The Fordham Environmental Review Symposium

The Green : Fighting Through Law

CLE COURSE MATERIALS

Thursday, March 5, 2020 1:30 - 2 p.m. | registration 2 - 5:30 p.m. | program

Costantino Room (Second Floor) Table of Contents

1. Speaker Biographies (view in document)

2. CLE Materials

Panel 1: The Green New Deal and Its Legal Challenges and Opportunities

The Agenda – Opinion. Are Carbon Credits Vanishing Into Thin Air. (View in document)

Recognizing the duty of the Federal Government to create . (View in document)

Panel 2: The Private Sector and Federal, State, and Local Governments’ Role in Implementing the Green New Deal

New York Zoning Law and Practice Report. The Effect of New York’s New Climate Law On Municipalities: Deep but Uncertain. (View in document)

Environmental Law Institute. Gerrard, Michael. Legal Pathways for a Massive Increase in - Scale Renewable Generation Capacity. (View in document)

Environmental Law Review 2020 Symposium Speaker Bios

Cecil Corbin-Mark Deputy Director; Director of Initiatives WE ACT for Cecil Corbin-Mark is WE ACT for Environmental Justice’s (WE ACT) Deputy Director and Director of Policy Initiatives. He holds a BA from Hunter College in Political Science and a M. Phil. in International Relations from Oxford University in England. Prior to joining WE ACT, Cecil worked for the following: the Bronx County District Attorney, NYS Justice Hon. W. T. Martin, the Mellon Minority Scholars Program and the NY Public Library.

He currently serves on the following boards: Center for Environmental Health, Clean and Healthy New York, the Louis E. Burnham Fund, the West Harlem Development Corporation, and USA. He was the recipient of the 2010 Earth Day New York Award and the 2018 Marshall England Memorial Public Health Award.

Cecil is a father, a pilot and in the Hamilton Heights section of West Harlem in NYC, his family’s home for almost 90 years. He comes from a family that was actively engaged in the Civil Rights movement. His great uncle and aunt Louis E., and Dorothy Burnham moved from Harlem to Birmingham, AL to launch the Southern Negro Youth Congress and his cousin represented professor and Civil Rights activist, Angela Y. Davis, in her trial for kidnapping, murder and conspiracy.

Allison C. de Cerreño Senior Vice President, Business Operations and Transformation Officer MTA Bridges and Tunnels Currently Senior Vice President, Business Operations and Transformation Officer at MTA Bridges & Tunnels, Dr. C. de Cerreño is an experienced transportation professional, with extensive knowledge and background in policy, research, project management, and operations. In her current role, she is the agency’s point person for the Central Business District Tolling Program (“”) and leads four other departments, with roughly 100 individuals.

Prior to her current position, Dr. C. de Cerreño was General Manager, Special Projects, and Deputy General Manager at the Port Authority Bus Terminal, the nation’s largest, and the world’s busiest, bus terminal, Formerly, she was Assistant Director for Policy & Business Programs in the Port Authority’s Tunnels, Bridges & Tunnels (TB&T) Department where she led three units overseeing TB&T’s toll collection system and revenue management as well as toll- related capital investments, revenue analysis and forecasting, business and transportation planning, bus fee and lease agreements, and customer service programs. Before that, she was Program Director, All-Electronic Tolling (AET) in TB&T, where she led a major program to design, develop, and deploy a new toll collection system with the capability for AET on the agency’s six tunnels and bridges. In addition to overseeing the engineering and system design aspects of the program, she led the business and policy efforts associated with implementing AET, including the deployment of a multi-agency program in the back-office customer service center.

Before joining the Port Authority in 2009, Dr. C. de Cerreño held concurrent positions as: Co- Director and then Director of the NYU-Wagner Rudin Center for Transportation Policy and Management; Research Scientist and Assistant Research Professor at New York University, and Director of the National Association of City Transportation Officials, Inc. Prior to NYU, she held positions as: Director of Science & Technology Policy at the New York Academy of Sciences; and Research Assistant and then Assistant Director of the Studies Division at the Council on Foreign Relations. She also taught courses at Hunter College and City College of New York, is the author of numerous publications.

Dr. C. de Cerreño is a Member of the Strategic Management Committee of the Transportation Research Board (TRB) as well as a Member of TRB’s Intercity Passenger Rail Committee. She is a Council Member for the Transportation Research Forum, NY Chapter and holds a Ph.D. from the Graduate School and University Center of the City University of New York.

Kimberly Diamond Professor of Law Fordham Law School Former Co-Chair American Association’s Section of Environment, & Kim Diamond is a recognized leader in the legal, energy, and environmental communities and is a thought leader in , smart cities, and areas.

Within the American Bar Association’s (ABA’s) Section of Environment, Energy & Resources, she served as Co-Chair of the award-winning Renewable, Alternative, and Distributed Energy Resources (RADER) Committee as well as Co-Chair of the Special Committee on Congressional Relations. Ms. Diamond has also served as Chair of the Tri-State Area Chapter of Women of Renewable Industries and (f/k/a Women of Wind Energy) and as a Wind Energy Ambassador for the Wind Energy Foundation.

On a personal level, Ms. Diamond was recognized on A Word About Wind’s Legal Power List 2016 as one of the Top 100 working in wind globally. She was also recognized as a 2014 finalist for a Clean Energy Education & Empowerment Award (C3E Award) for leadership and achievement from the U.S. Department of Energy and the MIT Energy Initiative.

Ms. Diamond has also spearheaded award-winning initiatives in her local community. In 2018, she led her local environmental commission to win an Association of New Jersey Environmental Commissions (ANJEC) Award for the thin film plastics recycling program she leads. Most recently, in 2019, she led the -focused non-profit that she founded to win the 2019 New Jersey Clean Communities Council’s Volunteer Award.

With respect to legal scholarship and presentations, she has participated as a speaker or moderator in over 30 presentations on finance, environmental, wind, and other renewable energy topics. Venues at which she has presented include Columbia Law School, Columbia Business School, the British Embassy, and the American Wind Energy Association’s WINDPOWER Conferences.

She has also published over 30 articles on offshore wind, onshore wind, , smart cities, green building climate change, finance, and other renewable energy topics. Her articles have appeared in prestigious law reviews, journals and trade publications. The of Appeals, Seventh Circuit, among other places, has cited her scholarship. Additionally, the first legal textbook of its kind on , Renewable Energy Law, Policy and Practice (Troy A. Rule, 2018), includes a selection from one of her most recent law review articles on wind rights and wake effect impacts.

Ms. Diamond is also a transactional with a background in securitization, structured finance, and secured lending. She has worked at large international and national law firms, representing domestic and international commercial banks, financial institutions, asset managers, funds, sponsors, large corporations, and others in numerous complex multi-million and multi- billion dollar CMBS, ABS, and RMBS securitizations, as well as structured finance, leveraged finance, and other complex financing transactions (including CLOs) in the public and private markets, both domestically and internationally. She has also served as in-house counsel at Credit Suisse, a global investment bank, where she covered the Fixed Income desk. Additionally, Ms. Diamond possesses practical experience teaching law students outside of the classroom. In addition to her teaching experience at Fordham Law School, she has mentored teams of law students from NYU Law School’s Law and Social Entrepreneurship Association in the representation of small business owners from Rising Tide Capital’s entrepreneurs program for start-up companies.

Michael Gerrard Andrew Sabin Professor of Professional Practice Columbia Law School Michael B. Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School, teaches courses on environmental law, climate change law, and energy , and founded and directs the Sabin Center for Climate Change Law. He also chaired the faculty of ’s Earth Institute from 2015 to 2018.

From 1979 through 2008, he practiced environmental law in New York, most recently as partner in charge of the New York office of Arnold & Porter. Upon joining the Law School faculty in 2009, he became the senior counsel to the firm. His practice involved trying numerous cases and arguing many appeals in federal and state and administrative ; handling the environmental aspects of numerous transactions and development projects; and providing regulatory compliance advice to a wide variety of clients in the private and public sectors.

A prolific writer in environmental law and climate change, Gerrard twice received the Association of American Publishers’ Best Law Book award for works on environmental law and brownfields. He has written or edited thirteen books, including Global Climate Change and U.S. Law, the leading work in its field (second edition published in 2014, co-edited with Jody Freeman), and the 12-volume Environmental Law Practice Guide. His most recent book is Legal Pathways to Deep Dacarbonization in the United States (2019, coedited with John Dernbach).

Gerrard was the 2004-2005 chair of the American Bar Association’s 10,000-member section of environment, energy, and resources. He also chaired the New York City Bar Association’s executive committee and the New York State Bar Association’s environmental law section. He has served on the executive committees of the boards of the Environmental Law Institute and the American College of Environmental Lawyers. Several independent rating services ranked Gerrard as the leading environmental lawyer in New York and one of the leading environmental lawyers in the world. Gerrard has taught courses at Yale School of Forestry and Environmental Studies and New York University Law School; as a visiting professor at Universite Paris 1 Panteon-Sorbonne and the University of Malta; and as visiting distinguished scholar at Vermont Law School. He has also lectured on environmental law in Great Britain, , the Netherlands, Denmark, Norway, Spain, Italy, Vatican City, Malta, Israel, , Taiwan, India, , Chile, Brazil, The Marshall Islands, , and throughout the U.S.

Cymie Payne Associate Professor School of Environmental and Biological Sciences, Rutgers University Professor Payne earned her master’s degree from The Fletcher School of Law and Diplomacy and her JD from the University of California, Berkeley. She also is affiliated with the Bloustein School of Planning and .

She writes frequently on international courts and tribunals.

She has appeared as legal counsel before the International for the Law of the Sea and has practiced international, natural and environmental law with the United Nations, the U.S. Department of the Interior and the law firm of Goodwin, Procter. She participated in landmark decisions on the legal responsibility of aggressor states for the restoration and remediation of damage to the environment from armed conflict as counsel to the United Nations Compensation Commission in Geneva, Switzerland. As Director of the Global Project at University of California Berkeley’s Center for Law, Energy and the Environment, she focused on the linkage of state and international climate policy.

She is an appointed member of the International Union for Conservation of Nature and Natural Resources’ Commission on Environmental Law (IUCN-CEL), and the Association’s Role of International Law in Sustainable Management for Development Committee. She is a past member of the Executive Council of the American Society of International Law.

Raya Salter Energy & Environmental Law & Policy Consultant & Educator; Member NY State Climate Action Council Raya Salter is an attorney, consultant, educator and clean energy law and policy expert with a focus on energy and . Raya is a member of the New York State Climate Action Council, the body that is developing the plan to implement the nation's leading climate law. Ms. Salter is also a member of the IUCN World Commission on Environmental Law and co-chair of the Climate Change Energy Transitions Subgroup.

Raya is an experienced advocate, having practiced energy law and regulation in multiple , including New York and Hawaii. She has written widely on energy policy, and her book, "Energy Justice, Domestic and International Perspectives" was released by Edward Elgar in 2018.

Prior to starting her consultancy, Raya was Senior Attorney at the Natural Resources Defense Council and a Regulatory Attorney for the Environmental Defense Fund, where she worked to engage , regulators, policy makers, and opinion leaders to foster clean and renewable grid modernization.

Prior to becoming an environmental advocate, Raya worked as a regulatory attorney at the law firm of Dewey & LeBoeuf in New York City, representing participants in matters relating to regulation by state public utility commissions and federal agencies, transactions involving energy assets, participation in organized electric markets and inter and intra-state transmission.

Ms. Salter is an adjunct professor of law at Fordham University School of Law. Ms. Salter is published in the field of law and regulation. Her articles have appeared in publications including the Electricity Journal and ElectricityPolicy.com. She has also written white papers for the World Bank and the Galvin Electricity Initiative. Before becoming a lawyer, Ms. Salter worked in community-based organizations teaching technology to youth and adults and developing summer and after school programming. Ms. Salter has a J.D. from Fordham University School of Law and a B.A. in economics from Wesleyan University.

Raya Salter has over 20 years of experience as a lawyer and advocate working for the nation's most prominent firms, environmental and social service organizations.

Derek Sylvan Strategy Director Institute for Policy Integrity Adjunct Professor of Environmental Studies New York University

Derek Sylvan is the strategy director at the Institute for Policy Integrity and an adjunct professor of Environmental Studies at NYU. He previously worked as a senior consultant with Context America, advising multinational companies on sustainability issues. He has authored reports on climate and energy issues for the Brookings Institution and the League of Conservation Voters. Additionally, Sylvan has more than eight years of experience in media and journalism. His writing has appeared in The Wall Street Journal, , and the Journal of Public and International Affairs. Sylvan has a master’s degree in public policy from Columbia University’s School of International and Public Affairs as well as a bachelor’s degree from Wesleyan University. 3/4/2020 Opinion | Are Carbon Credits Vanishing Into Thin Air? - POLITICO

O P I N I O N | T H E A G E N D A Are Carbon Credits Vanishing Into Thin Air? The IRS is writing rules for companies who say they are storing carbon dioxide underground. Will anyone check?

There are 46 million tons of carbon dioxide unaccounted for by the EPA. It is unclear whether it is correctly stored, or even stored at all. | Scott Olson/Getty Images

B y D E R E K S Y LVA N a n d C H R I S TO P H E R A L L E N 0 2 / 2 4 / 2 0 2 0 0 4 : 3 0 A M E S T

https://www.politico.com/news/agenda/2020/02/24/carbon-credits-vanishing-thin-air-117071 1/6 3/4/2020 Opinion | Are Carbon Credits Vanishing Into Thin Air? - POLITICO

Derek Sylvan is the strategy director at the Institute for Policy Integrity at NYU School of Law, where Christopher Allen is a research associate.

Thanks to one of the rare instances of bipartisan cooperation on climate policy, the federal government is compensating companies that “capture” carbon dioxide from smokestacks or the ambient air, and then bury it underground. A provision originally passed in 2008 and vastly expanded in 2018 offers a significant credit for companies that keep this carbon out of the atmosphere.

The policy has been a success, by some measures: Even before the expansion, companies have claimed hundreds of millions of dollars in tax credits—possibly as much as $1.3 billion—and reported 63 million tons of carbon dioxide kept out of the air.

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There’s one big problem, though. All of that carbon is supposed to be stored securely underground and monitored by an Environmental Protection Agency program, to be sure it doesn’t leak out or create other complications. But so far, only 17 million of those 63 million tons have been registered with the EPA as legally required — about one-quarter of the carbon that companies have taken credit for.

That leaves 46 million tons of carbon dioxide unaccounted for by the EPA. It is unclear whether it is correctly stored, or even stored at all. A federal investigation on the issue could be on the horizon.

Now, the IRS has a chance to fix this potential scandal as it is working to finalize long-awaited rules for the expanded tax credits. If the agency closes this oversight gap and reinforces strong monitoring requirements, carbon capture projects could boom, playing a key role in critical efforts to address climate change.

https://www.politico.com/news/agenda/2020/02/24/carbon-credits-vanishing-thin-air-117071 2/6 3/4/2020 Opinion | Are Carbon Credits Vanishing Into Thin Air? - POLITICO

The Internal Revenue Service. | Getty Images

Industry groups, however, are pressing the IRS to do the opposite, to eliminate monitoring requirements. How the IRS crafts the upcoming rules could determine whether the policy lays the groundwork for essential climate solutions or simply hands money back to companies that could be doing little or nothing to reduce carbon dioxide levels.

Creating a market for emissions reductions

Congress updated Section 45Q of the tax code in 2018, greatly expanding tax credits for carbon-capture projects that had first been adopted in 2008. The goal was a worthy one: In order to keep the planet from warming to dangerous levels, we must soon eliminate or capture nearly all industrial carbon dioxide emissions, and then store the carbon permanently underground or use it as an input in products. 45Q creates a market that could kick-start these nascent industries.

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In a limited way, 45Q creates the first federal price on carbon. The scope of the policy is narrow — it compensates only companies that capture carbon dioxide emissions for storage or repurposing. (Additional are needed to tackle https://www.politico.com/news/agenda/2020/02/24/carbon-credits-vanishing-thin-air-117071 3/6 3/4/2020 Opinion | Are Carbon Credits Vanishing Into Thin Air? - POLITICO

economywide emissions.) But it’s a crucial first step supported by industry, many economists and some environmental groups.

Under the updated version of 45Q, an entity that permanently stores a ton of carbon dioxide in an underground saline will receive a $50 tax credit, while one that uses the captured carbon in a commercial application will receive $35. These price points are much higher than under the older program and approximate the best available estimate of the damage caused by a ton of emitted carbon dioxide (though there are many reasons why a larger credit might be appropriate). Under the new policy, some large projects are expectedto generate more than $2 billion in lifetime tax credits.

Most near-term 45Q credits will go toward “enhanced recovery” (EOR) projects, where carbon dioxide is injected into partially depleted oil wells to help extract hard-to-reach oil. The logic of capturing carbon and using it to produce more fossil fuels can seem twisted, but nearly all the carbon dioxide used remains underground, and the full EOR process (including the burning of the oil) can potentially lower atmospheric carbon dioxide levels. Maybe more important, EOR can help improve the processes and build for widespread underground carbon storage.

But only if the IRS ensures that firms are properly conducting their carbon storage efforts.

Fixing a blind spot

Under 45Q, companies that want the tax credit for sequestering carbon must follow a system of monitoring, reporting, and verification overseen by the EPA, designed to detect leaks, track progress, and improve storage methods.

Since the original version of 45Q was adopted in 2008, millions of dollars’ worth of tax credits appear to have been granted to companies that failed to meet the monitoring standards required by law.

The IRS has acknowledged the enormous gap between the number of tons of carbon dioxide companies have claimed for tax credits and the number of tons actually under EPA monitoring But neither the IRS nor the EPA has yet https://www.politico.com/news/agenda/2020/02/24/carbon-credits-vanishing-thin-air-117071 4/6 3/4/2020 Opinion | Are Carbon Credits Vanishing Into Thin Air? - POLITICO actually under EPA monitoring. But neither the IRS nor the EPA has yet provided an adequate explanation for the enormous discrepancy. Senator Robert Menendez (D-N.J.) has formally requested an investigation by the Treasury Department’s Inspector General to examine whether 45Q tax credit claimants are complying with the law, and whether it is being properly enforced.

Without a serious monitoring program, there will be no accountability for carbon dioxide leaks or faulty operations, and no way to verify that the reduction in tax revenue from 45Q is ultimately benefiting the public rather than lining the pockets of duplicitous firms. Companies could claim tax credits even if some of their carbon dioxide was never stored underground or if it leaked into the atmosphere. Fossil fuel companies should not be able to reap financial rewards at taxpayer expense while failing to reduce carbon levels.

Carbon capture technologies are very important. We will need to capture and store billions of tons of carbon dioxide in the coming decades to slow climate change. For instance, “direct air capture” technology, which absorbs carbon dioxide from ambient air, could rapidly expand as its costs drop, or if 45Q credits rise. If this approach isn’t widely deployed within about a decade, some analysts believe it could be nearly impossible to contain climate change. This technology could also be used to offset emissions from sources that are difficult to decarbonize, such as aviation, or reduce atmospheric carbon concentrations if we overshoot problematic levels.

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A new wave of researchers and entrepreneurs are also starting to use captured carbon dioxide as an input in a wide range of products, including cement, fuels, plastics and carbon nanotubes. As these industries develop, robust 45Q credits could be crucial to their profitability.

That means the future of vital climate technologies and carbon storage efforts may depend on the IRS crafting effective now. If the IRS requires a rigorous verification scheme, 45Q can improve critical carbon storage procedures and pave the way for rapidly advancing technologies that are essential for addressing climate change.

On the other hand, if the IRS weakens the rules, the policy will be simply another tax break for fossil fuel companies that could damage the credibility of federal agencies and discredit the technologies it aims to promote.

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...... (Original Signature of Member)

116TH CONGRESS 1ST SESSION H. RES. ll

Recognizing the duty of the Federal Government to create a Green New Deal.

IN THE HOUSE OF REPRESENTATIVES

Ms. OCASIO-CORTEZ submitted the following resolution; which was referred to the Committee on lllllllllllllll

RESOLUTION Recognizing the duty of the Federal Government to create a Green New Deal.

Whereas the October 2018 report entitled ‘‘Special Report on Global Warming of 1.5 oC’’ by the Intergovernmental Panel on Climate Change and the November 2018 Fourth National Climate Assessment report found that— (1) human activity is the dominant cause of ob- served climate change over the past century; (2) a changing climate is causing sea levels to rise and an increase in wildfires, severe storms, , and other events that threaten human , healthy communities, and critical infrastructure;

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00001 Fmt 6652 Sfmt 6300 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 2 (3) global warming at or above 2 degrees Celsius be- yond preindustrialized levels will cause— (A) mass migration from the regions most af- fected by climate change; (B) more than $500,000,000,000 in lost annual economic output in the United States by the year 2100; (C) wildfires that, by 2050, will annually burn at least twice as much area in the western United States than was typically burned by wildfires in the years preceding 2019; (D) a loss of more than 99 percent of all coral reefs on Earth; (E) more than 350,000,000 more people to be exposed globally to deadly heat stress by 2050; and (F) a risk of damage to $1,000,000,000,000 of public infrastructure and coastal real estate in the United States; and (4) global temperatures must be kept below 1.5 de- grees Celsius above preindustrialized levels to avoid the most severe impacts of a changing climate, which will re- quire— (A) global reductions in emis- sions from human sources of 40 to 60 percent from 2010 levels by 2030; and (B) net-zero global emissions by 2050; Whereas, because the United States has historically been re- sponsible for a disproportionate amount of , having emitted 20 percent of global green- house gas emissions through 2014, and has a high tech- nological capacity, the United States must take a leading role in reducing emissions through economic trans- formation;

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00002 Fmt 6652 Sfmt 6300 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 3 Whereas the United States is currently experiencing several related crises, with— (1) life expectancy declining while basic needs, such as clean air, clean , healthy , and adequate health care, housing, transportation, and education, are inaccessible to a significant portion of the United States population; (2) a 4-decade trend of wage stagnation, deindustrialization, and antilabor policies that has led to— (A) hourly wages overall stagnating since the 1970s despite increased worker productivity; (B) the third-worst level of socioeconomic mo- bility in the developed world before the Great Reces- sion; (C) the erosion of the earning and bargaining power of workers in the United States; and (D) inadequate resources for public sector workers to confront the challenges of climate change at local, State, and Federal levels; and (3) the greatest income inequality since the 1920s, with— (A) the top 1 percent of earners accruing 91 percent of gains in the first few years of economic recovery after the ; (B) a large racial wealth divide amounting to a difference of 20 times more wealth between the aver- age white family and the average black family; and (C) a gender earnings gap that results in women earning approximately 80 percent as much as men, at the median; Whereas climate change, pollution, and environmental de- struction have exacerbated systemic racial, regional, so-

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00003 Fmt 6652 Sfmt 6300 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 4 cial, environmental, and economic injustices (referred to in this preamble as ‘‘systemic injustices’’) by dispropor- tionately affecting indigenous peoples, communities of color, migrant communities, deindustrialized commu- nities, depopulated rural communities, the poor, low-in- come workers, women, the elderly, the unhoused, people with disabilities, and youth (referred to in this preamble as ‘‘frontline and vulnerable communities’’); Whereas, climate change constitutes a direct threat to the na- tional security of the United States— (1) by impacting the economic, environmental, and social stability of countries and communities around the world; and (2) by acting as a threat multiplier; Whereas the Federal Government-led mobilizations during World War II and the New Deal created the greatest middle class that the United States has ever seen, but many members of frontline and vulnerable communities were excluded from many of the economic and societal benefits of those mobilizations; and Whereas the House of Representatives recognizes that a new national, social, industrial, and economic mobilization on a scale not seen since World War II and the New Deal era is a historic opportunity— (1) to create millions of good, high-wage jobs in the United States; (2) to provide unprecedented levels of prosperity and economic security for all people of the United States; and (3) to counteract systemic injustices: Now, therefore, be it

