Renewable Energy? For some, the answer may not be blowing in the wind. – JD Supra

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

Quite a number of years ago, I represented a large wind energy developer that wanted to site a land-based project in a relatively pristine area of Pennsylvania.  Like all viable wind projects, this one was slated to be sited in an area with abundant wind resources on a hilltop ridge.  So what could go wrong? 

Like most land-based wind projects, this one required the construction of temporary and permanent access roads, small turbine pad sites, and linear transmission lines. The road and transmission line construction required traversing small streams and wetlands.  This required federal and state permits under the PA Clean Streams Law (PA’s equivalent to the CWA) and 404 permits under the CWA.   

The state permitting process triggered reviews of state protected species. The federal wetlands permits triggered federal environmental review.  Like many wind projects, this one was located in an area traversed by migratory birds.  It was also located in an area potentially inhabited by the Indiana Bat, an endangered species.  This triggered review under the federal Endangered Species Act and the Migratory Bird Treaty Act, as well as the Bald and Golden Eagle Protection Act.  (Yes Golden Eagles were known to inhabit the area as well.)

Following lengthy and costly environmental studies, the consensus of the experts was that there would be minimal impact and the permitting process could move forward.  The last step in the permitting process was a public meeting – held at the local high school.  My client and I traveled to the small town and drove into the high school parking lot.  It was packed with hundreds of cars!  While waiting on line to enter the school, I glanced at the school sign, which proudly announced “Home of the Golden Eagles”.  This gave me some angst about how the evening would play out.

In fact, the opposition to the project was overwhelming.  Citizen after citizen objected to the project.  The focus of the objections centered on two things.  First, unsurprisingly, the assumption of the impending death to the Golden Eagles and other birds.  Second, surprisingly, the devastating impacts to their way of life that would result from the construction of the unsightly wind turbines. They did not want anything to interfere with their unobstructed views of the ridge lines.  There was shouting and tears.  Lawyers representing the residents and local politicians vowed to fight the project at every turn.

Suffice to say, the project did not get built, owing in large part to the forceful opposition and attendant costs.       

In thinking back on this 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 would, in their view, detract from their pristine way of life.  Many fossil fuel power plants are located in environmental justice communities that do not have the resources and political clout to oppose them.  Not true for many wind projects.  Similarly, offshore wind projects are located within the view of wealthy coastal property owners.

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

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