wind-energy development and the greater sage grouse
TRANSCRIPT
Wind-Energy Development and the Greater Sage Grouse: Slowed Growth of an Industry
and the Decline of a Chicken-Like Bird
By
Sean Sebastian Litz
B.A., May 2003, Rutgers College
J.D., May 2006, Temple University Beasley School of Law
A Thesis submitted to
The Faculty of
The George Washington University
Law School
in partial satisfaction of the requirements
for the degree of Master of Laws
August 31, 2010
Thesis directed by
Dean LeRoy C. Paddock
Associate Dean for Environmental Studies and Professorial Lecturer in Law
ii
TABLE OF CONTENTS
I. Introduction 1
A. Wind Energy Industry in Brief 3
B. Wind Energy Project Finance 6
1. Risks Facing a Wind Energy Project 8
2. Off-Take Agreements 10
II. Wind Turbines and Environmental Impacts 13
A. Altamont Pass Wind Resource Area in Brief 14
III. The Decline of the Sage Grouse 16
IV. The Listing of the Sage Grouse 18
A. Candidate Species Designation in Brief 19
B. The Effect of a Candidate Species Listing 23
V. The BLM and Wind-Energy Development on Federal Lands 24
A. BLM’s Response to the Sage Grouse Listing 27
VI. Wyoming and its “Core” Sage-Grouse Habitat 31
VII. The Wind Industry: Post Candidate Listing 34
A. Reprioritizing the Value System 39
B. ESA does not Consider the Attributes of Climate Change 41
Mitigation
C. Wind Turbine Guidelines Advisory Committee 44
VIII. Categorical Exclusions as a Solution 48
IX. Conclusion 55
1
I. INTRODUCTION
On March 5, 2010, the U.S. Fish and Wildlife Service (“FWS”) announced that
the listing of the greater sage grouse under the Endangered Species Act (“ESA”) is
warranted, but precluded for now, and will be placed on the “candidate list.”1 The
announcement spurred mixed reactions from wildlife activists, farmers, and the energy
sector (to name just a few stakeholders), in significant part because the breadth of
measures that will be implemented to protect the sage grouse remain unclear. This thesis
examines the growing tension between the rapid expansion of wind energy development
and long-standing concerns about protecting certain animal species; in this case, the sage
grouse.
Not too long before the sage grouse was listed as a candidate species President
Obama‟s administration made it clear that promoting renewable energy was a high
priority.2 Consistent with this position, Department of Interior (“DOI”) Secretary Ken
Salazar has spoken on numerous occasions of the need to implement policies aimed at
developing substantial portions of federal lands with solar, wind, and geothermal energy
1 Press Release, “FWS Greater Sage-Grouse Determination is Wake-Up Call to Avoid
ESA Listing: EDF, Energy Producers, Ranchers Vow to Cooperate to Recover Western
Species,” available at www.edf.org/pressrelease.cfm?contentID=10856.
2 Alan Kovski, “Interior Secretary Cautioned to Consider Renewable Energy Project
Impacts, Funding,” 40 Env‟tRep.Cur.Dev. 1317, (June 5, 2009).
2
projects.3 In order to spur renewable energy development on federal lands the DOI‟s
2010 budget includes over $50 million specifically allocated for renewable-energy
projects.4 The goal of the Obama administration is to obtain twenty-five percent of the
U.S.‟ energy from renewable-energy sources.5
Despite the financially-backed enthusiasm to develop renewable energy projects
on federal lands, the concern over the sage grouse is slowing wind projects. The
repercussions of the sage-grouse listing are being felt most intensely in states such as
Wyoming where the wind industry is sensing the chill resulting from assigning
“designated-core areas” for the sage grouse. What is striking is the fact that the
framework of the ESA does not call for recognizing the positive attributes of renewable
energy; in turn, preservation of a species is afforded paramount value.
This article will examine the affect of the candidate-species designation on the
pace of wind-energy development and possible solutions to avoid procedural roadblocks.
In particular, it is suggested that the continued growth of the wind-energy industry
requires the streamlining of the siting process. As will be discussed below, an effective
3 Id. According to the Department of the Interior there is “wind energy potential on 20.6
million acres of public land, solar potential on an additional 29.6 million acres, and over
140 million acres of public land with geothermal potential.” The Department of the
Interior Fiscal Year 2010 Interior Budget in Brief, “Creating a New Frontier,” available
at http://www.doi.gov/budget/2010/10Hilites/toc.html.
4 Id.
5 The Department of the Interior Fiscal Year 2010 Interior Budget in Brief, “Creating a
New Frontier,” available at http://www.doi.gov/budget/2010/10Hilites/toc.html.
3
streamline must be predicated on a federal policy which places priority in the deployment
of wind development-even in the face of a bird species in peril.
A. Wind Energy Industry in Brief
Wind is a clean, inexhaustible, and increasingly more affordable energy resource.
Not surprisingly, wind power is one of the fastest growing forms of electricity generation
in the U.S. In particular, thirty-five percent of all new generation capacity in 2007 added
to the U.S. electrical grid originated from wind energy.6 Still, as of 2008 only .5 percent
of U.S. energy was wind powered. Despite this, the Department of Energy has set an
ambitious goal of obtaining six percent of U.S. electricity from wind power by 2020.7
Reaching the six percent goal by 2020 is not unreasonable if one considers that
over the past five years new wind installations have been expanding at a rate of thirty-one
percent each year.8 In fact, in 2008 the U.S. wind energy industry installed more than
8,300 megawatts, expanding the country‟s wind power generating capacity by fifty
percent in a single year.9 2008 was a momentous year for the U.S. in that it generated the
most wind electricity in the world.10
6 Available at http://www.awea.org/utility/.
7 Available at http://www.awea.org/faq/wwt_statistics.html.
8 Available at http://www.awea.org/valuechain/.
9 Id.
10 Id.
4
2008 was also a milestone year globally as worldwide wind generation topped
two-hundred billion kilowatt/hours.11
This figure is equivalent to the “annual electricity
consumption of over eighteen million average households in the U.S”.12
Worldwide
wind generation increased by approximately twenty-five percent from 2007 to 2008;
since 2003 wind generating capacity has tripled across the globe.13
The major players
accounting for the dramatic growth in wind energy include the U.S., China, India, and
much of Western Europe.14
China‟s wind generation has expanded on average by
seventy percent annually since 2003.15
Also significant is the fact that close to 20 percent
of Denmark‟s electricity generation in 2008 came from wind energy.16
U.S. wind power capacity topped the 25,000 megawatt mark at the end of 2008.17
This translates into approximately 35,000 turbines across thirty-five states. In turn, the
thousands of wind turbines contributed just over 1.5 percent of electricity supply in
11
“How Much of the World‟s Electricity Supply is Generated From Wind and Who are
the Leading Generators,” EIA‟s Energy in Brief, available at
http://www.eia.doe.gov/energy_in_brief/wind_power.cfm?featureclicked=1&.
12 Id.
13 Id.
14 Id.
15 Id. This statistic is even more impressive when taking into account the significant
delays and red tape that wind developers face in the Chinese market.
16 Id. Other countries with substantial wind-energy penetration include Portugal (13
percent), Spain (10 percent), Ireland (9 percent) and Germany (7 percent).
17 Supra note 7.
5
2009.18
The U.S. wind energy industry is geared to expand its piece of the pie from the
aforementioned 1.5 percent to twenty percent by 2030.19
In order to accomplish this level
of production in the next twenty years, the wind industry will have to “more than double
from 2008‟s manufacturing and installation base of 8,300 megawatts per year. Over
70,000 new turbines would have to be installed in the coming decades.”20
Despite the
ambitious goals, the industry is optimistic that with continuing government incentives the
wind-energy sector will continue to grow.21
Deploying wind turbines not only produces more “green power,” it also
strengthens the economy. The wind energy sector employs 85,000 people as installers,
mechanics, engineers, and professional service providers (e.g., lawyers, accountants, and
marketers).22
For every megawatt of energy produced from wind, approximately $1
million is generated in economic development.23
Further, studies demonstrate that the
income generated by a single utility-scale turbine to a landowner approaches $2,000 a
year.24
18
Id.
19 Available at http://awea.org/supplychain/market_growth.html.
20 Id.
21Supra note 11.
22 Id.
23 Available at http://awea.org/legislative/wind_energy_facts.html.
24 Id. A 250-acre farm can earn on average an annual income of $14,000 from wind
leases.
6
On top of the economic benefits that attach to wind energy are the environmental
attributes of wind. Harnessing energy from wind avoids the emission of greenhouse
gases and the polluting fumes associated with other sources of electricity production.25
In
fact, wind energy has the potential of reducing U.S. emissions of the greenhouse gas
carbon dioxide by one-third and world carbon-dioxide emissions by four percent.26
In
fact, “[d]evelopment of just 10% of 10 of the windiest states could provide more than
enough energy to displace emissions from coal-fired power plants.”27
Interestingly,
forty-six of fifty states in the U.S. have wind resources that could be harnessed for energy
generation.28
B. Wind Energy Project Finance
Wind projects, both large and small, involve significant financial investments. At
its most basic level project finance in the wind sector is similar to any other type of
project in that financing flows from a combination of equity and debt.29
The ratio of
equity to debt corresponds to the risks that each project carries. That is, a project with
greater risks will demand a greater portion of equity to be allocated to the lender.30
In
25
Id.
26 Id.
27 Id.
28 Id.
29 Stefan Schmitz, “Project Finance for Wind: Pointers and Pitfalls,” Renewable Energy
World International Magazine, (April 17, 2008).
