking bald or golden published a final rule
eagles, including things that created several
like feathers, nests, or eggs. general permits under
this Act, most aimed at
reducing regulatory
barriers to wind energy
generation. The new
permits provide an
expedited permitting
process and
standardized permit
condition for projects
that pose a low risk of
raptor take.
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Air Permitting – Clean Air Act – Establishes national air
Federal 42 U.S.C. §§ quality standards and
4701 et seq regulates emissions
including a variety of
pollutants. Functions
primarily through Title V
operating permits and the
Prevention of Significant
Deterioration Program.
Generally, if a project
emits pollutants, it must
obtain a permit that
regulates those emissions.
Air Permitting – Washington Establishes a statewide
State Clean Air Act - program of air pollution
Chapter 70A.15 prevention and control.
RCW Seeks to encourage
coordination and
cooperation between state,
regional, local and federal
government.
Hazardous Federal Resource Provides federal authority
Materials - Federal Conservation and to control over the
Recovery Act – generation, transportation,
42 U.S.C. § 6901 treatment, storage, and
et seq disposal of solid and
hazardous wastes. Also
grants federal authority
over underground storage
tanks.
Hazardous Hazardous Waste Establishes a
Materials -State Management Act comprehensive statewide
- Chapter framework for the
70A.300 RCW planning, regulation,
control, and management
of hazardous waste to
prevent pollution from
hazardous substances.
Hazardous Waste Comprehensive Provides for liability for
Cleanup – Federal Environmental the release of hazardous
Response, substances at hazardous
Compensation, waste sites by imposing
and Liability Act strict liability and joint and
– 42 U.S.C. § several liability on any
9601 et seq. parties who are responsible
for the hazardous waste.
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Hazardous Waste Model Toxics Provides for liability for
Cleanup - State Control Act – the release of hazardous
Chapter 70A.305 substances at hazardous
RCW waste sites by imposing
strict liability and joint and
several liability on any
parties who are responsible
for the hazardous waste.
Noise, Light, & Noise Control Act Provides for limited
Glare - Federal - 42 U.S.C. § regulation, but establishes
4901 et seq effective coordination of
Federal research activities
and noise control.
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APPENDIX C
SUMMARY OF STATE AND FEDERAL ENERGY LAW
The nation’s complex system of regulation of electric and natural gas utilities plays an
important role in regulation of energy markets and intersects with federal, state, and local
permitting processes at multiple points. Policy-makers seeking to decarbonize the energy sector
need to understand at least the basics of this system.
At least traditionally, utility regulation has been thought of as a matter of economic
regulation rather than environmental regulation although the lines between economic and
environmental regulation are increasingly blurred. Washington still largely hews to a traditional
regulatory structure where federal regulators govern rates and terms of service for high-voltage
electric transmission and wholesale electric power sales, while state regulators govern the
distribution of power to end-use consumers and the rates those consumers pay for retail sales in
territories served by investor-owned utilities, while local distribution and rates for consumer-
owned utilities (like PUDs and municipal utilities like Seattle City Light and Tacoma Power) are
governed by elected representatives of the PUD or City. A similar division of responsibility has
also governed in natural gas regulation, where the federal government regulates natural gas
transmission through interstate pipelines and the wholesale market for natural gas while states
regulate retail distribution and sales.
The aspects of this regulator system relevant to Washington’s goals for decarbonization
of the energy sector are discussed here.
FEDERAL ENERGY REGULATION – TRANSMISSION
A. The Federal Energy Regulatory Commission (“FERC”) and Electric
Transmission
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Any attempt to improve the process of transmission siting and permitting undertaken by
the State of Washington must recognize the constraints on state authority that arise from federal
law. These constraints arise both from the FERC’s exclusive jurisdiction over the economic
aspects to interstate transmission and the involvement of many other federal agencies in the
siting and permitting of electric transmission facilities.
1. FERC Regulation of Interstate Transmission Facilities
The Federal Power Act (“FPA”) requires FERC to ensure that any “rate, charge, or
classification” for any “public utility” for “any transmission or sale subject to the jurisdiction of
the Commission” is “just and reasonable.”160 The FPA assigns FERC jurisdiction over “the
transmission of electric energy in interstate commerce and to the sale of electric energy at
wholesale in interstate commerce” and “over all facilities for such transmission or sale of electric
energy,” but specifies that FERC “shall not have jurisdiction. . . over facilities used for the
generation of electric energy or over facilities used in local distribution or only for the
transmission of electric energy in intrastate commerce, or over facilities for the transmission of
electric energy consumed wholly by the transmitter.”161
These provisions give FERC jurisdiction over the economic aspects of interstate
transmission facilities, including utility rates and charges for interstate transmission service, and
access to those facilities. States retain at least two important roles over transmission: (1)
transmission projects are subject to state siting and permitting processes, so a transmission
developer must obtain all required federal, state and local permits before transmission can be
160
16 USC § 824e.
161
16 USC § 824(b)(1).
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constructed; and (2) local distribution facilities and intrastate transmission facilities are subject to
state jurisdiction and FERC is prohibited from asserting jurisdiction over those facilities.162
FERC has exercised its authority over interstate transmission facilities in several ways
that are relevant to the development of renewable energy resources. Of particular importance is
FERC’s “open access” transmission regime. Since 1996, when it adopted its landmark Order No.
888,163 FERC has required jurisdictional transmission utilities to provide access to the nation’s
transmission system to all generation owners, a reform which was intended to encourage a
competitive market for electric generation, open to all interested parties. Prior to Order No. 888,
construction of new generation had largely been the province of vertically-integrated utilities,
who could use their monopoly control of transmission assets to block competitors in the
generation market from accessing retail purchasers served by the utility incumbents.
A few years later, recognizing that the lack of standard interconnection procedures was
creating unnecessary barriers to entry for non-utility generators, FERC implemented a uniform
system for new generation to interconnect with FERC-jurisdictional interconnection facilities.164
Under current rules, FERC requires generators to file an application for transmission service, to
go through a series of studies of the impact of their facilities on the transmission system, and to
162
See, e.g., FERC v. Electric Power Supply Ass’n, 577 U.S. 260, 266 (2016) (Section 201 of the FPA “maintains a
zone of exclusive state jurisdiction” over functions assigned to states); New York v. FERC, 535 U.S. 1, 22-23 (2001)
(noting that FPA’s legislative history is “replete with statements describing Congress’ intent to preserve state
jurisdiction over local facilities”); LSP Transmission Holdings LLC v. Sieben, 954 F.3d 1018, 1023-24 (8th Cir.