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00004 Fmt 6652 Sfmt 6300 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 5 1 Resolved, That it is the sense of the House of Rep- 2 resentatives that— 3 (1) it is the duty of the Federal Government to 4 create a Green New Deal— 5 (A) to achieve net-zero greenhouse gas 6 emissions through a fair and for 7 all communities and workers; 8 (B) to create millions of good, high-wage 9 jobs and ensure prosperity and economic secu- 10 rity for all people of the United States; 11 (C) to invest in the infrastructure and in- 12 dustry of the United States to sustainably meet 13 the challenges of the 21st century; 14 (D) to secure for all people of the United 15 States for generations to come— 16 (i) clean air and water; 17 (ii) climate and community resiliency; 18 (iii) healthy food; 19 (iv) access to nature; and 20 (v) a sustainable environment; and 21 (E) to promote justice and by stop- 22 ping current, preventing future, and repairing 23 historic oppression of indigenous peoples, com- 24 munities of color, migrant communities, 25 deindustrialized communities, depopulated rural

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 6 1 communities, the poor, low-income workers, 2 women, the elderly, the unhoused, people with 3 disabilities, and youth (referred to in this reso- 4 lution as ‘‘frontline and vulnerable commu- 5 nities’’); 6 (2) the goals described in subparagraphs (A) 7 through (E) of paragraph (1) (referred to in this 8 resolution as the ‘‘Green New Deal goals’’) should 9 be accomplished through a 10-year national mobili- 10 zation (referred to in this resolution as the ‘‘Green 11 New Deal mobilization’’) that will require the fol- 12 lowing goals and projects— 13 (A) building resiliency against climate 14 change-related disasters, such as extreme 15 weather, including by leveraging funding and 16 providing investments for community-defined 17 projects and strategies; 18 (B) repairing and upgrading the infra- 19 structure in the United States, including— 20 (i) by eliminating pollution and green- 21 house gas emissions as much as techno- 22 logically feasible; 23 (ii) by guaranteeing universal access 24 to clean water;

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 7 1 (iii) by reducing the risks posed by cli- 2 mate impacts; and 3 (iv) by ensuring that any infrastruc- 4 ture bill considered by Congress addresses 5 climate change; 6 (C) meeting 100 percent of the power de- 7 mand in the United States through clean, re- 8 newable, and zero-emission energy sources, in- 9 cluding— 10 (i) by dramatically expanding and up- 11 grading renewable power sources; and 12 (ii) by deploying new capacity; 13 (D) building or upgrading to energy-effi- 14 cient, distributed, and ‘‘smart’’ power grids, 15 and ensuring affordable access to electricity; 16 (E) upgrading all existing buildings in the 17 United States and building new buildings to 18 achieve maximum energy efficiency, water effi- 19 ciency, safety, affordability, comfort, and dura- 20 bility, including through ; 21 (F) spurring massive growth in clean man- 22 ufacturing in the United States and removing 23 pollution and greenhouse gas emissions from 24 manufacturing and industry as much as is tech- 25 nologically feasible, including by expanding re-

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 8 1 newable energy manufacturing and investing in 2 existing manufacturing and industry; 3 (G) working collaboratively with farmers 4 and ranchers in the United States to remove 5 pollution and greenhouse gas emissions from 6 the agricultural sector as much as is techno- 7 logically feasible, including— 8 (i) by supporting family farming; 9 (ii) by investing in sustainable farm- 10 ing and use practices that increase 11 health; and 12 (iii) by building a more sustainable 13 food system that ensures universal access 14 to healthy food; 15 (H) overhauling transportation systems in 16 the United States to remove pollution and 17 greenhouse gas emissions from the transpor- 18 tation sector as much as is technologically fea- 19 sible, including through investment in— 20 (i) zero-emission vehicle infrastructure 21 and manufacturing; 22 (ii) clean, affordable, and accessible 23 public transit; and 24 (iii) high-speed rail;

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 9 1 (I) mitigating and managing the long-term 2 adverse health, economic, and other effects of 3 pollution and climate change, including by pro- 4 viding funding for community-defined projects 5 and strategies; 6 (J) removing greenhouse gases from the 7 atmosphere and reducing pollution by restoring 8 natural ecosystems through proven low-tech so- 9 lutions that increase soil carbon storage, such 10 as land preservation and afforestation; 11 (K) restoring and protecting threatened, 12 endangered, and fragile ecosystems through lo- 13 cally appropriate and science-based projects 14 that enhance and support climate 15 resiliency; 16 (L) cleaning up existing hazardous waste 17 and abandoned sites, ensuring economic devel- 18 opment and sustainability on those sites; 19 (M) identifying other emission and pollu- 20 tion sources and creating solutions to remove 21 them; and 22 (N) promoting the international exchange 23 of technology, expertise, products, funding, and 24 services, with the aim of making the United 25 States the international leader on climate ac-

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 10 1 tion, and to help other countries achieve a 2 Green New Deal; 3 (3) a Green New Deal must be developed 4 through transparent and inclusive consultation, col- 5 laboration, and partnership with frontline and vul- 6 nerable communities, labor unions, worker coopera- 7 tives, civil society groups, academia, and businesses; 8 and 9 (4) to achieve the Green New Deal goals and 10 mobilization, a Green New Deal will require the fol- 11 lowing goals and projects— 12 (A) providing and leveraging, in a way that 13 ensures that the public receives appropriate 14 ownership stakes and returns on investment, 15 adequate capital (including through community 16 grants, public banks, and other public financ- 17 ing), technical expertise, supporting policies, 18 and other forms of assistance to communities, 19 organizations, Federal, State, and local govern- 20 ment agencies, and businesses working on the 21 Green New Deal mobilization; 22 (B) ensuring that the Federal Government 23 takes into account the complete environmental 24 and social costs and impacts of emissions 25 through—

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 11 1 (i) existing ; 2 (ii) new policies and programs; and 3 (iii) ensuring that frontline and vul- 4 nerable communities shall not be adversely 5 affected; 6 (C) providing resources, training, and 7 high-quality education, including higher edu- 8 cation, to all people of the United States, with 9 a focus on frontline and vulnerable commu- 10 nities, so that all people of the United States 11 may be full and equal participants in the Green 12 New Deal mobilization; 13 (D) making public investments in the re- 14 search and development of new clean and re- 15 newable energy technologies and industries; 16 (E) directing investments to spur economic 17 development, deepen and diversify industry and 18 business in local and regional economies, and 19 build wealth and community ownership, while 20 prioritizing high-quality job creation and eco- 21 nomic, social, and environmental benefits in 22 frontline and vulnerable communities, and 23 deindustrialized communities, that may other- 24 wise struggle with the transition away from 25 greenhouse gas intensive industries;

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 12 1 (F) ensuring the use of democratic and 2 participatory processes that are inclusive of and 3 led by frontline and vulnerable communities and 4 workers to plan, implement, and administer the 5 Green New Deal mobilization at the local level; 6 (G) ensuring that the Green New Deal mo- 7 bilization creates high-quality union jobs that 8 pay prevailing wages, hires local workers, offers 9 training and advancement opportunities, and 10 guarantees wage and benefit parity for workers 11 affected by the transition; 12 (H) guaranteeing a job with a family-sus- 13 taining wage, adequate family and medical 14 leave, paid vacations, and retirement security to 15 all people of the United States; 16 (I) strengthening and protecting the right 17 of all workers to organize, unionize, and collec- 18 tively bargain free of coercion, intimidation, and 19 harassment; 20 (J) strengthening and enforcing labor, 21 workplace health and safety, antidiscrimination, 22 and wage and hour standards across all employ- 23 ers, industries, and sectors; 24 (K) enacting and enforcing trade rules, 25 procurement standards, and border adjustments

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 13 1 with strong labor and environmental protec- 2 tions— 3 (i) to stop the transfer of jobs and 4 pollution overseas; and 5 (ii) to grow domestic manufacturing 6 in the United States; 7 (L) ensuring that public , , and 8 oceans are protected and that eminent domain 9 is not abused; 10 (M) obtaining the free, prior, and informed 11 consent of indigenous peoples for all decisions 12 that affect indigenous peoples and their tradi- 13 tional territories, honoring all and 14 agreements with indigenous peoples, and pro- 15 tecting and enforcing the sovereignty and land 16 rights of indigenous peoples; 17 (N) ensuring a commercial environment 18 where every businessperson is free from unfair 19 competition and domination by domestic or 20 international ; and 21 (O) providing all people of the United 22 States with— 23 (i) high-quality health care; 24 (ii) affordable, safe, and adequate 25 housing;

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. G:\M\16\OCASNY\OCASNY_005.XML 14 1 (iii) economic security; and 2 (iv) clean water, clean air, healthy and 3 affordable food, and access to nature.

g:\VHLC\020719\020719.032.xml (717120|3) February 7, 2019 (9:55 a.m.) VerDate Nov 24 2008 09:55 Feb 07, 2019 Jkt 000000 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 C:\USERS\WPBURKE\APPDATA\ROAMING\SOFTQUAD\XMETAL\7.0\GEN\C\OCASNY~1. NEW YORK ZONING LAW AND PRACTICE REPORT NOVEMBER/DECEMBER 2019  VOLUME 20  ISSUE 3 IN THIS ISSUE: The Effect of New York’s New THE EFFECT OF NEW YORK’S NEW Climate Law on Municipalities: CLIMATE LAW ON MUNICIPALITIES: Deep But Uncertain 1 Process 2 DEEP BUT UNCERTAIN Regulated Sources 2 By Michael B. Gerrard* Buildings 2 Electricity 4 The Climate Leadership and Community Protection Act (CLCPA) was passed by both houses of the state and signed by Transportation 5 Governor in June 2019. L. 2019 ch. 106. Its ambitious Overarching Rule 6 targets—some are firm requirements, some are aspirational goals—will Drafting the Scoping Plan 6 have a profound effect on municipalities throughout the state, if it is ? 6 fully implemented. However, the nature of that impact is not yet known. Adaptation to climate change 7

As of this writing, CLCPA is not yet in effect, under the terms of its Section 14. That is still awaiting Governor Cuomo’s signature on A1564/ S2385, which passed the Senate and the Assembly on June 19 and 20, 2019, respectively. This bill creates a permanent environmental justice advisory group and requires all state agencies to be guided by an environmental justice policy.

CLCPA requires total statewide greenhouse gas emissions to be 40% below 1990 levels in 2030 and 85% below 1990 levels in 2050. (As of 2015, the last year for which data is available, emissions were 8.5% below 1990 levels.) There is also an aspirational goal of a 100% reduc- tion by 2050.

*Michael B. Gerrard is a professor and Director of the Sabin Center for Climate Editor-in-Chief Change Law at Columbia Law School, and Senior Counsel to Arnold & Porter. He is a Patricia E. Salkin, Esq. member and former chair of the faculty of Columbia’s Earth Institute. He formerly Managing Editor chaired the Section of Environment, Energy and Resources of the American Bar As- Emily Howard, Esq. sociation. He is author or editor of 13 books, most recently Legal Pathways to Deep Editorial Offices: Decarbonization in the United States (co-ed. with John Dernbach) (Environmental Law 50 Broad Street East, Rochester, NY 14614 Institute 2019). Tel: 585-546-5530 Fax: 585-258-3768

Mat #42487965 NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 NEW YORK ZONING LAW AND PRACTICE REPORT

PROCESS and boilers or furnaces that burn oil or natu- ral gas.” The new law also requires the Public Service CLCPA establishes a New York State Climate Ac- Commission to take actions to carry out its goals for tion Council of 22 members (12 of them are the heads of state agencies) to devise a “scoping plan” for how the power sector. the law would be implemented. It will work with special advisory groups on environmental justice and REGULATED SOURCES on “just transition.” The draft plan is due two years Regulated sources are those anthropogenic sources, from the effective date and the final is due one year af- as determined by DEC, “whose participation in the ter the effective date. (The effective date is the first program will enable the department to effectively day of the January when the Governor signs the envi- reduce greenhouse gas emissions, and that are capable ronmental justice law, and thus presumably will be of being monitored for compliance.” This may have January 1, 2020.) This process of requiring an agency the effect of excluding some agricultural emissions, devise a scoping plan for implementation is modeled for example. after California’s Global Warming Solutions Act, AB32. To meet their emissions requirements, regulated sources may use an “alternative compliance Four years from the effective date, and after holding mechanism.” These are offsets that will “enhance the public hearings, the state Department of Environmental Conservation (DEC) is required to promulgate regula- conditions of the ecosystem or geographic area ad- tions “to ensure compliance with the statewide emis- versely affected.” Offsets must “substantially reduce sion reduction limits.” These regulations shall “[i]n- or prevent the generation or release of pollutants clude legally enforceable emissions limits, through source reduction.” They must “be located in performance standards, or measures or other require- the same county, and within twenty-five linear miles, ments to control emissions from greenhouse gas emis- of the source of emissions, to the extent practicable.” sion sources.” The only exception is “agricultural These requirements may be difficult to achieve, and emissions from livestock.” Specifically included are may limit the availability of offsets, depending on how “internal combustion vehicles that burn or DEC writes the regulations. Electricity generating units are not eligible to use offsets.

K 2019 Thomson Reuters. All rights reserved. BUILDINGS NEW YORK ZONING LAW & PRACTICE REPORT (ISSN 1551- 2126) (USPS 013-500), is published BI-MONTHLY by Thomson The aspect of CLCPA that may have the greatest Reuters, 610 Opperman Drive, Eagan, MN 55123-1340. Periodi- cals Postage paid at St. Paul, MN. impact on municipal governance concerns buildings. POSTMASTER: Send address changes to NEW YORK ZONING LAW & PRACTICE REPORT, 610 Opperman Drive, Eagan, MN Residential and commercial uses add up to 26% of 55123. New York greenhouse gas emissions (not counting the This publication was created to provide you with accurate and au- pollution from making the electricity they use). Most thoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons of this is from burning and oil for space licensed to practice law in a particular . The publisher heating and cooling; water heating; and cooking. is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the ser- CLCPA calls for “[m]easures to achieve reductions vices of a competent attorney or other professional. in energy use in existing residential or commercial For authorization to photocopy, please contact the Copyright buildings, including the beneficial electrification of Clearance Center at 222 Rosewood Drive, Danvers, MA 01923, water and space heating in buildings, establishing ap- USA (978) 750-8400; fax (978) 646-8600 or West’s Copyright Services at 610 Opperman Drive, Eagan, MN 55123, fax (651) pliance efficiency standards, strengthening building 687-7551. Please outline the specific material involved, the number energy codes, requiring annual building energy - of copies you wish to distribute and the purpose or format of the use. marking, disclosing energy efficiency in home sales,

2 K 2019 Thomson Reuters NEW YORK ZONING LAW AND PRACTICE REPORT NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 and expanding the ability of state facilities to utilize codes. However, municipalities may petition the State performance contracting.” Code Council for a determination whether their local ordinances are reasonably necessary because of special DEC will have to decide whether to require emis- conditions, under Executive Law § 383. Achieving the sions permits for buildings over a certain size. In April goals of CLCPA will require buildings to be consider- 2019, the New York City Council adopted a major law, ably more energy efficient than most are today. It is Local Law 97 of 2019, that sets limits for 2024 and possible that under CLCPA, the State will adopt much 2030 on the amount of greenhouse gas emissions per more efficient energy codes. If it does, it will primarily square foot for different kinds of buildings. Unlike the be the responsibility of municipalities to enforce these CLCPA, the New York City law allows buildings to new rules. achieve compliance by purchasing renewable energy credits, buying a broader range of offsets, or paying a Additionally, New York’s Appliance and Equipment penalty. The interaction of CLCPA and the New York Energy Efficiency Standards Act, N.Y. Energy L. City law may become complicated. §§ 16-102 et seq., empowers the Secretary of State to develop energy efficiency standards for new products In 2016, Mayor issued a report, “One sold, offered for sale or installed in New York. The City Built to Last: Transforming New York City Build- federal Energy Policy and Conservation Act expressly ings for a Low-Carbon Future,” from a large technical preempts states and municipalities from adopting their working group, that laid out how the City could slash own minimum energy and water efficiency standards building emissions. The report calls for major work on for appliances and equipment, but states may adopt heating distribution systems and lighting, deep energy standards for appliances and equipment that are not retrofit strategies, sub-metering of non-residential ten- the subject of federal standards. We will see if, in order ant spaces, workforce training, and many other actions. to meet CLCPA’s goals, New York acts more aggres- A study by Professor David Hsu of MIT concluded that sively to fill in the gaps in federal regulation of appli- retrofitting buildings in the New York area has the ances, as California has done for many years. potential to create 126,000 jobs by 2030. This is more The New York State Energy Research and Develop- jobs than Amazon would have brought if it had gone ment Authority (NYSERDA) has found that there is through with its plan to move its second headquarters tremendous opportunity to reduce energy use in build- to the City. ings through improvements (in this order) in cooling, It is uncertain whether DEC, or perhaps another lighting, water heating, space heating, refrigeration, state agency, will decide to use CLCPAto impose more appliances, and ventilation. NYSERDA also declared stringent energy efficiency standards on existing in 2018 that energy efficiency can deliver nearly a third buildings. Under current New York law, building codes of the greenhouse gas emission reductions needed to are set by municipalities, but the State Energy Conser- meet New York’s goal of a 40% reduction in green- vation Construction Code, which is adopted by the house gas emissions by 2030. State Fire Prevention and Building Code Council, The most radical change to building an energy codes governs energy efficiency requirements. Cities, vil- would be to require that all heating, cooling and cook- lages and counties have primary responsibility for ing be electric rather than natural gas or oil. Complete administering and enforcing these codes. Municipali- electrification is one of the principal ways that CLC- ties must adopt their own code enforcement programs. PA’s goals can be achieved. (Of course, this requires Executive Law § 379(3) has a preemption provision the electric grid to be supplied entirely be zero- for the energy code. It states that “no municipality shall emissions electricity; that is discussed in the next have the power to supersede, void, repeal or make section.) Requiring all new buildings to be all electric more or less restrictive any provisions of this article or is straightforward enough as a legal matter. However, of rules or regulations made pursuant to” the state requiring that existing buildings be retrofit is another

K 2019 Thomson Reuters 3 NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 NEW YORK ZONING LAW AND PRACTICE REPORT matter entirely. The costs are often very high—perhaps 39% comes from fossil fuel; 23% from hydro; and 6% in the tens of thousands of dollars per unit. In many from wind and solar. The fossil fuel electricity is homes the electric system does not have sufficient overwhelmingly from natural gas. (The two remaining capacity and would need to be completely redone. The -fired power in the state are scheduled to state might consider setting up a low-interest loan close by 2020.) Since electric generating plants cannot program to help homeowners shoulder these costs. use offsets, it looks like all the natural gas power plants Moreover, to the extent that electricity costs more than in the state will need to close by 2040, unless carbon natural gas or oil per unit of useful energy supplied, capture and sequestration technology for such plants electrification could considerably raise utility bills—an develops rapidly and is able to achieve zero emissions, eventuality that especially could harm low-income which is beyond current commercial capabilities. The consumers unless these bills are subsidized. environmental justice community played a major role in shaping CLCPA, and has long complained that nat- There is also growing concern that cooking with nat- ural gas plants are disproportionately located in or near ural gas not only generates carbon dioxide but also low-income and minority communities. nitrogen dioxide, which is unhealthy to breathe. This is an important but little-recognized source of indoor Oil is no longer used for baseload power generation . Several studies have shown that natural in New York, but there are numerous emergency gas stoves, especially in kitchens without working generators that burn gasoline, diesel fuel, propane, or vents, lead to levels of pollution inside homes that are natural gas. Many of them have high emissions of higher than the one-hour national ambient air quality conventional air pollutants as well as greenhouse gases standard for nitrogen dioxide. This is an additional rea- when they are in use. Non-fossil may work in son to move to electrification of home heating and some of them. DEC will have to decide how to treat cooking, and why expansion of natural gas infrastruc- these generators. ture in New York would be moving in the wrong The new law contemplates a massive increase in direction. renewables. It mandates a minimum of 6 gigawatts ELECTRICITY (GW) of distributed solar capacity (such as on roof- tops) by 2025 (there is now 1.5 GW), and 9 GW of CLCPA mandates that 70% of electric power de- offshore wind capacity by 2035 (there is now none, mand in 2030 be met by renewables, and 100% be though the state is actively working to build several from “zero emissions” in 2040. Thus the requirement plants off Long Island). (To put these numbers in for 2040, unlike that for 2030, may include nuclear. In perspective, a large plan has a capacity 2018, 32% of New York’s power came from nuclear of about 1 GW.) There will be more onshore wind as power plants. However, two of them—the Indian Point well, but CLCPA does not specify how much. The law units in Westchester County—are scheduled to close further requires 3 GW of energy storage capacity by in 2020 and 2021. The remaining four are all on the 2030 (there is now 0.039 GW). The storage does not shores of Lake Ontario. Their operating have itself generate electricity, but it helps provide power all been extended, but they all expire before 2040 when the sun is not shining and the wind is not except for Nine Mile Point Unit 2, whose blowing. expires in 2046. Since there are no proposals to build This massive increase in renewable energy capacity new nuclear power plants in New York, it appears that may cause tensions at the local level. Some residents nuclear power will make little contribution to New do not like to see wind turbines or solar arrays from York’s electricity supply in 2040, barring very rapid their homes. Thus in quite a few communities, groups development and acceptance of new nuclear have arisen to oppose large-scale (and occasionally technologies. small-scale) renewables in their midst, and have called Of the remaining sources of power for New York, upon local governing boards to adopt zoning or build-

4 K 2019 Thomson Reuters NEW YORK ZONING LAW AND PRACTICE REPORT NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 ing code provisions that ban or restrict these facilities. TRANSPORTATION Article X of the New York Public Service Law allows Though electricity receives much of the attention, a state siting board to waive local restrictions. Public its generation only accounts 13% of the greenhouse Service Law § 172 provides that local permits are not gas emissions in the state (17% if net imports are required for covered facilities, and § 168(3)(e) states included). Transportation accounts for 33%; residen- that the siting board will apply the substantive require- tial, 16%; and commercial, 10%. ments of local laws unless it finds them “unreasonably restrictive.” In other words, the siting board is to be Drastically reducing transportation emissions will the sole permitting authority (except for federal per- require the replacement over time of virtually all mits), but otherwise applicable substantive require- gasoline- and diesel-using passenger cars and SUVs ments still apply unless they would unduly interfere with electric vehicles. (It is possible that some will use with approval and construction. hydrogen or other zero-emission energy sources.) Heavy-duty vehicles such as trucks and buses will also If local restrictions continue to pose an obstacle to need to move to cleaner fuel sources; unless battery building renewables at the scale required by CLCPA, technology improves considerably, from mu- the siting board may need to exercise its waiver author- nicipal and agricultural waste may be used ity more frequently and aggressively. It is possible that increasingly. this could lead to a political backlash and to legislative attempts to take away the siting board’s authority; but Fuel and emission standards for motor vehicles are such an action would make CLCPA’s goals even harder under federal control. New York cannot mandate to achieve. Meanwhile, the state courts have repeat- electric vehicles on its own except for publicly owned edly upheld the siting board’s authority to waive local fleets. The Trump Administration is moving to relax zoning.1 the existing standards, but if a different president is elected in 2020, he or she may well strengthen them There is limited ability to expand hydro generation again. Meanwhile, an essential role for the state and within the state. (It now mainly comes from massive city governments is to establish a robust system of power plants at Niagara Falls and on the Saint Law- charging stations. rence River; there are also numerous smaller ones.) However, HydroQuebec has indicated that it has ample Efforts are also needed to reduce vehicle miles excess capacity (and could build more) and would be traveled. CLCPA provides that the plan must include pleased to sell it to New York if the necessary trans- “[l]and-use and transportation planning measures.” mission lines were built to carry the power from Can- The state law requiring congestion pricing in Manhat- ada to the New York City area, where most of the tan south of 60th Street will also help that area when it demand is located. The CLCPA has no restrictions on goes into effect in early 2021, both by discouraging importing zero-emissions power. driving and by providing new funding for mass transit. Most land-use planning decisions are made at the local The CLCPA also calls for efforts to increase energy level; CLCPA does not explicitly grant any zoning efficiency, leading to a 185 trillion BTU reduction override authority to any state agency. California has below 2025 forecasts. (The State Energy Plan, Table adopted requiring regional planning 9B, forecasts total state primary energy use of 3,809 with an eye toward increasing density and reducing trillion BTU in 2025, compared to 3,715 trillion BTU vehicle miles traveled and air emissions, but imple- in 2015.) This is energy of all kinds. However, despite mentation of these statutes has proven to be rocky. efficiency measures, electricity use is likely to soar as the transport, residential and commercial sectors rely more on electricity, as discussed here.

