Permitting issues—including federal wildlife permits—are common hurdles for the renewable energy sector. The U.S. Fish and Wildlife Service (FWS) sought to reduce these burdens by issuing new guidance in late 2017 to try to clarify that the Migratory Bird Treaty Act (MBTA) restricts only activities that intentionally harm protected species. But attempts at MBTA reform were quickly caught up in litigation between states, environmental groups, and the federal government, creating ongoing uncertainty for renewable energy and other infrastructure projects. And with the record-long government shutdown still in play, it may be even longer than previously expected until this regulatory reform is necessarily addressed. Continue Reading Migratory Bird Treaty Act Uncertainty Continues for Energy and Infrastructure Developers
Continuing reductions in environmental regulations across the power industry may seem like a good time for the C-suite to direct energy and attention towards other key priorities, but there is another force steadily working to tug reform back over the line — highly organized and increasingly strategic NGOs. Because deregulation is antithetical to their policy preferences, environmental groups routinely argue that federal agencies violate federal statutory laws, and power plant operations and infrastructure get caught in the crossfire.
As citizen scientists and environmental non-governmental organizations (NGOs) have stepped up to fill what they have called an enforcement gap since President Trump took office, the NGO playbook has become more complex and creative than perhaps ever before. A recent Fourth Circuit stay is another example of litigation against governments as a routine playbook strategy likely to continue on the horizon, in addition to the primarily used litigation tactics against private parties to further NGO interests in the past.