2020) (describing state and federal jurisdiction under FPA, noting that states retain jurisdiction over siting,
permitting and construction of transmission).
163
Order No. 888, Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission
Servs. by Pub. Utils., FERC Stats. & Regs. ¶ 31,036 (1996), aff'd sub nom. N. Y. v. FERC, 535 U.S. 1 (2002).
164
Standardization of Generator Interconnection Agreements and Procedures, Order No. 2003, FERC Stats. and
Regs. ¶ 31,146 (2003), order on reh’g, Order No. 2003-A, FERC Stats. & Regs. ¶ 31,160 at P 744, order on reh’g,
Order No. 2003-B, FERC Stats. & Regs. ¶ 31,171 (2004), order on reh’g, Order No. 2003-C, FERC Stats. & Regs. ¶
31,190 (2005), aff’d sub nom. NARUC v. FERC, 475 F.3d 1277 (D.C. Cir 2007); Order No. 2006, Small Generator
Interconnection Procedures, 111 FERC ¶ 61,220, at P 8, order on reh'g, Order No. 2006-A, 113 FERC ¶ 61,195
(2005), order granting clarification, Order No. 2006-B, 116 FERC ¶ 61,046 (2006).
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pay for the interconnection facilities identified by those studies. For “Network Upgrades” – the
upgrades to the shared transmission grid that must be constructed to accommodate the new
generator – FERC follows a “crediting policy.” The generator must fund the Network Upgrades
upfront, but, because Network Upgrades benefit all transmission customers generally, the
transmission utility is required to refund the Network Upgrade costs to the generator in the form
of transmission credits and to include the Network Upgrades in its rate base so that they are paid
for by the transmission customers who ultimately benefit from the transmission upgrades.
FERC’s interconnection policy was developed in the early 2000s, when natural gas
generation was the preferred technology for new generation and generation was generally added
to the system in large and discrete bundles. Unfortunately, FERC’s interconnection policy has
proved ill-suited to transition to GHG-free resources, and the interconnection process has been
overwhelmed by applications for new renewable generation, resulting in hundreds of thousands
of MW of renewable generation capacity waiting in queues for transmission service. Often it
takes five years or more for generation projects to move through the queue to obtain transmission
service.165
It is increasingly clear that limitations on access to the nation’s electric transmission
system is the most significant barrier to constructing new renewable generation that will permit
attainment of critical decarbonization goals. According to an analysis from Princeton University,
the Inflation Reduction Act (“IRA”) could cut U.S. emissions 40 percent by 2030 compared to
165
E.g., Lawrence-Berkeley Labs, Energy Markets & Policy, Queued Up: Characteristics of Power Plants Seeking
Transmission Interconnection (Apr. 2023) (available at: https://emp.lbl.gov/sites/default/files/queued_up_2022_04-
06-2023.pdf).
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2005 levels,166 nearly reaching the Biden Administration’s goal of a 50% reduction by 2030.167
But to achieve the full benefits of the Inflation Reduction Act, the nation’s electric transmission
capacity must expand at a rate of approximately 2.3% per year, more than double its recent
annual average. If transmission expands at its historical pace of about 1% per year, 80% of the
benefits of the IRA will be lost. Roughly 25% of the IRA’s benefits will be lost if transmission
expands at a rate of 1.5% per year.168
Recognizing that transmission expansion remains a serious problem, FERC in 2021
issued an Advanced Notice of Proposed Rulemaking proposing reforms to both transmission
planning and interconnection procedures of new generation. In 2023, FERC issued Order No.
2023, which adopted a number of reforms to the interconnection process, including changes
aimed at speeding the study process, setting time limits on engineering studies, and adopting
requirements aimed at reducing barriers to the use of advanced transmission technology.169
However, the new rules retain the crediting policy and the basic structure of the interconnection
process.
A second FERC order aimed at reforming processes for interregional transmission was
adopted on May 13, 2024.170 Order No. 1920 significantly reforms regional transmission
166
Jesse D. Jenkins, The Inflation Reduction Act and the Path to a Net-Zero America, Princeton University Zero
Carbon Research and Laboratory, Sept. 12, 2022 (available at:
https://cpree.princeton.edu/sites/g/files/toruqf651/files/documents/2022-09-12%20-
%20Inflation%20Reduction%20Act%20and%20Path%20to%20Net-Zero.pdf).
167
See White House Fact Sheet: President Biden Sets 2030 Greenhouse Gas Pollution Reduction Target Aimed at
Creating Good-Paying Union Jobs and Securing U.S. Leadership on Clean Energy Technologies (April 22, 2021)
(available at: https://www.whitehouse.gov/briefing-room/statements-releases/2021/04/22/fact-sheet-president-biden-
sets-2030-greenhouse-gas-pollution-reduction-target-aimed-at-creating-good-paying-union-jobs-and-securing-u-s-
leadership-on-clean-energy-technologies/).
168
Jesse D. Jenkins et al., Electric Transmission is the Key to Unlock the Full Potential of the Inflation Reduction
Act, Princeton University Zero Carbon Research and Laboratory, Sept. 22, 2022 (available at:
https://repeatproject.org/docs/REPEAT_IRA_Transmission_2022-09-22.pdf).
169
Order No. 2023, Improvements to Generator Interconnection Procs. & Agreements, 184 FERC ¶ 61,054 (2023),
order on reh’g, 186 FERC ¶ 61,199 (2024).
170
Order No. 1920, Building for the Future Through Electric Regional Transmission Planning and Cost Allocation,
187 FERC ¶ 61,068 (2024).
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planning and cost allocation requirements. The order arrives more than ten years after Order No.
1000, FERC’s last significant transmission planning order, and almost thirty years after the
introduction of Open Access Transmission Tariffs (“OATTs”) in Order No. 888. Whereas Order
No. 1000 focused on the process of regional transmission planning and cost allocation, Order
No. 1920 shifts focus to the desired outcomes.
The order requires transmission providers to participate in long-term regional
transmission planning covering at least a 20-year planning horizon. The order also requires
transmission providers to revise their OATTs to include one or more cost allocation methods
based off Order No. 1000 regional cost allocation principles, primarily the principle that the
beneficiaries of electric infrastructure should bear the costs of that infrastructure.