K 2019 Thomson Reuters 5 NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 NEW YORK ZONING LAW AND PRACTICE REPORT OVERARCHING RULE DRAFTING THE SCOPING PLAN

Tucked in the back of CLCPA as Section 7(2), ap- It will not be necessary to start from scratch in draft- parently not to be codified in the Environmental Con- ing the Scoping Plan to implement the CLCPA. servation Law (ECL) or elsewhere, is this provision: Governor David Paterson established the New York In considering and issuing permits, licenses, and other State Climate Action Council in 2009. It consisted of administrative approvals and decisions, including but the heads of many state agencies, and had several large not limited to the execution of grants, loans, and technical advisory committees, whose members spent , all state agencies, offices, authorities and an enormous amount of time writing their report. The divisions shall consider whether such decisions are in- Council issued an interim report in November 2010 consistent with or will interfere with the attainment of with a great many specific recommendations. But the statewide greenhouse gas limits established in Governor Cuomo took office two months later and the article 75 of the [ECL]. Where such decisions are report was largely shelved, though parts of it morphed deemed to be inconsistent with or will interfere with into what became the State Energy Plan. Other large the attainment of the statewide greenhouse gas emis- parts of that report could be pulled off the shelf to help sion limits, each agency, office, authority or division formulate a new comprehensive climate plan to meet shall provide a detailed statement of justification as to why such limits/criteria may not be met, and identify the needs of new . alternatives or greenhouse gas mitigation measures to The State Energy Plan, the New Efficiency: New be required where such project is located. York plan from NYSERDA and the Department of The referenced Article 75—the Climate Change Public Service, and other plans have long lists of excel- article of ECL that was added by the same enactment— lent recommendations. Professor John Dernbach and I includes the statewide greenhouse gas limits discussed have also co-edited a book, Legal Pathways to Deep above. Decarbonization in the United States, that was pub- lished by the Environmental Law Institute in April Though the new does not reference the State 2019; it contains more than 1,500 specific recom- Environmental Quality Review Act (SEQRA), Section mendations for federal, state and local action, many of 7(2) should function as an amendment to it, since which are relevant to New York. SEQRA is the primary mechanism by which state agencies consider environmental factors. Thus envi- CARBON PRICE? ronmental impact statements (EISs) and environmental CLCPA makes no reference to imposition of a price assessments for state actions should reflect the consid- on carbon, whether through a or otherwise. eration required by Section 7(2). Moreover, the re- When the California Air Resources Board (CARB) quirement for “a detailed statement of justification” prepared the scoping plan to implement that state’s when the project falls short of the goals would fit well AB32 law, it concluded that some kind of carbon pric- into SEQRA’s requirement that a formal statement of ing was essential to meet the objectives. CARB se- findings be issued for all actions that were the subject lected a cap and trade mechanism. This was very of an EIS. unpopular with California’s environmental justice community, which feared that cap and trade would lead Though SEQRA applies to local as well as state enti- to the continued siting and operation of polluting facil- ties, Section 7(2) only applies to state entities. How- ities in low-income and minority communities, as the ever, under the CEQR (City Environmental Quality industries would purchase allowances to authorize Review) Technical Manual, actions subject to CEQR them to remain in place without sufficiently reducing that are taken or approved by New York City must their own emissions. Environmental justice groups include consideration of greenhouse gas emissions. sued CARB, arguing that a carbon tax should have been proposed instead. These groups won a temporary

6 K 2019 Thomson Reuters NEW YORK ZONING LAW AND PRACTICE REPORT NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 halt in implementation of the scoping plan until new DEC to adopt official projections by analysis was performed justifying the selection of cap January 1, 2016. DEC did that, though a year after the and trade.2 statutory deadline. The projections showed a worst case scenario of 75 inches (more than six feet) by 2100. New York does have a cap and trade program—the Recent troubling observations of the West Antarctic Regional Greenhouse Gas Initiative (RGGI), which applies only to carbon dioxide from electric generating and Greenland sheets show that the worst case sce- stations. However, the price of an allowance for one nario might be even worse than this; and of course seas ton of carbon dioxide under RGGI is only about one- will not stop rising in 2100—they will continue to rise third of the price of a comparable California allowance. for centuries.

New York will presumably perform a quantitative The Community Risk and Resilience Act required analysis of the emissions impacts of all the emissions DEC, in consultation with the Department of State, by control measures that it is considering. If the reduc- January 1, 2017 to prepare guidance on implementa- tions selected come up short and do not achieve the tion of the statute, and additional guidance on the use necessary emissions reductions, there will be loud calls of resiliency measures that use natural resources and for a carbon pricing system. Such a state-level system natural processes to reduce risk. DEC has been prepar- poses inherent tensions with federal rules, as there is ing its Risk Management Guidance, which it is- considerable potential for leakage, for difficulties sued in draft form in June 2019, 18 months after the under the Commerce Clause, and for a “race to the bot- statutory deadline for the final version. It is non- tom” from states without such pricing. The political binding technical guidance to agencies, with specific perils are also considerable, as shown by the two pub- guidelines by type of structure and type of location. lic referenda in Washington state in which a state-level The final version has still not been released. The Natu- carbon tax was defeated. CLCPA does not explicitly ral Resiliency Measures Guidelines, also prepared pur- authorize any state agency to adopt a carbon pricing suant to the Community Risk and Resilience Act, is system. The New York Independent System Operator still being drafted and has not been publicly released. has been considering the adoption of a carbon fee of DEC is also working on updating the state wetlands some sort as part of the electric transmission system; and coastal erosion hazard area maps to reflect climate as a price on wholesale electricity, this would require change, but their release date has not been announced. the approval of the Federal Energy Regulatory Com- Similarly, DEC proposed draft Guidance for Smart mission, which has not been sought. A general carbon Growth Public Infrastructure Assessment in 2018; it is tax would probably require an action of the State not final yet. The Community Risk and Resilience Act Legislature, and would be an important test of the also requires the Department of State, in cooperation Legislature’s resolve to slash greenhouse gas with DEC, to prepare model local laws that include emissions. consideration of . It issued the first batch of those in June 2019. ADAPTATION TO CLIMATE CHANGE My point in going through all of this is not to dump The discussion so far has all been about mitiga- on the hard-working staffs at the state agencies, who tion—reducing GHG emissions. However, under the are working under difficult conditions with often inad- best case scenario, temperatures will continue to rise equate resources. But there is a tendency, in Albany, in and extreme weather conditions will occur with greater New York City, and in just about every other place to frequency and intensity. Thus adaptation is essential— set great objectives or to draw up wonderful plans and preparing for the climate change that will happen to put them on the shelf, or to take a very long time to regardless of our best efforts. In recognition of this implement them. Given the stakes involved, it is es- reality, in September 2014 Governor Cuomo signed sential that CLCPA be implemented vigorously and on the Community Risk and Resilience Act. It required time.

K 2019 Thomson Reuters 7 NOVEMBER/DECEMBER 2019 | VOL. 20 | NO. 3 NEW YORK ZONING LAW AND PRACTICE REPORT

ENDNOTES: 2Association of Irritated Residents v. State Air Re- sources Bd., 206 Cal. App. 4th 1487, 143 Cal. Rptr. 3d 1 Consolidated Edison Co. of New York, Inc. v. 65, 80 A.L.R.6th 695 (1st Dist. 2012). Town of Red Hook, 60 N.Y.2d 99, 468 N.Y.S.2d 596, 456 N.E.2d 487 (1983); Skyview Acres Co-op., Inc. v. Public Service Com’n of State, 163 A.D.2d 600, 558 https://legal.thomsonreuters.com/ N.Y.S.2d 972 (2d Dep’t 1990); Delaney v. Public Ser- vice Com’n of State of N.Y., 123 A.D.2d 861, 507 N.Y.S.2d 471 (2d Dep’t 1986).

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Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

ARTICLES

Legal Pathways I. Introduction Achieving the Deep Decarbonization Pathways Project (DDPP) scenarios1 to decarbonize the U.S. energy system for a Massive will require a program of building onshore wind, offshore wind, utility-scale solar,2 and associated transmission that is not only unprecedented—it will exceed what has been Increase in done before in the United States by many times, every year out to 2050. Utility-Scale This Article will discuss the four most important legal processes and obstacles involved in this enormous project: site acquisition and approval; the National Environmental Renewable Policy Act (NEPA); state and local approvals; and species protection laws. It will also present recommendations for lowering the obstacles, and it will briefly discuss several Generation corollary actions that are also needed. These problems are not unique to the United States. A Capacity 2016 study from the International Energy Agency found that large renewable projects in France, Norway, and the have also been plagued in varying degrees by Michael B. Gerrard by delays from political/regulatory issues, site access, envi- ronmental approvals, and grid connection.3 Michael B. Gerrard is Andrew Sabin Professor of Approval delays are costly in several ways. Construc- Professional Practice and Director of the Sabin Center tion costs may escalate. New technologies or require- for Climate Change Law at Columbia Law School; ments may compel a revision in designs, leading to Chair of the Faculty of Columbia’s Earth Institute; and further delays. Applicants may become so discouraged by Senior Counsel to Arnold & Porter Kaye Scholer. the delays that they give up, or their financing may van- Summary ish, or local opposition to siting may grow. Lenders who require speedy returns may be deterred from engaging at Decarbonizing the U.S. energy system will require a pro- all. During the years that a renewable facility is not yet gram of building onshore wind, offshore wind, utility-scale operating, the energy needs it will fill may be provided solar, and associated transmission that will exceed what has by fossil fuel facilities that add to the cumulative load of greenhouse gases. been done before in the United States by many times, every After quantifying the number of facilities needed, this year out to 2050. These facilities, together with rooftop Article discusses each of the four principal processes in photovoltaics and other distributed generation, are required turn. First, however, it is appropriate to introduce NEPA,4 to replace most fossil fuel generation and to help furnish since it is so pervasive in what follows. NEPA requires fed- the added electricity that will be needed as many uses cur- rently employing fossil fuels (especially passenger transpor- Author’s Note: The author thanks the following reviewers for their comments on earlier drafts: David Cleaves, John Dernbach, David tation and space and water heating) are electrified. This Hayes, Michael Hindus, Ryan Jones, Yael Lifshitz, Ethan Shenkman, Article, excerpted from Michael B. Gerrard & John Dern- Eleanor Stein, and Edward Strohbehn. bach, eds., Legal Pathways to Deep Decarbonization in the 1. The Deep Decarbonization Pathways Project is a global consortium of United States (ELI Press forthcoming 2018), discusses the researchers working on practical methods to deeply reduce greenhouse gas emissions in their own countries. See http://deepdecarbonization.org/. four most important legal processes and obstacles involved 2. Utility-scale facilities are typically stand-alone and are designed to provide in this enormous project: site acquisition and approval; the power to the electric grid. They are in contrast to distributed facilities, which are often attached to buildings and are designed to help power those National Environmental Policy Act; state and local approv- buildings and perhaps the immediate community, though they sometimes als; and species protection laws. It also presents recom- sell excess power to the grid. 3. International Energy Agency’s Implementing Agreement for mendations for lowering the obstacles and briefly discusses Renewable Energy Technology Deployment, Final Report: Documenting the Cost of Regulatory Delays (Re-Delays) (2016), several corollary actions that are needed. available at http://iea-retd.org/wp-content/uploads/2016/03/RE-DELAYS- final-report.pdf. 4. 42 U.S.C. §§4321 et seq.

7-2017 NEWS & ANALYSIS 47 ELR 10591 Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10592 ENVIRONMENTAL LAW REPORTER 7-2017 eral agencies to prepare an environmental impact statement Table 1 (EIS) for any major federal action significantly affecting U.S. Net Electricity Generation6 the quality of the human environment . Utility-scale proj- Thousands Megawatt (MW) Hours ects on federal land, or offshore, almost invariably require an EIS . The NEPA process can go on for several years and Year Wind Solar PV Solar Thermal Solar PV Utility Scale Utility Scale Distributed cost millions of dollars, and it often leads to litigation that can take still more years . 2006 26,589 15 493 N/A As discussed below, recent legal and administra- 2007 34,450 16 596 N/A tive reforms have shown promise in shortening NEPA 2008 55,363 76 788 N/A time lines and reducing litigation for renewable energy 2009 73,886 157 735 N/A projects, but the field remains challenging . Several 2010 94,652 423 789 N/A related actions may be considered together in a “pro- 2011 120,177 1,012 806 N/A grammatic” EIS, sometimes (but not always) followed 2012 140,822 3,451 876 N/A by narrower site-specific EIS or environmental assess- 2013 167,840 8,121 915 N/A ments; this “tiering” process has the potential to reduce 2014 181,655 15,250 2,441 11,233 5 duplicated effort . 2015 190,719 21,666 3,227 14,139 It must also be noted that the Adminis- 2016 226,485 33,367 3,388 19,467 tration is moving to rescind a large number of environmen- tal regulations and guidance documents, especially those In 2016, wind and solar amounted to 6 9. % of U .S . adopted during the Barack Obama Administration . The electricity generation 7. By 2050, this will need to go up Trump Administration is clearly very favorable toward fos- to 50 .25% under the DDPP Mixed Scenario and 78 0. % sil fuel development; its attitudes toward renewable energy under the DDPP High Renewables Scenario, as shown in development remain to be seen . Readers are cautioned to Tables 2 and 3 .8 ensure that any federal regulations or orders referenced here are still in effect . Table 2 Percentage of U.S. Electricity Generation— II. The Massive Number of DDPP Mixed Scenario Needed Facilities Year Onshore Wind Offshore Wind Solar PV * The DDPP scenarios all call for the construction of a 2016 5.50 0 1.30 massive number of new central station renewable energy 2020 8.41 0.03 0.62 facilities, mostly wind and solar—many times higher 2030 18.09 1.38 1.11 than the amount of such construction ever previously 2040 27.04 4.44 3.27 achieved . These are required to replace most fossil fuel 2050 31.56 7.59 11.10 generation and to help furnish the added electricity that * Actuals9 will be needed as many uses currently employing fossil fuels (especially passenger transportation and space and Table 3 water heating) are electrified . (Some of this needed capac- Percentage of U.S. Electricity Generation— ity could be met instead by small-scale distributed units, DDPP High Renewables Scenario mostly rooftop solar photovoltaic (PV) and solar ther- mal ). All of this is in addition to aggressive programs of Year Onshore Wind Offshore Wind Solar PV energy efficiency and, possibly, expanded use of nuclear 2016* 5.50 0 1.30 energy and . 2020 9.57 0.03 1.12 The amount of energy produced in the United States 2030 26.14 4.28 4.64 from wind and solar sources has been rapidly increasing, as 2040 45.30 7.18 7.93 shown in Table 1 . 2050 51.57 10.89 15.54 * Actuals

6 . U .S . Energy Information Administration (EIA), Electric Power Monthly With Data for February 2017 tbls . 1 .1 and 1 .1 .A (2007) 5C . 40 .F .R . §1508 .28 . This was successfully done by the Bureau of Land [hereinafter Electric Power Monthly], available at https://www eia. .gov/ Management (BLM) in the Dry Lake, Nevada, zone . Because electricity/monthly/pdf/epm .pdf . of the programmatic EIS for the zone, three large projects were able to move 7 . Id . forward in less than 10 months under tiered environmental assessments . Press 8 . Source: Personal Communication with Ben Haley, DDPP (Aug . 29, 2016) . Release, U .S . Department of the Interior, Interior Department Approves First 9 . Source of actuals: Electric Power Monthly, supra note 6, tbls . 1 .1 and Solar Energy Zone Projects (Apr . 26, 2016), available at https://www .doi .gov/ 1 .1 .A . Excluded is the very small amount of electricity generated by the pressreleases/interior-department-approves-first-solar-energy-zone-projects . Rhode Island offshore wind facility that opened on Dec . 12, 2016 . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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Tables 1, 2, and 3 show electricity generation—the elec- Table 6 tricity that is actually generated . The amount of new gen- Annual Capacity Additions (MW)— erating capacity added each year—the amount of electricity DDPP High Renewables Scenario that could be generated if the units were running all the time—has fluctuated considerably for wind (not solar), due Year Onshore Wind Offshore Wind Solar PV mostly to the expiration and renewal cycles for federal tax 2014* 4,772 0 6,201** credits . This is shown in Table 4 . 2020 10,462 304 1,311 2025 29,813 4,770 7,040 Table 4 2030 39,625 14,323 19,074 U.S. Renewable Energy Nameplate 2035 61,343 2,606 20,379 10 Net Capacity Added (MW) 2040 66,584 0 24,751 Year Onshore Wind Solar PV* 2045 54,105 20,532 40,331 2004 372 58 2050 51,305 13,578 66,502 2005 2,396 79 * Actuals ** Grid connected only 2006 2,454 105 2007 5,237 160 Table 7 compares the electric generating capacity from 2008 8,425 298 wind and solar PV that actually existed in 2016 to what 2009 9,919 382 is projected for 2050 under the DDPP Mixed and High 2010 5,112 852 Renewables Scenarios; the Energy Information Admin- 2011 6,649 1,925 istration’s (EIA’s) 2017 Annual Energy Outlook (AEO) 2012 13,089 3,372 reference case (which assumes that the statutes and regu- 2013 1,102 4,761 lations of 2016 remain in place, that known technologies will improve, and that economic and demographic trends 2014 4,772 6,247 continue); and the U .S . Department of Energy’s (DOE’s) 2015 8,113 7,260 Wind Vision report . The table starkly shows the order of * Grid connected only; reported in MW direct current (MWdc) magnitude-scale increases that will be needed over current capacity, and the large increases needed beyond DOE’s The amounts of new generation capacity added each projections for 2050 . year under the DDPP Mixed Scenario and DDPP High Renewables Scenario are presented in Tables 5 and 6 11. As Table 7 these tables show, the amount of new capacity that will U.S. Electric Generating Capacity (MW) need to be added each year must be many times higher than what has been achieved in prior years . Scenario Onshore Offshore Solar PV Wind Wind Table 5 2016 actual 81,260 30a 19,380 Annual Capacity Additions (MW)— 2050: DDPP Mixedb 725,382 186,802 488,539 DDPP Mixed Scenario 2050: DDPP High 1,373,372 313,208 800,267 Renewables Year Onshore Wind Offshore Wind Solar PV 2050: EIA AEO 2017 156,300 30,000 148,000d 2014* 4,772 0 6,201** reference casec 2020 9,606 333 1,294 2050: DOE Wind 318,000 86,000 — 2025 16,448 1,689 3,996 Visione 2030 23,689 3,682 10,788 a. Deepwater Wind, Block Island Wind Farm, http://dwwind.com/project/ 2035 26,551 7,921 12,149 block-island-wind-farm/ (last visited May 1, 2017). b. The DDPP figures were derived from printouts depicting annual 2040 27,863 8,728 15,092 capacity additions under each scenario, provided by Ben Haley of 2045 18,137 17,485 20,524 Evolved Energy Research. The figures represent capacity additions 2050 13,913 12,273 42,857 for 2015 through 2050. The table assumes that all the capacity that existed prior to 2015 is retired by 2050, and it does not assume any * Actuals other retirements. ** Grid connected only c. EIA, Annual Energy Outlook 2017—Table: Renewable Energy Generating Capacity and Generation [hereinafter Annual Energy Outlook 2017 Table], http://www.eia.gov/outlooks/aeo/data/browser/#/?id=16-AEO2017&c ases=ref2017&sourcekey=0 (last visited May 1, 2017). d. This figure does not include off-grid PV. e. DOE, Wind Vision: A New Era for in the United States xxxiii, fig. ES.1-3 (2015) (DOE/GO-102015-4557) [hereinafter DOE, 10 . U .S . Department of Energy, National Renewable Energy Laboratory, Wind Vision]. 2015 Renewable Energy Data Book 22 (2016), available at http://www . nrel .gov/docs/fy17osti/66591 .pdf . 11 . Source: Personal Communication with Ben Haley, DDPP (Aug . 26, 2016) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10594 ENVIRONMENTAL LAW REPORTER 7-2017

