Obstructions and opportunities in the complex world of Massachusetts onshore wind power development.

• Author: Zaltman, Alexandra J.

Cite as 13 J. High. Tech. L. 215 (2012)

1. Introduction

   As you might vaguely remember from elementary school science class, the burning of fossil fuels creates greenhouse gases that in turn warm the planet by trapping heat from the sun. (1) In the United States, fossil fuels burned for energy consumption are the main contributors to greenhouse gas emissions. (2) Renewable energy resources such as biomass, hydropower, geothermal, solar, and wind provide sustainable alternatives and play an important role in efforts to decrease dependence on fossil fuels. (3) However, there are significant barriers to renewable energy growth, including production expense and inaccessibility to areas that can support renewable energy harvesting. (4)

   Another significant barrier to the development of sustainable energy generation facilities is the state of the law, and in particular for the wind industry, the siting process for turbines. In the U.S., laws are slow to catch up to the needs of the renewable energy industry and currently do not adequately facilitate the industry's growth. (5) Some states, such as Massachusetts, are making an effort to update laws to meet the needs of the increased demand for renewable energy growth. (6) In 2008, Massachusetts Governor Deval Patrick signed the Green Communities Act (GCA) into law, a landmark piece of legislation that set an aggressive goal to increase renewable energy production in the commonwealth to 2,000 megawatts (MW) of wind power by 2020, among other provisions. (7) With an eye toward encouraging renewable energy facility growth, part of the GCA required the Massachusetts Executive Office for Energy and Environmental Affairs (EEA) to determine whether current wind turbine permitting laws were sufficient to support the new goal. (8) EEA hired a consultant company that ultimately authored a study of the com monwealth's laws. (9) This study provided suggestions for improving the permitting process so that it might sufficiently support the mandates of the new legislation, thereby adequately adjusting laws to meet the needs posed by increased renewable energy infrastructure growth. (10)

   This note reviews the findings of the study, examines additional information regarding the current permitting process for turbines in Massachusetts, and proceeds to discuss possible remedies to wind development barriers. In Part II, the note considers the history and current state of wind facility siting in Massachusetts. In addition it examines the dynamic between local citizen groups and individuals and policy makers with regard to wind development. Following is a discussion of legislation involving wind development in the commonwealth with a focus on the Wind Siting Reform Act (Reform Act), a Massachusetts bill that did not pass in the 2011/2012 session, which was drafted in response to the recommendations of the TRC Report that contained provisions to streamline the wind siting process. The note will also examine if the provisions of the Reform Act interfere with jurisdiction given to localities by home rule charter. The note then considers litigation involving wind siting and the role of community groups in the siting process. Part III presents current wind development statistics for the commonwealth and compares Massachusetts to other states. In Part IV, the note analyzes Massachusetts's current wind development posture compared to that of other states and analyzes whether the Wind Siting Reform Act is a legitimate remedy for the obstacles to wind development. The note argues that legislation authorizing a local board to grant expedited permitting for wind facilities does not violate home rule and is in fact a widely accepted and implemented practice in other states. Additionally, the note purports that a different approach must be taken with regards to garnering public support if future legislation regarding permitting is to be successful.

2. History

   1. Wind Power History

      Human use of wind energy made its debut thousands of years ago. (11) Ancient Egyptians were the first known people to harvest wind power through the use of boat sails. (12) The Babylonians are believed to have created the first windmill around 2000 B.C. (13) Wind technology first became popular in the U.S. from 1870 to 1930.14 During this time, farmers used wind power to pump water and around 1920, small electric wind turbines were used in rural areas as a power source. (15) Wind power use in the U.S. increased dramatically, starting in the 1970's. (16) Recent statistics cite that in 2011, wind power produced approximately 2% of all U.S. electricity generation. (17) This percentage, though small, means that wind power supplies enough electricity for 8.7 million homes. (18)

      Turbine design has greatly advanced since its original form. (19) A modern wind turbine operates by collecting kinetic energy through blades that turn when wind flows over them, which creates a lift similar to the effect on an airplane wing. (20) A drive shaft connects the blades to an electric generator that turns the wind into electricity. (21)