2. Federal Transmission Jurisdiction in the Pacific Northwest
The Bonneville Power Administration (“BPA”) plays a major, and unique, role in electric
transmission in the Pacific Northwest. BPA owns about 75% of the region’s high-voltage
transmission system. Although BPA is exempt from FERC regulation, it has voluntarily
complied with FERC’s open access policies, although it has adopted its own policy for
transmission interconnections.171 BPA owns or co-owns several key transmission corridors that
are likely to play a critical role in decarbonization of Washington’s electricity sector, including
the Eastern Intertie, a high-voltage transmission line originally constructed to support the
Colstrip coal-fired plant that links areas of Montana with excellent wind and solar energy
potential to load centers in the Northwest. Similarly, BPA owns or co-owns interties that link
California and the southwest to the Pacific Northwest.
171
Documents concerning Bonneville’s interconnection process, known as the TSR Study and Expansion Process
(“TSEP”), are available here: https://www.bpa.gov/energy-and-services/transmission/acquiring-transmission/tsep.
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3. Federal Transmission Permitting Reforms
While states and local governments have traditionally been responsible for permitting
electric transmission infrastructure, Congress has expanded the federal role in constructing
transmission for “National Interest Electric Transmission Corridors” or “NIETCs.” Under
amendments to the FPA adopted in the 2021 Infrastructure Investment and Jobs Act (IIJA, also
often referred to as the “Bipartisan Infrastructure Law”), which were aimed at overcoming
judicial decisions that effectively nullified Congress’s initial efforts to establish NIETCs in 2005,
Congress has provided FERC with “backstop authority” to permit high-voltage transmission
lines in NIETCs. NIETCs are established based on a triennial study of transmission congestion
conducted by the DOE that identifies the need for major inter-regional transmission lines based
on an analysis of transmission system congestion and establishes NIETCs where major inter-
regional transmission facilities are needed to reduce consumer prices and to address national
security and similar national interest.
Developers of transmission projects in a NIETC must initially apply for permits from the
relevant states but if the state permitting authorities fail to act within a year or deny the facility,
then FERC can step in and issue a federal permit that overrides the state’s authority. FERC also
may grant eminent domain authority to NIETC projects, which facilitates the project developer’s
ability to obtain property rights necessary to build large linear facilities.
In October 2023, DOE issued its National Transmission Needs Study, the first step in
designating NIETCs. On December 19, 2023, DOE issued a guidance document setting forth a
four-step process it intends to use to designate NIETCs. On May 8, 2024, issued its preliminary
list of ten NIETCs, including a NIETC running from southern Nevada to north-central Oregon
that is designed to allow importation of renewable energy from the southwest that will help the
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Pacific Northwest meet expected needs for carbon-free energy and a line in the upper Midwest
that could link strong solar and wind resources in that region to the existing transmission system
that moves power from Eastern Montana into the Pacific Northwest.
The BLM and U.S. Forest Service are also engaged in designating “Westwide Energy
Corridors,” as authorized by Section 368 of the Energy Policy Act of 2005. In 2009, the agencies
designated approximately 6,000 miles of Westwide Energy Corridors.” In response to litigation
over those designations, the agencies are modifying designations for approximately 673 miles of
corridors. That process is now in its final stages and, barring litigation, should be completed in
2024.
The IIJA also included several additional programs aimed at accelerating the construction
of electric transmission. These include:
The “Transmission Facilitation Program,” which authorizes the DOE to act as an
“anchor tenant” for construction of high-voltage transmission lines, entering into
long-term contracts for up to 50% of the capacity of the new lines, which it can
then either sell to private entities or sell under a public-private partnership. The
program is supported by a $2.5 billion revolving loan fund.
An increase in BPA’s borrowing authority to $10 billion to support transmission
expansion in the Pacific Northwest.
Authorization to construct transmission facilities to increase the transfer of
renewable power between Canada and United States under the Columbia River
Treaty.
A $3 billion matching grant program to support the use of advanced technology
to improve the operation of the nation’s transmission grid. This fund supports a
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variety of new transmission technologies that can expand transmission capacity
or improve operation of the system quickly and without major construction.
A $100 million authorization for BPA to upgrade the pumped storage
hydroelectric facilities (a form of energy storage) at the Grand Coulee Dam.
On April 25, 2024, the U.S. Department of Energy announced the Coordinated
Interagency Transmission Authorization and Permits Program (CITAP). Under CITAP,
transmission developers will have access to a centralized portal, operated by the DOE, which
will allow them to file a single application, following a coordinated pre-application process, with
the aim of reducing the time for federal permitting of transmission to two years. Thus, the DOE’s
role under CITAP will be similar to the role of the Federal Permit Improvement Steering
Council, in that it will oversee and manage the federal permitting process for transmission
projects. CITAP grows out of a 2023 Memorandum of Understanding among nine federal
agencies that implements Section 216p(h) of the Federal Power Act (added in the Energy Policy
Act of 2005), in which Congress authorized DOE to be the lead federal agency for the
authorization and environmental review of transmission projects and set specific deadlines for
those processes.
Finally, on May 13, 2024, FERC issued Order No. 1977, which implements its “backstop
authority” for transmission siting in NIETCs.
B. FERC and Regulation of Wholesale Electricity Sales
Under the FPA, FERC regulates the rates for wholesale sales of electric power. After
Order No. 888 ushered in the era of open transmission access and market competition in the
wholesale electricity markets, FERC authorized the creation of Regional Transmission
Organizations (“RTOs”) and Independent System Operators (“ISOs”), which control operation
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of the electric grid and wholesale markets in much of the country. To date, no RTO or ISO
operates in the Pacific Northwest, although the strong market and transmission linkages between
California and the Northwest mean that the California Independent System Operator (“CAISO”),
which operates the grid and wholesale markets in California, has an important influence on the
Pacific Northwest’s electricity system.
In addition, the region’s utilities have been moving toward voluntary formation of a
regional market that would permit utilities to trade power in the short-term markets, thus
improving the region’s ability to integrate variable renewable resources like wind and solar.
These markets could substantially increase renewables penetration in the region and reduce the
costs of balancing resources, but require robust transmission connections to realize their full
value.
C. Federal Hydroelectric Licensing
Under Part I of the Federal Power Act,172 anyone proposing to construct a hydroelectric
dam in the United States is required to obtain a permit from FERC.173 Licensing is intended to
ensure that construction of hydroelectric dams does not unduly interfere with river navigation, that
hydro development occurs in a manner that efficiently uses hydroelectric resources, and that dams
do not unduly harm the environment or other protected resources. Before a license can be issued,
FERC requires the licensee to demonstrate that it has obtained all federal, state, and local permits
necessary to allow construction of the dam. Licenses are generally issued for a term of 50 years.174
Beginning in the 1980s, as the initial licenses for a large number of dams that were licensed
shortly after enactment of Part I in the 1930s, FERC struggled to effectively relicense dams using
172
16 U.S.C. § 791 et seq.
173
FERC’s jurisdiction includes any dam on navigable waters and any dam producing power that moves in interstate
commerce, so it covers essentially every dam other than small dams that are not connected to the grid.