30 Id.
7
addition, the amount of risk associated with a project will affect the level of debt that a
project can carry.31
As the size of the project increases the risk exposure correspondingly
expands.32
Typically, wind-energy project financing will be arranged using a special purpose
vehicle (“SPV”) that is established to act as “owner” of the project.33
The SPV enters
into all agreements and receives all of a project‟s funds.34
In turn, the developer of the
project becomes the project‟s “sponsor” and would not generally be liable for any of the
project‟s risk.35
Further, loan payments are not paid directly from the sponsor‟s own
resources.36
Instead, debt service is made possible by revenue that is generated by the
project. The good news for the sponsor is that “debt does not appear on the sponsor‟s
31
Id.
32 Robert Poore, “Risky Business,” U.S. Infrastructure, (June 17, 2010), available at
http://webcache.googleusercontent.com/search?q=cache:Hxny11RH7V0J:www.american
fra.com/article/RiskyBusiness/+WIND+ENERGY+TECHNOLOGY+RISKS&cd=9&hl=
en&ct=clnk&gl=us.
33 “Wind Energy-The Facts,” European Wind Energy Association, available at
http://www.wind-energy-the-facts.org/en/home--about-the-project.html.
34 Schmitz, supra note 29.
35 Id.
36 Id.
8
balance sheet, and the risk associated with a project has no direct influence on the
creditworthiness of the sponsor.”37
1. Risks Facing a Wind Energy Project
Managing risk throughout the lifecycle of the wind project is crucial to all
stakeholders involved.38
Selection of a site suitable for harnessing wind energy is an
important step in mitigating risk.39
The most obvious factors affecting the risk facing
prospective wind development relates to “technology, wind supply and off-take
arrangements for the power so produced.”40
In particular, issues with the gearboxes of
wind turbines had an adverse affect to the wind industry in the 1990s.41
More recently,
stories about faulty gearboxes occasionally resurface and continue to be of concern to
interested lenders. In addition, problems to the concrete foundations of turbines pose
considerable risk to the entire lifecycle of a wind project.42
These risks can be managed
from the start of a project through design and manufacturing warranties, manufacturing
quality assurance programs, careful operation and maintenance oversight, and the like.43
37
Id.
38 Poore, supra note 32.
39 See e.g. “What are the Factors in the Cost of Electricity from Wind Turbines,”
American Wind Energy Association.
40 Schmitz, supra note 29.
41 Id.
42 Id.
43 Poore, supra note 32.
9
The assurance of fluid and continuous operation of a project‟s wind turbines is an
important criterion for investors because it directly affects electricity generation.44
This
seems rather logical given that electricity generation translates into a project‟s sole source
of loan repayment. Accordingly, lenders usually require a robust operations and
maintenance service package that will run the life of the project.45
For offshore projects,
operations and maintenance requires special attention given that such costs are higher due
to the harsh marine conditions and access hurdles.46
Another factor contributing to the risk calculation is a project‟s wind capacity.
Investors usually require arduous wind studies before any investment is made. This
involves determining whether the site has ample and sustained wind speeds.47
Wind
speed is key to project finance given that “a turbine at a site with 5 meters/second (m/s)
winds will produce nearly twice as much power as a turbine at a location where the wind
averages 4 m/s.”48
Because lenders are concerned about sufficient wind speeds, they
generally demand that reputable wind experts be retained to conduct a substantive wind
study.49
Wind studies generate data which provide the following:
[A]n estimate of the annual electricity output of a project, based on a
probability curve, usually 75% or 90%, that the project will generate x
44
Schmitz, supra note 29.
45 Poore, supra note 32.
46 Schmitz, supra note 29.
47 Poore, supra note 32.
48 Id.
49 Schmitz, supra note 29.
10
number of full load hours. Depending on the wind turbine used, there is
therefore a 75% or 90% respectively, probability that the turbine will
generate y (sic) kW/h per year when in service.50
2. Off-Take Agreements
The million dollar question at the center of a financial model for wind
development is how much revenue the project will generate per kWh of electricity
production. The bankability (that is, the definition of those conditions necessary to
secure financing from banking institutions) of a project ultimately comes down to the
expected number of kWh.51
The sales of electricity to the electric utility are
memorialized in the contracting vehicle known as an off-take agreement. Under this
agreement, a local utility contracts to purchase a minimum amount of a project's electric
generation over a course of years.52
The off-take agreements that are easiest to finance
are ones provided by feed-in tariffs.53
Feed-in tariffs represent the “price per unit of
electricity that a utility or supplier has to pay for renewable electricity from private
generators.”54
50
Id.
51 Id.
52 Thomas Hanley, Jr., “The BOT Circular: An Evaluation of the New Regulatory
Framework Governing Privately-Financed Infrastructure Projects in the People's
Republic of China,” 5 Stan. J.L. Bus. & Fin. 59, 91, (Spring 1999).
53 Schmitz, supra note 29.
54 Kate Galbraith, “Feed-In Tariffs Contemplated in the U.S.,” The New York Times,
(February 9, 2009).
11
More specifically, a feed-in-tariff is renewable energy-generated electricity that
producers “feed” to the grid and are compensated with a above-retail rate.55
Feed-in-
tariffs were first implemented in California in the late 1970s and were ultimately viewed
as a failed mechanism due to design flaws and lack of support.56
On the other hand, the
feed-in-tariff was revived by Germany in the 2000s and has brought much success to its
renewable energy market57
The theory is that feed-in-tariffs promote market growth by
providing developers with long-term purchase agreements for the sale of renewable
energy-generated electricity.58
Germany‟s feed-in-tariff includes measures to streamline
“administrative procedures that can help shorten lead times, reduce bureaucratic
overhead, minimize project costs, and accelerate the pace of RE deployment.”59
In July of 2010, the Federal Energy Regulatory Commission (“FERC”) issued a
ruling addressing the federal government‟s role with respect to state-issued feed-in-
tariffs.60
Specifically, the California Public Utility Commission (“CPUC”) filed a
declaratory order requesting FERC to decide whether federal law preempted a limited
55
Herman Trabish, “Feed-In Tariffs Can Spur Disruptive Growth,” Green Tech Media,
(July 21, 2010).
56 Id.
57 Id.
58 Karlynn Cory, Toby Couture, “Feed-In Tariff Policy: Design Implementation, and RPS
Policy Interactions,” NREL Technical Report, NREL/TP-6A2-4559, (March 2009).
59 Id.
60 Vermont, Sacramento, and Gainesville (Florida) have feed-in-tariffs in place.
12
feed-in-tariff applicable only to cogeneration facilities of less than twenty megawatts.61
The feed-in-tariff at issue implicated two federal laws: 1) the Federal Power Act which
prohibits states from setting wholesale electricity prices; and 2) the Public Utility
Regulatory Policies Act (“PURPA”) which requires states to set wholesale prices for
“qualifying facilities” while preempting prices that exceed the utility‟s “avoided cost.”62
Determining a utility‟s avoided cost requires calculating what the utility would otherwise
pay for comparable power: for example from a natural gas or coal-fired plant.63
FERC held that the CPUC feed-in-tariff structure is lawful to the extent that the
purchases of power were made from qualifying facilities and the prices did not exceed the
utilities‟ avoided cost rates as permitted under Section 210 of PURPA.64
Industry
insiders view the FERC decision as “setting strict limits on the powers of the States
61
Tam Hunt, “The Feed-in Tariff Discussion Heats UP,” available at
http://www.renewableenergyworld.com/rea/news/print/article/2010/08/the-feed-in-tariff-
discussion-heats-up?cmpid=rss.
62 “States to Re-evaluate Feed-in Tariffs After Recent FERC Ruling,” available at
http://www.michaelbest.com/pubs/pubDetailMB.aspx?xpST=PubDetail&pub=2664.
63 Hunt, supra note 61.
64 David Yaffe, Howard Shapiro, “FERC Issues First Major Ruling on Compatibility of
State Feed-In Tariffs with Applicable Federal Energy Law,” Issue Alert: Van Ness
Feldman, (July 22, 2010).
13
attempting to follow the lead of California and Vermont by prescribing wholesale prices
for environmentally favorable forms of electric energy.”65
II. WIND TURBINES AND ENVIRONMENTAL IMPACTS
Although wind energy is generally seen as a source of “green power,” wind
projects have had their set of controversies involving ecological and wildlife impacts.
Most notably are the potential adverse affects of wind turbines and transmission lines on
certain bird and bat species.66
Bird deaths generally occur when they are struck by a
turbine‟s swiftly moving blades or collide with the ever-growing height of turbines.67
The Altamont Pass Wind Resource Area (“Altamont”) in central California is perhaps
known less as one of the Nation‟s first large wind farms and more for being the cause of
countless golden eagle mortalities. As a result of the questionable management practices
of the Altamont wind farm, the Center for Biological Diversity filed suit for violations of
state and federal wildlife protection laws.68
The press coverage of the legal blunders
65
Id.
66 Gregory Adams, “Bringing Green Power to the Public Lands: The Bureau of Land
Management‟s Authority to Discretion to Regulate Developments,” 21 J. Envtl. L &
Litig. 445, 447 (2006).
67 Id.
68 Press Release, Center for Biological Diversity et al., “Alameda County to Approve
Flawed Permits for Altamont Pass Wind Farms This Week,” available at http://www.sw-
center.org/swcbd/press/altamont9-21-05.pdf (Sept. 21, 2005).
