Cooperative Federalism and Wind: a New Framework for Achieving Sustainability
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COOPERATIVE FEDERALISM AND WIND: A NEW FRAMEWORK FOR ACHIEVING SUSTAINABILITY Patricia E. Salkin* Ashira Pelman Ostrow** I. INTRODUCTION ....................................................................... 1050 II. WHY WIND ENERGY ............................................................... 1055 A. Environmental Benefits .................................................. 1056 B. Economic Benefits ........................................................... 1058 C. Energy Independence and National Security ................. 1061 D. Challenges to Wind Energy Development ...................... 1062 III. LOCAL GOVERNMENTS AND THE SITING OF WIND TURBINES ................................................................................ 1063 A. Approaches to Wind Energy Siting ................................ 1065 B. Wind Energy Meets the Neighbors ................................. 1067 C. Evaluating Local Concerns ............................................. 1071 IV. FEDERAL WIND POLICIES ....................................................... 1076 A. Federal Wind Siting Guidelines and Regulations .......... 1077 B. Fiscal Incentives for Wind Development ........................ 1079 V. OVERCOMING LOCAL OPPOSITION : LESSONS FROM THE TELECOMMUNICATIONS ACT OF 1996 .................................... 1082 A. Federal Intervention: A Cooperative Approach ............. 1083 1. Increased Uniformity ................................................ 1084 2. Local Tailoring and Regulatory Experimentation .... 1086 B. Telecommunication Siting .............................................. 1088 C. Elements of a Federal Wind Siting Policy ...................... 1091 1. No Prohibition of Wind Facilities............................. 1093 2. Decisions Within a Reasonable Time ....................... 1094 * Patricia E. Salkin is the Raymond and Ella Smith Distinguished Professor of Law, Associate Dean and Director of the Government Law Center at Albany Law School. ** Ashira Pelman Ostrow is an Associate Professor of Law at Hofstra University School of Law. The authors thank Amy Lavine, Esq., staff attorney at the Government Law Center and Albany Law School students Deborah Collura, 2011, and Benjamin Lee, 2011, for their research assistance, and Michael de Matos and the entire staff of the Hofstra Law Review for their professionalism and editorial advice. 1049 1050 HOFSTRA LAW REVIEW [Vol. 37:1049 3. Decisions in Writing and Supported by Substantial Evidence ................................................................... 1095 VI. CONCLUSION ........................................................................... 1097 I. INTRODUCTION Since taking office in January 2009, President Barack Obama has made energy independence a national priority, calling upon Americans to “confront[] our dependence on foreign oil, address[] the moral, economic and environmental challenge of global climate change, and build[] a clean energy future . .” 1 The President’s initiative comes in the wake of a year of unprecedented growth in wind energy development. 2 In 2008 alone the nation’s total wind energy generating capacity increased by over 50%, creating enough new generating capacity to serve over two million homes. 3 The trend is expected to continue. 4 The dramatic increase in generating capacity has been driven, in part, by the widespread adoption of state Renewable Portfolio Standards (“RPS”). 5 A majority of states have mandatory RPSs that require “increasing percentages of electricity sold by utilities within each state [to] be produced from renewable sources including wind, solar, biomass and hydroelectric.” 6 For example, Oregon’s Renewable Energy Act of 1. Obama for America, Barack Obama and Joe Biden: New Energy for America, http://www.barackobama.com/pdf/factsheet_energy_speech_080308.pdf (last visited Jan. 20, 2010); see also WhiteHouse.gov, Energy & Environment, http://www.whitehouse.gov/agenda/ energy_and_environment/ (last visited Jan. 20, 2010) (listing energy and environmental initiatives taken by President Obama). 2. See Ronald H. Rosenberg, Diversifying America’s Energy Future: The Future of Renewable Wind Power , 26 VA. ENVTL . L.J. 505, 515 (2008); Ronald H. Rosenberg, Making Renewable Energy a Reality—Finding Ways to Site Wind Power Facilities , 32 WM. & MARY ENVTL . L. & POL ’Y REV . 635, 654-57 (2008) [hereinafter Rosenberg, Making Renewable Energy ] (discussing the increased use of wind energy in recent years). 