174
See FERC Hydroelectric Licensing page.
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the traditional process, where an application is filed, interested parties then intervene, and a lengthy
process of fact discovery and analysis follows. FERC struggled to integrate environmental laws,
particularly NEPA and the Clean Water Act, which were enacted decades after the Federal Power
Act, into the licensing process. FERC was dissatisfied with this process because it was often
extremely time-consuming and also in too many cases resulted in licenses being overturned in
litigation, often based on concerns that were not identified until late in the licensing process.
In response, FERC first in 1997 adopted an Integrated Licensing Process, that emphasized
a pre-application process in which the applicant for a license meets with FERC staff and other
regulators prior to filing the license application, which was intended to identify problems in
advance and ensure that those problems did not derail the application. The process again proved
unsatisfactory, and FERC in 2003 therefore instituted a new Alternative Licensing Process, which
enhances the requirements for pre-application consultations and technical assistance to potential
licensees.175
These events offer lessons for Washington as it struggles to improve its permitting
processes. Over time, FERC has relied increasingly on more robust pre-application processes to
flesh out concerns and conflicts in order that an applicant can, before filing, revise its proposal or
add mitigation measures that will make the application process flow more smoothly.
D. State Utility Regulation
Washington’s landscape for retail electricity regulation is complicated by the mix of
state-regulated and locally-governed entities that provide electricity to retail customers, as well
as the significant role that BPA plays in generation and transmission of wholesale electricity.
About half of Washington’s residents are served by investor-owned utilities (“IOUs” – Puget
175
For background and history, see Order No. 2002, Hydroelectric Licensing under the Federal Power Act, 104
FERC ¶ 61,109 (2003).
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Sound Energy, PacifiCorp, Avista). The other half are served by publicly-owned utilities,
primarily Public Utility Districts (“PUDs”) and municipally-owned utilities like Seattle City
Light and Tacoma Power. Finally, rural electric cooperatives served large areas of rural
Washington, although a relatively small proportion of the state’s population.
Washington’s primary utility regulator is the Washington Utilities and Transportation
Commission (“UTC”). Although many other states have moved toward “retail access” – that is,
permitting consumers to choose their electricity supplier, with local utilities used only to deliver
that electricity – Washington continues to follow the traditional model of vertically-integrated,
regulated utility monopolies. That is, Washington’s IOUs are required to serve all retail
consumers within their service territories using electricity procured by the utility. In return, the
UTC allows the utilities a return on the investment needed to serve those customers. The amount
of the utilities’ investment is referred to as their “rate base,” and reflects all investments in
infrastructure, plus costs of personnel and equipment, made by the utilities to serve those retail
customers.
The result of this traditional monopoly structure is that independent generators – non-
utility generators that compete in the wholesale electricity market – have no direct access to
Washington buyers. Instead, non-utility generators and customers who wish to purchase
renewable power rather than power from the IOUs (which continue to rely substantially on fossil
fuel generation) have only limited options. For example, customers may choose to obtain power
through “green tariffs.” When a retail customer signs up for a green tariff program, the utility
agrees to obtain sufficient renewable power to meet the needs of the customers who have entered
the program, but the utility continues to be the customer’s sole power provider. In addition, the
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UTC has required regulated utilities to use competitive solicitation processes to obtain new
power supplies.
There is one important exception to Washington’s general rule that independent
generators lack access to retail markets, the Public Utility Regulatory Policies Act of 1978
(“PURPA”). PURPA requires utilities to purchase the electric output from renewable energy
generators with 80 MW of capacity or less and from cogeneration facilities (“Qualifying
Facilities” in PURPA parlance) as the utility’s “avoided cost” rate. Avoided cost has been
understood to mean the cost the utility would incur to purchase or generate electricity in the
absence of the supply from the QF. In some states, PURPA has been used successfully to
encourage renewable energy generation by providing a meaningful right of access to retail
markets. However, PURPA delegates considerable authority to the states to administer and
enforce the statute, and Washington PURPA program has produced very little renewable energy
construction, particularly when compared to neighboring states like Oregon and Idaho.
The UTC does not regulate Washington’s publicly-owned utilities. Instead, the rates and
terms of retail service for these utilities are established by elected representations. In the case of
PUDs, these are elected Commissioners. For municipally-owned utilities, elected city council
members ultimately control retail rates and terms of service. The COUs, like the IOUs, must
comply with carbon reduction requirements. In addition, in recent years, the Legislature has
provided explicit authority to the COUs to, for example, mitigate their greenhouse gas
emissions176 and to support electrification of the transportation system.177
176
RCW 54.16.390.
177
RCW 54.16.430.
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Washington has for many years required larger utilities to develop and publish Integrated
Resource Plans (“IRP”).178 The IRP process has proved to be a useful way for utilities to
systematically analyze their needs for power and transmission and anticipated load growth, and
to analyze the available alternatives to meet those loads. When it adopted CETA, the Legislature
piggy-backed on the success of the IRP process, requiring utilities to adopt Clean Energy
Implementation Plans to plan for decarbonization of their systems, and to provide periodic
reports on progress toward decarbonization goals. Most recently, in legislation aimed at allowing
combination gas-electric utilities such as Puget Sound Energy to decarbonize their natural gas
distribution systems, the Legislature directed that those utilities combine natural gas and electric
system planning in order to plan for conversion of many gas appliances and other applications to
electricity.179
E. Regulation of Natural Gas
FERC regulates natural gas under the Natural Gas Act (“NGA”), which uses the same
statutory model as the Federal Power Act. FERC regulates interstate gas transmission lines and
the wholesale market for natural gas moved in interstate commerce, while retail sales and
regulation of local distribution systems are left to the states. One major difference between the
NGA and the FPA, however, is that an entity seeking to construct in interstate gas pipeline must
obtain a certificate of public convenience and necessity (“CPCN”) from FERC. This requires the
pipeline proponent to demonstrate that the pipeline is needed and otherwise would be in the
public interest, but if FERC approves the CPCN, this gives the pipeline eminent domain
178
RCW Chap. 19,280.
