Cooperative Federalism and Wind: a New Framework for Achieving Sustainability Patricia E

Hofstra Law Review Volume 37 | Issue 4 Article 8 2009 Cooperative Federalism and Wind: A New Framework for Achieving Sustainability Patricia E. Salkin Ashira Pelman Ostrow Maurice A. Deane School of Law at Hofstra University, [email protected] Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Part of the Law Commons Recommended Citation Salkin, Patricia E. and Ostrow, Ashira Pelman (2009) "Cooperative Federalism and Wind: A New Framework for Achieving Sustainability," Hofstra Law Review: Vol. 37: Iss. 4, Article 8. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol37/iss4/8 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Salkin and Ostrow: Cooperative Federalism and Wind: A New Framework for Achieving Su COOPERATIVE FEDERALISM AND WIND: A NEW FRAMEWORK FOR ACHIEVING SUSTAINABILITY PatriciaE. Salkin * Ashira Pelman Ostrow** I. INTRODUCTION ....................................................................... 1050 II. W HY W IND ENERGY ............................................................... 1055 A. EnvironmentalBenefits .................................................. 1056 B. Econom ic Benefits ........................................................... 1058 C. Energy Independence and National Security ................. 1061 D. Challenges to Wind Energy Development ...................... 1062 III. LOCAL GOVERNMENTS AND THE SITING OF WIND T URBIN ES ................................................................................ 1063 A. Approaches to Wind Energy Siting................................. 1065 B. Wind Energy Meets the Neighbors ................................. 1067 C. EvaluatingLocal Concerns............................................. 1071 IV. FEDERAL WIND POLICIES ....................................................... 1076 A. Federal Wind Siting Guidelines and Regulations .......... 1077 B. FiscalIncentives for Wind Development ........................ 1079 V. OVERCOMING LOCAL OPPOSITION: LESSONS FROM THE TELECOMMUNICATIONS ACT OF 1996 .................................... 1082 A. FederalIntervention: A CooperativeApproach ............. 1083 * Patricia E. Salkin is the Raymond and Ella Smith Distinguished Professor of Law, Associate Dean and Director of the Government Law Center at Albany Law School. ** Ashira Pelman Ostrow is an Associate Professor of Law at Hofstra University School of Law. The authors thank Amy Lavine, Esq., staff attorney at the Government Law Center and Albany Law School students Deborah Collura, 2011, and Benjamin Lee, 2011, for their research assistance, and Michael de Matos and the entire staff of the Hofstra Law Review for their professionalism and editorial advice. Published by Scholarly Commons at Hofstra Law, 2009 1 Hofstra Law Review, Vol. 37, Iss. 4 [2009], Art. 8 HOFSTRA LA W REVIEW [Vol. 37:1049 1. Increased U niform ity ................................................1084 2. Local Tailoring and Regulatory Experimentation ....1086 B. Telecommunication Siting ..............................................1088 C. Elements of a Federal Wind Siting Policy...................... 1091 1. No Prohibition of Wind Facilities ............................1093 2. Decisions Within a Reasonable Time .......................1094 3. Decisions in Writing and Supported by Substantial Evidence ...................................................................1095 V I. C ONCLUSION ...........................................................................1097 I. INTRODUCTION Since taking office in January 2009, President Barack Obama has made energy independence a national priority, calling upon Americans to "confront[] our dependence on foreign oil, address[] the moral, economic and environmental challenge of global climate change, and build[] a clean energy future. .. ,"The President's initiative comes in the wake of a year of unprecedented growth in wind energy development.2 In 2008 alone the nation's total wind energy generating capacity increased by over 50%, creating enough new generating capacity to serve over two million homes.3 The trend is expected to continue.4 The dramatic increase in generating capacity has been driven, in part, by the widespread adoption of state Renewable Portfolio Standards 1. Obama for America, Barack Obama and Joe Biden: New Energy for America, http://www.barackobama.com/pdf/factsheet energyspeech_080308.pdf (last visited Jan. 20, 2010); see also WhiteHouse.gov, Energy & Environment, http://www.whitehouse.gov/agenda/ energyand_environment/ (last visited Jan. 20, 2010) (listing energy and environmental initiatives taken by President Obama). 