14
surrounding the Altamont wind farm has set a less-than-ideal tone on the future of wind
development-even in more suitable locations.69
A. Altamont Pass Wind Resource Area in Brief
Construction of Altamont began in 1981 in response to the significant energy-
price increases of the 1970s.70
It is significant that Altamont holds title to the largest
concentration of wind turbines in the world71
with approximately 4,800 small wind
turbines which have a combined capacity of 576 megawatts of annual electric
generation.72
69
Adams, supra note 66, at 455-56. A report by the California Energy Commission in
2002 provided that: “[p]ublic perception, state and federal protection laws, and potential
fines and lawsuits have resulted in delays, modifications, and stoppages of new wind
energy projects in California and other states. For example, Alameda County [California]
will not approve additional permit applications to increase current electrical
production…at Altamont Pass Wind Resource Area until significant progress toward
solving the bird fatality issue is demonstrated.” Fact Sheet on Altamont Pass Bird Kills,
Center for Biological Diversity available at www.biologicaldiversity.org.
70 Id.
71 Melissa Lowitz, “Altamont Pass, California,” Encyclopedia of Earth (March 25, 2008)
available at http://www.eoearth.org/article/Altamont_Pass,_California.
72 Id.
15
Altamont is also known for being home to the highest raptor kill rate of any wind
farm in the world.73
This is due to the fact that the Altamont wind farm is located on a
major raptor migratory corridor and is home to the world‟s largest population of breeding
golden eagles.74
It has been reported that the wind turbines kill approximately 880 to
1300 birds each year, of which one-half are raptors.75
A Government Accounting Office report identified that the high number of bird
kills strongly relates to the large number of wind turbines.76
Compared to Altamont,
more modern wind facilities have significantly fewer turbines.77
In addition, the design
of the wind turbines at Altamont plays a role in the fatality of raptors.78
That is, “early
turbines were mounted on towers sixty feet to eighty feet in height, while today‟s turbines
are mounted on towers” that soar hundreds of feet high.79
This is significant because
73
“Fact Sheet on Altamont Pass Bird Kills,” Center for Biological Diversity, available at
http://www.biologicaldiversity.org. It has been reasoned that wind projects developed
subsequent to Altamont have not experienced comparable bird-kill rates given
information that has been learned from the questionable Altamont siting. Lowitz, supra
note 62.
74 Lowitz, supra note 71.
75 Id. The number of annual golden eagle fatalities is unclear, however, some experts
calculate that as many as 116 are killed annually. See supra note 73.
76 Lowitz, supra note 71.
77 Id.
78 Id.
79 Id.
16
blades that are lower to the ground can be especially hazardous to the swooping birds that
are in the midst of catching prey.80
Given the apparent danger the wind turbines at Altamont pose to avian species,
the California Energy Commission (“CEC”), with the guidance of raptor experts,
provided recommendations to the Altamont operators in an effort to reduce rates of bird
mortality.81
Among the recommendations was the suggestion that the antiquated wind
turbines (that is, more lethal) be replaced with fewer, larger turbines.82
The CEC also
proposed relocating and reconfiguring turbines, retrofitting power poles to make
electrocution less likely, and increasing the visibility of turbines for birds, inter alia.83
Most significantly, the Alameda County Board of Supervisors (“Alameda Board”)
decided in September of 2005 that half of the turbines be shut down between November
and December and the other half between January and February.84
III. THE DECLINE OF THE SAGE GROUSE
This article involves a somewhat obscure wildlife issue which has had a sizeable
impact on the rate of wind-energy development. The concern of the sage grouse in the
wind-energy context has been less “newsworthy” than other animal species perhaps
80
Id.
81 Yaffe, supra note 64.
82 Id.
83 Id.
84 Lowitz, supra note 71.
17
because the decline of sage grouse does not involve collisions with rotating blades or
barotraumas (that is, physical damage caused by differences in pressure), as in the case of
bat mortality. Instead, the threat to sage-grouse populations involves the fragmentation
of its habitat resulting from livestock grazing, infrastructure, invasive weeds, climate-
change impacts, and energy development.85
Although bird enthusiasts may be more
sympathetic to the plight of the golden eagle in the path of rotating blades than the sage-
grouse saga, the momentum of wind-energy development will be slowed by measures to
protect the sage grouse.
The sage grouse currently inhabit the lands of eleven western states which
include: California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South
Dakota, Utah, Washington, and Wyoming.86
The sage grouse is a terrestrial bird that
lives in a dry habitat known as the sagebrush steppe, much of which is managed by the
Bureau of Land Management (“BLM”) .87
According to FWS, the population of the sage
grouse has declined by approximately ninety percent in the past century.88
Going back
even further is a study by the FWS which estimates that sage-grouse populations have
dwindled down to almost one percent since the first European settlers arrived in the
U.S.89
Further, the bird‟s range has been reduced by half, to approximately 160 million
85
Id.
86 Supra note 1.
87 Adams, supra note 66, at 456.
88 Valerie Richardson, “Compromise on Greater Sage Grouse; Birds Gains „Candidate
Species‟ Rank,” The Washington Times (March 8, 2010).
89 Adams, supra note 66, at 456.
18
acres.90
The limited science that exists indicates that sage grouse tend to avoid nesting
near tall structures such as wind turbines and power lines.91
Accordingly, there is the
growing sense that an incompatible relationship exists between wind development and
the health of the sage-grouse population.
IV. THE LISTING OF THE SAGE GROUSE AS A CANDIDATE SPECIES
For close to a decade, environmentalists, western legislators, and energy groups
have quarreled over the potential listing of the sage grouse as its habitat intersects with
fertile areas for energy development and agriculture.92
Politicians and industry groups
have voiced concerns that affording the bird ESA protection would complicate gas
drilling, wind projects, grazing and other such development.93
On the other hand,
environmental groups have argued that measures to protect the sage grouse will have
overall positive effects on the health of the sagebrush steppe ecosystem.94
The March 5,
2010 decision to list the bird as a candidate species (also known as a “warranted but
90
Id.
91 Author unknown, “Editorial: Southern Idaho Gets a Reprieve with Sage Grouse
Ruling”, Times-News (Twins Falls, Idaho), (March 7, 2010).
92 Allison Winter, Patrick Reis, and Noelle Straub, “Sage Grouse Heads Toward
„Candidate Status,‟” Greenwire (March 5, 2010).
93 Id.
94 Id.
19
precluding” finding) is viewed by some as a “split decision, a partial victory and partial
defeat for both sides in the sage grouse controversy.”95
The FWS determination regarding the sage grouse was based on scientific data
that the bird warrants the protection of the ESA, however, such a listing was precluded by
the need for addressing species of higher priority.96
The decision that protection was
warranted stems from information from federal and state agencies that the quality of the
bird‟s habitat has diminished as a result of a combination of oil and gas exploration,
invasive plant species, drought, and wind-energy development in parts of the western
U.S.97
A. Candidate Species Designation in Brief
Candidate species are "any species being considered . . . for listing as an
endangered or threatened species, but not yet the subject of a proposed rule."98
Species
of plants and animals are listed with candidate status when the FWS has “sufficient
information on their biological status and threats to propose them as endangered or
threatened under the ESA, but for which development of a proposed listing regulation is
95
Id.
96 Greg L. Johnson, “A Little Help for Sage Grouse,” Newstex (March 7, 2010).
97 Tripp Baltz, “Activists Challenge Interior‟s Decision to Withhold Listing of Greater
Sage Grouse,” Environmental Reporter, 41 ER 562 (March 12, 2010).
98 Francesca Ortiz, “Candidate Conservation Agreements As A Devolutionary Response
to Extinction,” 33 Ga. L. Rev. 413, 455 (Winter 1999).
20
precluded by other higher priority listing activities.”99
There are currently 252 species
which are candidates for listing.100
Congress created the warranted but precluded designation to allow the FWS‟
limited funding to be diverted to those species in greater need.101
On the other hand, the
designation is not be used as a stall tactic. In particular, "to delay commencing the
rulemaking process for any reason other than that the existence of pending or imminent
proposals to list species subject to a greater degree of threat would make allocation of
resources to such a petition unwise."102
One of the complaints that wildlife activists have with candidate-status
designation is that candidate species are not afforded any of the protections provided by
99
U.S. Fish and Wildlife Services Candidate Species Section 4 of the Endangered
Species Act available at
http://www.npwrc.usgs.gov/resource/wildlife/nddanger/nddngrqa.htm.
100 Available at
http://www.fws.gov/ecos/ajax/tess_public/pub/SpeciesReport.do?listingType=C&mapstat
us=1.
101Id. at 454.
102 Id. (citing H.R. Rep. No. 97-567, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2807,
2821.).
21
the ESA as a statutory right unless they are listed in an “emergency rule.”103
The risk of
delaying a listing, according to wildlife activists, is the deterioration of a species "to the
point where it is on the brink of extinction before it is listed" or even worse extinction
itself.104
In order to avoid the worst-case scenario, the FWS promotes the creation of
conservation partnerships (see the discussion of Candidate Conservation Agreements
below) to counter the conditions which threaten the existence of candidate species.105
The FWS asserts that an early conservation effort “preserves management options,
minimizes the cost of recovery, and reduces the potential for restrictive land use policies
in the future.”106
The goal is that with the right conservation efforts in place the most
significant threats to a species will be removed and a formal listing under the ESA will be
deemed unnecessary.107
On March 9, 2010, the environmental group, The Western Watersheds Project
(“WWP”), filed suit, challenging the Interior Department‟s decision not to list the sage
103
Id. A candidate can be listed on an emergency basis in the event the FWS makes the
decision that there is an "emergency posing a significant risk to the well-being" of the
species. Id. at 458.
