USA Law and Practice Contributed by: Elena Rubinov, George Casey, Heiko Schiwek, Vinita Sithapathy, Pierre-Emmanuel Perais and Clara Pang, Linklaters LLP
dictional service. Additionally, prior FERC authori- sation is required for certain events (eg, change of control or issuance or assumption of securities). • Oil transportation: FERC regulates the rates and practices of oil pipeline companies engaged in interstate transportation. Additionally, state commission regulations may apply to activities such as utility operations, rates and terms of retail service, and siting of facilities within their juris- dictions. Other sectors Other segments also require specific filings. • Offshore wind development on the Outer Continen- tal Shelf: The Bureau of Ocean Energy Manage- ment (BOEM) administers the federal leasing pro- cess and reviews and approves construction and operations plans for offshore wind projects. The Bureau of Safety and Environmental Enforcement (BSEE) provides regulatory oversight for safety, environmental compliance, and operational integri- ty during both construction phases and operations of offshore wind facilities. • Air, water and wetlands impacts: The Environmen- tal Protection Agency (EPA) and state agencies issue permits under the Clean Air Act for air quality compliance. The Army Corps of Engineers issues permits under the Clean Water Act and under the Rivers and Harbors Act. States issue water quality certifications under the Clean Water Act to ensure compliance with state water quality standards. • Federal lands and species protection: The Bureau of Land Management and US Forest Service issue rights of way and land-use approvals on federal lands for E&I projects. The Fish and Wildlife Service and the National Oceanic and Atmospheric Admin- istration conduct consultations pursuant to the Endangered Species Act and the Marine Mammal Protection Act to ensure compliance with federal species protection requirements. Where federal approvals, lands or waters, or fund- ing are involved, a co-ordinated environmental review under the National Environmental Policy Act (NEPA) is required. Project developers must comply with state and local approval requirements, including zoning
permits or variances, construction permits, and use permits for land, air, water and hazardous substances/ waste. “Covered projects” under the Fixing America’s Sur- face Transportation Act permitting reforms (FAST-41) benefit from improved co-ordination, transparency and timeliness. Earlier this year the US Department of Interior, Department of Energy and Department of Transportation issued interim final rules and guidance documents largely rescinding their existing NEPA regulations, and included procedures that restrict the time limits for Environmental Assessments and Envi- ronmental Impact Statements (EISs) to one and two years, respectively. Permitting Timelines and Project Risks State-regulated renewable projects may receive pri- mary siting approvals quickly, while multi-jurisdictional projects require multi-year, co-ordinated environmen- tal review and permitting. Major linear infrastructure projects, including transmission lines and pipelines, often require several years to a decade for permitting and construction. Utility-scale greenfield renewables on federal land are subject to additional time for fed- eral environmental review, especially where EISs are required. Project Considerations and Investment Drivers Developers should factor in risks such as interconnec- tion backlogs, transmission constraints, local siting opposition and equipment supply issues, which have materially affected project economics and investment decisions. Developers consequently routinely build substantial schedule contingencies into project time- lines to address regulatory uncertainty and approval processes. Policy Developments and Tax Incentives IRA tax credit incentives and monetisation provisions that survived the rollbacks imposed by the OBBB continue to drive substantial investment activity, par- ticularly in areas outside of the solar and wind space. While the US Department of the Treasury is expected to continue to issue guidance regarding IRA incentives (eg, the domestic content bonus), other regulatory packages are expected to be prioritised in order to implement key tax provisions of the OBBB. For exam-
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