      Due to a rise in demand for energy, uncertain market prices, national security concerns, and worries regarding air pollution, the need for alternative energy sources has increased over time. (22) Electricity generation is the main source of air pollution in the U.S. and yields 6,000,000,000 metric tons of carbon dioxide a year. (23) Unlike fossil fuels, wind power generates no carbon dioxide or greenhouse gas emissions, (24) which are contributing factors to wind's status as the fastest growing energy source in the world. (25) Another benefit to wind energy is its unlimited supply; (26) a recent study found that the global wind energy potential was approximately five times the world's demand. (27) Additionally, wind is becoming a more realistic power source because it is becoming increasingly cost competitive with other energy forms. (28)

   2. Wind Siting Policy and Community Involvement in Massachusetts

      1. Political Efforts Regarding Wind Development

         Public pressure to decrease U.S. reliance on carbon emission energy sources impacts policy decisions to promote alternative forms of energy, including wind energy, on both the federal and state level. (29) In his 2011 State of the Union Address President Barack Obama challenged the country to rely on clean energy for 80% of all energy consumption by 2035. (30) The President advocated for the use of wind, solar, clean coal, nuclear, and natural gas technologies to meet this goal. (31) Around the country, over twenty states have succeeded in establishing renewable portfolio standards, which mandate that utility companies use a certain amount of renewable energy to supplement traditional nonrenewable energies in their grids. (32) Massachusetts has also enjoyed political support for renewable energy. (33) Vocal support for renewable energy, and wind power in particular, has also come from Senator John Kerry (D-MA) who commented, "I'm a huge advocate of wind power. I have supported incentives for it. I will be fighting personally for larger incentives." (34) The Commonwealth's junior senator Scott Brown (R-MA) has also stated his support for "the concept of wind power as an alternative source of energy...." (35)

         Massachusetts Governor Deval Patrick (D-MA) announced a state goal to produce 2,000 MW of wind power by 2020. (36) To that end, state lawmakers passed two major pieces of legislation to support the furtherance of clean energy development. (37) The Global Warming Solutions Act of 2008 established a regulatory program for addressing climate change. (38) The act requires Massachusetts to reduce greenhouse gas emissions by between 10% and 25% from 1990 levels by 2020 and by 80% by 2050. (39) To advance the goals of the Global Warming Solutions Act, Massachusetts also passed the GCA in 2008.40 Among its provisions, the GCA calls for utility companies to solicit bids from renewable energy developers twice in every five-year period and, if bids are reasonable, enter into cost-effective long-term contracts of ten to fifteen years with the bid winner. (41) Additionally, the law promotes renewable energy by both requiring utility companies to contract with renewable energy developers in order to help developers obtain necessary financing (42) and mandating that state agencies use renewable energy whenever economically feasible. (43)

         The GCA also created an Advisory Energy Facilities Siting Commission (Siting Commission) and charged it with exploring whether current energy facility siting law was inhibiting the growth of renewable energy in the commonwealth and if those laws discriminated against renewable energy facilities in favor of fossil-fueled facilities. (44) In response to the new mandate, EEA selected members for the Siting Commission, and met with stakeholders on the state and local level including wind energy developers, utility companies, and environmental consultants and groups. (45)

         As part of the inquiry, EEA also commissioned a report from TRC Solutions, (46) a national consulting firm that provides services to the environmental, energy, and infrastructure markets, (47) to evaluate the commonwealth's wind siting rules and regulations. (48) The TRC Report distinguished five major factors that together contribute to difficulties in Massachusetts's wind power facility development. (49) First, although the commonwealth does have a centralized agency that offers one-stop permitting (the Energy Facilities Siting Board), the MW capacity requirement to receive such a permit is very high. (50) The Energy Facilities Siting Board will only grant expedited permits to projects with a projected capacity of 100 MW, which effectively excludes all current onshore wind developments in Massachusetts. (51) Second, the appeals process in Massachusetts is more difficult than other states. (52) While some states allow a uniform appeals system to the state's highest court...