III. Site Acquisition and Approval will increase the production, transmission or conserva- tion of energy ”. 16 However, the order did not distinguish Large solar and wind projects require a considerable between fossil and renewable energy . In 2002, BLM issued amount of land 12. When land that is suitable for a large an interim wind energy policy,17 and in 2005, it issued a facility is privately owned and its owner is willing to sell programmatic EIS on wind development, as further dis- or lease, few novel legal issues arise . This is a conventional cussed below . In 2004 and 2007, BLM issued policies on real estate transaction, though for large projects, it may solar development 18. BLM has also taken other actions on be necessary to acquire title or from multiple 19. landowners, which can lead to difficult negotiations and The Energy Policy Act of 2005 devoted one sentence to sometimes holdout problems . However, three important the subject: kinds of sites invoke complicated legal processes that can It is the sense of Congress that the Secretary of the Interior engender years of delays: federal land, especially the vast should, before the end of the 10-year period beginning on tracts in the western deserts that could accommodate large the date of enactment of this Act, seek to have approved solar arrays; offshore areas, which have enormous potential non-hydro-power renewable energy projects located on for wind farms; and contaminated or otherwise disturbed the public lands with a generation capacity of at least land . This section describes the legal issues for these kinds 10,000 megawatts of electricity .20 of sites, together with recommendations . However, the U .S . Congress did not confer any addi- A. Federal Land tional authority on BLM, or alter the approval procedures that BLM must use . The federal government controls vast amounts of By the time Obama became president in January 2009, land . The process for designating some of this use for BLM had approved only 566 MW of wind generation utility-scale wind and solar projects has been complex and no solar energy projects on public lands .21 However, and lengthy . in March 2009, his Secretary of the Interior, Ken Salazar, Most pertinently here, the Bureau of issued a Secretarial Order establishing renewable energy (BLM), part of the U .S . Department of the Interior (DOI), development as a priority for DOI . Secretary Salazar controls approximately 248 million surface acres of federal implemented a series of permitting reforms to improve and land, nearly all of it located in 11 western states and . accelerate the review and permitting process for utility- The U .S . Forest Service, part of the U .S . Department of scale projects on public lands .22 The American Recovery Agriculture, controls 193 million surface acres of and Reinvestment Act of 2009 (the stimulus legislation) and grasslands, primarily in western states and Alaska, but played an important role by providing expanded tools also throughout the country 13. BLM has identified 20 6. to help renewable energy developers obtain financing for million acres of its land with wind potential, and 19 mil- their projects . lion with solar potential 14. The Forest Service, while not As a result of these efforts, BLM achieved the Energy adding up the acreage, has identified 99 National Forest Policy Act of 2005’s goal of authorizing more than 10,000 Units with potential for wind, solar, or both 15. MW of renewable energy on public lands in 2012, three Efforts to site wind and solar facilities on federal lands emerged, at first slowly, in the . In May 2001, Presi- 16 . Exec . Order No . 13212, 66 Fed . Reg . 28357 (May 22, 2001), Actions to dent George W . Bush issued an Executive Order directing Expedite Energy-Related Projects . federal agencies “to take appropriate actions, to the extent 17 . Instruction Memorandum No . 2003-020 from BLM, to All Field Officials, on Interim Wind Energy Development Policy (Oct . 16, 2002), available at consistent with applicable law, to expedite projects that http://windeis .anl .gov/documents/docs/IM2003-020,InterimWindEnergy DevelopmentPolicy .htm . 18 . Instruction Memorandum No . 2005-006 from BLM, to All Field Officials, 12 . See Paul Denholm et al ., National Renewable Energy Laboratory, on Solar Energy Development Policy (Oct . 20, 2004), available at https:// Land-Use Requirements of Modern Wind Power Plants in the www .doi .gov/sites/doi .gov/files/archive/news/archive/04_News_Releases/ United States (2009) (NREL/TP-6A2-45834); Sean Ong et al ., solar .pdf; Instruction . Memorandum No . 2007-097 from BLM, to All Field National Renewable Energy Laboratory, Land-Use Requirements Officials, on Solar Energy Development Policy (Apr . 4, 2007), available at for Solar Power Plants in the United States (2013) (NREL/TP- https://www .blm .gov/policy/im-2007-097 . 6A20-56290); Vasilis Fthenakis & Hyung Chui Kim, Land Use and 19 . See BLM Geologist Sean Hagerty, Presentation at Geothermal Energy Electricity Generation: A Life-Cycle Analysis, 13 Renewable & Sustainable Leasing on BLM Managed Lands, Geothermal Resource Council 2014 Energy Revs . 1465 (2009); Nathan F . Jones & Liba Pejchar, Comparing the Pre-Meeting Workshop (Sept . 24, 2014), https://geothermal .org/Annual_ Ecological Impacts of Wind and Oil & Gas Development: A Scale Meeting/PDFs/1%2009 .55%20%20Leasing%20of%20Federal%20Lands . Assessment, 8 PLoS ONE 1 (2013) . %20HAGERTY,%20BLM .pdf . 13 . U .S . Government Accountability Office (GAO), Renewable Energy: 20 . Energy Policy Act of 2005, Pub . L . No . 109-58, §211, 199 Stat . 594 . Agencies Have Taken Steps Aimed at Improving the Permitting 21 . Jennifer A . Diouhy, Obama Rule Could Take Wind Out of Renewable Power Process for Development on Federal Lands 4 (2013) (GAO-13-189) on Public Land, Bloomberg Markets, Aug . 22, 2016, https://www . [hereinafter GAO, Renewable Energy Report] . bloomberg .com/news/articles/2016-08-22/obama-rule-could-take-wind- 14 . BLM, Renewable Energy: , https://www blm. .gov/ out-of-renewable-power-on-public-land . programs/energy-and-/renewable-energy (last visited May 11, 22 . See David J . Hayes et al ., Stanford Law School, A 21st Century 2017) . Governance Challenge: Finding Effective Mechanisms to Address 15 . U .S . Forest Service & National Renewable Energy Laboratory, Climate Change Across the Federal Government 40-55 (2015), Assessing the Potential for Renewable Energy on National Forest available at https://www-cdn .law stanford. .edu/wp-content/uploads/2015/ System Lands (2005) (NREL/BK-710-36759) . 04/SLS-Climate-Chg-Governance-Report .pdf . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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years ahead of schedule .23 As of December 2016, BLM had (FLPMA),30 first enacted in 1976 . Specifically, under Title approved 30 solar projects, of which 11 were in operation V of FLPMA, permits to lease BLM land for wind or solar and seven were under construction; and it had approved 11 purposes are treated as linear rights-of-way, based on the wind projects, of which four were in operation .24 A num- 19th century practices for building roads and railways .31 ber of DOI’s permitting reforms were then adopted by the These permits are temporary conveyances that may readily Obama Administration and, importantly, codified in law be modified or terminated, and offer less security than the under the FAST Act, discussed below . leases held by oil, gas, and coal companies . The future is uncertain . President Obama’s Climate The Forest Service operates under the National Forest Action Plan called for the permitting of at least 20,000 Management Act (NFMA),32 which allows the Service to MW on public lands by 2020 .25 Hillary Clinton’s presi- grant “special use authorizations” for uses other than road dential campaign posted a position paper pledging to usage, grazing and livestock use, sale and disposal of tim- “reform leasing and expand clean energy production on ber and other forest products, and usage .33 Among public lands and waters tenfold within a decade ”. During the permitted authorizations are “permits, leases and ease- his campaign, Trump strongly favored new infrastructure ments . . . for rights-of-way for . . . systems and related construction, but appeared to be much more favorable to facilities for generation, transmission and distribution of fossil fuels than renewables, and he expressed some antag- electric energy,”34 which would authorize wind or solar onism to wind projects . On March 28, 2017, President generation facilities . Trump issued an Executive Order rescinding the Climate Both FLPMA and the NFMA require the agencies Action Plan .26 to develop land use plans for the areas they manage . All As of December 2016, approximately 5,000 MW of approved projects must be consistent with those plans, wind and solar capacity operate on public lands .27 (There and if they are not, the plans must be revised . Revising was one facility in the water—the Rhode Island project the plans is an arduous process that requires compliance discussed below ). At that time, the total amount of wind with NEPA, among other laws . Each solar project has typi- capacity in the United States (on all kinds of land) was cally required its own EIS under NEPA, while some wind 81,260 MW; the total amount of solar PV was 19,380 projects merely require environmental assessments, which MW .28 How will we get to the 912,184 MW total wind tends to save more than one year .35 that the DDPP reports indicated will be needed by 2050 BLM has gotten much faster at navigating this process . in the Mixed Scenario, and the 1,686,580 MW total wind A 2013 study by the U .S . Government Accountability in the High Renewables Scenario (recognizing that much Office (GAO) found that solar and wind applications sub- of this will be on private land)? mitted in 2006 took an average of 3 9. years to process; The needed increases in renewable generation may applications submitted in 2009 took 1 5. years .36 require—and would certainly be helped by—changes in As noted above, Secretary Salazar instituted new envi- the legal model for making public land available . ronmental review procedures in 2009 that accelerated the Special statutory leasing processes exist for oil and gas permitting of renewable energy projects on BLM lands . production, and for geothermal production . In 2005, Con- DOI retooled an ongoing solar energy programmatic gress mandated special environmental review and leasing EIS to institute additional permitting reforms through processes for oil shale and tar sands .29 However, Congress its so-called Western Solar Plan . More specifically, BLM has adopted no special rules for wind or solar siting on fed- developed a template in the programmatic EIS for “solar eral lands . Instead, wind and solar siting on BLM land is energy zones” that, because of lessened environmental covered by the Federal Land Policy and Management Act conflicts and other attractive features (e g. ,. locations near transmission), should be preferred for solar development .37 23 . Hearing on S.279, Public Land Renewable Energy Development Act of 2013, Applying the template, BLM identified 19 solar energy Before the Senate Energy & Natural Resources Committee 1 (2004) (testimony zones encompassing 285,000 acres in Arizona, California, of Neil Kornze, Director, BLM) . 24 . BLM, Renewable Energy Data, https://www .blm .gov/programs/energy-and- Colorado, Nevada, New Mexico, and Utah, and antici- minerals/renewable-energy/data (last visited May 11, 2017) . pated that more solar energy zones would be created in 25 . Executive Office of the President, The President’s Climate Action Plan 7 (2013), available at https://www .whitehouse .gov/sites/default/files/ image/president27sclimateactionplan .pdf . 26 . Exec . Order No . 13783, 82 Fed . Reg . 16093 (Mar . 31, 2017) . 27 . Calculated from the maximum capacity of all the facilities listed as operational, plus the 566 MW listed as having been approved prior to 2009, on this 30 . 43 U .S .C . §§1701-1785 . website as viewed in December 2016: http://www b. lm g. ov/wo/st/en/prog/ 31 . Id. §§1761 et seq . See also Adam Vann, Congressional Research Service, energy/renewable_energy/Renewable_Energy_Projects_Approved_to_Date . Energy Projects on Federal Lands: Leasing and Authorization html . This number may be high because it is not clear if all 566 MW of (2012) (7-5700), available at https://fas .org/sgp/crs/misc/R40806 .pdf . the capacity approved prior to 2009 was actually built, or whether all the 32 . 16 U .S .C . §§1600-1687 . approved units have been built to full capacity . (Author’s Note: It has not been 33 . 36 C .F .R . §251 .50(a) . possible to update these figures because when the BLM website was checked 34 . Id . §251 .53(l)(4) . on April 9, 2017, it was no longer available ). 35 . GAO, Renewable Energy Report, supra note 13, at 17-18 . 28 . Annual Energy Outlook 2017 Table, supra Table 7, note c . The solar PV figure 36 . Id . at 19 . does not include off-grid PV, which is not reported . 37 . David J . Hayes, Thinking Big, Envtl . F ,. Nov ./Dec . 2013; BLM, Final Solar 29 . Oil Shale, Tar Sands, and Other Strategic Unconventional Fuels Act of Energy Development Programmatic Environmental Impact Statement 2005, Pub . L . No . 109-58, §1169, 119 Stat . 594, 728 . (2012), available at http://solareis .anl .gov/documents/fpeis/index .cfm . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10596 ENVIRONMENTAL LAW REPORTER 7-2017 the future .38 It also amended 89 FLPMA land use plans to FLPMA plans . It identified 20,634,000 acres as “poten- allow solar projects .39 tially developable” for wind, but only 160,000 acres as Several environmental groups challenged the EIS on the “economically developable,” based on access to and costs grounds that there had been insufficient consideration of of transmission capacity, the intermittency of wind power, distributed generation and of building on disturbed lands, wind technology developments, and potential barriers to but the court upheld the EIS .40 Because this EIS looked wind resource development . The EIS did not map those at the sorts of impacts a solar project could have in this areas, and no wind energy zones have been designated .45 region, individual solar projects in one of the solar energy BLM has, however, proposed some wind development zones did not require their own EIS, and they and associ- areas in several resource management plans, which govern ated transmission lines otherwise enjoyed expedited pro- particular BLM units .46 cessing . (Outside of these zones, another 19 million acres In December 2016, BLM issued its final rule to create are designated as “variance areas”; projects there must go a competitive lease process for solar and wind energy on through individual procedures .41) The first three projects federal land .47 It favors development in “designated leasing to go through the new process, all in the Dry Lake solar areas” with high solar or wind resource value and low land energy zone in Nevada, got through the BLM process in use conflicts . All the royalties go to the U .S . Treasury . Prior less than 10 months . BLM also required funding for long- to final issuance of the rule, the Solar Industries Associa- term desert tortoise monitoring, post-construction moni- tion had said it would add “time, uncertainty, complexity, toring of impacts on bird and bats, and measures to reduce and expense to a permitting process that is already substan- visual impacts .42 tially more difficult to pursue than permitting on private The process does not assure approval . In November lands ”. 48 Tension also emerged between those who want 2014, BLM rejected an application to build a 200-MW to make sure the federal government gets a good financial solar facility in the Mojave Desert, finding that the project return on these leases, and those who argue that the rule, could disturb important natural and cultural resources .43 while formalizing what had been informal procedures, will A somewhat similar process—which culminated with increase the costs of building wind and solar facilities on a BLM record of decision in September 2016 after eight federal land . As this is written, controversy remains over years of work—was undertaken jointly by BLM, the U .S . whether the rule on a net basis will help or hinder renew- Fish and Service (FWS), and the state of Cali- ables development . fornia to develop the Desert Renewable Energy Conserva- As it is, rents for fossil fuel leases on BLM land (which tion Plan . It designated multiple uses and protections for are governed by the Mineral Leasing Act) are $2 per acre at a 22 5. -million area portion of the California desert . Of most, in contrast to the rents set by BLM for solar, which this, 388,000 acres were designated for renewable energy are established according to a complex formula in the regu- development—a far lower amount than the solar indus- lations and are much higher .49 On top of the rental cost, try had sought .44 Solar developers may now apply to build royalties must be paid for fossil fuel production, but that projects on this acreage . is based on actual production; wind and solar operators BLM has made a bit less progress with wind than with must pay capacity fees regardless of actual production, solar . In June 2005, BLM completed a programmatic EIS though the capacity factor for each type of energy source is for wind projects in the western states, and amended 52 reflected in the rental rate 50. A bill to resolve some of these issues, the Public Lands 38 . BLM, Solar Energy Zones, http://blmsolar a. nl g. ov/sez/ (last updated Jan . Renewable Energy Development Act, has been intro- 10, 2014); Breaking the Logjam at BLM: Examining Ways to More Efficiently duced in every Congress since 2011 . It has attracted broad Process Permits for Energy Production on Federal Lands: Hearing Before the Senate Committee on Energy and Natural Resources 6 (2014) (testimony of Arthur Haubenstock, Solar Energy Industries Association); David J . Hayes 45 . DOI, BLM, Final Programmatic Environmental Impact Statement on & Nidhi Thakar, Center for American Progress, A 4-Point Plan for Wind Energy Development on BLM-Administered Lands in the Western Responsibly Expanding Renewable Energy Production on America’s United States, (2005); see also Domenic A . Cossi, Getting Our Priorities Public Lands and Oceans (2015), available at http://www o. urenergypolicy . Straight: Streamlining NEPA to Hasten Renewable Energy Development on org/wp-content/uploads/2015/08/RenewableEnergy-report1 p. df . Public Land, 31 Pub . Land & Resources L . Rev . 149 (2010) . 39 . GAO, Renewable Energy Report, supra note 13, at 23 . 46 . Nick Lawton, Promoting Renewable Energy Development on Public Lands, 40 . Western Lands Project v . Bureau of Land Mgmt ., No . 13-cv-339, 44 ELR Green Energy Inst ,. Nov . 14, 2014, at 22 . 20143 (S .D . Cal . June 25, 2014), aff’d, 668 F . App’x 802 (9th Cir . 2016) . 47 . 81 Fed . Reg . 92122 (Dec . 19, 2016) . 41 . Haubenstock testimony, supra note 38, at 6 . 48 . Quoted in Memorandum from Andrew Vecera, Majority Committee 42 . Scott Streater, Interior OKs First Solar Projects Through Streamlined Reviews, Staff, to Subcommittee on Energy and Mineral Resources Members, on E&E News, June 1, 2015 . Legislative Hearing on H .R . 2663 (Rep . Paul Gosar, House Committee 43 . Carolyn Whetzel, California Desert Solar Project Could Disturb Resources, Report 3-4 (July 11, 2016)) . BLM Says in Rejecting Application, Daily Env’t Rep . (BNA), Nov . 14, 49 . 43 C .F .R . §2806 .52 . 2014, at A-5 . 50 . Lawton, supra note 46, at 24; Susan Kraemer, BLM Charges Exorbitant Rent, 44 . BLM, Desert Renewable Plan Record of Fees for Solar, Energy Storage Compared to Fossil Fuels, Renewable Energy Decision (2016) (BLM/CA/PL-2016/03+1793+8321), available at http:// World, Nov . 24, 2015; Competitive Processes, Terms, and Conditions www .drecp .org/finaldrecp/rod/DRECP_BLM_LUPA_ROD .pdf; Chris for Leasing Public Lands for Solar and Wind Energy Development and Mooney, The Government Just Decided the Future of California’s Desert, Technical Changes and , 79 Fed . Reg . 59023, 59033 (proposed and Solar Companies Aren’t Happy, Wash . Post, Sept . 14, 2016 . See also Sept . 30, 2014); Competitive Processes, Terms, and Conditions for Leasing Nathaniel Logar, When the Fast Track Hits the Off Ramp: Renewable Energy Public Lands for Solar and Wind Energy Development and Technical Permitting and Legal Resistance on Western Public Lands, 27 Colo . Nat . Changes and Corrections for 43 C .F R. . Parts 2800 and 2880, 81 Fed . Reg . Resources, Energy & Envtl . L . Rev . 361 (2017) . 92122 (Dec . 19, 2016) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2017 NEWS & ANALYSIS 47 ELR 10597

bipartisan support . In the fall of 2016, it was part of a from utility-scale rural solar resources, about 1,100 MWh comprehensive energy bill being advanced by Sen . Lisa from wind, and about 7 million MWh from hydropow- Murkowski (R-Alaska), but the bill was not enacted before er 56. In 2015, the GAO found that energy development on the end of the 114th Congress . The bill would apply to all Indian lands has been hindered by poor management by BLM and national Forest Service lands that have not been the Bureau of Indian Affairs, as well as by the complex excluded from solar or wind energy development by prior regulatory framework, tribes’ limited capital and infra- plans, and would require evaluation of other U .S . Depart- structure, and varied tribal capacity . This has led to missed ment of Defense and Department of Agriculture lands for development opportunities, lost revenue, and jeopardized suitability for renewables . Programmatic EIS would be viability of projects 57. utilized to expedite project review . High-level interagency coordination would be required—something that all agree Recommendations: The Western Solar Plan can serve as an is important . exemplar for what can be accomplished without new leg- Rather than all the royalty revenue going to the Trea- islation . By undertaking an environmental review over a sury, the bill would allocate 25% to the states, 25% to the large geographic area that included a detailed examination counties, 35% to a Renewable Energy Resource Conserva- of species presence and habitat, it satisfied the requirements tion Fund, and 15% to the Treasury for use in assisting in of both NEPA and the Act (ESA) 58. the processing of renewable energy permit applications 51. (The ESA is discussed in more detail below ). This way, the This 35% allocation to a conservation fund to help restore Western Solar Plan allowed individual projects within the and protect fish and wildlife habitat and related projects study area to proceed quickly . BLM should identify more has earned the bill the support of the Society, solar energy areas where this process could be utilized . The Trout Unlimited, the Natural Resources Defense Council, Desert Renewable Energy Conservation Plan is another and other conservation and environmental groups . How- example, though it took a long time to complete and des- ever, the wind and solar industries are still unhappy with ignated only very limited areas for renewables . BLM has the requirement for competitive bidding and the require- also launched more than a dozen “rapid ecoregional assess- ment for royalty payments 52. ments” that examine ecological conditions and trends in In another action taken in the final weeks of the Obama large ecoregions 59. As noted below, BLM’s Planning 2 0. Administration, on December 22, 2016, BLM issued rule, designed to facilitate large-scale land use planning, policy guidance on mitigation measures that could be was annulled by Congress and President Trump in 2017 . employed in approving actions on public lands such as This is a step backwards . construction of renewable energy projects 53. The policy While BLM has made considerable progress in accom- guidance followed previous mitigation reforms intended to modating renewable projects on its land, the Forest Service provide more certainty to developers, while also producing has made much less progress and should take steps to catch better environmental results, when identifying compensa- up . The Forest Service has several policies in place pro- tory mitigation measures required as part of the permitting moting wind and solar projects,60 and construction broke process 54. However, shortly after President Trump took ground in September 2016 on the first utility-scale project office, the new Secretary of the Interior, Ryan Zinke, issued actually to be built on its land, a 15-turbine wind project an order that “directs a reexamination of the mitigation in the Green Mountain National Forest in Vermont .61 (The policies and practices across the Department of the Interior Forest Service does a great deal with , but that is . . . in order to better balance conservation strategies and beyond the scope of this Article ). policies with the equally legitimate need of creating jobs for The Public Lands Renewable Energy Development Act hard-working American families ”. 55 has been under consideration in Congress since 2011 . It Tribal lands also have tremendous potential for renew- would help encourage and expedite new renewable projects able energy . A 2013 study by DOE found that American on public lands, and something like it should be enacted . Indian land comprises approximately 2% of U .S . land, but In the deliberations over this bill, consideration should be contains an estimated 5% of all renewable energy resources, given to relaxation of the fair market value requirement including about 14 billion megawatt-hours (MWh) of total technical potential on tribal lands for electricity generation 56 . DOE, Office of Indian Energy, Developing Clean Energy Projects on Tribal Lands: Data and Resources for Tribes 3 (2013), available at http://www .nrel .gov/docs/fy13osti/57748 .pdf . 51 . Kornze testimony, supra note 23, at 4 . 57 . OGA , Report to the Chairman, Committee on Indian Affairs, U .S . 52 . Haubenstock testimony, supra note 39, at 10-11; Jennifer A . Dlouhy, Senate, Indian Energy Development: Poor Management by BIA Has Obama Rule Could Take Wind Out of Renewable Power on Public Land, Hindered Energy Development on Indian Lands (2015) (GAO-15- Bloomberg Markets, Aug . 22, 2016 . 502) [hereinafter GAO, Indian Energy Development Report], available 53 . BLM, Manual §1794, Mitigation (2016); BLM, Mitigation Handbook at http://www .gao .gov/assets/680/670701 .pdf . H-1794-1 (2016) . 58 . 16 U .S .C . §§1531-1544 . 54 . David J . Hayes, Addressing the Environmental Impacts of Large Infrastructure 59 . Id .; Hayes, supra note 54, at 10019 . Projects: Making “Mitigation” Matter, 44 ELR 10016 (Jan . 2014), available 60 . See U .S . Forest Service, Special Uses-Energy, https://www fs. .fed .us/ at http://www .eli .org/sites/default/files/docs/elr-na/44 .elr_ .10016 .pdf . specialuses/special_energy .shtml . 55 . Secretary of the Interior Order No . 3349, American Energy Independence 61 . “Avangrid, Governor Shumlin Break Ground on Deerfield Wind Farm,” (Mar . 29, 2017), available at https://www .doi .gov/sites/doi .gov/files/ Vermont Bus . Mag ,. Sept . 19, 2016, http://www .vermontbiz .com/news/ uploads/so_3349_-american_energy_independence .pdf . september/avangrid-governor-shumlin-break-ground-deerfield-wind-farm . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10598 ENVIRONMENTAL LAW REPORTER 7-2017 when leasing federal lands for renewables, since such relax- wind farms in the United States stood at zero until Decem- ation would add to the economic incentive to build such ber 2016, when a very small facility (30 MW) started oper- facilities .62 This might result in a loss of federal revenues ations off Rhode Island . The best-known proposed project (if enough projects that would have proceeded anyway are in the United States is Cape Wind in Massachusetts; this able to enjoy the lower rents), but it would advance the 468-MW project was first proposed in 2001 and is still decarbonization objective . struggling with approvals and financing . Its delays have DOI should carefully review and consider acting on cast a pall over offshore wind in the United States . (The the GAO recommendations for improving the process Rhode Island and Cape Wind projects will be discussed in for approving renewable energy projects on tribal lands, more detail below ). including changes to the processes for mapping lands, veri- Many companies have attempted to build offshore wind fying ownership, tracking reviews, providing guidance to farms in the United States but have been discouraged or tribes, and helping tribes eliminate capacity gaps .63 blocked by regulatory fragmentation and confusion, shifts in political support, high costs, and public opposition . B. Offshore Wind However, recent actions by the federal government and some states, plus technological advances and falling costs Difficult as it has been to site renewable projects on federal (though still much higher than onshore wind), coupled land, it has been even more difficult to do this offshore . with the 2015 extension of the production tax credit, por- However, the first offshore wind project has finally begun tend a major expansion of offshore generation in the next operation, and several more are in the pipeline . few years, at least where the coastal states strongly and con- The winds offshore tend to blow harder and more uni- sistently support it . formly than the winds onshore . The potential energy pro- An extraordinary expansion will be needed . As shown duced from wind is directly proportional to the cube of in Table 5, the DDPP Mixed Scenario contemplates the the wind speed . As a result, in addition to being less inter- construction of the equivalent of four Cape Wind-sized mittent than onshore wind, the somewhat higher wind facilities every year by 2025, eight every year by 2030, 17 speeds typical offshore can generate much more energy . every year by 2035, and 37 every year by 2045 . The total Most large population centers in the United States are near of 17 5. GW that would need to be added in 2045 alone coastlines, so offshore wind would not require nearly as exceeds the 12 5. GW capacity of all the offshore wind tur- much new transmission capacity as onshore wind .64 The bines operating in the world today . Table 6 shows that the total technical potential for offshore wind in the United DDPP High Renewables Scenario involves 20 5. GW being States—the amount of electricity that could be generated if added in 2045 alone . turbines were placed everywhere physically possible—has The state governments play an important role with off- been calculated as 4,200 gigawatts (GW),65 which is about shore facilities . The states control the underwater land out four times the current capacity of the U .S . grid .66 The wind to three nautical miles from shore69; beyond that, the fed- speeds are higher off the Pacific Coast than off eral government has control out to 200 nautical miles from and Gulf Coasts, but the water off the Atlantic and Gulf shore 70. (However, for historical reasons, Florida and Texas Coasts is much shallower, making the costs of offshore control the seabed to about 10 nautical miles offshore in installations there lower .67 the Gulf of Mexico 71. ) Wind farms more than three miles Denmark installed the world’s first offshore wind proj- offshore (as most of them would be)72 still need transmis- ect in 1991 . Since then, 142 more have become operational sion lines running through state waters; and wind farms worldwide, with a total capacity of 13 9. GW . Another 34 less than three miles offshore are still subject to various are under construction with a capacity of 7 7. GW, and federal laws (discussed below) . Moreover, the Coastal Zone 142 have been approved, with a capacity of 44 5. GW .68 Management Act (CZMA)73 provides for state review of They are mostly in Europe, with some in China, Japan, certain activities occurring solely in federal waters . This and . The total number of operational offshore means that every offshore wind farm needs both federal and state approvals—and, in almost every case, multiple 62 . There is considerable for relaxing the fair market value requirement approvals at each level of government . for certain favored uses on federal lands . See Pamela Baldwin, Fair Market Value for Wind and Solar Development on Public Land 11 Until 2005, the lead federal agency for offshore wind (Taxpayers for Common Sense & Wilderness Society Dec . 2010), available had been the U .S . Army Corps of Engineers (the Corps), at http://www .taxpayer .net/images/uploads/downloads/FMV_Report .pdf . acting under the Rivers and Harbors Act of 1899 . The 63 . GAO, Indian Energy Development Report, supra note 57, at 36-38 . 64 . BOEM, Offshore Wind Energy, http://www .boem gov/Offshore-Wind-. Energy Policy Act of 2005 shifted lead authority over all Energy/ (last visited May 1, 2017) . 65 . Anthony Lopez et al ., National Renewable Energy Laboratory, U .S . Renewable Energy Technical Potentials: A GIS-Based Analysis iv 69 . Submerged Lands Act, 43 U .S .C . §1311(a)(1) . (2012) . 70 . Outer Continental Shelf Act, 43 U .S .C . §1302 . 66 . EIA, Electricity Generating Capacity, https://www eia. .gov/electricity/ 71 . Ben Deninger, The Twenty-First Century Offshore Wind Boom: Why Texas Is capacity/ (last visited May 11, 2017) . Leading the Way, 44 Tex . Envtl . L .J . 81, 91 (2014) . 67 . But see International Renewable Energy Agency, Floating 72 . Timothy H . Powell, Revisiting Federalism Concerns in the Offshore Wind Foundations: A Changer for Offshore Wind Power (2016) . Energy Industry in Light of Continued Local Opposition to the Cape Wind 68 . The Wind Power, World Wind Farms Database, http://www .thewindpower . Project, 92 B .U . L . Rev . 2023, 2029 (2012) . net/store_continent_en .php?id_zone=1000 (last visited May 1, 2017) . 73 . 16 U .S .C . §§1451-1466 . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2017 NEWS & ANALYSIS 47 ELR 10599