179
HB 1859 (signed by Gov. Inslee on March 28, 2024).
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authority. The result is that construction of interstate natural gas pipelines is significantly easier
from a legal perspective than construction of interstate electric transmission lines.
In recent years, many states, including Washington, have recognized that renewable
natural gas (“RNG,” that is, methane derived from sources like livestock operations, landfills,
and sewage treatment plants) and have taken measures to encourage the use of RNG, including,
for example, establishing programs by which retail consumers can elect to be served with RNG,
providing that RNG pipelines can be placed on the rights of way for public roads, and providing
tax incentives and other measures to encourage the construction of dairy digesters and similar
facilities to capture RNG.
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APPENDIX D
NATIVE AMERICAN TRIBES IN WASHINGTON AND TREATY RIGHTS
Twenty-nine federally-recognized Indian Tribes call Washington home.180 In addition,
certain Tribes in other states, including, for example, the Nez Perce, Umatilla, Grande Ronde,
and the Confederated Tribes of the Warm Springs Reservation, have interests in Washington, so
the total number of Tribes participating in permitting processes in Washington is approximately
36. The Tribes are independent sovereigns under both federal and state law, and development of
renewable energy and other resources to support decarbonization of Washington’s economy
must therefore respect Tribal rights. Tribal rights are governed by the Stevens Treaties, a series
of treaties negotiated by Territorial Governor Isaac Stevens in the 1850s.181 The Stevens Treaties
reserve land to the Tribes. Currently, Indian Reservations occupy about six million acres of
Washington land, much of it with excellent renewable energy resources. In addition, the Stevens
Treaties permits tribal members to hunt and fish in their “usual and accustomed places.”
Accordingly, Washington’s Tribes have rights that extend well beyond the boundaries of their
reservations.
As further detailed in the Low-Carbon Siting Report,182 the State of Washington has
formalized tribal consultation requirements in several specific ways:
180
This number does not include tribes that have not received federal recognition. Unrecognized tribes include, most
notably, the Duwamish Tribe, whose ancestral lands underlie the City of Seattle. See generally David M. Buerge,
Chief Seattle and the Town That Took His Name: The Change of Worlds for Native People and Settlers on Puget
Sound (2017).
181
See Charles Wilkinson, Treaty Justice: The Northwest Tribes, the Boldt Decision and the Recognition of Fishing
Rights (Univ. of Washington Press 2024); WDFW, Treaty history with the Northwest Tribes (available at:
https://wdfw.wa.gov/hunting/management/tribal/history#:~:text=Stevens%20ultimately%20negotiated%20eight%20
treaties,lands%20beyond%20these%20reserved%20areas).
182
Low-Carbon Siting Report at 38-40.
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Centennial Accord: The Centennial Accord183 provides a framework for government-to-
government relations between the state and Tribes.
RCW Chapter 43.376: Chapter 43.376 requires state agencies to make reasonable efforts
to collaborate with Tribes when developing policies and programs that directly affect
Tribes.
Executive Order 21-02: This executive order directs state agencies to consult with
affected Tribes and the Department of Archaeological and Historic Preservation if state-
funded construction or acquisition projects will not otherwise undergo review under
Section 106 of the NHPA.
Statutory Commitments: The Climate Commitment Act184 and the HEAL Act185 both
contain requirements for Tribal consultation.
EFSEC: HB 1812 requires EFSEC to consult with Tribes with rights or resources in the
area of a proposed project.
SB 1717: In 2022, the Legislature adopted and Governor Inslee signed SB 1717,186 which
amends the Growth Management Act by permitting federally recognized Tribes to opt
into county or regional planning processes if their reservations lie within the county or
region. If the tribe elects to participate and has its own planning process, the relevant
county must enter into a memorandum setting forth the terms to coordinate the county’s
planning process with the Tribe’s.
183
Available at https://goia.wa.gov/relations/centennial-accord.
184
RCW 70A.65.305.
185
RCW 70A.02.100.
186
Wash. Laws of 2022, Ch. 252,
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While we generally recommend providing information up front to project developers so
that they can avoid sensitive lands and identify development sites with minimal environmental
impacts, it is important to recognize that some Tribal resources, particularly sacred sites,
archaeological sites, burial grounds, and sites with historical significance such as traditional
village sites, should not be publicly disclosed without the explicit approval of the affected Tribe.
Protection of this kind of information is necessary because of the unfortunate history of looting
of Native American artifacts by “pot hunters” seeking to profit from the lucrative black market in
such artifacts.187 Measures such as the federal Archaeological Resources Protection Act188 have
proven inadequate to fully protect Tribal resources and artifacts from this kind of black market
profiteering. Accordingly, the disclosure requirements we recommend should be applied to
Tribes only with great care and in close consultation with the Tribes.
187
See, e.g., K. Sharp, “An Exclusive Look at the Greatest Haul of Native American Artifacts, Ever,” Smithsonian
Magazine, Nov. 2015 (available at: https://www.smithsonianmag.com/history/exclusive-greatest-haul-native-
american-artifacts-looted-180956959/).
188
See, e.g., U.S. Forest Service, Archaeological Resources Protection (https://www.fs.usda.gov/lei/archeological-
resources-protection.php#:~:text=The%20Archaeological%20Resources%20Protection%20Act,archaeological%
20collections%20from%20those%20sites.).
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APPENDIX E
GOVERNMENT OWNED LANDS
More than 12 million acres of land in Washington, more than 28% of the state’s total land
area, is owned by the federal government. Another 6.5 million acres is owned by the State of
Washington.189 Often, these government-owned lands are in areas of the state with high-quality
solar, wind, or other renewable resources. Both state and federal agencies are now taking
significant actions to promote the development of renewable energy resources. Further,
significant electric transmission lines in Washington will almost invariably require access to
government-owned lands. Accordingly, development of green energy and infrastructure in
Washington is intimately tied to these lands and the agencies that administer them. This section
briefly describes the various classifications of land, how those lands are administered, and how
different agencies are attempting to promote the development of renewable energy. Efforts to
promote electric transmission are discussed in the section below, where we discuss federal
energy regulation and regulation of transmission.
