What's the holdup? How bureaucratic obstacles are undercutting the true potential of American wind power.

• Author: Bova, Anthony V.

"'A great wind is blowing, and that gives you either imagination or a headache.'" (1)

1. INTRODUCTION

   Wind power is now the fastest growing source of alternative energy in the United States, due in part to desires to increase utilization of cleaner energy and to withdraw from dependence on foreign energy. (2) Studies have shown that if properly harnessed, the United States has enough wind-energy potential to provide well over the amount of electricity currently consumed nationally. (3) capitalizing on this potential, thirty-eight states currently maintain utility-scale wind projects, with fourteen states amassing over one thousand megawatts (mW) of energy from these projects. (4) Although all current wind power generated in the United States is produced through land-based operations, the country is pursuing offshore projects--specifically the perpetually delayed Cape Wind project located off the coast of Massachusetts. (5) If the United States wants to continue expansion of wind power both efficiently and lucratively, it must develop a regulatory scheme designed, updated, and maintained specifically for this growing market. (6)

   The United States does not have any centralized regulatory, statutory, or administrative authority designed specifically to address wind energy. (7) Potential wind projects--often-called wind farms--must traipse through a mire of local, state, and federal regulations, few of which provide regularity or guidance from project to project. (8) on the federal level, an amalgamation of statutes governs various facets of a wind project's evolution: permitting, development, decommission, taxation, and rights to opposition are all governed by many different laws. (9) In addition, states generally have their own radically different approaches to handling wind power. (10) Many states even allow cities and towns to pass their own ordinances for handling wind power, which often result in moratoriums or competition between neighbors for lucrative turbine leases. (11) Without any national voice or approach to the development of wind technology, the United States is at a dramatic disadvantage to countries that have taken a proactive approach to wind technology's introduction. (12)

   The United States is not without solutions, some of which have already been proposed in both the House of Representatives and the Senate. (13) These proposals encompass the notion that by developing a cohesive federal framework that can keep up with quickly developing wind technology, the country can create electricity from wind exponentially faster and in greater quantities. (14) Federal and state governments can begin this process by analyzing, consolidating, and stream-lining the current regulatory framework. (15) In addition, the federal government should analyze the approaches taken by various states with successful systems. (16) Finally, the United States would be wise to learn a lesson from other nations developing large-scale wind power worldwide. (17)

   This Note analyzes the dynamic changes taking place in the United States wind-power industry. (18) Part II.A begins with an overview and description of wind technology in the United States, including its expanding utilization and technological progressions. (19) Next, Part II.B-D will analyze the current regulatory foundation that controls wind power, including project development, environmental impact, and tax structure. (20) Part II.E-F will discuss various successful regulatory frameworks from around the United States as well as around the world. (21) Lastly, Part III will discuss potential solutions the United States could pursue based on ideas not yet enacted into law, reformulation of current laws, and a general refocusing on alternative-energy goals and policies. (22)

2. History

   1. The Emergence of Wind Power in the United States

      Wind power has emerged as the leader in the alternative-energy market both for its efficiency and for its feasibility. (23) Based on the most current estimates available, the United States generated 4100.656 million megawatt-hours (mWh) of total electricity in 2011, which was a 0.6% decline from the 4125.060 million mWh produced in 2010.24 While total United States energy production declined, the generation of wind energy increased twenty-seven percent over that same period: 120.177 million mWh in 2011 versus 94.652 million mWh in 2010. (25) In fact, the National Renewable Energy Laboratory (NREL) has increased its earlier estimates for possible wind-power generation by 26,223,000 gigawatt-hours (gWh) because of tremendous improvements in wind technology. (26) Wind energy accounted for thirty-five percent of newly installed electrical capacity in the United States since 2007--more than twice the amount installed by the coal and nuclear industries combined. (27)