offshore energy projects (including wind, but not includ- • Streamlining the approval process for individual pro- ing the Great Lakes) to the Secretary of the Interior, act- posed projects and eliminating unnecessary regula- ing through the Minerals Management Service, and tory requirements . authorized it to issue leases, easements, and rights-of-way • Implementing a comprehensive, expedited leasing for such projects . The Corps (as protector of navigation) framework for offshore wind development by identi- retained permitting authority over offshore construction, fying so-called “wind energy areas” along the Atlan- and is still the lead federal agency for offshore wind energy tic Outer Continental Shelf that appear most suitable in the Great Lakes . In October 2007, the Minerals Man- for offshore wind energy development because of agement Service issued a programmatic EIS for alternative fewer user conflicts and resource issues . Wind energy energy development and production and alternative use of areas have been identified through an interagency facilities on the Outer Continental Shelf 74. In 2009, the process that gathered information regarding the envi- Minerals Management Service and the Federal Energy ronmental and geophysical attributes and other uses Regulatory Commission (FERC) resolved a long-standing of these wind energy areas . That data were assembled jurisdictional dispute and entered into a memorandum of in a publicly available format to help identify areas understanding that clarified that the Service has exclusive for development . Relevant federal departments with jurisdiction over offshore wind energy . The Service then interests in the offshore areas were involved to reduce issued detailed regulations for this program, providing for conflicts (e g. ,. Department of Defense military train- competitive and noncompetitive leasing of offshore lands 75. ing; Coast Guard navigation; National Oceanic In 2010, in the wake of the Deepwater Horizon disaster, the and Atmospheric Administration sensitive fishing Minerals Management Service was broken into three parts; grounds) . State and tribal officials in each of the rel- one of them, the Bureau of Ocean Energy Management evant states were consulted to obtain their input prior (BOEM), inherited the offshore wind leasing process . to the identification of wind energy areas . In 2011, BOEM and DOE issued a “National Offshore Wind Strategy,” which called for the deployment of 54 GW • Moving aggressively on a separate but parallel track of offshore wind generating capacity by 2030 76. (Under the to process any applications to build offshore trans- DDPP Mixed Scenario, 20 GW of offshore wind would be mission lines, such as a potential regional “backbone” added by 2030; under the DDPP High Renewables Sce- line that would serve multiple future offshore wind nario, the figure would be 64 GW ). projects along the Atlantic outer continental shelf 79. In April 2015, DOE issued its Wind Vision report, which BOEM has designated 11 wind energy areas, where off- examined how wind could supply 10% of the nation’s elec- shore areas will be leased for wind development .80 BOEM trical demand in 2020, 20% in 2030, and 35% in 2050 . It has awarded commercial leases for all of them . The leases studied a scenario with 22 GW of offshore wind capacity could support a total of 14 6. GW of capacity .81 BOEM is by 2030 and 86 GW by 2050 77. working to identify more areas . NEPA reviews are being In September 2016, BOEM and DOE released a new tied to these designations, and arrangements are being version of the National Offshore Wind Strategy . Among made with other federal agencies and with the states in the challenges it said would need to be overcome in order order to smooth the processes . The Smart From the Start to achieve the Wind Vision goals are reducing costs and program also involves a great deal of coordination on per- technology risks, and ensuring efficiency, consistency, and mitting; the National Offshore Wind Strategy declares: clarity in the regulatory process . Progress has been made on both of those fronts . As the Several federal entities also have mandates to review Wind Vision report documents, costs have declined signifi- and/or approve certain aspects of offshore wind projects, cantly . In 2010, Secretary of the Interior Salazar launched such as the Environmental Protection Agency, Fish and a “Smart From the Start” program to speed wind deploy- Wildlife Service, National Park Service, Department of ment off the Atlantic Coast . BOEM hopes that Smart Commerce’s National Oceanic and Atmospheric Admin- From the Start will reduce permitting time lines from the istration, National Marine Service, Federal Avia- expected 7-10 years to half that or less 78. Key elements of tion Administration, Department of Defense, U .S . Coast that program include: Guard, and the Federal Energy Regulatory Commission . Numerous state, local, and tribal government entities, as well as other stakeholders, must also be consulted in the permitting process . The mandates of these various enti- 74 . BOEM, Guide to the OCS Alternative Energy Final Programmatic Environmental Impact Statement (EIS), at http://www .boem .gov/Renewable- Energy-Program/Regulatory-Information/Guide-To-EIS .aspx (last visited 79 . DOE, supra note 76, at 13 . May 11, 2017) . 80 . BOEM, Mid-Atlantic Wind Energy Areas, http://www .boem .gov/Mid- 75 . 30 C .F .R . pt . 585 . Atlantic-Wind-Energy-Areas/ (last visited May 11, 2017); BOEM, North 76 . DOE, A National Offshore Wind Strategy: Creating an Offshore Atlantic Wind Energy Areas, http://www .boem .gov/North-Atlantic-Wind- Wind Energy Industry in the United States iii (2011) (DOE/ Energy-Areas/ (last visited May 11, 2017) . EE-0798) . 81 . DOE & DOI, National Offshore Wind Strategy: Facilitating the 77 . DOE, Wind Vision, supra Table 7, note e, at xxxiii, fig . ES .1-3 . Development of the Offshore Wind Industry in the United States 78 . DOE, supra note 76, at 17 . (2016) (DOE/GO-102016-4866) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10600 ENVIRONMENTAL LAW REPORTER 7-2017

ties include managing protected species, managing com- This Massachusetts saga is in stark contrast to what mercial and recreational fisheries, protecting marine and has happened next door in Rhode Island .88 By the mid- coastal habitats, and designation and protection of marine 2000s, Rhode Island realized that it needed to expand its areas with special significance due to their conservation, production of renewable energy, and that offshore might recreational, ecological, historical, scientific, cultural, be a good place to do that . It conducted extensive stud- archeological, educational, or aesthetic qualities .82 ies of the offshore area, including marine ecology, cli- The state role is strengthened by the CZMA . Under the mate, cultural and historical resources, fisheries, tourism, Act, states prepare coastal zone management plans . Once and recreation . The state’s coastal regulator, the Coastal a state plan has been approved by the Secretary of Com- Resources Management Council, hired the University of merce, all federal actions must be consistent with that plan, Rhode Island to conduct the studies . They were utilized subject to very limited exceptions .83 in undertaking a program of marine spatial planning— The difficulties in working with all these federal and state essentially, zoning the ocean to determine what sorts of agencies are highlighted by the tortuous path followed by activities should take place where and when . Interests the Cape Wind project . After being proposed in 2001, the that might otherwise be skeptical, including the fishing project went through the NEPA process and obtained the industry, were brought in early . permits it needed from the Corps, but it had to mostly start This led to the creation of the Rhode Island Ocean over when Congress shifted authority for offshore wind Special Area Management Plan (RI O-SAMP) . Such to DOI in 2005 . DOI prepared a new EIS and approved plans are authorized by the CZMA, but had not previ- the project in 2010 . Other needed permits were issued in ously been employed to plan for wind energy . They also 2011 . But the project was opposed by several prominent tended to stop at the three-mile line; but the Coastal and wealthy owners of in Cape Cod, including Resources Management Council, acting in the absence of several members of the Kennedy family and one of the a well-defined regulatory regime, went where the science Koch brothers, and numerous lawsuits were filed .84 Each took it, and its plan crossed into federal waters . The plan new approval provided the opportunity for a new lawsuit . identified a site three miles southeast of Block Island as Among these were a suit by the Aquinnah Wampanoag best suited for wind turbines . It did not hurt that Block Tribe of Gay Head in Martha’s Vineyard, which claimed Island is not connected to the mainland electric grid, and that the project would disrupt views that are necessary for relies on diesel fuel to generate electricity; thus, the wind their religious observances, and would violate their ances- farm could lower Block Island’s high electric bills, and tral burial grounds85; and another seeking to overturn the the local government came to support the project (unlike Federal Aviation Administration’s determination that the what had happened in Cape Cod) . project would not be a hazard to flight . The U .S . Department of Commerce, eager to advance The developers estimated they spent more than $70 offshore wind, was receptive to this approach and accepted million fighting the regulatory and legal battles . They the RI O-SAMP into the state’s coastal zone manage- seemed to have won them all, but in January 2015, the two ment plan . BOEM agreed to include the identified federal utility companies that had signed power purchase agree- waters in the relevant wind energy area and lease them for ments to buy most of the power output, discouraged by the offshore wind . lengthy delays, terminated the agreements .86 In July 2016, While all this was being done, the state issued a request the U .S . Court of Appeals for the District of Columbia for proposals to identify a qualified company to build a Circuit rejected most of the challengers’ latest claims, but five-turbine 30-MW demonstration wind farm . The state found that BOEM had violated NEPA by using inadequate selected Deepwater Wind, which was able to rely on the data about the seafloor and subsurface hazards, and must studies conducted by the state, and it agreed to reimburse supplement the EIS . The court also found that FWS had the state for the $3 .2 million cost of the studies . Since the erred in disregarding certain submissions before issuing an studies had already been done, Deepwater Wind was able approval under the ESA .87 Sixteen years after the project to obtain the needed federal and state permits within two was first proposed, its fate remains very much in doubt . years of applying . Another element of this success was a power purchase agreement that would assure Deepwater Wind of a mar- 82 . DOE, supra note 76, at 11 (abbreviations omitted) . ket for its electricity at a price that allowed it to obtain 83 . U16 .S .C . §1456 . See also Jeffrey Thaler, Fiddling as the World and financing . With the strong support of the state’s gover- Burns: How Climate Change Urgently Requires a Paradigm Shift in the Permitting of Renewable Energy Projects, 42 Envtl . L . 1101 (2012) . nor and legislature, National Grid entered into a power 84 . QKatharine . Seelye, Koch Brother Wages 12-Year Fight Over Wind Farm, purchase agreement that some large ratepayers argued N .Y . Times, Oct . 22, 2013; Robert F . Kennedy Jr ., An Ill Wind Off Cape was above market prices . The state public utilities com- Cod, N .Y . Times, Dec . 16, 2005 . 85 . Public Employees for Envtl . Responsibility v . Beaudreau, 25 F . Supp . 3d 67, mission rejected the agreement based on its high cost, but 44 ELR 20058 (D .D .C . 2014) . 86 . Lawrence Susskind & Ryan Cook, The Cost of Contentiousness: A 88 . This account of the events in Rhode Island is drawn from Michael Burger, Report on Offshore Wind in the Eastern United States, 33 Va . Envtl . L .J . 204, Consistency Conflicts and Federalism Choice: Marine Spatial Planning Beyond 219-21 (2015); Powell, supra note 72, at 2025-27 . the States’ Territorial Seas, 41 ELR 10602 (July 2011); John M . Boehnert, A 87 . Public Employees for Envtl . Responsibility v . Hopper, No . 14-5301 (D .C . New Blueprint for Coastal Zone Management, 30 Nat . Resources & Env’t Cir . July 5, 2016) . 52 (2016); Susskind & Cook, supra note 86 . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2017 NEWS & ANALYSIS 47 ELR 10601

promptly afterwards, the legislature passed and the gov- offshore wind that a Norwegian company that had been ernor signed a law requiring the utility commission to poised to build there withdrew 98. For the Great Lakes, consider environmental and other issues . In view of the where BOEM has no jurisdiction, one commentator has project’s environmental benefits, the commission then written that without modifications to the coastal zone approved the agreement, and this approval was upheld by management process (which does apply): both the Rhode Island Supreme Court89 and the U .S . Dis- [S]tates may be reluctant to proceed, leaving them unpre- trict Court 90. The facility began operation in December pared to face the headwinds that lie ahead . The snarled 2016 . It is the first offshore wind farm in the United States, web of regulatory authorities, acts, and regulations must and, though it is small, it is being heralded as a model for be sorted out now so that when the technological and federal-state cooperation in building projects of this sort . infrastructural challenges are worked out, offshore deploy- New York may not be far behind Rhode Island . Gov . ment can take off in smooth, charted waters 99. Andrew Cuomo has announced his strong support for a wind farm off Long Island, and in September 2016, the Texas has a strong renewable portfolio standard, a tra- state released a “blueprint” for the New York State Offshore dition of permitting energy projects with relatively light Wind Master Plan, declaring that New York has 39 GW of environmental regulation, and control of the waters of wind potential off its Atlantic Coast 91. BOEM has identi- the Gulf of Mexico beyond 10 nautical miles . It seemed fied a wind energy area off Long Island, and in Decem- poised to build offshore wind, but what may have been ber 2016, Statoil ASA, a subsidiary of a Norwegian energy the most promising developer withdrew in 2013; Texas company, won a BOEM auction to build a wind farm there has by far the greatest amount of onshore wind power of about 800 MW 92. A coalition of fishing advocates, local in the United States, and its cost is much lower than off- towns, and municipalities sued BOEM, claiming that an shore facilities 100. EIS should have been prepared first . The U .S . District Court for the District of Columbia denied their motion for Recommendations: BOEM should continue its designation a preliminary injunction blocking the lease sale 93. of wind energy areas, and prepare programmatic EIS to Several of the states along the eastern seaboard have expedite approval of projects in those areas . The most recent adopted statutory or regulatory programs to facilitate off- BOEM auction for offshore wind areas, held in December shore wind, hoping the economic and political environ- 2016 for a site off Long Island, New York, attracted six seri- ments will become hospitable for such projects 94. In August ous bidders and was won by a Norwegian-based company, 2016, Massachusetts enacted a law requiring electric utili- Statoil 101. This is one indication of considerable commercial ties to acquire a combined total of 1,600 MW of electricity interest in building such facilities . from offshore wind; long-term contracts must be signed by In the first months of the Trump Administration, 2027 . However, this law was written to make Cape Wind BOEM conducted an auction for offshore wind for ineligible to participate in this program 95. water off Kitty Hawk, North Carolina; a Spanish-based On the other hand, in May 2016, New Jersey Gov . company won . BOEM also announced it plans to stage Chris Christie vetoed a bill that would have advanced a another competitive lease auction in New England waters, proposed wind farm off Atlantic City,96 amid charges from triggered by unsolicited applications for the same area by the that he is “holding offshore wind hostage Statoil and a German company 102. These sorts of actions to his national political ambitions ”. 97 A fellow Republi- should continue . can governor, Paul LePage of Maine, has been so cool to Major federal facilities on the coastlines, such as large naval bases, should consider committing to purchas- 89 . In re Review of Proposed Town of New Shoreham Project, 25 A .3d 482 ing power from offshore wind facilities . Power purchase (R .I . 2011) . agreements would considerably help project developers 90 . Riggs v . Curran, No 15-342 (D .R .I . July 7, 2016) . secure financing . 91 . New York State Energy Research and Development Authority, Blueprint for the New York State Offshore Wind Master Plan (2016) . 98 . Maine Governor: Wind Power Is Too Expensive, Seacoastonline .com, Apr . 92 . Saqib Rahim & Daniel Cusick, New York: How Statoil Edged Out the State 4 2015; Susskind & Cook, supra note 86, at 226 . on a Massive Bid, Energywire, Dec . 19, 2016 . See also Philip E . Karmel et 99 . Sarah Schenck, Maneuvering the Headwinds Facing Offshore Wind al ., The Proposed Wind Farm Off the Shore of Long Island, Envtl . L . N .Y ., Development in the Great Lakes: Amending the Coastal Zone Management Act, Sept . 2016 . 98 Minn . L . Rev . 2479, 2510 (2013/2014) . See also Ashlyn N . Mausolf, 93 . Memorandum Opinion, Fisheries Survival Fund v . Jewell, No . 1:16-cv- Clearing the Regulatory Hurdles and Promoting Offshore Wind Development 02409, 47 ELR 20026 (D .D .C . issued Feb . 15, 2017), http://www .eenews . in Michigan, 89 U . Det . Mercy L . Rev . 223 (2012) . net/assets/2017/02/16/document_gw_01 .pdf . 100 . Kent Harrington, Texas Is Giving Away Wind Energy, ChEnected, Nov . 94 . AKatherine . Roek, Offshore Wind Energy in the United States: A Legal and 30, 2015; Mark Del Franco, Offshore Wind Developer Baryonyx Pulls Plug on Policy Patchwork, 25 Nat . Resources & Env’t 24 (2011) . GoWind Demonstration Project, N . Am . Windpower, June 5, 2014; Anthony 95 . Zahra Hirji, Massachusetts’ Ambitious Clean Energy Bill Jolts Offshore Wind V . Bova, What’s the Holdup? How Bureaucratic Obstacles Are Undercutting the Prospects, Inside Climate News, Aug . 2, 2016; Bob Salsberg, 6 Things to True Potential of American Wind Power, 46 Suffolk U . L . Rev . 571, 593 Know About Massachusetts’ New Energy Law, Boston .com, Aug . 13, 2016 . (2013); Deninger supra note 71, at 91-94 . 96 . Joyce Hannon, Gov. Christie Vetoes Latest Offshore Wind Farms Bill, Law360, 101 . Diane Cardwell, Off Long Island, Wind Power Tests the Waters, N .Y . Times, May 2, 2016 . Jan . 21, 2017 . 97 . Jeff Tittel, Christie Made NJ a Loser on Offshore Wind, Daily J ., Aug . 25, 102 . Derrick Z . Jackson, Made in America: Trump Embracing Offshore Wind?, Daily 2016; R . William Potter, Opinion: Candidate Christie’s Fateful About-Face on Climate, Apr . 3, 2017, http://www dailyclimate. .org/tdc-newsroom/2017/ Wind Power, NJ Spotlight, June 29, 2016 . april/made-in-america-trump-embracing-offshore-wind/ . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10602 ENVIRONMENTAL LAW REPORTER 7-2017