104 Id. at 455.
105 Available at http://www.westernwatersheds.org/wildlife/sage-grouse.
106 Id.
107 Id.
22
grouse as an endangered or threatened species.108
Specifically, WWP claims that
“[e]xtending protection for sage-grouse under the Endangered Species Act is the best way
to ensure sage-grouse populations recover and to promote real assurances that public land
managers take seriously real conservation of the diminishing Sagebrush Sea.”109
Moreover, WWP asserts that science and the FWS‟ “warranted” determination
demonstrate that prompt protection under the ESA is necessary to prevent the bird‟s
extinction.110
National wildlife-activist groups such as the Sierra Club, Audubon Society
(“Audubon”), and The Nature Conservancy were less inclined to criticize the sage-grouse
designation. Dr. Frank Gill, President and CEO of Audubon stated, “[t]oday‟s decision
cannot and need not become an implied farewell to the Greater Sage Grouse…We won‟t
get immediate listing, but we are seeing historic progress toward preserving vital
habitat…”111
The Nature Conservancy and the Sierra Club also made statements
commending the listing as a good start, however, both groups implied concern that
108
See Western Watersheds Project v. U.S. Fish and Wildlife Service, D. Idaho, No. 06-
CV-277.
109 Id.
110 Id.
111 Statement by Dr. Frank Gill, available at
http://web1.audubon.org/news/pressRelease.php?id=2240.
23
cooperation among federal, state, and local partners to protect the sage grouse may not be
enough to save the species.112
B. The Effect of a Candidate Species Listing
For the time being, the sage grouse will not be listed as an endangered or
threatened species, and accordingly will not receive statutory protection under the
ESA.113
Nonetheless, the candidate species designation makes a strong statement to other
state and federal agencies that the threat to the sage grouse is serious and actions are
necessary for its survival.114
Secretary of the Interior Salazar stated shortly after the
decision that “[w]e want to find smart ways of protecting habitat and developing much-
needed energy on Western lands.”115
112
“New Greater Sage Grouse Listing a „Call to Action‟”, available at
http://www.nature.org/pressroom/press/press4420.html; Matt Kirby, “Sage Grouse Listed
as „Candidate‟ Endangered Species‟”, available at
http://sierraclub.typepad.com/layoftheland/2010/03/sage-grouse-listed-as-candidate-
endangered=species.html.
113 “Interior Expands Common-Sense Efforts to Conserve Sage Grouse Habitat in the
West; Western Bird Found „Warranted but Precluded‟ from Endangered Species Act
Protection,” M2 PressWIRE (March 8, 2010).
114 Stephanie Tavares, “It is Man vs. Bird in Quest for Power,” Las Vegas Sun (March 9,
2010).
115 Allison Winter, “Grouse Listing: „Warranted but Precluded‟ BLM Promises „Closer
Scrutiny,‟” E & E Reporter (March 6, 2010).
24
Despite the fact the sage grouse is beyond the reach of the ESA, the designation
brings with it a host of obligations that the BLM must follow. For instance, the BLM,
under the ESA, is obligated to ensure that an authorized action is not likely to endanger
the continued existence of a candidate species or result in the disruption and/or
destruction of its habitat.116
Moreover, under section 6840 of the BLM Manual, the BLM
is obligated to “carry out management for the conservation of candidate species and to
ensure that its actions do not contribute to the need to list such species as threatened or
endangered. BLM is required to request technical assistance on any planned action that
may contribute to the need to list a candidate species.”117
In order to fulfill its obligations
the BLM is to work with relevant stakeholders in developing and implementing wide-
scale and/or site-specific conservation strategies.118
V. THE BLM AND WIND-ENERGY DEVELOPMENT ON FEDERAL
LANDS
The BLM recognizes that one of the primary causes of the sage grouse‟s decline
is the loss of continuous and un-fragmented sagebrush habitat.119
The candidate status
designation is effective in close to 100 million acres of public land across the eleven
states mentioned above.120
Public lands are defined by statute as “lands and interests in
116
Wyoming Outdoor Council, 159 IBLA 388, 239 (2003).
117 Id. at 389-90.
118 BLM Manual § 6840(C)(2)(b).
119 Adams, supra note 66, at 457-58.
120 Winter, supra note 115.
25
land under the jurisdiction of the Bureau of Land Management in the Department of the
Interior.”121
Given that fifty-five percent of the remaining sage-grouse population resides
on BLM lands, the BLM has acknowledged that its management practices will have a
significant impact on the survival of the sage grouse.122
The BLM announced that its
goal is to “[s]ustain or reestablish the integrity of the sagebrush biome to provide the
amount, continuity, and quality of habitat that is necessary to maintain sustainable
populations of sage grouse and other sagebrush-dependent wildlife species.”123
It is critical to note that a large swath of the 100 million acres is located within
prime wind-energy territory. 124
Ideal land for a wind project has strong and steady winds
and is located within close proximity to transmissions lines connecting to the grid.125
Many pieces of land with this ideal combination can be found on public lands managed
by the BLM. It is no wonder that private wind developers have shown significant interest
in leasing federal lands in the western U.S.
Private wind-energy development on federal lands is made possible with a right-
of-way authorization according to Title V of the Federal Land Policy and Management
121
43 U.S.C.A. § 1702(3); see also Robert Glicksman & George Cameron Coggins,
“Modern Public Land Law,” 33, West Publishing (2006).
122 Id. at 457.
123 Adams, supra note 66, at 457.
124 Tavares, supra note 114.
125 Adams, supra note 66, at 448.
26
Act (“FLPMA”).126
FLPMA provides the BLM “with its first permanent authority to
manage the public lands for multiple use and sustained yield.”127
The FLPMA requires
the BLM to evaluate "ecological and environmental considerations within a broader
framework of multiple use management objectives" such as mining, grazing and energy
extraction.128
In the same light, the FLPMA declares that it is U.S. policy to make use of
all the natural resources its lands provide.129
In exchange for the use of these natural
resources, the FLPMA codifies a federal policy making way for the federal government
to receive fair market value for this use.130
The FLPMA is evidence that Congress
recognized the importance of public land protection in conjunction with development of
the Nation‟s natural resources.131
A right-of-way authorization permits private parties to use BLM land for a certain
purpose (such as roads, pipelines, transmission lines, and natural-resource extraction)
126
Roy Fuller, “Wind Energy Development on BLM Lands,” 24 J. Land Resources &
Envtl. L. 613, 624 (2004).
127 Glicksman, supra note 121, at 249.
128 Cynthia Heideman, “Multiple Use Policies in the Grand Staircase-Escalante National
Monument: Is Clinton's Promise Legitimate or Mere Political Rhetoric?” 16 BYU J. Pub.
L. 37, 39 (2001).
129 Id. at 627.
130 Id.
131 Megan Anderson, “The Energy Policy Act and its Categorical Exclusions: What
Happened to the Extraordinary Circumstance Exception?” 28 J. Land, Resources, &
Envtl. Law 119 (2009).
27
subject to a number of requirements.132
The decision to grant a right-of-way is
discretionary and must be authorized in the most efficient and economical manner
feasible.133
An application may be denied if the proposed use is not in the public
interest.134
Further, the issuing agency is responsible to limiting the right-of-way “to the
size necessary for the project, avoiding unnecessary environmental damage.”135
Generally, a right-of-way is issued for a term commensurate to the life of the project.136
A. BLM‟s Response to the Sage Grouse Listing
How the BLM will respond to proposed wind-energy projects to be developed in
and around sage-grouse territory is still not entirely clear. This uncertainty does not serve
to bolster the confidence of the wind-energy industry: uncertainty has never been known
to be a catalyst of investment. What is more certain, on the other hand, is the order of the
BLM priority hierarchy. That is, the guidance that the BLM has thus far implemented in
response to the sage-grouse listing clearly prioritizes the survival of the sage grouse over
proposed wind development. To be sure, the Instruction Memorandum (“IM”) titled
“Gunnison and Greater Sage-grouse (sic) Management” (which supplements the BLM‟s
132
Available at
http://www.blm.gov/wo/st/en/prog/energy/cost_recovery_regulations.html.
133 Id.
134 Fuller, supra note 126.
135 Glicksman, supra note 121.
136Fuller, supra note 126.
28
2004 National Sage-Grouse Conservation Strategy137
) may not convince the WWP that
the candidate-species listing was the correct finding, nonetheless, it surely establishes the
BLM‟s position that wind-energy development must not disturb sage-grouse populations
without significant conditions being set forth.
Specifically, IM provides the BLM with “new management considerations for
authorization of renewable and nonrenewable energy development.”138
What this means
is that both renewable and nonrenewable energy projects are to avoid being sited in
“priority” sage-grouse habitat when necessary to maintain sustainable sage-grouse
populations.139
“Priority habitat,” according to the BLM, is “habitat of highest
conservation value relative to maintaining sustainable sage-grouse populations range-
wide.”140
137
The BLM published the “BLM National Strategy” in November 2004 which set goals,
objectives, and management direction toward the BLM‟s sage-grouse conservation
efforts. The IM published on March 5, 2010 is a continuation of the goals set forth in the
BLM National Strategy.
138 “Questions and Answers on BLM‟s Directive on Sage-grouse Management,”
available at
http://www.blm.gov/wo/st/en/info/newsroom/sage_grouse_conservation/sage-
grouse_FAQ.html.
139 IM No. 2010-71, “Gunnison and Greater Sage-grouse Management Considerations for
Energy Development,” (March 5, 2010).
140 Id.
29
In terms of renewable-energy development, the IM instructs the BLM to screen
new right-of-way applications in order to determine whether the project area (or site
testing) is situated on priority habitat.141
If priority habitat happens to be located within a
project site, pending NEPA review (see below), then the BLM is to alert the applicant
that its right-of-way application, “may be denied or that terms and conditions may be
imposed on the right-of-way grant to protect priority habitat as supported by NEPA
analysis.”142
Development in priority habitat will not necessarily warrant a rejection as the IM
provides for consideration of methods to avoid and/or mitigate environmental impacts.143
In turn, the approval of a project may be conditioned on onsite/offsite mitigation as well
as onsite modification.144
In short, the IM mandates that new wind projects in priority
areas will be closely scrutinized. It should be emphasized that there is little, if any,
information available relating to the impact that wind farms have on sage-grouse
populations.145
141
Id.