FEDERAL LANDS
Federal lands are governed by several different legal regimes that are administered by a
variety of agencies.190 Federal lands in Washington are governed as follows:
Federally-Designated Wilderness: Washington boasts thirty-one federally-designated
wilderness areas located in all parts of the state, which together cover about 4.3 million
189
The University of Washington’s Spatial Informatics Group has inventoried Washington’s public lands and
provides extensive information concerning, for example, the forest and wetlands resources on those lands and a
variety of databases related to climate change. See https://nrsig.org/
190
The Congressional Research Service publishes a useful high-level summary of various federal land designations
and the legal basis for those designations entitled “Federal Land Designations: A Brief Guide.” The most recent
version, updated on May 19, 2023, is available at: R45340 (1).pdf.
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acres. Under the Wilderness Act,191 these lands are preserved in their wild state and
therefore are off limits to development.
National Parks: Three major National Parks are located in Washington: Olympic, Mt.
Rainier, and North Cascades.192 Together these parks occupy about 1.7 million acres.
National Parks are administered to maximize their value as natural and recreational
resources.193 Accordingly, while it is possible to construct certain facilities in National
Parks, such as roads, campgrounds, and buildings, these facilities are generally aimed at
serving National Park visitors. For purposes of this study, we assume that National Parks
are effectively off limits to energy or green economy projects other than small projects
serving Park infrastructure, such as solar panels on Park Service buildings.
National Forests. Eight National Forests are located entirely or mostly in Washington.
National Forests are administered by the U.S. Forest Service, which is part of the U.S.
Department of Agriculture. National Forests are administered under several different
statutes,194 but as a general matter the Forest Service manages for multiple uses and a
sustained yield of forest products. Accordingly, it is possible to construct electric
transmission, renewable generation, and other types of projects on National Forest lands,
but any construction must be permitted by the Forest Service and is subject to legal
restrictions arising from the statues governing the national forests as well as Forest Plans
that are developed periodically by each forest.
191
16 U.S.C. § 1131 et seq.
192
The National Park Service administers a number of much smaller sites, such as the Whitman Mission National
Historical Park in the southeast corner of the state and Ebey’s Landing National Historic Reservation on Whidbey
Island. These reservations are generally small and therefore unlikely to be a significant barrier to the development of
green economy resources.
193
54 U.S.C. § 100101 et seq.
194
E.g., National Forest Management Act, 16 U.S.C. § 1600 et. seq.; Multiple Use-Sustained Yield Act, 16 U.S.C. §
528.
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In the Pacific Northwest, significant restrictions on development in forests may
arise from, for example, the Northwest Forest Plan, which is aimed at preserving the
habitat of two endangered species, the northern spotted owl and the marbled murrelet.195
In addition, the Forest Service administers a variety of lands that have been designated,
either by Congress or by the agency itself, with special protections. For example, the
Forest Service administers the Mount Saint Helens National Volcanic Monument under
an act of Congress.196 Forest Managers can also designate areas for special management
if they have significant scenic, recreational, historical, archaeological, paleontological, or
biological resources.
BLM Lands: The U.S. Bureau of Land Management (“BLM”), an agency within the U.S.
Department of Interior, manages about 16 million acres in Washington and Oregon. In
Washington, BLM administers lands that are scattered across much of Eastern
Washington. On January 17, 2024, the BLM announced that it is updating its “solar road
map,” which originally included only states in the southwest, to include Washington and
four other northern states.197 The road map will guide solar development on BLM lands
in Washington and includes a Programmatic Environmental Impact Statement that
broadly assesses the impacts of solar development on BLM lands.198
Department of Defense Lands: Several major defense installations are located in
Washington. These include, for example, Joint Base Lewis-McChord, Whidbey Naval
Air Station, and the Yakima Firing Range. The primary purposes of these military
reservations is, of course, national defense. Accordingly, while development of green
195
See https://www.fs.usda.gov/r6/reo/monitoring/northern-spotted-owl.php.
196
96 Stat. 301 (1982).
197
See https://www.blm.gov/press-release/blm-analysis-aims-optimize-solar-energy-development-throughout-west.
198
See https://blmsolar.anl.gov/solar-peis-2023/.
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energy and green economy infrastructure is not off limits on these lands per se, any
development must be compatible with the military mission of these facilities. The
military impact on renewable energy development reaches beyond the boundaries of
military reservations in one important way: wind generators may create barriers to low-
level flight training missions and create interference with military radar system. Hence,
wind energy developers must ensure that their developments do not interfere with
military aviation facilities or missions.
National Wildlife Refuges: Washington boasts twenty-four National Wildlife Refuges,
including several large refuges like the Columbia Wildlife Refuge, at 30,000 acres, and
Turnbull National Wildlife Refuge, at 23,000 acres, which are administered by the U.S.
Fish & Wildlife Service, an agency of the Department of Interior. Areas protected as
wildlife refuge are small compared to the acreage of other protected federal lands.
However, these lands are generally located in areas of critical wildlife habitat, such as
key stopovers for migratory birds. Hence, renewable energy developers must be
cognizant of these refuges and recognize that development of, for example, wind energy
near a refuge might present an unusually large risk to migrating birds because a
disproportionately large number of birds may migrate through the refuge.
Federal Offshore Lands: Washington owns all submerged lands lying within three miles
of its coastline. Lands on the continental shelf beyond the three-mile limit, referred to as
the Outer Continental Shelf (“OCS”), are owned by the federal government and
administered under the Outer Continental Shelf Lands Act.199 Mineral and energy
development on the OCS is administered by the Bureau of Ocean Energy and Mining
199
43 U.S.C. §§ 1331 et seq.
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(“BOEM”). BOEM’s jurisdiction extends to leasing the OCS for wind energy
development.
Offshore wind technology has, until the last few years, been confined to shallow
waters off the coast of Europe and the U.S. East Coast. However, technology that allows
development in deeper waters like those off the West Coast has advanced rapidly and
BOEM is now moving to lease areas off the coasts of California and Oregon for wind
energy development. While BOEM has not yet moved to lease areas off Washington, it is
likely that BOEM will turn its attention to Washington waters in the next few years.
Offshore wind energy is generally more expensive to develop than onshore wind,
but winds offshore are more steady and reliable than onshore winds, and developers
therefore generally view the extra expense associated with developing offshore wind
facilities to be justified by the ability to capture a resource with greater value. Far-sighted
legislators should be paying careful attention to offshore wind energy to ensure that
adequate transmission pathways are available to move energy from offshore wind to load
centers on land, that wind developers can lease state lands in the three-mile exclusive
economic zone to move power from offshore wind installations to the onshore
transmission system, and that the state has identified sensitive fisheries and other marine
resources that should be protected as wind energy is developed.