Congress should instruct reviewing agencies that ables developers who build on contaminated land, and in unavoidable visual and aesthetic impacts do not provide a July 2014, it issued its Liability Reference Guide for Siting basis for denying wind energy permits . There appears to be Renewable Energy on Contaminated . Several little that offshore wind projects seriously impair states have enacted laws encouraging the reuse of disturbed property values, and even if they did, the decarbonization land for renewable projects 108. However, many developers objective should take precedence . and their lenders remain skittish, in the absence of a more Congress could include preference for offshore renew- legally binding assurance of no liability, even though the able energy projects in the CZMA consistency process 103. actual risks are very modest 109. This would make it more difficult for reluctant states to Several other developments are easing the way to finding disapprove these projects should that issue arise . sites for renewable energy facilities . The Federal Highway States with offshore wind capacity should develop and Administration is encouraging the use of highway rights- implement processes to promptly review and act upon of-way for siting such facilities 110. California has adopted a applications for offshore wind projects . statute making it easier to use otherwise-restricted agricul- tural lands that have “severely adverse soil conditions” or C. Disturbed Land “significantly reduced agricultural productivity” for renew- able energy facilities 111. Some farmers have found that it is Contaminated sites, old areas, and closed landfills more lucrative to lease certain land for renewable facilities provide potential places to build solar or wind facilities . than to grow crops there 112. The land is typically inexpensive, and its owners are often In one particularly ambitious effort, in 2016, the Con- happy to realize a little income—or even have someone else servation Biology Institute and the University of Califor- take it off their hands—if this use allows them to avoid the nia, Berkeley, School of Law published a study of land great expense of cleaning it up so that it can be suitable for (most of it privately owned) in California’s San Joaquin residential use . Valley where a collaborative process involving multiple The U .S . Environmental Protection Agency (EPA) stakeholders determined that solar PV could be sited with has established the RE-Powering America’s Land Initia- minimum conflicts with agriculture, species habitat, and tive to encourage and facilitate such actions . It reports other conservation concerns . Out of 9 5. million acres in that nearly 180 installations of renewable energy have the study area, 470,000 acres of land were identified, theo- been built on these sites, with a cumulative installed retically capable of providing 94,000 MW—greater than capacity of just over 1,124 MW .104 As part of this pro- all combined in-state generation capacity 113. gram, EPA has developed an online mapping tool that has preliminarily screened more than 80,000 sites on Recommendations: Congress could provide a liability more than 43 million acres for solar, wind, biomass, and exemption under CERCLA for the developers of renewable geothermal potential .105 energy facilities on contaminated land, assuming they have On December 5, 2013, President Obama issued a Presi- followed specified standards and procedures . dential Memorandum, Presidential Leadership on Energy States could adopt similar liability exemptions for Management, that not only directed all federal agencies renewable energy facilities under their own laws on con- to obtain 10% of their yearly electricity from renewable taminated land liability . resources by 2015 and 20% by 2020, but also directed that Other states could adopt laws similar to California’s law “[a]gencies shall consider opportunities to the extent eco- encouraging renewables development on disturbed agricul- nomically feasible and technically practical, to install or tural land . for energy installed on current or formerly con- States should conduct surveys to determine what dis- taminated lands, landfills, and mine sites ”. 106 turbed lands (and other privately owned lands) would be One of the principal impediments stems from the fact suitable for renewable energy facilities . that the Comprehensive Environmental Response, Com- pensation, and Liability Act (CERCLA) makes anyone 108 . Amy Morris et al ., Green Siting for Green Energy, 5 J . Energy & Envtl . L . who assumes ownership or operation of a contaminated 17 (2014) . 107 109 . Peter Trimarchi, Structured Approach Can Help Solar Developers Fulfill site potentially liable for its cleanup . EPA insists that it Promise of Brownfields, Daily Env’t Rep . (BNA), Oct . 17, 2013, at B-1 . will ordinarily not take enforcement action against renew- 110 . Federal Highway Administration, Renewable Energy Generation in the Highway Right-of-Way (2016) (FHWA-HEP-16-052), available at http://www fhwa. .dot .gov/environment/climate_change/mitigation/ 103 . Thaler,supra note 83, at 1148 . publications/row/renewablerow .pdf . 104 . U .S . EPA, RE-Powering Accomplishment Highlights, https://www .epa .gov/ 111 . 2011 Cal . Stat . ch . 596; see also Amy Odens, A New Crop for Agricultural re-powering/re-powering-accomplishment-highlights (last updated Nov . 1, Land: The Renewable Energy Mandate and Its Potential to Turn Farm Lands 2016) . Into Energy Fields, 44 McGeorge L . Rev . 1037 (2013) . 105 . U .S . EPA, Developing Mapping and Screening Tools—RE-Powering Mapper, 112 . Joe Ryan, Harvesting Sunshine More Lucrative Than Crops at Some U.S. https://www e. pa g. ov/re-powering/re-powering-accomplishment-highlights# Farms, Env’t Rep . (BNA), Mar . 31, 2016, at A-9 . highlight_1 (last updated Nov . 1, 2016) . 113 . Dustin Pearce et al ., University of California, Berkeley, Law School 106 . Charles B . Howland, Brightfields: Sustainable Opportunities for Renewable & Institute, A Path Forward: Identifying the Energy Projects on Environmentally Impaired Lands, 29 Nat . Resources & Least-Conflict Solar PV Development in California’s San Joaquin Env’t 41 (2014) . Valley (2016), available at https://www .law .berkeley .edu/wp-content/ 107 . 42 U .S .C . §§9601-9675, §9607 (CERCLA §107) . uploads/2016/05/A-PATH-FORWARD-May-2016 .pdf . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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IV.A NEP energy projects on public lands 118. This order proposed early collaboration inside and outside government, set schedules As noted above, large projects needing federal approv- and monitored compliance with them, and added resources als, or federal onshore or offshore land, typically require to the review process . All this helped reduce the time for an EIS under NEPA . Some states have their own impact processing solar and wind energy permits from an average assessment laws (“little NEPAs”) that require EIS for of four years to one-and-a-half years 119. state- or locally approved projects that are not undergo- On August 31, 2011, President Obama issued a Presi- ing EIS under NEPA . Many of the studies, hearings, and dential Memorandum calling on federal agencies to expe- other processes involved in project approval are subsumed dite the review of high-priority infrastructure projects . within the federal or state EIS processes, so while the EIS This led to the creation of the Federal Infrastructure Proj- is being prepared, many other necessary tasks are being ects Permitting Dashboard, which tracked the permitting accomplished; delays should not be attributed entirely (or of approximately 50 selected major highway and transit even mostly) to the EIS process 114. But the NEPA and little projects . The dashboard was designed to provide greater NEPA processes can be extremely time-consuming and, as transparency into agency decisionmaking by publicly discussed below, several actions have been taken to speed announcing and tracking important NEPA milestones . up the processes, and more can be done . On March 22, 2012, the president took further action An annual survey found that for federal EIS made by signing Executive Order No . 13604, Improving Perfor- available in 2014, there was an average of 1,709 days mance of Federal Permitting and Review of Infrastructure (4 7. years) between the issuance of the notice of intent Projects . It established a steering committee comprising to prepare an EIS and the issuance of the final EIS . Of deputy secretaries or their equivalents from the 12 fed- the agencies most heavily involved in renewable energy eral agencies most likely to be involved in infrastructure projects, the average time for FERC was 1,201 days projects, charged with identifying best practices for infra- (with a range from 938 days to 2,985 days); for BLM, structure permitting and review . The steering committee the average was 1,423 days (with a range from 839 days issued its report in June 2012 and eventually developed the to 2,590 days) .115 Implementation Plan for Modernizing Infrastructure Per- This does not span the full time between proposal mitting . The White House developed the Federal Plan for and final construction approval; it takes at least months Modernizing the Federal Permitting and Review Process and sometimes years before a project reaches the point for Better Projects, Improved Environmental and Com- that an agency will issue a notice to prepare an EIS, and munity Outcomes, and Quicker Decisions, followed by an once the final EIS is complete, more months or years can implementation plan that the steering committee issued in pass until all permits are issued and construction may May 2014 . begin . Actual building also takes time, of course; one In 2015, Sens . Rob Portman (R-Ohio) and Claire study found that for wind and solar projects, two to four McCaskill (D-Mo ). introduced the Federal Permitting years typically lapse between the start of construction Act, which adopted many of the recommendations that and commercial operation .116 grew out of the process just described . That bill was folded Project developers have long bemoaned delays caused by almost entirely into the transportation appropriations NEPA and the little NEPAs, and there have been many bill as Title XLI, Federal Permitting Improvement . On calls to reform and shorten the processes . The Council on December 4, 2015, President Obama signed this bill into Environmental Quality (CEQ) has performed numerous law; it became the FAST Act 120. studies with this aim 117. Improvements were made around FAST borrows many of the key features of the presi- the edges, but the most important change did not occur dent’s initiative to expedite federal decisionmaking until December 2015 . through improved efficiency, increased transparency, and As a lead-up to this, in 2010, DOI issued an order estab- application of best practices 121. For example, it establishes lishing a new interagency approach to facilitate permit- the Federal Permitting Improvement Steering Council, the ting decisions for the siting and development of renewable composition of which closely tracks the steering committee created by Executive Order No . 13604 . The council is run by an executive director who is appointed by the president 114 . Linda Luther, Congressional Research Service, The Role of the (without needing U .S . Senate confirmation) . Moreover, the Environmental Review Process in Federally Funded Highway statute requires that federal agencies maintain an online Projects: Background and Issues for Congress 2-5 (2012); GAO, National Environmental Policy Act: Little Information Exists on NEPA Analyses 18-19 (2014) (GAO-14-369) . 118 . DOI, Secretarial Order No . 3285A1, Renewable Energy Development by 115 . Piet deWitt & Carole deWitt, Preparation Times for Environmental Impact the Department of the Interior (Feb . 22, 2010) . Statements Made Available in 2014, in Annual NEPA Report 2014, at 8 119 . David J . Hayes, Congress Just Enacted New Permitting Requirements for Energy (Karen Johnson ed ., National Association of Environmental Professionals Projects: Did You Miss It?, Stan . L . Sch . Blog, Dec . 10, 2015, https://law . 2015) . stanford e. du/2015/12/10/congress-just-enacted-new-permitting-requirements- 116 . Steve Pociask & Joseph P . Fuhr Jr ., U .S . Chamber of Commerce, for-energy-projects-did-you-miss-it/ . Project No Project: Progress Denied: A Study on the Potential 120 . Pub . L . No . 114-94, 129 Stat . 1312 . Economic Impact of Permitting Challenges Facing Proposed 121 . This summary is drawn from Edward McTiernan etal ., Expediting Energy Projects 9 (2011) . Environmental Review and Permitting of Infrastructure Projects: The 2015 117 . E.g., CEQ, Modernizing NEPA Implementation (2003) . FAST Act and NEPA, Real Est . Fin . J . 50 (Winter/Spring 2016) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10604 ENVIRONMENTAL LAW REPORTER 7-2017 permitting dashboard that presents project-specific permit- Other federal agencies are directed to cooperate with the ting timetables, including projected dates for completion lead agency in the processing of the application . Any dis- of environmental reviews and issuance of permits . putes among agencies are to be resolved through a process The permitting provisions apply to a broad swath of established by the statute . The statute limits projects, not only those involving surface transportation . of project approvals by setting a two-year statute of limita- FAST applies to activities “involving construction of infra- tions; allowing only parties that submitted comments dur- structure for renewable or conventional energy produc- ing the environmental review process to sue, and then only tion, electricity transmission,” and many other kinds of about issues that had been raised in the comments; and in infrastructure 122. To qualify as a covered project, the ini- ruling on preliminary injunction motions, the court must tial anticipated total investment must be likely to exceed consider the potential effects on public health, safety, the $200,000,000, and the project must trigger NEPA and be environment, and jobs . The statute also provides for coor- of a “size and complexity” such that “in the opinion of the dination with state approvals, and for use of environmen- Council . . . the project [is] likely to benefit from enhanced tal review information developed at the state level so as to oversight and coordination . . . ”. 123 avoid unnecessary duplication . The council plays a key role in refining FAST’s scheme On September 22, 2016, in one of its final public acts for modernizing infrastructure permitting . The council is before President Obama left office, the council published required to survey the key federal development agencies, an initial list of 34 covered projects 128. As of April 10, 2017, develop an inventory of covered projects, and identify 31 projects were posted on the council’s permitting dash- appropriate project categories . Based upon these catego- board; seven of these were renewable energy projects (solar ries, by December 2016, the council “shall develop recom- and hydropower) 129. mended performance schedules, including intermediate On January 24, 2017, just-inaugurated President and final completion dates, for environmental reviews Trump issued an Executive Order, Expediting Envi- and authorizations most commonly required for each ronmental Reviews and Approvals for High Priority category . . . ”. 124 These schedules “shall reflect employ- Infrastructure 130. It directs the CEQ to take the lead in ment of the use of the most efficient applicable processes, coordinating federal efforts to expedite projects that are including the alignment of Federal reviews of projects selected “after consideration of the project’s importance and reduction of permitting and project delivery time ”. 125 to the general welfare, value to the Nation, environ- These schedules are not to exceed the average completion mental benefits, and such other factors as the Chairman time for comparable projects . The statute creates a pro- [of CEQ] deems relevant ”. This language is certainly cess for computing and then continuously updating these broad enough to encompass renewable energy projects . average completion times . It is unclear why this Executive Order did not reference The new law further requires that the FAST Act . However, the Executive Order signifies President Trump’s commitment to expediting project [e]ach performance schedule shall specify that any deci- approval . It is unclear whether renewable projects will sion by an agency on an environmental review or authori- benefit from this commitment, or whether the FAST Act zation must be issued not later than 180 days after the date will be utilized effectively . However, the FAST Act cre- on which all information needed to complete the review or ates a statutory basis for expediting approvals . authorization (including any hearing that an agency holds on the matter) is in the possession of the applicant 126. Recommendations: Federal agencies should structure their Furthermore, “[e]ach Federal agency shall conform to reviews of new wind and solar capacity so that they can be the completion dates set forth in the permitting timeta- completed as quickly as is reasonably possible . As noted at ble established . . ”. by the council 127. FAST stops short of the beginning of this Article, in order to meet the DDPP allowing default approvals when agencies miss final dead- targets, the amount of new wind and solar capacity that lines . Nevertheless, it may give project sponsors a basis for will need to be added each year must be an order of mag- seeking judicial relief for delayed permit decisions . Each nitude higher than what has been achieved in prior years . covered project will have a lead agency, which will estab- Even with an expedited NEPA process of the sort intended lish a plan for coordinating public and agency participa- by FAST, reviewing and approving all these new facilities tion in any required federal environmental review, and set could swamp the ability of the regulatory agencies to han- a permitting timetable, which may only be modified under dle such a volume . Two approaches are readily apparent . limited circumstances . There are also constraints on how The first is to increase staffing at the agencies . Given the long the review date may be extended . difficulty in increasing government budgets, it has become increasingly common for agencies to allow or require appli-

122 . Pub . L . No . 114-94, §41001(6)(A) . 128 . Permitting Dashboard, FPISC Announces FAST-41 Covered Projects, https:// 123 . Id . www .permits .performance .gov/about/news/executive-director-announces- 124 . Id . §41002(c)(1)(C)(i) . fast-41-covered-projects (last updated Mar . 11, 2017) . 125 . Id . §41002(c)(1)(C)(ii)(I) . 129 . Permitting Dashboard, Projects, https://www .permits .performance .gov/ 126 . Id . §41002(c)(1)(C)(ii)(II)(cc) . projects (last visited May 1, 2017) . 127 . Id . §41003(c)(2)(F)(i) . 130 . Exec . Order No . 13766, 82 Fed . Reg . 8657 (Jan . 30, 2017) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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cants to help pay for the costs of review, often through the Along similar lines, several cities (most prominently use of higher permit application fees, enabling more staff or Chicago and San Francisco) offer projects that meet cer- contractors to be hired to perform these tasks . (For exam- tain environmental standards expedited review, reduced ple, DOI already arranges for applicants to pay for certain permit fees, and other benefits 135. Likewise, agencies could review work ). This of course leads to concerns over whether grant review preference to renewable projects that met the reviews are completely independent . These problems are specified conditions . reduced if the funds go into general agency coffers rather The federal government should vigorously imple- than being used to hire personnel to look at specific proj- ment the new FAST provisions to achieve the expedited ects 131. These additional personnel resources could assist review of renewable energy projects . One element would with the full range of permitting issues—not only those be the imposition of time limits on reviews under NEPA, under NEPA . It will be important to ensure that the agencies the ESA, and the Outer Continental Shelf Lands Act for retain control of the review work to minimize the chances of renewable projects 136. applicant capture . It is also important not to further reduce Federal agencies with permitting or review roles should the staffing levels of the federal review agencies . be required—perhaps through an amendment to CEQ’s The second approach is to require fewer project-specific NEPA regulations—to address their issues on the front- EIS by, for example, the more strategic use of program- end of the process, before projects are set in stone and matic EIS . As discussed above, BLM’s Western Solar Plan, before the scoping of an EIS . Too often, this now happens and BOEM’s designation of wind energy areas, both suc- much later in the process 137. cessfully utilized programmatic EIS to consider impacts of The CEQ NEPA regulations should require agencies to similar projects over a broad geographic area . consider the positive as well as the negative environmental Another way to reduce the number of EIS is to allow impacts of proposed actions when making decisions after more projects to obtain approvals with a lower degree of environmental review; this is not always done now . The environmental review . There are three levels of NEPA positive impacts of renewable energy projects can include review: categorical exclusions (meaning that projects are of reduced fossil fuel use . a type or size that have been previously determined not to have a significant environmental impact, and therefore V. State and Local Approvals not needing further environmental review); environmental assessments, which are shorter than EIS, leading to a find- Many central station renewable projects require federal ing of no significant impact (FONSI); and full EIS . Of approvals, but all require state approvals and some also all actions subject to NEPA, about 95% receive categorical need local approvals . Some states and localities have been exclusions; about 5% receive FONSIs; and fewer than 1% very hospitable to such projects; others have been less so . have EIS 132. This section discusses the obstacles that some states and A middle ground between a standard FONSI and a localities have posed to utility-scale projects, and how those full EIS is a “mitigated FONSI”—a finding that no EIS obstacles might be addressed . is required if certain specified actions are taken to miti- With respect to wind, as noted above, the leader by gate the project’s impacts . Courts have accepted mitigated far is Texas . As of December 2016, it had 20,321 MW FONSIs as compliant with NEPA 133. CEQ or project- of installed wind capacity, nearly triple the second state, approving agencies such as BLM or BOEM could amend Iowa, with 6,917 MW, and the third, Oklahoma, which their NEPA regulations to provide that a mitigated FONSI had 6,645 MW . The rest of the top 10 were California, is the preferred method for reviewing certain kinds of with 5,662 MW; Kansas, 4,451 MW; Illinois, 4,026 MW; renewable projects if specified types of mitigation measures Minnesota, 3,526 MW; Oregon, 3,163 MW; Washington, are undertaken and if the particular site does not pose spe- 3,075 MW; and Colorado, 3,026 MW 138. cial problems 134. As for solar, California is on top by a wide margin . As of December 2016, it had 18,296 MW of installed utility- 131 . See Jessica Owley, The Increasing of Environmental Permitting, scale solar capacity . Next were North Carolina, with 3,016 46 Akron L . Rev . 1091 (2013); Miriam Seifter, Rent-a-Regulator: Design MW; Arizona, 2,982 MW; Nevada, 2,191 MW; New Jer- and Innovation in Privatized Governmental Decisionmaking, 33 Ecology L .Q . 1091 (2006); Pat Ware, Hazardous Waste: Several States With Privatized sey, 1,991 MW; Utah, 1,489 MW; Massachusetts, 1,487 Programs Getting Speedier Cleanups at Lower Cost, Daily Env’t Rep . (BNA), Aug . 9, 2012, at B-1; Karen Young, Air Pollution: New Georgia Program Will Allow Companies to Pay Fees to Accelerate Air Permit Process, Daily Env’t J . 173 (2011) . Rep . (BNA), June 27, 2013, at A-4 . 135 . U .S . Green Building Council, Green Building Incentive Strategies (2010), 132 . GAO, supra note 114, at 7 . For an innovative legislative approach to http://www .slocounty .ca .gov/Assets/PL/Green+Building/Green+Building+ providing NEPA categorical exclusions to actions that meet certain Incentive+Strategies .pdf; City of Chicago, Green Permits, http://www . conditions, see Jamilee E . Holmstead, Looking a Gift Horse in the cityofchicago .org/city/en/depts/bldgs/provdrs/green_permit .html (last vis- Mouth: 2014 Farm Bill Insect and Disease Restoration Provisions—True ited May 1, 2017) . Gift or False Hope? (2015) (M .S . thesis, Utah State University), http:// 136 . Thaler, supra note 83, at 1143-46 . digitalcommons .usu .edu/cgi/viewcontent .cgi?article=5523&context=etd . 137 . David J . Hayes, Leaning on NEPA to Improve the Federal Permitting Process, 133 . City of Auburn v . United States, 154 F .3d 1025, 1033, 29 ELR 20096 (9th 45 ELR 10018 (Jan . 2015), available at http://www .eli .org/sites/default/ Cir . 1998) . files/docs/elrjan .pdf . 134 . See Trevor Salter, NEPA and Renewable Energy: Realizing the Most 138 . American Wind Energy Association, Wind Energy Facts at a Glance, http:// Environmental Benefit in the Quickest Time, 34 Environs Envtl . L . & Pol’y www .awea .org/wind-energy-facts-at-a-glance (last visited May 1, 2017) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10606 ENVIRONMENTAL LAW REPORTER 7-2017

MW; Georgia, 1,432 MW; Texas, 1,215 MW; and New and additional transmission may have to be built to handle York, 927 MW 139. this abundance of renewable energy . If Texas were a country, it would have the sixth larg- Moving to solar, if California were a country, it est wind-generating capacity in the world 140. The boom in would have the sixth largest generating capacity .143 It has wind was certainly not driven by concern nearly one-half of the total installed capacity for solar about climate change; oil and gas continues to be a domi- in the United States,144 and the amount of it has been nant industry 141. Rather, it stems from a combination of growing rapidly . California receives a great deal of sun- favorable economics, good planning, aggressive entrepre- light (insolation), and like everywhere, the costs of PV neurs, and the excellent wind resource enjoyed by much cells have been falling steeply . Unlike Texas, however, of the state . The deregulation of the state’s power sector California is the state that has most fervently supported in 1999 under then-Gov . George W . Bush and a Repub- (and acted upon) the fight against climate change, and lican legislature weakened the utilities and the growth of solar has been driven more by policy than introduced competition . The same year, Texas adopted by intrinsic economics . Californians tolerate relatively a renewable portfolio standard requiring 2,000 MW of high electric rates . new renewable energy capacity to be installed statewide California’s renewable portfolio standard has been an by 2009 . In 2005, the Texas Legislature raised the goal to important driver of the growth of solar; established in 5,880 MW by 2015 and included a target of 10,000 MW 2002, it rose from 20% (to be achieved by 2010) in 2006 by 2025 . The state reached the 10,000 MW target in 2010, to 33% (by 2020) in 2009 to 50% (by 2030) in October 15 years ahead of schedule 142. 2015 145. The growth of rooftop solar has been spurred by The federal production tax credit provided developers laws and the Million Solar Roofs Initiative 146. with an excellent incentive to build wind . Landowners More than 75,000 workers were employed in the solar were happy to receive income for the use of their land for industry in the state by the end of 2015 147. As of Septem- turbines and transmission lines, and counties and school ber 2016, California had 7,350 MW in major solar projects boards were pleased by the tax revenues . Everyone liked in operation and another 27,948 MW in construction or the lower electricity rates and the added jobs . Essential under development 148. to all of this was an action by the legislature in 2005 However, things have not gone as smoothly for central creating competitive renewable energy zones (CREZs)— station solar plants in California . Solar PV farms require a $6 9. billion undertaking, completed to 2014, to build permits from local governments, typically county plan- transmission lines that take the wind-generated power to ning commissions, whereas solar thermal plants must be market . It covers approximately 3,600 miles of right-of- approved by the California Energy Commission, which way and is designed to serve approximately 18,500 MW has jurisdiction over power plants that generate 50 MW of power . or more of electricity and also use heat to produce elec- CREZs are run by the Electric Reliability Council of tricity . All these projects must go through California’s Texas, the state’s grid operator . The availability of these little NEPA law, the California Environmental Quality lines led to competition to build many wind farms . Since Act (CEQA),149 and there is controversy over the extent to Texas is largely isolated electrically from the rest of the which CEQA has inhibited the growth of solar in Cali- country, its grid is not subject to regulation by FERC . fornia 150. In 2008, Gov . Arnold Schwarzenegger signed Without federal involvement (other than the subsidies), the Executive Order No . S-14-08, designed to expedite the Texas grid is not subject to NEPA, and Texas has no little NEPA law, so EIS are not needed . Offshore wind energy 143 . International Energy Agency, Trends 2015 in Photovoltaic and solar energy are also poised to expand rapidly in Texas, Applications 30, tbl . 3 (2015) . 144 . In the first quarter of 2016, there was 27 .5 GWdc in solar operating capacity in the United States (PV only) . GTM Research & Solar 139 . Solar Energy Industries Association, Top 10 Solar States, http://www .seia . Industries Association, U .S . Solar Market Insight 2016 Q2 org/research-resources/top-10-solar-states (last visited May 1, 2017) . Executive Summary 5 . 140 . It would be behind China, the United States, , India, and 145 . California Energy Commission, Renewables Portfolio Standard (RPS), http:// Spain, and ahead of the United Kingdom, Canada, France, Italy, and www .energy .ca .gov/portfolio/ (last visited May 1, 2017) . Brazil . Global Wind Energy Council, Global Wind Statistics 146 . Lindsey Hallock & Michelle Kinman, California’s Solar Success Story: 2015 (2016), available at http://www .gwec .net/wp-content/uploads/vip/ How the Million Solar Roofs Initiative Transformed the State’s Solar Energy GWEC-PRstats-2015_LR .pdf . Landscape, Env’t Cal ,. Apr . 2015 . 141 . This account is drawn from Warren Lasher, The Competitive Renewable 147 . Ivan Penn, California Solar Industry Job Growth Reaches Record Levels, L .A . Energy Zones Process, ERCOT, Aug . 11, 2014; Roger Real Drouin, How Times, Feb . 10, 2016 . Conservative Texas Took the Lead in U.S. Wind Power, Yale Env’t 360, Apr . 148 . Solar Energy Industries Association, Major Solar Projects in 9, 2015; The Texas Renewable Energy Industry, Texas Wide Open the United States Operating, Under Construction, or Under for Business (2014); Bill Spindle & Rebecca Smith, Which State Is a Development 2 (updated Sept . 14, 2016) . Big Renewable Energy Pioneer? Texas, Wall St . J ., Aug . 29, 2016; James 149 . Cal . Pub . Res . Code §§21000 et seq . Osborne, As Wind Boom Continues CREZ Capacity in Question, Dallas 150 . Sean Hecht, Anti-CEQA Lobbyists Turn to Empirical Analysis, but Are Morning News, Feb . 13, 2015; Mark Del Franco, Nearly Completed CREZ Their Conclusions Sound?, Legal , Sept . 28, 2015, http://legal- Lines Unlock Wind Congestion, N . Am . Windpower (undated) . See also planet .org/2015/09/28/anti-ceqa-lobbyists-turn-to-empirical-analysis-but- Kate Galbraith & Asher Price, The Great Texas Wind Rush: How are-their-conclusions-sound/; David Huard, What Is Really Causing Re- George Bush, Ann Richards, and a Bunch of Tinkerers Helped the newable Project Failures in California?, Envtl . Leader, May 17, 2011, Oil and Gas State Win the Race to Wind Power (2013) . http://www .environmentalleader .com/2011/05/17/what-is-really-causing- 142 . Spindle & Smith, supra note 141 . renewable-project-failures-in-california/ . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2017 NEWS & ANALYSIS 47 ELR 10607