142 Id.
143 Id.
144 Id.
145 JM Becker, CA Duberstein, “Sage-Grouse and Wind Energy: Biology, Habits, and
Potential Effects of Development,” prepared for the U.S. Dept. of Energy Office of
Energy Efficiency and Renewable Energy Wind & Hydropower Technologies Program
(July 2009).
30
It is worth noting that the IM calls for energy companies to enter into Candidate
Conservation Agreements (“CCAs”) which aim to reduce or eliminate threats to the sage
grouse.146
CCAs are designed with the goal of precluding “the need for listing by
encouraging private landowners and state and local land management agencies to
voluntarily conserve habitats, and thereby prevent species from reaching the level of
endangered or threatened status.”147
In exchange for land conservation efforts, parties
can receive financial incentives and assurances relating to future land use should the
species at issue become listed.148
Under a conservation agreement, a landowner or lessee of public lands commits
to a specifically designed plan whose purpose is to assist in the recovery of a particular
candidate species.149
Such efforts may include one or more of the following: “a
landowner's promise to forego harmful land uses or an agency's agreement to restore and
enhance known habitat, monitor the species' status, and use its regulatory authority to
minimize adverse impacts on the species.”150
146
Supra note 139.
147 Francesca Ortiz, “Candidate Conservation Agreements as a Devolutionary Response
to Extinction,” 33 Ga. L. Rev. 413, 421 (Winter 1999).
148Id.
149 Id, at 465.
150 Id.
31
VI. WYOMING AND ITS “CORE” SAGE-GROUSE HABITAT
The fate of the sage grouse also largely depends on decisions made by states with
large sage-grouse populations such as Wyoming. The steps being taken by the BLM post
March 5, 2010 to protect the sage-grouse are surely not the first efforts that have been
made to avoid listing the bird as a threatened or endangered species under the ESA.
Wyoming has been out on the forefront setting forth resource management plans aimed at
protecting the bird. Wyoming is a key state in the sage-grouse debate as it is home to
half of the world‟s remaining sage-grouse population.151
What makes this so significant
in the context of the bird‟s decline is that Wyoming ranked ninth in 2009 for newly-
installed wind capacity-out ranking such wind-focused states such as Colorado and
California.152
Maps generated by the National Renewable Energy Laboratory demonstrate very
impressive wind-energy potential in southeastern Wyoming and in areas in the northeast
of the state.153
Specifically, the wind industry has focused on Wyoming‟s south-central
region because of its strong and steady winds and its closer proximity to population
centers such as Las Vegas.154
The bad news is that this same high-wind corridor contains
151
Scott Streater, “Ranchers, Energy Industry Worry as FWS Nears Sage Grouse
Decision,” E & E Reporter (March 4, 2010).
152 Id.
153 Id.
154 Scott Streater, “Wind power Industry Retreating from Wyo., Citing Sage Grouse
Concerns,” Greenwire (August 6, 2009).
32
some of the highest concentrations of sage-grouse populations in Wyoming.155
Knowing
full well the implications of the aforementioned, the BLM‟s Wyoming State Office
provided guidance pursuant to Instruction Memorandum (WY-2010-012) in January of
2008 on setting strict restrictions on energy exploration in “core areas.”156
The core-area approach dictates that new “development or land uses within core
population areas should be authorized or conducted only when it can be demonstrated by
the state agency that the activity will not cause declines in Greater Sage-Grouse
populations.”157
In other words, developers must be able to prove that the project will not
have any adverse impact on the sage grouse before the project can proceed. The BLM
will consider the core-area policy when reviewing wind-energy projects on a “case-by-
case basis.” 158
Chris Keefe, wildlife biologist in the BLM‟s Wyoming State office stated
that the core areas policy will “likely result in additional restrictions, although it won‟t do
that directly.”159
It is difficult to comprehend how any interest group could be unimpressed with
the restrictive reach of Wyoming‟s core-area habitat policy. After all, these protective
155
Id.
156 Tripp Baltz, “BLM Office in Wyoming Issues Policy for Greater Sage Grouse,
Resource Planning,” 41 Env‟tRep.Cur.Dev 82 (January 8, 2010).
157 Wyoming Office of the Governor, Executive Order-Greater Sage Grouse Core Area
Protection.
158 Id.
159 Id.
33
measures cover huge swaths of land; more specifically, the core areas are estimated to
include about a quarter of Wyoming‟s territory or approximately fourteen million
acres.160
Furthermore, the core areas will protect eighty-two percent of Wyoming‟s sage-
grouse population.161
Along with expansive coverage, the Wyoming strategy will not likely be mere
empty language to be exploited by unfettered development. This should be the case
given that the FWS issued a statement to the Wyoming Game and Fish Director advising
that the construction of wind farms in core areas would highly compromise the adequacy
of the core-area policy short of a demonstration that there would be “no impact” to sage
grouse.162
Ryan Lance, Deputy Chief of Staff to Wyoming‟s Governor, Dave
Freudenthal, expounded on FWS‟ statement by advising that development in core areas
would likely prompt the FWS to withdraw support for the core-area strategy and
compromise the state‟s efforts of avoiding the listing of the sage grouse.163
Taken together, the BLM‟s March 5, 2010 Instruction Memorandum and state-
management plans such as Wyoming‟s will act to ensure that wind development will not
160
Baltz, supra note 156; Jessica Ferrell, “Sage Grouse Not Protected by ESA, But Will
Still Play Role in Western Energy Development,” available at
http://www.martenlaw.com/newsletter/20100329-sage-grouse-esa-protection.
161 Streater, supra note 151.
162 Letter from Brian T. Kelly, Field Supervisor of FWS (Wyoming Field Office) to Steve
Ferrell, Director of Wyoming Game and Fish Department (July 7, 2009).
163 Streater, supra note 154.
34
be the cause of the decline of the sage grouse. This can only prove to be true given that
both the former and the latter make it plain that the health of the bird takes precedence
over wind-energy development.
VII. THE WIND INDUSTRY: POST CANDIDATE LISTING
Shortly after the FWS‟ finding, three industry groups, the American Wind Energy
Association, Interwest Energy Alliance, and Renewable Northwest Project, wrote a letter
to Interior Secretary Salazar noting that placing the “rich wind energy resources” of the
core areas out-of-bounds for the wind energy “would ban the development of 10,000
megawatts of the highest-quality clean wind resources in Wyoming and in the nation”
and would result in a loss of more than $20 billion in investment capital.164
The BLM asserts that its management practices going forward will not necessarily
increase layers of review with respect to proposed development.165
What is apparent,
however, is that proposed wind projects within core areas may be cancelled or
substantially modified. For instance, Wasatch Wind Inc. (“Wasatch”) had originally
planned on developing 4,313 acres of mostly federal land located within Wyoming for a
fifty-turbine wind farm.166
Wasatch recently informed the BLM that it would revise its
plan since a portion of the development site encroached upon core-area habitat.167
164
Streater, supra note 151.
165 Question and Answers, supra note 138.
166 Scott Streater, “Developer Revises Wyo. Wind-Power Proposal to Avoid Grouse,”
Land Letter (April 8, 2010).
35
By reducing the size of its project by 680 acres, Wasatch addressed concerns of
both the BLM and state and federal wildlife officials.168
Critically, Wasatch‟s efforts to
avoid developing in core areas will likely allow the project to bypass a time consuming
environmental impact statement (“EIS”).169
Section 102(2)(C) of NEPA provides that all
federal agencies must include an EIS in relation to “every recommendation or report on
proposal for legislation and other major Federal actions significantly affecting the quality
of the human environment.” Preparation of an EIS includes must consider and disclose:
(1) the environmental impact of the proposed action;
(2) any adverse environmental effects which cannot be avoided should the
proposal be implemented;
(3) alternatives to the proposed action;
(4) the relationship between local short-term uses of man‟s environment
and the maintenance and enhancement of long-term productivity, and
5) any irreversible and irretrievable commitments of resources which
would be involved in the proposed action should it be implemented. 170
A “major federal action” relates to those actions “with effects that may be major and
which are potentially subject to federal control and responsibility.”171
167
Id.
168 Id.
169 Id.
170 Glicksman, supra note 121, at 110.
171 40 C.F.R. § 1508.27. Actions include “new and continuing activities, including
projects and programs entirely or partly financed, assisted, conducted, regulated, or
approved by federal agencies; new or revised agency rules, regulations, plans, policies or
36
The EIS embodies the three major goals of NEPA: 1) setting a national
environmental policy and ethos of environmental protection, 2) establishing a procedural
mechanism to ensure that the federal government meets the environmental goals of
NEPA, and 3) providing a broad platform for public participation in government
decision-making affecting the environment.172
Underscoring the NEPA analysis is the
intention to “avoid ill-considered agency decisions that sacrifice long-term social
interests for short-term gains or inflict irreversible environmental damage.”173
In this light, NEPA calls for giving effect to the saying “look before you leap” and
requires the analysis and evaluation of alternative (more/less environmental harm)
courses of action. 174
In practice, the EIS drives this initiative by providing a detailed
statement addressing how an action may affect the environment. With the analysis of a
project‟s potential adverse impacts on the environment, federal officials can take steps to
minimize the damage if they decide to approve a project.175
By considering alternatives
and adopting, where appropriate, plans with the least environmental impact, federal
procedures; and legislative proposals. §§ 1506.8, 1508.17). “Major” merely reinforces
“action” and does not have a meaning independent of significantly. § 1508.27.