STATE LANDS
Most land owned by the State of Washington, about 5.6 million acres, is
administered by the Washington Department of Natural Resources (“DNR”). DNR
administers most of the submerged lands owned by the State of Washington, and
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therefore will be a key player if the development of Washington’s offshore wind energy
resources for the reasons described above.
DNR also administers Washington’s trust lands, which constitute the bulk of its
holdings. These school trust lands were ceded by the federal government to Washington
at statehood with the intent that resources from these lands would be used to support
Washington’s public schools and other purposes like the state capitol.200 To further this
mission, DNR has begun actively promoting renewable energy development on state and
has set a goal of 500 MW of solar development on DNR lands by 2025. To achieve this
goal, DNR has, for example, producing a map of clean energy resources on state lands
that identified areas with the least risk for conflicts over environmental values. DNR
currently leases 1,300 acres of state lands for solar projects.201 DNR has also begun to
explore leasing state forest lands as a means of carbon sequestration to fight climate
change.202
Most other state lands are administered by the Washington Department of Fish
and Wildlife, which administers approximately one million acres of state lands or by
Washington State Parks, which administers 140 properties across the state, although these
cover only about 123,000 acres in total. In both cases, the primary mission of these
agencies is to conserve the lands they administer, and to promote recreation and wildlife.
Green energy development is not barred on these lands per se, but any development
would have to be approved by the agency and reconciled with the restrictions on
development for the lands administered by these agencies.
200
See, e.g., Conservation Northwest v. Comm'r of Pub. Lands, 199 Wn.2d 813, 822, 514 P.3d 174, 179 (2022).
201
See https://www.dnr.wa.gov/cleanenergymap.
202
See https://www.dnr.wa.gov/CarbonProject (forest sequestration); https://www.dnr.wa.gov/geologic-carbon-
sequestration (geological sequestration).
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APPENDIX F
WA Clean Energy Permitting Reform
-
Bibliography
U.S. Department of Energy, RAPID Toolkit, Transmission Best Practices, Bulk Transmission
Toolkit, and Regulatory and Permitting Information Desktop Toolkit (undated)
M. Eisenson et al., Opposition to Renewable Energy in the United States: June 2024 Edition,
Sabin Center for Climate Change Law (June 2024).
S. Enterline & A. Valainis, Laws in Order: An Inventory of State Renewable Energy Siting
Policies, Regulatory Assistance Project (June 2024).
Electric Power Research Institute, White Paper, Powering Intelligence: Analyzing Artificial
Intelligence and Data Center Energy Consumption (May 2024)
J. Rand et al., Lawrence Berkeley National Laboratory, Queued Up, 2024 Edition:
Characteristics of Power Plants Seeking Transmission Interconnection As of the End of 2023
(April 2024).
K. Yazzie et al., Opportunities to Grow Tribal Clean Energy in the U.S.: Bold Action is Needed
to Address Unmanageable Time Scales, Limited Access to Information, and a Need to Build
Capacity, Science, April 11, 2024.
U.S. Department of Energy, Pathways to Commercial Liftoff: Innovative Grid Deployment
(April 2024)
Office of the New York State Comptroller, Office of Renewable Energy Siting: Application
Review and Site Permitting for Major Energy Projects, Report No. 2023-S-52 (April 2024)
M. O’Boyle et al., Supporting Advanced Conductor Deployment: Barriers and Policy Solutions,
GridLab & Goldman School of Public Policy, University of California at Berkeley (April 9,
2024)
J. Coleman, Permitting the Energy Transition, SMU Dedman School of Law Legal Research
Paper No. 638 (Mar 2024). 75 Case Western Reserve Law Review (forthcoming).
A. Lawson, Congressional Research Service, Electricity Transmission Permitting Reform
Proposals (Feb 2024)
Rhodium Group & MIT Center for Energy and Environmental Policy Research, Clean
Investment in 2023: Assessing Progress in Electricity and Transport (Feb. 29, 2024)
X. Fishman et al., Bipartisan Policy Center, Finding the Goldilocks Zone for Permitting Reform
(Jan 2024)
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R. Nilson et al., Lawrence Berkeley National Laboratory, Survey of Utility-Scale Wind and Solar
Developers (Jan. 2024)
I. Ko et al., Rural Backlash Could Impede Climate Ambition, Univ. of Penn. Regulatory Review
(Jan. 22, 2024)
C. Harper & D. Schulman, Evergreen Collaborative, Warp Speed Clean Energy – Expediting
Permitting and Equitable Grid Deployment Without Congress (Dec 2023)
J. Arnold & M. Beck, Canadian Climate Institute, Permitting reform for clean energy projects in
New York and California: Promising changes at the state level may hold useful lessons for
Canada (Nov. 14, 2023)
M. Brown & D. Wilson, Stanford Freeman Spogli Institute, NEPA Litigation Over Large Energy
and Transport Infrastructure Projects, 53 Environmental Law Reporter 10836 (October 2023)
Issue Brief, Natural Resources Defense Council, Down to the Wire: Progressive Permitting
Reforms Will Accelerate Renewable Energy and Transmission Buildout and Help Meet U.S.