      A primary reason for the surge in wind-energy production is the dramatic increase in efficiency and cost-effectiveness the market has undergone. (28) For instance, current wind turbines stand at an average height of eighty meters, whereas previous technologies were limited to heights averaging fifty meters. (29) Access to stronger winds is a tremendous benefit considering developable wind sites have average wind speeds between 6.5 and 10 meters per second. (30) Further, the development of affordable computer programming has allowed experts to estimate wind speeds in a given area within .35 meters per second, allowing for increasingly accurate turbine siting. (31) Finally, modern wind developers now have the ability to develop complex siting maps, allowing them to pinpoint optimal locations to install new turbines. (32)

      The emergence of wind as a feasible source of energy has also bolstered its nationwide usage. (33) Today's wind turbines, though large and complex, are both quiet and reliable. (34) These developments have lead to diverse siting opportunities--from ridges to cities. (35) In the first half of 2011 alone, the country installed 2151 mW of wind power, an astonishing seventy-two-percent increase from the first half of 2010. (36) In addition, the NREL estimates that the United States could generate twenty percent of its total electrical output from wind by 2024. (37) This reality is bolstered by the fact that a wind farm generally needs fifteen to thirty acres per mW to be operational, but leaves a total footprint of only three to five percent of that acreage. (38) Finally, in order to create more versatile turbines that can produce electricity consistently at different wind speeds, the Department of Energy's Wind and Hydropower Technologies Program is researching low-speed technology. (39)

   2. Federal Wind Regulations: Purposes and Aims

      Although alternative-energy development--lead by wind power--is now vital to the future of United States energy needs, Congress has not yet developed a cohesive framework for the development or implementation of wind farms. (40) Instead, the country has relied upon a conglomeration of federal and state statutes, none of which encompasses the totality of wind-project development. (41) The most pertinent federal regulations to the onshore-wind industry include the Public Utilities Regulatory Policies Act (PURPA), the Endangered Species Act (ESA), and the Energy Policy Acts of 1992 (EPACT92) and 2005 (EPACT05). (42) Setting the foundation for renewable energy to break into mainstream electricity markets, PURPA's goals included increasing the efficiency of existing electric utilities, providing equitable rates for consumers, and developing renewable energy. (43)

      1. PURPA's Effect on the Wind Industry

         PURPA was the first set of laws affording independent power producers the ability to sell their electricity competitively by requiring public utilities to buy it at state-determined rates. (44) Before PURPA, electric utilities generally enjoyed monopoly status; the utility provider had a protected geographic region where it alone sold power, and it controlled the generation, transmission, and distribution of its power. (45) Under PURPA, a "qualifying facility"--including many producers that generate electricity from wind, among other sources--is entitled to a range of exemptions that are not available to other independent power producers. (46) Most importantly, electric utilities must purchase all energy offered to them by qualifying facilities at a price equivalent to the utility's "avoided cost": a price determined by the costs of electric capacity or energy that the utility itself would generate or buy elsewhere but for the purchase from the qualifying facility. (47) In addition, qualifying facilities are exempt from the Federal Power Act and most state regulations, which could have potentially treated them as if they were public utilities or corporate organizations. (48)

      2. The Implementation of PURPA and the Challenges Created

         By implementing these theoretically helpful incentives for the alternative-energy industry, PURPA aimed to guarantee a market for renewable electricity which may not have had competitive access otherwise. (49) In practice, however, PURPA has been an efficient tool for opponents of wind production to delay wind-farm development by arguing over the rates of avoided cost, as well as filing complaints concerning the inherently intermittent nature of wind energy. (50) In response, the Federal Energy Regulatory Commission (FERC) added a provision to PURPA to allow utilities to stop purchasing energy from small qualifying facilities if the FERC finds that the facility has "nondiscriminatory access" to wholesale electric markets. (51) Opponents have even pushed for penalties to be imposed on qualifying wind facilities if actual output strays substantially from projected estimates. (52) Fortunately for wind developers, the FERC disagreed and issued Order 890, which exempted intermittent energy sources from imbalance penalties. (53)

      3. Animal Protection Policies and Wind Development

         Another federal statute crucial to...