Environmental update | December 2021

Environmental update 2021 12

December 14, 2021 | By Andrew Skroback in New York

The Bureau of Ocean Energy Management, or BOEM, part of the US Department of the Interior, formally designated California's Morro Bay Wind Energy Area for development of offshore wind power in November.

The Morro Bay WEA is approximately 20 miles off the central California coast and is a large expanse of about 376 square miles.

The Biden administration is expected to try to approve 3,000 megawatts of projects eventually in Morro Bay and another 1,600 megawatts off Humboldt County in northern California.

The Morro Bay designation triggered a 60-day public comment period and signaled the start of work on a formal environmental assessment of the project area. The public comment period ends January 11, 2022.

Once BOEM considers all public input, the agency will publish a draft environmental assessment for public review and comment. The analysis will inform BOEM's eventual decision whether to move forward with proposed lease sales in the WEA.

The US Department of the Interior outlined an "ambitious roadmap" to develop wind farms along almost the entire US coastline. The plan suggests there will be as many as seven new offshore wind area lease sales in the United States over the next decade.

The roadmap includes a target of September 2022 for lease sales for the Morrow Bay and Humboldt WEAs.

The California environmental assessments and leases are likely to face technical hurdles. These include the need, because of deep ocean floors off the Pacific coast, to use floating turbines whose technology is not considered fully proven yet in the United States. The projects will also have to pass through a regulatory gauntlet before both federal and state agencies, particularly challenging in the current California regulatory climate. Opposition from fishermen is also expected.

In addition to the two California areas, the October BOEM roadmap also includes assessment of potential leases off the coast of Oregon, in the Gulf of Maine, in the Gulf of Mexico, and off the coasts of the mid-Atlantic states and North and South Carolina. Biden has set a goal of building 30,000 megawatts of US offshore wind capacity by 2030.

BOEM gave permission earlier this year for construction of the first large US offshore wind farm—the 800-megawatt Vineyard Wind project off Massachusetts—after a delay during which the Trump administration decided to prepare a supplemental environmental impact statement. The June 2021 supplement examined the cumulative impacts of several offshore wind projects proposed off the Atlantic coast, including assessment of previously unavailable information on potential impacts to fishing and seagoing transit.

Migratory Birds

The US Fish and Wildlife Service revoked a Trump-era rule in October that limited liability for incidental "takes" of migratory birds.

The Migratory Bird Treaty Act of 1918, known as the MBTA, makes it unlawful to pursue, hunt, take, capture or kill any migratory bird "by any means or in any manner."

The MBTA covers practically every species of North American bird.

The now withdrawn Trump-era rule, only issued in early January after the election, took the position that the MBTA only prohibits intentional takes, such as by hunting or poaching, as opposed to incidental takes.

Before Trump, regulators had generally interpreted the MBTA to prohibit incidental takes, including takes that occur by accident in connection with otherwise lawful activities. However, the US Fish and Wildlife Service used discretion when incidental takes occurred to waive penalties.

Despite past practices, no formal rules codifying whether incidental takes are prohibited under the MBTA are currently in effect following the revocation of the Trump-era rule.

The US Fish and Wildlife Service has begun a rulemaking process to confirm its current position that the MBTA prohibits incidental takes, but the agency appears also ready to formalize the use of enforcement discretion in the case of incidental takes of migratory birds.

It also proposed new guidelines in October for handling incidental takes to let project owners know what factors it will weigh in favor or against projects whose activities violate the strict letter of the law.

The USFWS guidance provides a measure of comfort for those seeking to avoid liability under the MBTA. A key factor to be considered is whether best management practices were used to assess, manage and lower the risk of harm to migratory birds. Anyone using best management practices would probably be classified as "not a priority for enforcement" by the USFWS.

USFWS's "priority for enforcement" for incidental takes will now focus on two categories. First, the agency will use the MBTA against incidental takes that result from an otherwise illegal activity. Second, it will focus on incidental takes that result from activities by a public or private sector entity that are otherwise legal, but where the incidental takes were foreseeable and best practices were not being used to try to prevent them.

The USFWS has at long last begun consideration of a permitting regime to cover incidental takes. Permitting regimes have been in place to allow for limited incidental takes under both the Bald and Golden Eagle Protection Act and Endangered Species Act for some time, but never under the MBTA.

USFWS is considering allowing incidental takes under the MBTA in three situations.

First, the agency is considering exceptions to the general prohibition on incidental takes. These may include noncommercial activities, including most activities by homeowners and other individuals. They may also include certain activities where best management practices are being used to avoid harm to migratory birds.

Second, incidental takes may be allowed by those holding general permits for certain types of activities. A general permit is likely to be authorized through a registration system, where parties would pay a fee and agree to be subject to a set of conditions in the general permit, including reporting requirements. One permit condition may be to use best management practices to avoid incidental takes.

An MBTA general permit would be effective upon submission of the request. This is similar to how the nationwide permit program works for regulating impacts to wetlands and other regulated waters under the Clean Water Act.

