DOE Proposes Expanding NEPA Exemption for Solar, Batteries, and Transmission

On November 16, 2023, the Department of Energy (DOE) published a proposed rule that would expand categorical exclusions under the National Environmental Policy Act (NEPA) for power line repair projects and solar facilities on previously developed land, and would create a new categorical exclusion for battery storage facilities on previously developed land. 

NEPA requires Federal agencies to provide a detailed statement regarding the environmental impacts of proposals for major Federal actions significantly affecting the quality of the human environment. NEPA establishes three types of review for proposed actions—environmental impact statement, environmental assessment, and categorical exclusion—each involving different levels of information and analysis. A categorical exclusion is a category of actions that the agency has determined, in its agency NEPA procedures, normally does not have a significant effect on the human environment and therefore does not require preparation of an environmental assessment or environmental impact statement. DOE's procedures for applying categorical exclusions require the agency to consider whether extraordinary circumstances exist due to which a normally excluded action may have a significant environmental effect.

DOE proposes to establish a new categorical exclusion for certain energy storage systems and to revise existing categorical exclusions for upgrading and rebuilding transmission lines and for solar photovoltaic systems. Among other changes, DOE proposes modifying limits on the existing categorical exclusion for solar generation on developed land to allow projects bigger than 10 acres, revising the existing categorical exclusion for relocating and repairing electric transmission lines to include projects longer than 20 miles, and adding a categorical exclusion to allow the development of energy storage facilities on previously developed land.

DOE is accepting comments on the proposed rule until January 2, 2024.