2. See Ronald H. Rosenberg, Diversifying America's Energy Future: The Future of Renewable Wind Power, 26 VA. ENVTL. L.J. 505, 515 (2008); Ronald H. Rosenberg, Making Renewable Energy a Reality-Finding Ways to Site Wind Power Facilities, 32 WM. & MARY ENVTL. L. & POL'y REV. 635, 654-57 (2008) [hereinafter Rosenberg, Making Renewable Energy] (discussing the increased use of wind energy in recent years). 3. AM. WIND ENERGY ASS'N, 2008: ANOTHER RECORD YEAR FOR WIND ENERGY INSTALLATIONS I (2008),http://www.awea.org/pubs/factsheets/Market Update 4Q08.pdf. 4. As of 2008, wind power installations in the United States operated at over 25,000 megawatts ("MW"), with an estimated increase of 5000 MW expected in 2009. AM. WIND ENERGY ASS'N, WIND: A LEADING SOURCE OF NEW ELECTRICITY GENERATION 3 (2009), http://www.awea.org/pubs/documents/Outlook_2009.pdf http://scholarlycommons.law.hofstra.edu/hlr/vol37/iss4/8 2 Salkin and Ostrow: Cooperative Federalism and Wind: A New Framework for Achieving Su 20091 COOPERATIVE FEDERALISM AND WIND 1051 ("RPS"). 5 A majority of states have mandatory RPSs that require "increasing percentages of electricity sold by utilities within each state [to] be produced from renewable sources including wind, solar, biomass and hydroelectric. 6 For example, Oregon's Renewable Energy Act of 2007 requires the state's largest utilities to generate at least 5% of their electricity from renewable sources by 2011, increasing to 25% by 2025. 7 To meet such RPS requirements, regulated utilities have focused primarily on wind energy.8 At the federal level, Congress continues to consider a number of RPS proposals designed to meet the goal set by the White House's New Energy for America plan.9 Although the specifics vary, these bills would require electric utilities to produce increasing percentages of their electricity from renewable sources, reaching approximately 25% by 2025.10 A recent poll found that Americans overwhelmingly support the enactment of a federal RPS.11 With strong support at both the national and state levels, wind energy seems poised to continue its rapid growth. Yet, proposed wind energy projects sometimes falter at the local level, where land use decisions are typically made.' 2 In opposing wind energy projects, local 5. RYAN WISER & GALEN BARBOSE, LAWRENCE BERKELEY NAT'L LAB., RENEWABLES PORTFOLIO STANDARDS IN THE UNITED STATES: A STATUS REPORT WITH DATA THROUGH 2007, at 3-5 (2008), availableat http://eetd.lbl.gov/ea/ems/reports/lbnl-154e-revised.pdf. 6. See Rosenberg, Making Renewable Energy, supra note 2,at 636. For an updated map showing states with RPS, see generally PEW CTR. ON GLOBAL CLIMATE CHANGE, RENEWABLE ENERGY AND PORTFOLIO STANDARDS (2009), available at http://www.pewclimate.org/ sites/default/modules/usmap/pdf.php?file=5907. 7. S. 74-838, Reg. Sess. (Or. 2007), available at http://www.oregon.gov/ENERGY/ RENEW/docs/sb0838.c.pdf. 8. See WISER & BARBOSE, supra note 5, at 13. According to the study, "[o]f the more than 8,900 MW of new non-hydro renewable energy capacity that has come on line in RPS states from 1998 through 2007, roughly 93% has come from wind power ....Id. The authors note, however, that in some states there is "evidence that diversity may increase over time as RPS policies expand." Id. at 14. 9. A federal RPS has passed the Senate three times since 2002 and passed the House of Representatives once, in 2007, but has yet to be approved simultaneously by both houses. See id.at 34. 10. See, e.g., American Clean Energy & Security Act of 2009, H.R. 2454, 11 1th Cong. § 101 (2009); American Renewable Energy Act, H.R. 890, 111th Cong. § 2 (2009); Save American Energy Act, H.R. 889, 11th Cong. (2009); S.433, 111th Cong. § 1 (2009); see also PATRICK SULLIVAN ET AL., NAT'L RENEWABLE ENERGY LAB., COMPARATIVE ANALYSIS OF THREE PROPOSED FEDERAL RENEWABLE ELECTRICITY STANDARDS 1, 2 tbl. 1 (2009). 11. Press Release, Am. Wind Energy Ass'n, New Poll Shows Nationwide, Bipartisan Support for Renewable Electricity Standard (May 5, 2009), http://www.awea.org/newsroom/ releases/NewPollShowsSupport for RES 050509.html. 12. In some states, however, these local decisions-particularly those dealing with wind energy-have been preempted by state-level decision makers. See infra Part III.A. Published by Scholarly Commons at Hofstra Law, 2009 3 Hofstra Law Review, Vol. 37, Iss. 4 [2009], Art. 8 HOFSTRA LAW REVIEW [Vol. 37:1049 residents raise a host of concerns involving aesthetics, noise, safety and13 impacts on surrounding property values, wildlife, and the environment. Indeed, the intensity of local opposition has prompted one prominent energy siting consultant to remark that "wind energy is fast becoming 'the mother of all NIMBY

Load more