The USFWS is considering general permit authorization regulations to cover renewable energy projects.

Third, the USFWS is likely to develop regulations that allow parties to apply for a project- or activity-specific permit authorizing incidental takes of migratory birds in cases where the project does not satisfy the eligibility criteria for a general permit.

The USFWS staff would review applications for project- or activity-specific permits and ask questions. The process to obtain such permits is likely to be somewhat time consuming and costly.


China and the United States—the two largest emitters of greenhouse gases—issued a surprise joint statement at the end of the COP26 United Nations conference on climate change in Glasgow in early November.

The statement acknowledged the gap between current government policies not just in other countries, but also in the United States and China, and what needs to be done to meet the goal of limiting global warming to 1.5 degrees Celsius.

The two countries agreed to increase their efforts to cut emissions, including the extra potent methane gas. However, China declined to join the global pledge being urged by the United States and the European Union to cut methane emissions 30% by the end of the decade from 2020 levels. Instead, China said it will develop its own national plan.

The two nations pledged to establish a working group that will meet in the first half of 2022 to explore ways to step up global efforts.

Forever Chemicals

The US Environmental Protection Agency released draft reports in November suggesting that the safe levels of ingestion for two common "forever chemicals"—perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS)—are actually lower than suggested by prior assessments.

Both PFOA and PFOS belong to a class of chemicals called perfluoroalkyl and polyfluoroalkyl compounds, or PFAS (pronounced PeeFAS). The class of chemicals is sometimes referred to as "forever chemicals" because they build up in the environment over time and are difficult to break down even with time.

PFAS are a broad group of fluorinated chemicals that are added to a wide variety of consumer products to make them non-stick, waterproof, stain-resistant and fire-resistant.

The new draft reports suggest that toxicity levels for both PFOA and PFOS may be lower than previously understood. However, the reports now suggest that PFOA is a "likely" carcinogenic to humans at certain levels, raising the carcinogenicity assessment from the prior finding of "suggestive" evidence that the substance can cause cancer.

EPA also recently found some evidence that another type of PFAS, known as GenX, may also be more toxic than previously understood.

PFAS have been found in drinking water in many areas of the country. Whatever the sources, the Centers for Disease Control and Prevention has found PFAS in the blood of nearly all people tested, with levels varying widely.

Consumer products containing PFAS include carpets and upholstery, waterproof apparel, floor waxes, non-stick cookware, camping gear, fast-food wrappers, cleaners, dental floss and firefighting foams for putting out intense fuel fires. PFOA have been used in non-stick cookware, flame repellants and cosmetics. PFOS have been used in water- and stain-resistant products.

The latest regulatory draft findings are part of an EPA effort to assess and potentially regulate the substances. They are not currently regulated as "hazardous substances" under standard federal environmental laws.

EPA may set drinking water limits for PFOA and PFOS in 2023.

While the science is developing and the draft reports have not yet been subject to standard peer review, some environmental activists suggest EPA's newly proposed risk assessments for PFOA and PFOS could lead regulators to adopt an approach that assumes no level of exposure is safe for humans. They suggest that would lead to policies that mirror those regulating substances like lead and carcinogens like asbestos. That could lead EPA to regulate PFOA and PFOS more strictly based on technical and economic feasibility, as well as the cancer risk range for PFOA.

There is some indication that EPA could tighten daily exposure limits for PFOA and PFOS by about four orders of magnitude compared to the non-binding advisory levels of 70 parts per trillion that EPA set for them in 2016. Some states have already set or are developing lower exposure limits, moving faster than federal regulators.

Regulation of PFAS both by EPA and by various states could have significant implications for cleanup decisions at PFAS-contaminated sites and for when and to what degree affected drinking water would require treatment.

At the federal level, regulations could result in listing the substances as "hazardous substances" under the US Comprehensive Environmental Response, Compensation and Liability Act, more commonly known as the Superfund law. The listing of certain PFAS as hazardous substances under the Superfund law could impose significant cleanup liability for responsible parties at sites across the country, including landfills. Even where regulators previously considered cleanups of other substances to be complete, a listing could reopen past settlements, requiring responsible parties to do additional remediation where regulated PFAS are found, but that were not addressed.

Subjecting the substances to regulation under the US Resource Conservation and Recovery Act could also open such contamination not only to federal enforcement, but also to citizen suits under RCRA.

The setting of nationwide drinking water standards, or even just state-level standards, could also have significant effects. Setting of drinking water standards could require water utilities to incur substantial ongoing costs to test and possibly treat water. Nationwide drinking water standards could force them to spend billions of dollars to comply with testing and treatment requirements over just the first five years.

Despite these findings, EPA has also signaled that it might use different regulatory models for different perfluorinated chemicals based on its work to divide the thousands of known PFAS into subgroups for testing and regulation.

EPA has already identified 24 different classes of PFAS that may need to be studied before concluding how toxic these chemicals are. EPA is likely to regulate in piecemeal fashion. It will take time for studies to inform any new regulation, where needed.