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Renewable energy? For some, the answer may not be in the wind. | (ACOEL) | American College of Environmental Lawyers

By on June 23, 2021 0


The Biden administration is committed to significantly expanding the development of renewable energy. These projects, particularly solar and wind power, are well received by many. They have the potential to generate significant amounts of energy with a minimal carbon footprint. Wind power generation involves little or no use of water, little or no chemicals, and virtually no waste disposal. Compared to the development of coal, oil, gas and shale gas, wind projects are an environmentalist’s dream come true. So why are wind projects so difficult to develop?

A number of years ago, I represented a large developer of wind power who wanted to set up an onshore project in a relatively pristine area of ​​Pennsylvania. Like all viable wind projects, this one had to be located in an area with abundant wind resources on a ridge on top of a hill. So what could possibly go wrong?

Like most onshore wind projects, this one required the construction of temporary and permanent access roads, small wind turbine sites, and linear transmission lines. The construction of the road and the transmission line required crossing small streams and wetlands. This required federal and state permits under the PA Clean Streams Act (the equivalent of PA to the CWA) and 404 permits under the CWA.

The state authorization process triggered reviews of state protected species. Federal wetland permits triggered a federal environmental review. Like many wind projects, this one was located in an area crossed by migratory birds. It was also located in an area potentially inhabited by the endangered Indiana bat. This triggered a review under the federal Endangered Species Act and the Migratory Birds Treaty Act, as well as the Bald Eagle and Golden Eagle Protection Act. (Yes, golden eagles were also known to inhabit the area.)

Following long and costly environmental studies, the consensus of experts was that there would be minimal impact and that the authorization process could go ahead. The final step in the licensing process was a public meeting – held at the local high school. My client and I drove into the small town and drove to the high school parking lot. It was filled with hundreds of cars! While waiting in line to enter the school, I glanced at the school sign, which proudly read “Home of the Golden Eagles.” It gave me some angst as to how the evening would go.

In fact, opposition to the project was overwhelming. Citizen after citizen opposed the project. The object of the objections centered on two things. First, unsurprisingly, the hypothesis of the imminent death of the Golden Eagles and other birds. Second, surprisingly, the devastating impacts on their way of life that would result from the construction of the unsightly wind turbines. They didn’t want anything to interfere with their stunning views of the ridge lines. There were screams and tears. Lawyers representing residents and local politicians are committed to fighting the project at all times.

Suffice it to say that the project was not built, in large part because of vigorous opposition and the associated costs.

Looking back on that experience, I can’t help but conclude that what stopped this project was a community that had the resources and political influence to oppose a project that they felt would undermine their original way of life. Many fossil-fueled power plants are located in environmental justice communities that lack the resources and political clout to oppose them. This is not true for many wind projects. Likewise, offshore wind projects are located in plain sight of wealthy coastal landowners.

I applaud the determination of the Biden administration to advance renewable energy. However, overcoming the particular brand of NIMBYism that plagues wind power projects will be a significant challenge.