permitting of renewable energy facilities by, among other ers have been willing to lease or sell their land for this pur- things, creating a more coordinated permitting process pose, though their neighbors are not always happy . for projects that must go through the California Energy It is important to distinguish between state attitudes Commission . However, one empirical study found that and local attitudes toward renewables siting . Most states these projects actually take twice as long to be approved have favored new renewables, but there are exceptions . as those that get county approval 151. Despite its abundant wind resource, Nebraska has not Some of these plants have faced considerable litiga- been especially hospitable to wind, partly due to resistance tion 152. As discussed below, the Ivanpah solar plant faced from its strong public power industry 158. Connecticut had a major difficulties due to the ESA . The county approvals moratorium on new wind projects from 2011 to 2014 while have become obstacles in some cases; in August 2016, the it developed regulations 159. Ohio adopted setback rules in San Bernardino County Board of Supervisors voted not to 2014 that have greatly impeded new wind development 160. approve the 287-MW Soda Mountain Solar Project, which However, these states are the exceptions . had been approved by BLM, but had drawn widespread On the other hand, many municipalities have opposed opposition because of its proximity to the Mojave National wind farms, mostly due to objections from the neighbors, Preserve and its potential impact on species habitat 153. and some have used their land use power to stop projects . Moreover, according to one study, Texas is moving ahead In 48 of the 50 states, local governments have significant of California in building renewable energy because Texas control over the siting of commercial-scale wind facilities, has been more stringent in enforcing its renewable portfo- and in 34 states, local governments have substantial auton- lio standard, gives a single administrator the power to run omy to regulate such facilities 161. The ability of states to the renewables program (as opposed to California’s more limit local control varies, depending largely on the degree decentralized system), and has done a much better job in of “home rule” that each state’s laws give its municipalities . building needed transmission 154. Several states have created siting councils to provide Some states other than Texas and California have begun one-stop (or at least few-stop) procedures for major new moving aggressively to increase their renewables capacity . energy facilities, including renewables; this can reduce As noted above, Iowa is second only to Texas in its installed the hurdles that project developers need to surmount, and wind capacity . This amount may soon increase consider- at a minimum could help ensure that reviews are con- ably; in August 2016, the Iowa Utilities Board approved a ducted simultaneously rather than sequentially . Some plan by MidAmerican Energy to erect 1,000 new turbines of these councils have the power under various circum- with a total capacity of 2,000 MW on several sites around stances to preempt local governments’ ability to block the state at an estimated cost of $3 6. billion 155. In June 2015, such facilities 162. (Other states’ siting councils, such as the Hawaii enacted a law requiring all electric power to come California Energy Commission, can only approve thermal from renewables by 2045 156. In August 2016, the New York electric plants ). Some states do not have siting councils, Public Service Commission approved the Clean Energy but nonetheless have statutes that preempt local control Standard supported by Governor Cuomo that requires over certain renewables 163. 50% renewable energy use by the power sector by 2030 . The absence of local laws specifically aimed at the sit- Most states that have wanted to greatly expand their ing of renewable facilities has also inhibited construc- onshore renewable energy capacity have been able to do tion in many places, and in some locations, there are laws so without great legal difficulty, and many states have specifically barring or inhibiting these facilities . Several established processes for approval of renewable facilities 157. organizations have prepared model wind or solar facility It is seldom necessary to invoke eminent domain for new renewable energy generating facilities, as enough landown- 158 . Allan M . Williams, The Winds of Change: How Nebraska Law Has Stalled the Development of Wind Energy and What Can Be Done to Spur Growth, 47 Creighton L . Rev . 477 (2013/2014) . 151 . Meaghan Mroz-Barrett, Utility Scale Solar Projects in California: An Initial 159 . Douglas E . Lamb & Clare M . Lewis, Connecticut’s Moratorium on Wind Survey 14 (2015) (M .C .R .P . thesis, California Polytechnic State University), Projects to End?, McGuireWoods LLP, May 1, 2014 . http://digitalcommons .calpoly .edu/cgi/viewcontent .cgi?article=2535&cont 160 . Dan Gearino, Amazon Official Criticizes Ohio’s Wind Standards in Testimony, ext=theses . Columbus Dispatch, May 19, 2016 . 152 . Laura Mulry, Green vs. Green: Litigation for and Against Solar Power in 161 . Environmental Law Institute, State Enabling Legislation for California, Climate L . Blog, Sabin Center for Climate Change L ., Commercial-Scale Wind Power Siting and the Local Government May 18, 2011, http://blogs .law columbia. .edu/climatechange/2011/05/18/ Role i (2011), available at https://www .eli .org/sites/default/files/eli-pubs/ green-vs-green-litigation-for-and-against-solar-power-in-california/ . d21-02 .pdf . 153 . Louis Sahagun, San Bernardino County Rejects a Controversial Solar Plant 162 . Among these are the Washington State Facility Site Evaluation Council; Proposed for the Mojave Desert, L .A . Times, Aug . 24, 2016; Scott Streater, the Oregon Energy Facility Siting Council; the New York State Board on Calif. County Rejects Massive BLM-Approved Project, Greenwire, Aug . 24, Electric Generation Siting and the Environment; Minnesota Public Utilities 2016 . Commission; the Connecticut Siting Council; the New Hampshire Site 154 . Maria C . Faconti, How Texas Overcame California as a Renewable State: A Evaluation Committee; the Vermont Public Service Board; and the Rhode Look at the Texan Renewable Energy Success, 14 Vt . J . Envtl . L . 411 (2013) . Island Facilities Siting Board . See K .K . DuVivier & Thomas Witt, NIMBY 155 . Iowa Utilities Board Approves Huge Wind Energy Project, Des Moines Reg ., to Nope—Or YESS?, 38 Cardozo L . Rev . 1453 (2017); Uma Outka, Aug . 29, 2016 . Intrastate Preemption in the Shifting Energy Sector, 86 U . Colo . L . Rev . 927 156 . H .B . No . 623 (2015) . (2015); Hannah Wiseman, Expanding Regional Renewable Governance, 35 157 . Jesse Heibel & Jocelyn Durkay, State Legislative Approaches to Wind Energy Harv . Envtl . L . Rev . 477 (2011) . Facility Siting, Nat’l Conf . of St . , Nov . 1, 2016, http:// 163 . Wis . Stat . Ann . §66 .0401; Minnesota Public Utilities Commission, www .ncsl .org/research/energy/state-wind-energy-siting .aspx . Siting Review Procedures (2008) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10608 ENVIRONMENTAL LAW REPORTER 7-2017 ordinances 164. DOE has posted a catalog of 406 local wind of Wealth ”. 172 Many towns look for “benefit sharing,” partic- energy ordinances 165. ularly payments (whether framed as or otherwise) . This Some commentators have suggested enactment of a fed- method has proven successful in the siting of many kinds eral statute that would allow for preemption of local vetoes of facilities, such as solid waste landfills, resource recovery of renewable energy projects 166. It is not clear if such pre- facilities, and transfer stations . Where the renewable energy emption is needed . As just noted, several states have pre- facilities are to be located in minority communities, pay- emptive power . Municipal disapproval of wind projects was ments from the developers into those communities could becoming a problem in New York,167 so in 2011, the state help reduce environmental justice concerns . amended the Public Service Law to allow the state siting Should local blockage become a major problem, a model board to preempt such disapprovals for projects of 25 MW for overcoming it is provided by the Telecommunications or greater,168 though smaller projects still face local law Act of 1996 173. In the face of major difficulties in siting obstacles 169. Iowa and Texas lack both preemptive power towers for the rapidly growing cellular telephone indus- and state siting councils, but they nonetheless have led the try, Congress adopted a statute that left substantive siting nation in siting new wind facilities . Some proposed facili- decisions primarily with local governments, but imposed ties have been blocked by local governments, but it is hard constraints on the approval process they could use . In to tell if this has emerged as a major obstacle to increasing particular, it prevented local governments from banning national wind and solar generating capacity by central sta- towers entirely, while still allowing localities to determine tion units . In other contexts, federal attempts to preempt where the towers would go . It imposed time limits on their state or local control over facility siting have backfired and deliberations; if those limits were exceeded, it created a have escalated opposition without actually leading to the federal cause of action allowing the applicants to sue the construction of new facilities 170. municipalities in federal district court to obtain a speedy decision . The municipalities were also required to set forth Recommendations: Many states do not have adequate laws detailed written explanations of any permit denials 174. The and procedures in place to review and approve large-scale one substantive restriction is that localities may not regu- renewable projects . Those states should emulate the states late towers “on the basis of the environmental effects of that do have such laws and procedures in place, such as radio frequency emissions to the extent that such facili- California, New York, Oregon, and Washington 171. The ties comply with [Federal Communications Commission] examples of Iowa and Texas show that special siting coun- regulations ”. 175 The statute has proven very successful and cils may not be essential in expanding construction of has supported a tremendous expansion of cellular tele- renewables, but their presence could certainly help smooth phone service 176. the way . Another potential model is the portion of the Energy A major factor in securing local acceptance is whether Policy Act of 2005 pertaining to the siting of liquefied municipalities and their residents see any benefit from the natural gas terminals 177. It preempts certain state powers, project . In some parts of the country, rental of land for wind gives special powers to FERC to coordinate federal reviews, turbines provides significant income . Business Week head- and expedites judicial review . However, the process has not lined one story “Wind Is the New Corn: In Some of the always gone smoothly, as states often resent preemption of Poorest Rural Areas in the U .S ,. Turbines Are a Fresh Source their powers and may find alternative methods of imped- ing projects 178. 164 . E.g., National Association of Regulatory Utility Commissioners, Following the lead of the Telecommunications Act and Wind Energy & Park Siting and Zoning Best Practices and Guidance the Energy Policy Act, a federal renewables statute could for States (2012), available at http://pubs .naruc .org/pub/539BA6EE- 2354-D714-5157-359DDD67CE7F; Sabin Center for Climate Change prohibit local governments from banning renewable energy Law, http://columbiaclimatelaw .com/resources/model-laws-and-protocols/ facilities, require local governments to make decisions in model-municipal-ordinances/ . See James M . McElfish Jr . & Sara Gersen, facility siting within a reasonable period of time, require Local Standards for Wind Power Siting: A Look at Model Ordinances, 41 ELR 10825 (Sept . 2011) . that the decisions be made in writing and supported by 165 . DOE, WINDExchange, http://apps2 .eere .energy .gov/wind/windexchange/ substantial evidence, and create a federal right-of-action policy/ordinances .asp (last updated Nov . 24, 2015) . for applicants to enforce these procedures 179. Most states 166 . E.g., Garrick B . Pursley & Hannah J . Wiseman, Local Energy, 90 Emory L .J . 877 (2011); Melanie McCammon, Environmental Perspectives on Siting Wind Farms: Is Greater Federal Control Warranted?, 17 N .Y .U . Envtl . L .J . 172 . Jennifer Oldham, Wind Is the New Corn, Bus . Wk ,. Oct . 16, 2016, at 16 . 1243 (2009) . See also Amy L . Stein, The Tipping Point of Federalism, 45 173 . 42 U .S .C . §332(c)(7) . Conn . L . Rev . 417 (2012) . 174 . T-Mobile S ., LLC v . City of Roswell, 135 S . Ct . 808 (2015) . 167 . See Ecogen, LLC v . Town of Italy, 438 F . Supp . 2d 149 (W .D .N .Y . 2006) 175 . 42 U .S .C . §332(c)(7)(B)(iv) . (upholding municipal moratorium on wind farms) . 176 . Ashira Pelman Ostrow, Process Preemption in Federal Siting Regimes, 48 168 . Michael B . Gerrard, New York’s Revived Power Plant Siting Law Preempts Harv . J . on Legis . 289 (2011) . Local Control, N .Y . L .J ., Sept . 8, 2011 . 177 . Energy Policy Act of 2005, Pub . L . No . 109-58, 119 Stat . 594, tit . III, 169 . Steve Orr, D&C Investigation: Big Solar Coming to NYS, Some Are amending Natural Gas Act, 15 U .S .C . §717-17w . Wary, Democrat & Chron ,. Nov . 22, 2016, http://www .democrat 178 . See Jacob Dweck et al ., Liquefied Natural Gas (LNG) Litigation After the andchronicle .com/story/news/2016/11/22/solar-power-energy-new-york- Energy Policy Act of 2005: State Powers in LNG Terminal Siting, 27 Energy upsate/92844228/ . L .J . 473 (2006); Kenneth T . Kristl, Renewable Energy and Preemption: 170 . Michael B . Gerrard, Whose Backyard, Whose Risk: Fear and Lessons From Siting LNG Terminals, 23 Nat . Resources & Env’t 58 (2009) . Fairness in Toxic and Nuclear Waste Siting (MIT Press 1994) . 179 . This concept is discussed in detail in Patricia E . Salkin & Ashira Pelman 171 . Thaler,supra note 83, at 1146-47 . Ostrow, Cooperative Federalism and Wind: A New Framework for Achieving Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2017 NEWS & ANALYSIS 47 ELR 10609

would also have the power to preempt local government equate analysis of species impacts; all of these were allowed bans . Whether the federal government or the states would to go back and prepare supplemental analysis 187. Similarly, be more inclined to adopt such provisions, of course, will the National Historic Preservation Act188 has sometimes largely depend on the federal and state at the par- proven to be a temporary obstacle, especially when Indian ticular time . tribes are involved 189. Several projects in North America have been cancelled VI. Species Protection Laws at least in part due to species issues, including the Palen solar project in California,190 a 177-MW wind project on a The federal ESA,180 the Migratory Bird Act rural area of Saskatchewan, Canada,191 and a wind project (MBTA) of 1918,181 and other statutes designed to protect at an Ohio National Guard base along Lake Erie (though species, especially birds, have become an impediment to this one may come back) 192. Others have been significantly some utility-scale renewable energy projects, both wind reduced in size 193. As discussed elsewhere in this Article, and solar . These laws serve extremely important func- species impacts were major issues for the Cape Wind tions in protecting biodiversity and other values, but ways project and the Ivanpah solar project . The American Bird must be found to reconcile them with the environmental Conservancy is opposing any and all wind projects in the imperative of building a large number of new renewable Great Lakes 194. energy facilities . Climate change itself will, of course, cause many spe- None of these species protection laws has a “green cies to go extinct; the warmer it gets, the more species pass”—an exemption for projects that confer other envi- will disappear 195. The Intergovernmental Panel on Cli- ronmental benefits 182. Wind turbines can kill birds and mate Change reports with “high confidence” that a “large bats; solar arrays can cover over the habitat of desert crea- fraction of species faces increased extinction risk due to tures; other adverse impacts can occur . This has led to climate change during and beyond the 21st century, espe- tension within the environmental movement between the cially as climate change interacts with other stressors ”. 196 efforts to fight climate change and to protect biodiver- One study found that more than one-third of North sity, especially given the scale of renewable energy con- American birds face extinction risk, and climate change struction that will be needed . By the time the ESA was and sea-level rise are among the main reasons 197. Another enacted in 1973, the United States had already built the study classified more than one-half (314 of 588) of North core of its massive national-scale infrastructure systems, including the interstate highway system, the Intracoastal 187 . Union Neighbors United Inc . v . Jewell, No . 15-5147, 46 ELR 20133 (D .C . Waterway, the oil and gas pipeline system, the electric Cir . Aug . 5, 2016); Public Employees for Envtl . Responsibility v . Hopper, power grid, and the major airports . When that infra- No . 14-5301 (D .C . Cir . July 5, 2016); Oregon Natural Desert Ass’n v . 183 Jewell, 823 F .3d 1258 (9th Cir . 2016); Bundorf v . Jewell, 142 F . Supp . 3d structure was built, rare creatures could be swept away . 1138, 45 ELR 20205 (D . Nev . 2015) . That is no longer so . 188 . 54 U .S .C . §§300101 et seq . These tensions have inevitably led to a large volume of 189 . Quechan Tribe of the Fort Yuma Indian Reservation v . U .S . Dep’t of the Interior, 755 F . Supp . 2d 1104 (S .D . Cal . 2010) (granting preliminary litigation . Most of the suits challenging renewable projects injunction against solar project due to failure to consult with Indian tribe, because of their species impacts have failed,184 but these in violation of National Historic Preservation Act) . claims do provide project opponents with legal and politi- 190 . End of the Line for the Palen Solar Project, KCET, Feb . 11, 2016; Sammy Roth, Palen Solar Project Near Joshua Tree on Life Support, Desert Sun, Dec . cal ammunition . There appears to have been only one deci- 10, 2015 . sion halting a project because of a violation of the ESA . 191 . Press Release, Government of Saskatchewan, Wind Energy Project Denied That concerned a wind farm in West Virginia that had to Protect Migratory Birds (Sept . 19, 2016) . 192 . John Seewer, Birders Win Halt to National Guard Wind Turbine, Columbus failed to obtain an incidental take permit (a requirement Dispatch, Feb . 9, 2014 . discussed below) for its impact on the endangered Indiana 193 . BLM, Silver State South Project and Las Vegas Field Office Re- bat 185. That project later obtained the needed permit and source Management Plan Amendment, Record of Decision (2014); 186 BLM, Notice of Availability of the Record of Decision for the Final Envi- went forward, though with some restrictions . Several ronmental Impact Statement and the Proposed Resource Management Plan other projects were found to violate NEPA because of inad- Amendment for the Silver State Solar South Project, Clark County, NV, 79 Fed . Reg . 9921 (Feb . 21, 2014), available at https://www .gpo .gov/fdsys/ pkg/FR-2014-02-21/pdf/2014-03685 .pdf . (solar project reduced from 350 Sustainability, 37 Hofstra L . Rev . 1049 (2009) . MW to 250 MW, largely due to concerns about desert tortoise); Julie Cart, 180 . 16 U .S .C . §§1531 et seq . BrightSource Energy Has Spent $56 Million So Far to Protect the Threatened 181 . Id . §§703 et seq . Creatures, but Calamities Have Befallen the Effort, L .A . Times, Mar . 4, 2012 182 . J .B . Ruhl, Harmonizing Commercial Wind Power and the Endangered Species (Ivanpah solar project) . Act Through Administrative Reform, 65 Vand . L . Rev . 1769, 1773 (2012) . 194 . Press Release, American Bird Conservancy, Wind Turbines on the Great 183 . Id . at 1774 . Lakes Threaten Migratory Birds (Aug . 5, 2016) . See also Hannah Treppa, 184 . John Copeland Nagle, Green Harms of Green Projects, 27 Notre Dame Not a Huge Fan: Deterring the Implementation of Wind Turbines in the Great J .L . Ethics & Pub . Pol’y 59 (2013); Lisa Wing Stone & Sara Zdeb, Lakes, 93 U . Det . Mercy L . Rev . 321 (2016) . Lessons Learned From Wind Farm Litigation, Envtl . Litig . & Toxic 195 . Mark C . Urban, Accelerating Extinction Risk From Climate Change, 348 Committee Newsl . (American Bar Association), Mar . 2009, at 2 . See also Science 571 (2015) . Renewable Energy Project Challenges—Snapshot of the Litigation Landscape, 196 . Intergovernmental Panel on Climate Change, Climate Change The Lawyer, Nov . 15, 2012 . 2014 Synthesis Report Summary for Policymakers 13 . 185 . Animal Welfare Inst . v . Beech Ridge Energy L .L .C ., 675 F . Supp . 2d 540, 39 197 . North American Bird Conservation Initiative, The State of North ELR 20278 (D . Md . 2009) . America’s Birds 2016, available at http://www .stateofthebirds .org/2016/ 186 . Gordon Smith, Birds and Bats and Blades, Envtl . F ., May/June 2015, at 36 . wp-content/uploads/2016/05/SoNAB-ENGLISH-web .pdf . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10610 ENVIRONMENTAL LAW REPORTER 7-2017