3. AM. WIND ENERGY ASS ’N, 2008: ANOTHER RECORD YEAR FOR WIND ENERGY INSTALLATIONS 1 (2008),http://www.awea.org/pubs/factsheets/Market_Update_4Q08.pdf. 4. As of 2008, wind power installations in the United States operated at over 25,000 megawatts (“MW”), with an estimated increase of 5000 MW expected in 2009. AM. WIND ENERGY ASS ’N, WIND : A LEADING SOURCE OF NEW ELECTRICITY GENERATION 3 (2009), http://www.awea.org/pubs/documents/Outlook_2009.pdf. 5. RYAN WISER & GALEN BARBOSE , LAWRENCE BERKELEY NAT ’L LAB ., RENEWABLES PORTFOLIO STANDARDS IN THE UNITED STATES : A STATUS REPORT WITH DATA THROUGH 2007, at 3-5 (2008), available at http://eetd.lbl.gov/ea/ems/reports/lbnl-154e-revised.pdf. 6. See Rosenberg, Making Renewable Energy , supra note 2, at 636. For an updated map showing states with RPS, see generally PEW CTR . ON GLOBAL CLIMATE CHANGE , RENEWABLE 2009] COOPERATIVE FEDERALISM AND WIND 1051 2007 requires the state’s largest utilities to generate at least 5% of their electricity from renewable sources by 2011, increasing to 25% by 2025. 7 To meet such RPS requirements, regulated utilities have focused primarily on wind energy. 8 At the federal level, Congress continues to consider a number of RPS proposals designed to meet the goal set by the White House’s New Energy for America plan. 9 Although the specifics vary, these bills would require electric utilities to produce increasing percentages of their electricity from renewable sources, reaching approximately 25% by 2025.10 A recent poll found that Americans overwhelmingly support the enactment of a federal RPS. 11 With strong support at both the national and state levels, wind energy seems poised to continue its rapid growth. Yet, proposed wind energy projects sometimes falter at the local level, where land use decisions are typically made. 12 In opposing wind energy projects, local residents raise a host of concerns involving aesthetics, noise, safety and impacts on surrounding property values, wildlife, and the environment. 13 Indeed, the intensity of local opposition has prompted one prominent energy siting consultant to remark that “wind energy is fast becoming ‘the mother of all NIMBY wars.’” 14 NIMBY, an acronym for Not In My Backyard, is a term used to describe the reaction of local homeowners ENERGY AND PORTFOLIO STANDARDS (2009), available at http://www.pewclimate.org/ sites/default/modules/usmap/pdf.php?file=5907. 7. S. 74-838, Reg. Sess. (Or. 2007), available at http://www.oregon.gov/ENERGY/ RENEW/docs/sb0838.c.pdf. 8. See WISER & BARBOSE , supra note 5, at 13. According to the study, “[o]f the more than 8,900 MW of new non-hydro renewable energy capacity that has come on line in RPS states from 1998 through 2007, roughly 93% has come from wind power . .” Id. The authors note, however, that in some states there is “evidence that diversity may increase over time as RPS policies expand.” Id. at 14. 9. A federal RPS has passed the Senate three times since 2002 and passed the House of Representatives once, in 2007, but has yet to be approved simultaneously by both houses. See id. at 34. 10. See, e.g. , American Clean Energy & Security Act of 2009, H.R. 2454, 111th Cong. § 101 (2009); American Renewable Energy Act, H.R. 890, 111th Cong. § 2 (2009); Save American Energy Act, H.R. 889, 111th Cong. (2009); S. 433, 111th Cong. § 1 (2009); see also PATRICK SULLIVAN ET AL ., NAT ’L RENEWABLE ENERGY LAB ., COMPARATIVE ANALYSIS OF THREE PROPOSED FEDERAL RENEWABLE ELECTRICITY STANDARDS 1, 2 tbl.1 (2009). 11. Press Release, Am. Wind Energy Ass’n, New Poll Shows Nationwide, Bipartisan Support for Renewable Electricity Standard (May 5, 2009), http://www.awea.org/newsroom/ releases/New_Poll_Shows_Support_for_RES_050509.html. 12. In some states, however, these local decisions—particularly those dealing with wind energy—have been preempted by state-level decision makers. See infra Part III.A. 13. See infra Part III.B-C. 14. Marty Durlin, Op-Ed., Wind Farms—Not In My Backyard , RUIDOSO NEWS (N.M.), Mar. 19, 2009, at A4 (statement of Bob Kahn, head of Strategic Communications, a Seattle-based firm that helps wind farms gain siting permits). 1052 HOFSTRA LAW REVIEW [Vol. 37:1049 who object to further development within their community, 15 fearing that such development might reduce the market value of their homes or change the character of the community. 16 Though there are benefits to empowering local communities to regulate land use, 17 in the context of wind energy more centralized regulation is desirable, and not entirely revolutionary. In fact, notwithstanding the localist nature of land use law, the federal government has long played a role in shaping land use policies. 18 At times, to further national goals, Congress has enacted federal legislation that directly constrains local siting authority. 19 For example, the Energy Act of 2005 entirely preempts the local siting process, 20 granting the 15. See William A. Fischel, Voting, Risk Aversion and the NIMBY Syndrome: A Comment on Robert Nelson’s ‘Privatizing the Neighborhood ,’ 7 GEO . MASON L. REV . 881, 881, 884-85