172 Robert Dreher, “NEPA Under Seige,” The Political Assault on the National
Environmental Policy Act,” Georgetown Environmental Law & Policy Institute, 2-3
(2005).
173 Id. at 3.
174 Id.
175 Renee Kosnik, “The Oil and Gas Industry‟s Exclusions and Exemptions to Major
Environmental Statutes,” Oil & Gas Accountability Project, 16 (2007).
37
agencies can find a balance between man‟s desire to develop the land and the impact on
the environment that is caused by such development.
The BLM holds the view that development in core areas would result in a
“significant” impact, and under NEPA, an EIS would therefore be triggered.176
The BLM
has issued the “Final Programmatic Environmental Impact Statement” (“Wind PEIS”) for
BLM public land in eleven western states.177
The Wind PEIS sets out to support wind-
energy development and ultimately determines at a programmatic level whether a
proposed project will be permitted. 178
Specifically, the Wind PEIS examines the
“environmental, cultural, social and economic impacts of wind-energy development on
BLM administered public lands” and “evaluates alternatives to establish best
management approval to siting wind-energy projects.”179
On the other hand, projects sited on non-core areas would not likely be subject to
an EIS and instead would be subject to review under the less painstaking environmental
assessment (“EA”) or “mini-EIS.”180
Both an EIS and an EA, in different levels of detail,
lay out the specifics of the proposed action, the alternatives, and the associated impacts
176
Christy Hemken, “Commission Discusses Wind Development Access, Core Areas at
Med-Sept. (sic) Meeting,” Wyoming Livestock Roundup (October 23, 2009).
177 These states include: Arizona, California, Colorado, Idaho, Montana, Nevada, New
Mexico, Oregon, Utah, Washington, and Wyoming.
178 Wendie Kellington, “Federal Laws Affecting Local Land Use Decision Making,”
ALI-ABA Course of Study Materials (August 2009).
179 Id.; see also http://windeis.anl.gov/documents/fpeis/index.cfm.
180 Id.
38
on the environment.181
The EA, in particular, is a "brief but thorough” review that looks
at the need for the proposed project and takes into account alternatives to the project and
the environmental impacts of each alternative.182
If the EA yields a finding that
preparation of an EIS is unnecessary, the agency then issues a Finding of No Significant
Impact (commonly known as a “FONSI” finding);183
the threshold issue is whether there
will be a "significant" environmental impact.184
As the Wasatch project sets forward
actions to avoid “significant impacts” its proposed project will nevertheless be subject to
such an environmental assessment.
Even if the Wasatch project is subjected to a FONSI finding, this does not equate
to smooth sailing for the wind project. This is because EAs are often times an expensive
undertaking which take many months to complete.185
Somewhat ironically, “the sheer
volume of an extremely lengthy EA could lead some to conclude that an EIS was likely
the appropriate level of analysis for the action.”186
181
Kosnik, supra note 175, at 16.
182 Available at http://www.npi.org/NEPA/assessment.html.
183 Glicksman, supra note 121, at 113.
184 Jamison Colburn, “The Indignity of Federal Wildlife Habitat Law,” 57 Ala. L. Rev.
417, fn. 296 (Winter 2005). If, on the other hand, the EA demonstrates that a significant
impact may occur the agency then is obligated to prepare a Notice of Intent and a EIS
will be prepared.
185 The Judge Advocate General's School, TJAGSA Practice Notes: Environmental Law
Note, 2001 Army Law. 20, 21 (December 2001).
186 Id.
39
A. Reprioritizing the Value System
Although it is encouraging that many energy developers are not abandoning entire
projects due to challenges presented by the sage grouse, it is of particular concern that
core-areas are seemingly becoming off limits for wind-energy projects. The error at issue
is that the policies flowing from public land use planning (for example, Wyoming‟s core-
area concept) assume that development by its very nature is a negative if wildlife
protection cannot be assured. This viewpoint makes it seemingly impossible to recognize
that not all development is created equally. Chiefly, the environmental costs associated
with a wind project are historically not as grave as those resulting from other kinds of
energy development such as oil and gas production.
Important to the discourse is recognizing that the modus operandi of the
renewable energy sector is distinct from the other industries pursuing development on
BLM lands. Wind is a resource just like oil, natural gas, and coal that is harnessed for its
ability to be converted into usable energy. However, unlike its carbon-based
counterparts, the wind industry exists in large part today due to its contribution to
climate-change mitigation. Sure, wind-energy development is a lucrative business for
some, however, its main driver in the U.S. is its role in the climate-change era.
It is important to point out that the jury is still out on whether impacts on sage-
grouse populations from wind-energy development even approaches the damage caused
by oil and gas exploration/production in the sagebrush steppe. In fact, there is little
information about how the sage grouse is affected by wind-energy infrastructure.187
187
Streater, supra note 151. It should be pointed out that a group of scientists, energy
developers, and electric utilities are making plans to carry out an extensive study which
40
Adding to the mystery is the fact that researching this issue in core areas is not likely to
occur in the near term ever since the FWS expressed disapproval of construction in core
areas for research purposes.188
Even presuming that wind-energy development has some
degree of adverse effect on the sage grouse, the BLM analysis nevertheless needs to place
meaningful stock in wind energy‟s ability as a robust climate-change mitigation tool.
In order to do this, the federal lands regime must go through a paradigm shift that
tilts the scales to the benefit of renewable-energy development. What this calls for is
reevaluating the touchstone of the significant impact analysis from a decline in a species‟
population rate to the degree to which an energy project will reduce greenhouse-gas
emissions. This is crucial for the health of the sage grouse since there is little debate that
climate change poses some degree of threat to the survivability of the bird.189
More
broadly, the potential impacts of climate change cast an overwhelming list of hardships
that imperil the quality of human life world-wide. The benefits of wind energy in the
effort to reduce greenhouse-gas emissions are impressive (a debate on this topic is
will examine how wind farms affect the sage grouse. Participants in the study include
Renewable Energy Systems Americas, the Nature Conservancy, the Wyoming Audubon
Society, and various other federal and state agencies. Nate Poppino, “Group to Look at
Wind Farms' Effects on Grouse,” The Times-News (Twins Falls, Idaho), (April 12,
2010).
188 See Letter from Brian T. Kelly, supra note 162.
189 Fact Sheet: Endangered Species Act Listing Decision for the Greater Sage-Grouse,
available at http://www.fws.gov/mountain-
prairie/species/birds/sagegrouse/FactSheet03052010.pdf.
41
outside the scope of this paper). It does not take a great leap of faith to assert that the
future of the sage grouse very well depends on the health of the wind-energy industry.
B. ESA Does Not Consider the Attributes of Climate Change Mitigation
Evidence of the paradigm shift discussed above has been peppered in mandates
set forth by the Obama administration. On October 8, 2009, for instance, President
Obama instructed that all federal agency decision making must take into account how
climate change will affect the mission of each respective agency.190
Consistent with
President Obama‟s mandate is the DOI‟s recognition of the link between climate-change
mitigation and resulting environmental benefits. In particular, Secretary Salazar stated
that the “Interior is now managing America‟s public lands and oceans not just for
balanced oil and natural gas, and coal development, but also-for the first time ever-to
promote environmentally responsible renewable energy development.”191
Despite
President Obama‟s instruction to develop climate-change metrics in agency decisions,
Secretary Salazar has not made an attempt to specify how attributes of climate-change
mitigation will be considered under the DOI umbrella.192
Accordingly, endangered species continue to be held as having an infinite value-
this clearly makes progress towards a fruitful paradigm shift seemingly tenuous.193
Chiefly, the ESA does not provide for any balancing of policy considerations and instead
190
Executive Order No. 13, 514, 74 Fed. Reg. 52, 117 (October, 8, 2009).
191 Department of the Interior, Secretarial Order No. 3289 (September 14, 2009).
192 Victor Flatt, “Adapting Energy and Environmental Policy for Climate Change,” 11 Vt.
J. Envtl. L. 655, 665 (2010).
193 See e.g. Id.
42
ESA decisions are based on scientific information alone.194
Specifically, a species is
determined to be threatened or endangered due to any of the following five factors:
1. present or threatened destruction, modification, or curtailment of its habitat or
range;
2. overutilization for commercial, recreational, scientific or educational purposes;
3. disease or predation;
4. inadequacy of existing regulatory mechanisms; and
5. other natural or manmade factors affecting its continued existence.195
The decision by the Maryland federal district court in the matter Animal Welfare
Inst. v. Beech Ridge Energy LLC makes it abundantly clear that factoring the benefits of
wind-energy generation are not a part of ESA doctrine.196
The proposed Beech Ridge
Wind Farm was originally planned to include 124 wind turbines (measuring 390 feet in
height) along twenty-three miles of a West Virginia ridge top.197
Only after the
developers had received construction permits from the West Virginia Public Service
Commission did wildlife groups file suit seeking to bar construction due to the lack of an
incidental take permit for the endangered Indiana Bat.198
194
“Renewable Energy Projects Will be Held to the Same Stringent Standards of the
Endangered Species Act as Other Development Projects,” (January 25, 2010), available
at
http://www.gibsondunn.com/publications/Pages/RenewableEnergyProjectsHeldtoStandar
dsofEndangeredSpeciesAct.aspx.
195 16 U.S.C.A. § 1533(a)(1) (1974)
196 675 F.Supp.2d 540 (D. Md. 2009).
