The Nickel Report

On July 10, 2023, California Governor Gavin Newsom signed into law a suite of bills intended to facilitate the permitting and approval processes for clean energy and other infrastructure projects in California.

Enactment of these measures in conjunction with the state’s budget bill marked the culmination of negotiations between the governor and state legislators that began on May 19, 2023, when the governor’s office announced a number of legislative proposals to streamline approval and permitting processes for clean infrastructure projects in California. On the same day, Governor Newsom issued Executive Order N-8-23, creating an Infrastructure Strike Team to work across state agencies to maximize federal and state funding opportunities for California innovation and infrastructure projects. The governor’s legislative proposals and executive order reflect the administration’s commitment to infrastructure development in California.

“According to FERC, it is now commonplace for states to use Section 401 to hold federal licensing hostage.”

These are the words the DC Circuit used in Hoopa Valley Tribe v. Federal Energy Regulatory Commission, No. 14-1271, p. 10 (D.C. Cir., Jan. 25, 2019), to describe the state of play on § 401 certifications affecting hydroelectric facility licensing or re-licensing applications. CWA § 401(a)(1) requires, as a prerequisite for federal permits for activities that may result in a discharge into the navigable waters, that affected states certify that any such discharge will comply with applicable, enumerated provisions of the Clean Water Act. But, if a state fails or refuses to act on a request for certification within “a reasonable period of time (which shall not exceed one year) after receipt of such request,” the statute deems the certification requirements waived.