White House Council on Environmental Quality Moves Updates to National Environmental Policy Act Implementation Rule

On Monday, January 30, 2023, the White House Council on Environmental Quality (CEQ) sent to the Office of Management and Budget (OMB) Phase 2 of its proposal to revise the National Environmental Policy Act (NEPA) implementing rules released under the prior administration. Litigation surrounding the prior administration’s rules is stayed pending CEQ’s ongoing efforts. OMB review is a necessary prerequisite before CEQ can publish any new rule in the Federal Register and follows release of Phase 1 of CEQ’s implementing rules last April, which the administration described as restoring pre-2020 requirements for agencies to assess direct, indirect, and cumulative effects of proposed actions under NEPA.

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U.S. Senate Committee on Energy and Natural Resources Holds Hearing on Department of Energy IIJA Implementation

On February 2, 2023, the U.S. Senate Committee on Energy and Natural Resources convened a full committee hearing to examine the U.S. Department of Energy (DOE) implementation of the Infrastructure Investment and Jobs Act (IIJA). The sole witness during the hearing was David Turk, DOE Deputy Secretary. During his remarks, Deputy Secretary Turk noted that the IIJA provided more than $62 billion in funding to DOE and requires DOE to develop 60 new programs and expand funding for 12 existing programs. Deputy Secretary Turks stated that as of January 30, 2023, DOE had solicited 50 Requests for Information for public input on IIJA program design, released 38 Funding Opportunity Announcements worth more than $37 billion in initial investments for IIJA programs, conditionally awarded $1.1 billion in zero-emission energy generation credits, and made available $4.25 billion in formula funding for energy efficiency improvements to state and local governments and tribal nations. With respect to electric transmission, the DOE Grid Deployment Office announced its first Request for Proposals regarding the Transmission Facilitation Program, a $2.5 billion revolving fund program that will help develop new large-scale transmission lines and upgrade existing transmission.

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U.S. Interior Proposes Renewable Energy Regulations for the Outer Continental Shelf

For the first time since 2009, the U.S. Bureau of Ocean Energy Management (BOEM) is proposing to modernize rules promulgated by its predecessor, the Minerals Management Service (MMS), facilitating the development of wind energy resources on the outer continental shelf (OCS). The 93-page proposed rule, published in the Federal Register Monday, covers decommissioning, geophysical and geotechnical survey submission requirements, approval of meteorological (met) buoys, project verification procedures, and BOEM’s renewable energy auction process, among many others. A related, final rule codifies the division of responsibility between BOEM and another MMS successor, the Bureau of Safety and Environmental Enforcement, as set forth in a December 2020 memorandum of understanding.

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Federal Energy Regulatory Commission Directs North American Electric Reliability Corporation to Update Cybersecurity Standards

On January 19, 2023, the U.S. Federal Energy Regulatory Commission (FERC) issued a final rule (RM22-3) (the Rule) directing the North American Electric Reliability Corporation (NERC) to develop and submit for approval reliability standards that require internal network security monitoring (INSM) within a trusted Critical Infrastructure Protection (CIP) networked environment for all high-impact bulk electric system (BES) cyber systems and medium-impact BES cyber systems with external routable connectivity. FERC also directed NERC to study all low-impact BES cyber systems and medium-impact BES cyber systems without external routable connectivity (Other BES). NERC has 15 months to submit its proposed reliability standards for approval and 12 months to submit a report on its study of the Other BES.

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Biden Administration Publishes Final Rule Redefining “Waters of the United States”

On January 18, 2023, the Biden administration published its Final Rule revising the definition of “Waters of the United States” (WOTUS) under the Clean Water Act (CWA). Wetlands and waterways that meet the definition of WOTUS are protected by the CWA and subject to the U.S. Environmental Protection Agency’s and Army Corps of Engineers’ jurisdiction. However, the term is not defined in the statute. As such, the federal agencies’ interpretation of WOTUS determines which waters are subject to the CWA permitting requirements.

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U.S. Department of the Interior Bureau of Ocean Energy Management Proposes Update for Offshore Renewable Energy Regulations

On January 10, 2023, the Department of the Interior (DOI) Bureau of Ocean Energy Management (BOEM) signed a Notice of Proposed Rulemaking (NOPR) regarding an update to the regulations governing the development of offshore wind energy on the Outer Continental Shelf (OCS) in an effort to modernize the existing regulations and facilitate development to meet the U.S. climate and renewable energy objectives. The existing regulations for leasing and managing OCS renewable energy activities were promulgated by the Minerals Management Service (BOEM’s predecessor) on April 29, 2009 (as authorized by the Energy Policy Act of 2005 and the OCS Lands Act).

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EPA Proposes Enforcement Initiatives Addressing PFAS, Climate Change, and Environmental Justice

On January 19, 2023, the U.S. Environmental Protection Agency (EPA) published a Notice soliciting public comment on its proposal to add environmental justice, climate change, and per- and poly-fluoroalkyl substances (PFAS) contamination to its National Enforcement and Compliance Initiatives (NECIs) for the 2024–2027 fiscal year cycle.

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FERC Opens 2023 With Leadership Transition

Former U.S. Federal Energy Regulatory Commission (FERC or the Commission) Chairman Richard Glick has officially departed the independent Commission after failing to secure a reconfirmation hearing before the Senate in December 2022. Glick’s departure leaves the Commission with a 2–2 split between Democrats and Republicans that could stall a number of major initiatives that were ongoing under the former Chairman and the Commission’s Democratic majority.

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<a target=‘_blank’ href="https://www.sidley.com/en/people/b/boxerman-samuel-b">Samuel B. Boxerman</a>

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Keturah A. Brown

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Grace Dickson Gerbas

Dallas
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Terence T. Healey

Boston
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Kenneth W. Irvin

Washington, D.C.
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Christopher J. Polito

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Casey Khan

Houston
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Michael L. Lisak

Chicago
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Brittany A. Bolen

Washington, D.C.
<a target=‘_blank’ href="https://www.sidley.com/en/people/f/flyer-aaron-l">Aaron L. Flyer</a>

Aaron L. Flyer

Washington, D.C.
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Brooklyn Hildebrandt

Los Angeles
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Nicole E. Noëlliste

Washington, D.C.
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Hannah Posen

Chicago
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Jack Raffetto

Washington, D.C.

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