American bird species as climate-endangered or -threat- to secure expeditious ESA compliance ”. 206 FWS’ first sig- ened in this century 198. nificant step to help wind developers understand what is The impacts of wind turbines are negligible compared expected of them came in 2003, with issuance of the Interim to other sources of bird mortality . Far more birds are killed Guidelines to Avoid and Minimize Wildlife Impacts on by collisions with buildings and communication towers, Wind Turbines . In 2012, these were superseded by a much attacks from cats, and poisoning from pesticides 199. One more detailed set of land-based wind energy guidelines, study attempted to look at the life cycles of various power which were developed in close consultation with the wind sources (including coal and uranium mining, fossil fuel industry .207 Some progress has been made in accelerating combustion, etc ). and found that wind farms are respon- the process . sible for roughly 0 .27 avian fatalities per gigawatt-hour In order to cope with the cumbersome process of pre- (GWh) of electricity, while nuclear power plants involve paring plans, and the need to consider 0 6. fatalities per GWh and fossil fuel-fired power stations the cumulative impacts of multiple projects in the same are responsible for about 9 4. fatalities per GWh .200 area, FWS has been employing regional habitat conser- Several portions of the ESA have direct bearing on vation plans, which allow the environmental assessment the construction of renewable energy projects . Section 4 and wildlife permitting process to occur once for multiple requires species to be listed as endangered or threatened species over a large geographic area, merging the NEPA based on “the best scientific and commercial data available” and ESA processes . FWS began with three of these .208 The about the threats posed to their existence, without regard Desert Renewable Energy Conservation Plan (for southern to the consequences of listing .201 Section 7 requires that all California) has already been discussed . The Upper Great federal agencies “shall . . . insure that any action autho- Plains Wind Energy Plan, covering Iowa, Minnesota, rized, funded or carried out by such agency . . . is not likely Montana, Nebraska, North Dakota, and South Dakota, to jeopardize the continued existence of any endangered was finalized in July 2016 . It overlaps with the Midwest species or threatened species ”. 202 Section 9 provides that Wind Energy Multi-Species Habitat Conservation Plan, no one—including private parties—may “take” (defined which concerns Illinois, Indiana, Iowa, Michigan, Min- to mean “harass, harm, pursue, hunt, shoot, wound, kill, nesota, Missouri, Ohio, and Wisconsin . The draft of that trap, capture, or collect”)203 any such species without a per- plan was released on April 15, 2016, and the comment mit .204 Under §10, a permit to modify habitat in a way that period closed on July 14, 2016 . may “take” protected species may be issued only if the tak- These measures should greatly ease the process of build- ing is “incidental” (i e. ,. not the purpose of the activity) and ing major wind projects . Each project can rely on the the applicant submits a habitat conservation plan .205 regional habitat conservation plan and programmatic EIS, All central station wind and solar projects fall under and focus just on site-specific issues . Another measure that §9, and unless they involve no onshore or offshore federal has been found to speed the process is the use of program- land or approvals, they will also invoke §7 . Some may also matic biological opinions, in which FWS examines mul- involve state laws such as the California Endangered Spe- tiple similar actions or different actions proposed to occur cies Act . within the same area .209 Section 7 is set up to deal with one species at a time, and Private governance is also playing a role . In 2008, the §9 one project at a time . Preparing a habitat conservation American Wind Wildlife Institute, a partnership among plan under §10, with all the required consultations and the wind industry, scientific community, and conservation studies, can take several years and require considerable staff organizations, was formed to foster research and develop time at FWS (the chief agency implementing the ESA) and tools to promote timely and responsible wind energy devel- elsewhere . That becomes a real obstacle for a plan to build opment that minimizes impacts to wildlife and wildlife a large number of big renewable energy projects in a fairly habitat . To address specific concerns about bats, the Bat short period of time . Wind Energy Cooperative, a collaboration of the wind ProfJ . B. . Ruhl, a leading authority on the ESA, wrote industry, Bat Conservation International, and DOE, was in 2012, “[A]fter almost ten years of policy development, formed in 2003 and has developed various mitigation permitting, and litigation, there is still no comprehen- strategies .210 The Nature Conservancy has created the Bio- sive, tested, reliable template for commercial wind power diversity and Wind Siting Mapping Tool for New York State to help wind developers avoid areas with particular ecological vulnerability . 198 . National Audubon Society, Audubon’s Birds and Climate Change Report 6 (2015), available at http://climate .audubon .org/sites/default/ files/NAS_EXTBIRD_V1 .3_9 .2 .15%20lb .pdf . 206 . Ruhl, supra note 182, at 1788 . 199 . Benjamin K . Sovacool, The Avian and Wildlife Costs of Fossil Fuels and 207 . Id . at 1778-79 . Nuclear Power, 9 J . Integrative Envtl . Sci . 255, 263 (2012) . 208 . Id . at 1783 . 200 . Id . 209 . Melinda Taylor et al ., Protecting Species or Hindering Energy Development? 201 . 16 U .S .C . §1533(b)(1) . How the Endangered Species Act Impacts Energy Projects on Western Public 202 . Id . §1536(a)(2) . Lands, 46 ELR 10924 (Nov . 2016) . 203 . Id . §1532(19) . 210 . Taber D . Allison et al ., Thinking Globally and Siting Locally—Renewable 204 . Id . §1538(a)(1)(B) . Energy and Biodiversity in a Rapidly Warming World, 126 Climatic Change 205 . Id . §1539(a)(2) . 1, 4 (2014) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

7-2017 NEWS & ANALYSIS 47 ELR 10611

Some scholars are resisting the idea of speeding up the As this is written in June 2017, a technical solution approval process for large wind projects . They argue that has not been announced, and the regulatory implications the ecological risks and uncertainties are still too great, that remain unclear .214 Also unclear is the future of concentrat- the processes should go more slowly while better informa- ing solar power—partly because of the Ivanpah experience, tion is developed, and that more focus should be devoted to and more importantly because of the plummeting cost of installing PV on rooftops, disturbed lands, and other less PV cells, and their lower water . environmentally sensitive sites .211 However, it is difficult to When species impacts are anticipated (even if very reconcile these recommendations with the extraordinary imperfectly, as with Ivanpah), the first preference is to pace of construction required under the DDPP scenarios . avoid or at least reduce them, and to the extent that It is unquestionable that many uncertainties do exist . some remain, mitigate them, which often involves find- This is illustrated by the Ivanpah Solar Electric Generating ing substitute habitat . This is a tricky process, in part System, the largest concentrating solar plant in the world . because of the scientific uncertainty about how various It is located on 3,500 acres of BLM land in San Bernardino species will be affected, and whether and how long they County, California, near the Nevada border .212 The private would thrive in other locations, especially in a changing developer, BrightSource Energy, Inc ,. first filed its applica- climate . DOI is trying to inject these issues into early tion in 2007 . It obtained a series of state and federal approv- project planning and to strengthen the scientific basis for als, broke ground in 2010, and began generating power decisionmaking .215 in 2014 . It consists of three 459-foot thermal collection In addition to the ESA, two other federal statutes towers, each surrounded by a field of mirrors—more than contribute to challenges in siting utility-scale renewable 173,500 in all—that direct to the towers . Boil- energy facilities . The first is the Migratory Bird Treaty ers in the towers produce steam that drives conventional Act (MBTA),216 which makes it a criminal offense to kill a turbines that generate electricity, with a total capacity of migratory bird “by any means, or in any manner ”. In 2001, 377 MW . Much of the attention during the environmental President Bill Clinton signed an Executive Order clarify- review went to an endangered species, the desert tortoise . ing that this applies to unintentional as well as intentional Initial studies assumed that up to 38 tortoises lived on the killing .217 The MBTA currently covers more than 1,000 project site and would need to be relocated during con- bird species . In two instances, wind facility operators were struction . However, once construction began, it became charged with violating this law . In 2013, Duke Energy clear that far more tortoises lived there . Construction Renewables, Inc . was prosecuted for the deaths of 14 golden stopped while FWS prepared a new biological opinion and eagles and 149 other protected birds at two wind projects in issued a new incidental take permit . Numerous measures Wyoming . In 2014, PacifiCorp Energy was charged in the to minimize and monitor impacts were adopted . The proj- deaths of 38 golden eagles and 336 migratory birds at other ect also needed to acquire and permanently preserve more facilities in Wyoming . Both companies pled guilty, paid than 7,000 acres of off-site habitat for desert tortoises and substantial fines, and agreed to costly compliance plans . It other species . appears that neither company followed FWS guidance that After the plant opened, an unanticipated phenomenon was in effect at the time .218 occurred . In the words of Morgan Walton: These prosecutions have led to some anxiety in the wind industry . However, there is a solution . The MBTA gives the [L]ocal observers noticed “smoke plume[s]” in the air when Secretary of the Interior the authority to issue incidental birds flew through the concentrated sun rays reflected off take permits, but unlike for the ESA or the eagle law (dis- of the mirrors . The workers called these birds “streamers” cussed below), the secretary has not established procedures for the image they created as the animals spontaneously to issue such permits under the MBTA . Thus, wind farm ignited in midair and hurtled to the ground in a smoking, operators cannot be sure that they are operating legally if smoldering ball . These deaths are not isolated incidents birds die in their turbines, and they can be somewhat but where only a few stray birds—reports estimate that over not absolutely certain that they will not be prosecuted if 3,500 birds have experienced a similar fate during the they follow the guidelines . As several commentators have plant’s first year, although the exact number is a subject already urged, the secretary should use this authority and of debate .213 promulgate regulations for the issuance of incidental take

214 . Louis Sahagun, This Mojave Desert Solar Plant Kills 6,000 Birds a Year. Here’s 211 . Amy Wilson Morris & Jessica Owley, Mitigating the Impacts of the Renewable Why That Won’t Change Any Time Soon, L .A . Times, Sept . 2, 2016 . Energy Gold Rush, 15 Minn . J .L . Sci . & Tech . 293 (2014); Kalyani 215 . Hayes, supra note 54; FWS, Endangered and Threatened Wildlife and Robbins, Responsible, Renewable, and Redesigned: How the Renewable Energy Plants: Endangered Species Act Compensatory Mitigation Policy, 81 Fed . Movement Can Make With the Endangered Species Act, 15 Minn . J .L . Reg . 95316 (Dec . 27, 2016); Morris & Owley, supra note 211 . Sci . & Tech . 555 (2014) . 216 . 16 U .S .C . §§703-712 . 212 . This account is drawn from Morris & Owley, supra note 211; Morgan 217 . Exec . Order No . 13186, 66 Fed . Reg . 3853 (Jan . 17, 2001), Responsibilities Walton, A Lesson From Icarus: How the Mandate for Rapid Solar Development of Federal Agencies to Protect Migratory Birds . Has Singed a Few Feathers, 40 Vt . L . Rev . 131 (2015); and BrightSource, 218 . Cassie Tigue, Wind Energy Development and Protection of Wildlife: Creating Ivanpah Solar Electric Generating System (2014), available at http:// a Balance Between Two Competing Interests, 45 Tex . Envtl . L .J . 223 (2015); www .brightsourceenergy .com/stuff/contentmgr/files/0/3eac1a9fed7f13fe40 Smith, supra note 186, at 36; Alan Kovski, Cooperative Efforts Encouraged 06aaab8c088277/attachment/ivanpah_white_paper_0414 .pdf . to Reduce Risk of Wind Farm Bird Deaths, Legal Action, Daily Env’t Rep . 213 . Walton, supra note 212, at 132 (citations omitted) . (BNA), Dec . 3, 2013, at A-9 . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10612 ENVIRONMENTAL LAW REPORTER 7-2017 permits under the MBTA, coupled with whatever require- 4 . FWS should consider the positive environmental ments are necessary to minimize bird deaths .219 impact of renewable energy in granting mitigation The other relevant statute is the Bald and Golden Eagle credit under the §10 process,225 and all federal agen- Protection Act of 1940 .220 It bars the taking of either of cies should consider these positive impacts in mak- these kinds of birds, but it allows FWS to issue permits for ing decisions under NEPA . such taking . In 2009, FWS issued regulations authorizing These are additional specific actions that should be issuance of permits for the taking of eagles . These permits taken: would have a maximum term of five years . In 2013, partly to encourage new wind farms, FWS amended its regula- 1 . FWS should use its existing authority to issue tions to extend the maximum term of permits to 30 years . incidental take permits under the MBTA so that Conservation groups were unhappy with this extension, renewable project operators do not face criminal and they sued . In 2015, a court invalidated the rule because prosecution if they take required precautions but FWS had not complied with NEPA in promulgating it; nonetheless some birds die . FWS should have prepared an environmental assessment 2 . The president should issue an Executive Order, or or an EIS .221 FWS then went back, prepared a program- the Secretary of the Interior should issue a depart- matic EIS, and in December 2016, it published a final rule mental order, imposing time limitations (subject to that extended the permit term to 30 years and also added limited extensions for good cause) for the ESA §10 more stringent conservation standards and more flexible incidental take permit process and consider other mitigation requirements for permits .222 ways to make the process more efficient . Recommendations: Professor Ruhl has made the following 3 . FWS should expand types of compensatory mitiga- sensible recommendations for improving the ESA process tion allowed for renewable energy project impacts for the review of renewable projects223: on wildlife . Some examples of compensation for offshore wind projects, for example, could include 1 . FWS should enhance species impact databases protecting or expanding existing breeding habitat, and standardized metrics for take assessment . such as seabird nesting islands; reducing mortality This would ease the process of evaluating projects’ of adults of long-lived species, such as in marine impacts on species . mammal boat collisions or fisheries bycatch (birds, 2 . After appropriate review, FWS should consider sea turtle, nontarget vulnerable fish species); and endorsing the work product of outside entities, such controlling pollutants, such as mercury, that reduce as the landscape assessment tool produced by the reproductive success .226 American Wind and Wildlife Institute . This would 4 . FWS and the U .S . Department of Justice should provide greater clarity and specificity to all par- negotiate agreements with project applicants mak- ties—government agencies, applicants, and envi- ing clear that no enforcement actions will be taken ronmental groups—in assessing project impacts against any renewable projects that fulfill specified and identifying optimal siting . protective measures .227 3 . FWS could develop standard methodologies for 5 . FWS, the scientific community, and the wind mitigation of harms from particular kinds of utility- industry should continue to develop techniques to scale projects, drawing from a wide set of mitigation reduce bird and bat mortality from wind turbines . options and recipes including habitat conservation The most prominent techniques so far involve banks and payment formulae .224 at https://www-cdn .law .stanford .edu/wp-content/uploads/2015/04/WH- 219 . Robert J . Martin & Rob Ballard, Reconciling the Migratory Bird Treaty Act Comments-Final1-Permitting .pdf . With Expanding Wind Energy to Keep Big Wheels Turning and Endangered 225 . Several provisions in ESA §10 could provide support for this measure . These Birds Flying, 20 Animal L . 145 (2013); Krisztina Nadasdy, Killing Two Birds include the requirement that “the impact which will likely result from such With One Stone: How an Incidental Take Permit Program Under the MBTA taking” (§10(a)(2)(A)(i)) be considered, which does not limit consideration Can Help Companies and Migratory Birds, 41 B .C . Envtl . Aff . L . Rev . 167 to local and immediate as opposed to global and cumulative impacts; that (2014) . “alternative actions to such taking” (§10(a)(2)(A)(iii)) be considered, which 220 . 16 U .S .C . §§668-668d . should allow a broad review of the methods of reducing emissions from the 221 . Shearwater v . Ashe, No . 14-CV-02830-LHK, 45 ELR 20151 (N .D . Cal . energy sector; and the necessary finding that “the taking will not appreciably Aug . 11, 2015) . reduce the likelihood of the survival and recovery of the species in the wild” 222 . FWS, Eagle Permits; Revisions to Regulations for Eagle Incidental Take and (§10(a)(2)(B)(iv)), which could also allow consideration of large-scale Take of Eagle Nests, 81 Fed . Reg . 91494 (Dec . 16, 2016); S . Keith Garner, impacts of renewable energy . FWS Proposes, Again, to Issue 30-Year Eagle Act Permits, Law360, June 21, 226 . M . Wing Goodale & Anita Milman, Cumulative Adverse Effects of Offshore 2016; Ankur K . Tohan et al ., Eagle Take Permit Program Revamped—Longer Wind Energy Development on Wildlife, 59 J . Envtl . Plan . & Mgmt . 1, 12 Permits and Clearer Mitigation Requirements, K&L Gates, May 23, 2016 . (2016) . 223 . Ruhl, supra note 182, at 1796-98 . 227 . FWS did this in 2014 with EDF Renewable Energy . Andrew Bell, A 224 . See Elinor Benami et al ., Stanford Law School, Comments and New Approach by USFWS Over Wind Energy Avian Issues, Marten L ., Recommendations for the Steering Committee on Federal Jan . 21, 2016 . See also The Edison Electric Institute’s Avian Power Infrastructure Permitting and Review Process Improvement and Line Interaction Committee & FWS, Avian Protection Plan (APP) the President’s Chief Performance Officer, Director of OIRA, and Guidelines (2005), available at http://www .aplic .org/uploads/files/2634/ Chair of the Council on Environmental Quality (2013), available APPguidelines_final-draft_Aprl2005 .pdf . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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reducing turbine speed; turning them on only when broader use of wind and solar power . Several techniques wind speed is above a certain level; and turning are being developed to solve this problem . All manner of them off during migration periods . Research should storage technologies are being developed and improved also continue on new technologies such as vertical- so that electricity generated during off-peak times can be axis turbines (which spin around a central axis like a used during peaks . Demand-response programs can lower top), and ultrasonic acoustic systems and ultraviolet demand during traditional peak times . Improved transmis- lights that deter bats . Use of some of these tech- sion lines and “smart grid” techniques allow electricity to niques and technologies will presumably come to be be furnished from more distant locations where, for exam- required by the permits for wind facilities . ple, the wind may be blowing . Information technologies allow better balancing of supply and demand, especially In view of the serious obstacles that the ESA has posed over large areas, calling on various resources to take up the to renewable projects, should the day come when we have slack left by a lack of wind or sun . New meteorological a Congress that wants to preserve the ESA’s essential values techniques can improve wind prediction, allowing adjust- but wishes to promote aggressive construction of renew- ments to be made in advance . If all else fails, the power able facilities, it should consider creating an easier path lost because of darkness or still winds can be made up by under §§7 and 10 for renewable projects that have met cer- backup fossil fuel generators, ideally with carbon capture tain tightly defined conditions, such as thorough habitat and sequestration (CCS) .229 studies, adoption of all reasonable mitigation measures, and utilization of any available technologies and tech- B. Subsidies and Incentives niques to minimize impacts . This might include special provisions reducing the impediments to renewables caused Between 2008 and 2015, the average cost of build- by certain species, such as the Indiana bat . As Taber D . ing capacity for land-based wind in the United States Allison and colleagues have written: “We argue the need decreased by 41%, that of distributed PV by 54%, and to accept some and perhaps substantial risk of impacts to that of utility-scale PV by 64% .230 Though the plummet- wildlife from renewable energy development in order to ing costs of renewables, especially PV, are changing the limit the far greater risks to biodiversity loss owing to cli- situation, renewables have typically been more expensive mate change ”. 228 than conventional fossil fuel sources, and subsidies or other incentives or requirements are necessary to induce the con- VII. Needed Complementary Actions struction of new renewable capacity . Once built, however, renewables benefit from the absence of fuel costs and of This Article has discussed the legal obstacles to the con- their attendant volatility . struction of large numbers of central station wind and solar generating facilities, focusing on the facilities themselves . C. Land Allocation However, many other actions must take place in order for this to happen . The impacts of climate change, and efforts to fight it, will lead to several massive demands for land in addition to the A. Grid Connection and Integration siting of large wind and solar projects and associated trans- mission lines: As already noted several times, central station generators must be connected to the load they serve . This may involve • The growing of crops as a substitute for running new power lines shorter or longer distances to fossil fuels . the nearest suitable grid connection, and it may require • The growing of crops for bioenergy CCS as a way of upgrading the existing lines to handle the electricity sup- removing carbon dioxide from the air . plied by the new renewable energy source . It is not just a matter of plugging wires into the exist- • The loss of habitable or due to sea-level ing grid . The grid is a complex, finely tuned instrument, rise and , and the relocation of activities from and its proprietors (in many parts of the country, these that land to other locations . are regional transmission operators or independent system • The set-aside of large areas of land, as some have operators) require a close examination to make sure the proposed, for habitat for species that are threatened new inflow of electrons will not disrupt the system . The grid operators often have long queues of potential generat- 229 . For additional information on the challenges of integrating renewables ing units seeking access, and it can take many months and into the grid, see International Energy Agency & Clean Energy extensive studies to gain interconnection approval . Ministerial, Next Generation Wind and Solar Power: From Cost to This is greatly complicated by the fact that the wind Value (2016) [hereinafter Next Generation Wind and Solar Power] . 230 . DOE, Revolution . . . Now: The Future Arrives for Five Clean Energy does not always blow and the sun does not always shine . Technologies—2016 Update 1 (2016) . See also Next Generation Wind This intermittency is one of the major impediments to and Solar Power, supra note 229, at 6; Mark Bolinger & Joachim Seel, Lawrence Berkeley National Laboratory, Utility-Scale Solar 2015: An Empirical Analysis of Project Cost, Performance, and Pricing 228 . Allison et al ., supra note 210, at 1 . Trends in the United States (2016) . Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

by climate change and all manner of other human- energy per unit of energy produced, though much less caused threats .231 than biofuels .236 Prof . Uma Outka has identified five policy objectives On top of this are globally massive demands for for addressing and reducing the cumulative impacts of the land to grow food for rising populations, and espe- demands for land created by renewable energy .237 All five, cially land to grow feed for animals to be consumed by listed in her order of priority, are: the increasingly affluent residents of some developing countries, chiefly China . This is leading to many large- 1 . Avoid new infrastructure/new land impacts (which scale land acquisitions .232 can be advanced by energy-efficiency measures that Some land can simultaneously be used for several pur- reduce the need for new energy infrastructure) . poses . For example, the piers for wind turbines occupy very 2 . Reuse land that has already been developed or oth- little land, and farming can continue below and around erwise disturbed . the turbines . As discussed below, solar panels can be put on buildings and on contaminated and otherwise unusable 3 . Maximize land-efficient onsite and local energy land . However, solar farms in a desert occupy most of the potential . land under their large footprints . 4 . Identify early the least-harm sites for energy proj- No procedure or institution is in place, either domes- ects and strengthen mitigation measures for facili- tically or globally, to balance these competing uses for ties we need . large quantities of land . The federal government employs a variety of management approaches to address compet- 5 . Link transmission planning and renewable energy ing use demands for its large landholdings, with mixed policy more closely . results .233 In December 2016, BLM adopted what it called the Planning 2 0. rule to facilitate large-scale planning of VIII. Conclusion its immense landholdings in the western states,234 but in March 2017, President Trump signed a bill adopted under The task of building the enormous number of new util- the Congressional Review Act repealing this rule .235 With ity-scale renewable energy facilities required to meet the the exception of the western states, however, states, local DDPP goals is daunting indeed . It will require strong governments, and private parties are the principal land- and unyielding commitment by the federal government owners and there are few resources or inclinations by those and the states, and willingness to recognize the tradeoffs entities to look more broadly at regional or national needs involved in selectively relaxing some cherished regulatory for land . We have an ungoverned patchwork that is not restrictions on new construction that have been shown to well-suited to deal with the unfortunate fact that wind and interfere with the construction efforts that are essential to solar require much more land than fossil fuel or nuclear prevent the worst impacts of climate change .

231 . See Edward O . Wilson, Half-Earth: Our Planet’s Fight for Life (2016) . 232 . Suzanne Verhoog, The Global Land Rush Revisited—A Brief Analysis Based on Data From the Land Matrix in Current Dynamic and Complex Climate & 236 . Robert I . McDonald et al ., Energy Sprawl or Energy Efficiency: Climate Policy Land Governance Discourse (2016) . Impacts on Natural Habitat for the United States of America, 4 PLoS ONE 1 233 . See Hayes, supra note 37, at 40 . (2009); David Malakoff, New Energy Facilities Will Leave Massive Footprint 234 . 81 Fed . Reg . 89580 (Dec . 12, 2016), adopting 40 C .F .R . pt . 1600 . on U.S., Study Concludes, Sci . Insider, July 18, 2014 . 235 . Kellie Lunney, Trump Signs Resolution Repealing BLM Planning 2.0 Rule, 237 . Uma Outka, The Renewable Energy Footprint, 30 Stan . Envtl . L .J . 241, E&E News, Mar . 27, 2017 . 297 (2011) .

47 ELR 10614 ENVIRONMENTAL LAW REPORTER 7-2017