197 Id. at 548.
198 Id. at 542.
43
The crux of this case centered on whether Indiana Bats were present in the
proposed project site. The concern was that livelihood of bats flying within the project
area would be threatened given the danger that rotating blades present to the animal.199
The legal argument made by Plaintiffs was that the construction and future operation of
the Beech Ridge project “will „take‟ endangered Indiana bats, in violation of § 9 of the
Endangered Species Act (“ESA”), 16 U.S.C. § 1538(a)(1)(B).”200
Section 9 of the ESA
makes it unlawful for any person to “take any [endangered] species with the United
States.”201
As explained by the court in Beech Ridge, a plaintiff establishes that a taking
has occurred when it is shown that “the challenged activity is reasonably certain to
imminently harm, kill or wound the listed species.”202
In holding that Indiana Bats will be harmed, wounded or killed in violation of
section 9 of the ESA, the court emphasized that the ESA places the preservation of
endangered species at the apex of importance. Specifically, the court recalled the opinion
in the seminal case Tennessee Valley Authority v. Hill in which that court explained ,
“„examination of the language, history, and structure of the legislation under review here
indicates beyond doubt that Congress intended endangered species to be afforded the
highest of priorities,‟…and that Congress' purpose „was to halt and reverse the trend
toward species extinction, whatever the cost,‟”.203
At no point in the Beech Ridge
199
Id. at 547.
200Id. at 542.
201 16 U.S.C. § 1538(a)(1)(B).
202 Beech Ridge, 675 F.Supp. 2d 561.
203 Id. at 544 (citing TVA v. Hill, 437 U.S. 153, 174, 184 (1978)).
44
opinion were the benefits of the wind-energy project a part of the ESA analysis. Instead,
it stands clear from this decision that wind-energy projects (and likely, all renewable
energy projects) will be met with the same stringent ESA standards that would otherwise
apply to fossil-fuel development.
It is important to note, as the court in Beech Ridge discusses, a developer is not
completely out of luck if an endangered or threatened species is present on the project
site. That is, a 1982 amendment to the ESA established an incidental take permit (“ITP”)
process which allows a party to obtain a permit to lawfully take an endangered species,
without fear of incurring civil and criminal penalties, “if such taking is incidental to, and
not the purpose of, the carrying out of an otherwise lawful activity.”204
Although ITPs
shed some flexibility to the ESA regime, they are certainly not an automatic green light
for the wind developer. This is because ITPs are known to be difficult, time-consuming,
and expensive to obtain.205
C. Wind Turbine Guidelines Advisory Committee
When the evaluation of the environmental benefits of wind energy will be an
integral part of the review process of the federal agencies is unknown. On the other hand,
what is clearer is that key stakeholders have begun to make a concerted effort to
communicate to the DOI the timeliness of recognizing the role of wind energy in the
climate-change era. Specifically, the Wind Turbine Guidelines Advisory Committee
204
§ 1539(a)(1)(B)
205 Alicia Griffin, “Beyond Harm: Abandoning the Actual Injury Standard for Certain
Prohibited Takings Under the Endangered Species Act by Giving Independent Meaning
to Harassment,” 52 Vand. L. Rev. 1831, 1855 (1999).
45
(“Committee”) issued guidance on April 13, 2010, which recommended that Secretary
Salazar take “appropriate consideration” of the benefits of wind energy-including a lack
of air pollution and greenhouse gas emissions, and low water consumption-when
conducting a review of proposed energy development.206
These recommendations come from a diverse group of twenty-two members207
that were reached during a two-year process.208
The recommendations set out voluntary
guidelines for siting and operating wind energy developments, as well as policy
206
U.S. Fish and Wildlife Service Wind Turbine Guidelines Advisory Committee,
Preamble and Policy Recommendations, (April 13, 2010).
207 Committee members include: Dr. Taber Allison (Mass Audubon), Dick Anderson
(California Energy Commission), Dr. Ed Arnett (Bat Conservation International),
Michael Azeka (AES Wind Generation), Dr. Thomas Bancroft (National Audubon
Society), Kathy Boydston (Texas Parks & Wildlife Dept.), Rene Braud (Horizon Energy
Group), Scott Darling (Vermont Fish & Wildlife Dept.), Aimee Delach (Defenders of
Wildlife), Sam Enfield (MAP Royalty, Inc.), Greg Hueckel (Washington Dept. of Fish &
Wildlife), Jeri Lawrence (Blackfeet Nation), Steve Lindenberg (U.S. Dept. of Energy),
Robert Manes (The Nature Conservancy), Winifred Perkins (Florida Light & Power),
Steven Quarles (Crowell & Moring, LLP), Rich Rayhill (Ridgeline Energy), Robert
Robel (Kansas State Univ.), Keith Sexson (Kansas Dept. of Wildlife and Parks), Mark
Sinclair (Clean Energy States Alliance), David Stout (FWS), Patrick Traylor (Hogan &
Hartson, LLP).
208 News Release: Service Transmits Wind Turbine Guideline Advisory Committee
Recommendations to Interior Secretary, U.S. Fish and Wildlife Service (April 13, 2010).
46
recommendations to help avoid or minimize impacts of wind energy facilities and
wildlife.209
The Guidelines recommend a tiered process that begins “with an analysis of
risks proposed wind projects will have on wildlife and habitats and an evaluation of those
risks to help make siting, constructing, and operations decisions. Subsequent tiers
include field studies to document wildlife conditions and predict project impacts, and
post-construction fatality studies.”210
Each tier is paired with a set of questions to help the developer identify potential
problems and accordingly provide guidance in the siting-decision process.211
The goal is
for the framework to allow the “developer to determine whether he or she has sufficient
information, whether and/or how to proceed with development of a project, or whether
additional information gathered at a subsequent tier is necessary to make those
decisions.”212
The Guidelines do not demand that every tier be satisfied before a wind
project is given the green light.213
The Guidelines lay out the tier system as follows:
Tier 1 – Preliminary evaluation or screening of sites (landscape‐level
screening of possible project sites). An early look at the geographical
area, large-scale look at the landscape while working from a list of what to
avoid.
209
“Final Recommendations on Wind Turbine Guidelines Released,” Bird Radar Blog,
June 7, 2010, available at http://www.birdradar.com/?p=199.
210 “Climate Impacts on Wildlife Should Factor into Wind Turbine Decisions, Panel
Says,” available at http://www.climate.bna.com (April 13, 2010).
211Supra note 206.
212 Id.
213 Id.
47
Tier 2 – Site characterization (broad characterization of one or more
potential project sites). Boots-on-the-ground phase, where companies
examine the future project site.
Tier 3 – Field studies to document site wildlife conditions and predict
project impacts (site‐specific assessments at the proposed project site).
Pre-construction studies including pinpointing wildlife habitats and
identification of potential risks. Tier 3 is the first tier in which
quantitative and scientifically rigorous studies would be conducted to
assess the potential risk of the proposed wind energy project.
Tier 4 – Post‐construction fatality studies (to evaluate direct fatality
impacts). Post-construction period when risk concerns are verified, and
will allow for comparison of actual fatality rates with predicted rates.
Tier 5 – Other post‐construction studies (to evaluate direct and indirect
effects of adverse habitat impacts, and assess how they may be
addressed). Tier 5 studies will not be necessary for most wind project as
they can be costly, complex and time consuming, and the committee
anticipates that these guidelines will steer away most projects that would
require tier 5 studies. “When Tier 5 studies are conducted, they will be
site‐specific and intended to: 1) evaluate the direct and indirect effects
(e.g., displacement) of significant adverse habitat impacts on species of
concern; 2) analyze factors associated with impacts, particularly direct
impacts, in those cases in which impacts significantly exceed
preconstruction predictions; 3) identify additional actions as warranted
when mitigation measures implemented for a project are not adequate; and
4) assess demographic effects on local populations of species of
concern.214
The Committee urges Secretary Salazar to take into account not only “the important role
that wind energy, as a carbon‐free energy source, will play in climate change mitigation,”
but, also its potential impact on supporting “wildlife adaptation” to climate change.215
Given that “climate change is the greatest challenge the USFWS has ever faced in
conserving fish, wildlife, and their habitats,”216
it would be expected that the DOI
214
Supra note 206.
215 Id.
216 Id.
48
secretary would closely follow the guidelines posed by the Committee. However, it is
important to point out that the function of the Committee is advisory only and therefore
there is no legal requirement that the Secretary adhere to the guidance.217
As such, the
wind energy industry should not rest assured that its best interests will be carried out
through the Committee‟s policy guidelines. Accordingly, a more substantial measure to
buttress wind development requires a streamlining mechanism that will cut through the
red tape.
VIII. CATEGORICAL EXCLUSIONS AS A SOLUTION
Over the past few years, the U.S. has been moving in the direction of embracing
wind energy as a viable industry and accessible energy resource. In fact, this Nation has
reached a point where renewable energy is viewed less as the sector for tree-hugging
types and instead an industry ripe for Wall Street and Silicon Valley investors. Despite
this, the paradigm shift that is discussed above will not occur without aggressive top-
down policymaking. In the meantime, the burdensome NEPA review process will
continue to make potential investors think twice about financing a wind-energy project.
A solution that is perhaps less lofty than the paradigm shift is akin to the NEPA review
exemption granted to the oil and gas industry during the Bush administration.
217
Benjamin Cramer, “The Power and Secrecy and the Secrecy of Power: FACA and the
National Energy Policy Development Group,” 13 Comm. L. & Pol‟y 183, 198 (Spring
2008).
49
In contrast to the policies of NEPA and FLPMA to “encourage productive and
enjoyable harmony between man and his environment”218
the mid 2000s saw a trend
toward extracting oil and gas at the expense of public land protection.219
This trend was
brought on by the National Energy Policy Act of 2005 (EPAct) and is most profound in
the context of the oil and gas industry.