Climate Targets (Sept. 2023)
The Nature Conservancy, Power of Place: National - Executive Summary (May 2023)
M. Eisenson, Sabin Center for Climate Change Law, Opposition to Renewable Energy Facilities
in the United States: May 2023 Edition (May 2023)
J. Rand et al., Lawrence Berkeley National Laboratory, Queued Up: Characteristics of Power
Plants Seeking Transmission Interconnection as of the End of 2022 (April 2023)
D. Steinberg , National Renewable Energy Laboratory, Evaluating Impacts of the Inflation
Reduction Act and Bipartisan Infrastructure Law on the U.S. Power System (Mar 2023)
R. Sud et al., Brookings Center on Regulation and Markets, How to Reform Federal Permitting
to Accelerate Clean Energy Infrastructure: A Nonpartisan Way Forward (Feb 2023)
P. Denholm et al., National Renewable Energy Laboratory, Examining Supply-Side Options to
Achieve 100% Clean Electricity By 2035 (2022)
G. Wu et al., Proceedings of the National Academy of Sciences, Minimizing Habitat Conflicts in
Meeting Net-Zero Energy Targets in The Western United States (Nov 2022)
J. Pleune, Environmental Law Reporter, Playing The Long Game: Expediting Permitting Without
Compromising Protections (Nov 2022)
P. Bledsoe and E. Sykes, Progressive Policy Institute, America’s Clean Energy Transition
Requires Permitting Reform: Policy Recommendations for Success (Sept 2022)
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The Nature Conservancy, The Power of Place: West – Executive Summary (Aug 2022)
The Nature Conservancy, Voices from the West: Findings from Interviews Regarding Energy On
Tribal Lands – Power of Place West Companion Report (Aug 2022)
D. Stokes, Renewable Energy Federalism, Minnesota Law Review (Apr 2022)
U. Outka, Review Renewable Energy Siting for the Critical Decade, 69 Kansas Law Review 857
(June 2021)
Business Roundtable, Smart Regulation for the Innovation Economy (May 2021)
Business Roundtable, Infrastructure Permitting Priorities (May 2021)
Americans for a Clean Energy Grid, Disconnected: The Need for a New Generator
Interconnection Policy (January 2021)
G. Wu et al., The Nature Conservancy, Power of Place Land Conservation and Clean Energy
Pathways for California (June 2019)
D. Cullenward & S. Welton, The Quiet Undoing: How Regional Electricity Market Reforms
Threaten State Clean Energy Goals, 36 Yale J. on Regulation 106 (2018)
A. Copping, Pacific Northwest National Laboratory, The State of Knowledge for Environmental
Effects Driving Consenting/Permitting for the Marine Renewable Energy Industry (Jan 2018)
D. Drugmand & V. Stori, Clean Energy States Alliance, Distributed Wind Energy Zoning and
Permitting: A Tool Kit for Local Governments (Nov 2017)
D. Mulvaney, Identifying the roots of Green Civil War over utility-scale solar energy projects on
public lands across the American Southwest, 12 Journal of Land Use Science 493 (Oct 2017)
D. Hess et al., Department of Sociology, Vanderbilt University, Red states, green laws: Ideology
and renewable energy legislation in the United States, 11 Energy Research & Social Science 19
(Jan. 2016)
J. Thaler, Fiddling as the World Floods and Burns: How Climate Change Urgently Requires a
Paradigm Shift in The Permitting of Renewable Energy Projects, 42 Environmental Law Journal
1101 (2012)
K.K. DuVivier, The Superagency Solution, 46 McGeorge Law Rev. 189 (2014)
J.. Holtkamp & M. Davidson, Transmission Siting in The Western United States: Getting Green
Electrons to Market, 6 Idaho Law Rev. 379 (2010)
L. Gillette et al., Using Collaboration to Address Renewable Energy Siting Challenges, The
Federal Lawyer (Jun 2009)
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Interlaboratory Working Group, Oak Ridge National Laboratory, Lawrence Berkeley National
Laboratory, National Renewable Energy Laboratory, Scenarios for a Clean Energy Future (Nov
2000)
M. O’Hare et al., Facility Siting and Public Opposition (1983)
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APPENDIX G
Organizations Interviewed
The Audubon Society
Avangrid
ClearPath Energy
Enel Green Power North America
esVolta
White House Permitting Improvement Steering Council
NewSun Energy
Northwest & Intermountain Independent Power Producers Association
Puget Sound Energy
Stoel Rives law firm
SWCA Environmental Consultants
Tetra Tech
The Nature Conservancy
State of Washington Energy Facility Site Evaluation Council
G-1
APPENDIX H
RECENT LEGISLATION OF NOTE
1. HB 2039: Consolidated and Expedited Appeals
On March 28, 2024, Gov. Inslee signed HB 2039, which simplifies and expedites the
process of appeals for clean energy permitting matters. HB 2039 provides that permitting
decisions involving a clean energy project, as defined in HB 1216, can be certified for appeal
directly to the Washington Courts of Appeals. In addition, where a clean energy project requires
multiple permits, appeals of the permits can be consolidated into a single appeal. HB 2039 is a
welcome development that helps reduce delays and legal conflicts where permits for a clean
energy project are appealed.
2. SB 5165: Transmission Siting
In 2023, the Legislature passed SB 5165 to address concerns about transmission planning
and siting in Washington. SB 5165 builds on the Transmission Corridors Work Group, which
was created by Clean Energy Transformation Act and which resulted in the publication of a
report setting forth recommendations for planning, permitting and siting electric transmission
facilities which serves as the basis for some of the recommendations made in this report.203
SB 5165 includes the following major provisions:
Adds transmission planning, including planning around advanced technology and
non-wires solutions, to Washington’s requirements for large utilities to produce
periodic Integrated Resource Plans.
203
Final Report, Transmission Corridors Work Group (August 1, 2022).
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Adds large transmission facilities (greater than 500 kV AC/300 kV DC, crossing
two or more counties and two or more utility service territories) to the list of
facilities required to use the EFSEC process.
Directs EFSEC to participate in the National Interest Electric Transmission
Corridors process and to coordinate NEPA reviews with federal agencies
undertaking reviews of interstate transmission projects.
Directs EFSEC to undertake a non-project environmental review for transmission
facilities with a capacity of 230 kV or more, which should identify environmental
impacts and mitigation measures common to such facilities.
3. Transportation Rights of Way: HB 2134 § 214
As part of the supplemental transportation budget signed by Gov. Inslee on March 28,
2024 the Legislature (in Section 214((7)(a)(i) & (iv)) directed the Department of Transportation
to review and recommend updates to its policy concerning use of state highway rights of way to
accommodate clean energy and connectivity projects, which at a minimum must include
renewable energy and electric transmission and distribution lines. We support this approach and
suggest that rights of way should be open to all types of linear facilities that support
decarbonization, including, for example, pipelines for renewable natural gas, carbon dioxide for
sequestration projects, and green electrolytic hydrogen.
4. Geothermal Energy: SB 6039
Signed on March 28, 2024, SB 6039 aims to promote geothermal energy in Washington
by updating lease rates for geothermal development on state lands, by creating a cost-share
program to support exploration for geothermal resources in Washington, and by directing
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Washington agencies to engage in a collaborative process to identify locations with the greatest
opportunities and risks for geothermal development.
5. Carbon Market Linkage: SB 6058
Also signed on March 28, SB 6058 makes a number of relatively minor corrections and
clarifications to the Climate Commitment Act to facilitate linkage of Washington’s carbon
market with existing markets in California and Quebec.
6. Decarbonization of Combined Natural Gas/Electric Utilities: SB 1589
Another bill signed by Gov. Inslee at the end of the Legislature’s most recent session, SB
1589 adopts a number of measures aimed at facilitating the decarbonization of the natural gas
functions of combined natural gas/electric utilities (primarily Puget Sound Energy) through
electrification and other processes.
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