The DOI is authorized, under the Mineral Leasing Act of 1920, with the
responsibility of overseeing the issuance oil and gas leasing privileges on federal lands.220
The FLPMA requires the Secretary of the Interior to implement land use plans, also
known “resource management plans” which serve to identify lands suited for oil and gas
development.221
Coupled with the resource management plan is a environmental impact
statement which “analyzes the potential impacts that may result from the decisions and
management actions that the agency makes in the plan.”222
Before an oil and gas lease is
permitted the BLM must determine whether any restrictions (also called “stipulations”)
need to be placed in order to counter potential environmental harm posed by the lease.223
218
National Environmental Protection Act, 42 U.S.C. § 4321 (2006).
219 Anderson, supra note 131, at 120.
220 Government Accountability Office, “Energy Policy Act of 2005-Greater Clarity
Needed to Address Concerns with Categorical Exclusions for Oil and Gas Development
under Section 390 of the Act”, GAO-09-872, 4 (September 2009).
221 Id. at 6.
222 Id.
223 Id.
50
Section 390 of EPAct created a “rebuttable presumption” that allows prospective
oil and natural gas activities to be analyzed and issued by the BLM under a process
known as a “categorical exclusion” (“CE”).224
The CE is notable given that it is
“considerably less comprehensive than the traditional environmental assessment…or the
environmental impact statement…and does not allow for any public comment.”225
EPAct
was passed by Congress in 2005 to help wean the country from foreign-oil
consumption.226
In furtherance of this intent, Congress established five CEs designed to
streamline NEPA review of oil and gas production.227
The CEs for oil and gas
development under section 390 apply to the following scenarios:
(1) Individual surface disturbances of less than 5 acres so long as the total
surface disturbance on the lease is not greater than 150 acres and site-
specific analysis in a document prepared pursuant to NEPA has been
previously completed.
(2) Drilling an oil or gas well at a location or well pad site at which
drilling has occurred previously within 5 years prior to the date of
spudding the well.
(3) Drilling an oil or gas well within a developed field for which an
approved land use plan or any environmental document prepared pursuant
to NEPA analyzed such drilling as a reasonably foreseeable activity, so
long as such plan or document was approved within 5 years prior to the
date of spudding the well.
(4) Placement of a pipeline in an approved right-of-way corridor, so long
as the corridor was approved within 5 years prior to the date of placement
of the pipeline.
224
Kosnik, supra note 175, at 15.
225 Id. (emphasis added).
226 Anderson, supra note 131, at 125.
227 Id.
51
(5) Maintenance of a minor activity, other than any construction or major
renovation or a building or facility.228
CEs are available for actions “which do not individually or cumulatively have a
significant effect on human environment.”229
Agencies are provided with the authority to
conduct rulemakings setting forth actions that are eligible for a CE.230
When an agency
drafts a CE the agency is obligated to include safeguards for “extraordinary
circumstances” that limit the issuance of a CE application when sensitive lands and/or
resources are at play.231
If a project is to be approved the agency must determine
“whether any extraordinary circumstances exist in which a normally excluded action or
project may have a significant effect.”232
Controversially, the CEs established under
EPAct do not include any safeguards for extraordinary circumstances.233
The five CEs provided by EPAct “allow for rapid development of local oil and
gas reserves, thereby reducing the foreign dependence.”234
The logic behind the CEs is
that it allows for a simpler and quicker review process and saves the issuing agency
228
42 U.S.C. 15942 (2006).
229 Anderson, supra note 131, at 121 (citing 40 C.F.R. §1508.4 (2007).
230 Id.
231 Id. at 125.
232 Government Accountability Office, supra note 220, at 35.
233 Id.
234 Governmental Accountability Office, supra note 220.
52
valuable time and resources.235
Utah mining executive Luke Russell likened the NEPA
process to “a monster devouring millions of dollars and years of time needlessly on
redundant studies, conflicting requirements and wasteful litigation.”236
The fluidity
created by the section 390 exclusions, on the other hand, contributed to the more than
22,000 new oil and gas permits that were authorized between 2006 and 2008.237
Of the
22,000, as many as 6,100 permit (approximately 28 percent) applications were approved
using a CE.238
The BLM has reported that it has saved upwards of $8 million since 2006
by applying CEs: the fact is that CEs translate into less paperwork.239
The controversy stemming from the EPAct CEs relates to the fact that an oil and
gas project may be permitted under a section 390 CE despite the fact that the project is
sited in an ecologically sensitive area.240
Past use of administrative categorical
exclusions, on the other hand, required the BLM staff to screen projects against a
checklist of twelve “extraordinary circumstances” relating to the potential impact of a
proposed project.241
For rather unclear reasons, the DOI and the BLM took the position
235
Id.
236 Tim Riterman, “The Nation: National Environmental Policy Act is „At a Crossroads,‟”
LA Times (July 5, 2005).
237 David Williams, “GAO Rips BLM for Sidestepping NEPA on Oil and Gas Leases,”
The Colorado Independent (September 16, 2009).
238 Id.
239 Government Accountability Office, supra note 220.
240 Id.
241 Government Accountability Office, supra note 220, at 8.
53
that oil and gas projects do not need to be considered for approval under section 390
using the extraordinary circumstances checklist ordinarily required for administrative
categorical exclusions.242
In fact, the BLM “may lack discretionary authority to require a
harder look even if it believes more information is needed to make a decision about
future development.”243
Even more, the rebuttable presumption created by EPAct shifts
the burden from the agency to the public to demonstrate that an oil and gas activity
warrants deeper scrutiny.244
This means that the public would be responsible for putting on a case in order to
demonstrate that a particular oil and gas project creates “extraordinary circumstances”
which subject it to a comprehensive NEPA review.245
Making the burden even more
thorny is the fact that EPAct does not provide a definition of the rebuttal standard.246
The CEs established by EPAct mentioned above could serve as a framework in
the wind-energy context that would allow for the type of penetration (for example, twenty
percent by 2030) envisioned by the wind industry. In particular, the CEs would serve in
untangling the NEPA process and would result in reduced compliance costs for both
private parties and the BLM. This will occur by removing the onus of the developer to
conduct a costly and time-consuming EA and/or EIS.
242
Id. at 35.
243 Id.
244 Kosnik, supra note 175, at 16.
245 Id.
246 Governmental Accountability Office, supra note 220, at 40.
54
Further, a CE scheme which does not require an extraordinary circumstances
inquiry should allow for the development of wind projects in areas populated by
candidate species. Significantly, one of the twelve extraordinary circumstances includes
“significant impact on species listed, or proposed to be listed, on the List of Endangered
or Threatened Species, or have significant impacts on designated Critical Habitat for
these species.”247
It follows then that the presence of sage grouse in a proposed project
area would not serve as basis for barring a project given that the existence of the bird
would not be a factor considered in the BLM‟s analysis.
To be sure, legislation creating CEs exempting wind energy development from
full NEPA review will bring its fair share of opposition from wildlife groups and other
“concerned” parties. The notion that the BLM could sidestep the consideration of the
sage grouse‟s livelihood in the name of wind-energy development would surely set off
environmental groups, both mainstream and radical. With regard to the CEs set forth in
EPAct, various stakeholders have raised questions as to the application of section 390
categorical exclusions. In fact, the BLM‟s absence of considering extraordinary
circumstances is a central issue to a lawsuit brought by a coalition of environmental and
historic preservation groups against the BLM in its use of section 390 CEs.248
Plaintiffs in Nine Mile Canyon Coalition v. Steiwig contended that the BLM
violated NEPA by failing to consider whether there were “extraordinary circumstances”
247
Part 516 of the Departmental Manual, 516 DM 2, Appendix 2, § 2.8.
248 See Nine Mile Canyon Coalition v. Steiwig, No. 2:08-cv-586 (D. Utah settlement
filed Mar. 31, 2010)
55
that would preclude the use of categorical exclusions to approve thirty drilling projects in
Nine Mile Canyon, Utah.249
The argument made by Plaintiffs was that oil and gas
development in the area at issue would result in the release of corrosive dust into the air
and onto neighboring rock art panels and other cultural resources in the canyon.250
The
BLM ultimately agreed to cease the use of CEs when there are "extraordinary
circumstances" such as “impacts to protected species, historic or cultural resources, or
human health and safety.”251
IX. CONCLUSION
To be sure, the Nine Mile Canyon settlement does not necessarily set a firm
foundation for Congress to set out CE policy that rules out the application of an
extraordinary circumstances inquiry. At the same time, policymakers are sure to
recognize that the degree of ill-feelings associated with oil and gas development
(especially exacerbated by the BP disaster) are not shared with regard to wind energy. In
short, the promotion of renewable energy deployment carries a great amount of political
249
Id.
250 “BLM Settles Lawsuit Involving Use of Categorical Exclusions for Oil and Gas
Leasing”, available at
http://www.blm.gov/wo/st/en/info/newsroom/2010/march/NR_03_31_2010.html (March
31, 2010).
251 Noelle Straub, “Interior Movies to Restrict Fast-Track Oil and Gas Drilling Permits,”
The New York Times (April 2, 2010).
56
capital-perhaps enough political capital to offset the environmental backlash that attaches
to wind development.
In the present day, the related goals of energy security, energy independence, and
climate-change mitigation are among the Nation‟s top-priorities. The executive branch‟s
robust agenda to see to it that renewable energy takes a significant role in the U.S. energy
portfolio is surely evidence of this. In order for the wind industry to have the type of
presence envisioned by the Obama administration, the DOI must place into practice
policies that ensure that addressing the benefits of wind energy do not become drowned
out by the discontent of sage-grouse advocates. What this calls for is Federal policy to
recognize that this is a not a chicken and egg dilemma. Chiefly, policies need to be
implemented with the viewpoint that advancing renewable energy projects such as wind
farms is paramount to the survival of the sage grouse-not vice versa.