Siting Wind Energy Facilities on Private Land in Colorado: Common Legal Issues
| Publication year | 2010 |
| Pages | 43 |
| Citation | Vol. 39 No. 5 Pg. 43 |
2010, May, Pg. 43. Siting Wind Energy Facilities on Private Land in Colorado: Common Legal Issues
May 2010
Vol. 39, No. 5 [Page 43]
Natural Resource and Environmental Law articles are sponsored by the CBA Environmental Law, Water Law, and Natural Resources and Energy Law Sections. The Sections publish articles of interest on local and international topics.
Coordinating Editors
Melanie Granberg (Environmental), Denver, Gablehouse Calkins and Granberg, LLC-(303) 572-0050, mgranberg@gcgllc.com; Kevin Kinnear (Water), Boulder, Porzak Browning and Bushong LLP-(303) 443-6800, kkinnear@pbblaw.com; Joel Benson (Natural Resources and Energy), Denver, Davis Graham and Stubbs LLP-(303) 892-7470, joel.benson@dgslaw.com
About the Authors
Roger L. Freeman is a partner with Davis Graham and Stubbs, LLP and is active in numerous renewable energy and transportation projects and groups throughout the Rocky Mountain West and California. He has worked with a variety of cleantech entities, including solar and waste-to-energy companies, on government relations and legislative initiatives. He teaches at the University of Denver Sturm College of Law. In 2008, he was appointed by Governor Bill Ritter to the Colorado Solid and Hazardous Waste Commission, where he has focused particularly on waste minimization and recycling issues-roger.freeman@dgslaw.com. Ben Kass is an associate with Davis Graham and Stubbs, LLP, specializing in civil litigation, environmental, and renewable energy law-ben.kass@dgslaw.com.
The development of medium- to large-scale wind energy facilities is poised to increase substantially over the next several years. This article provides an overview of common legal issues associated with siting these developments on private lands in Colorado.
On February 17, 2009, at the Denver Museum of Nature and Science, President Barack Obama signed into law the American Reinvestment and Recovery Act of 2009 (ARRA), shining the spotlight of the nation's "New Energy Economy" on Colorado and the Rocky Mountain West.(fn1) ARRA authorized nearly $50 billion in direct funding, tax incentives, and loan guarantees designed to fast-track the development and implementation of renewable energy technologies.(fn2) In signing this bill, President Obama predicted a doubling of renewable energy production over the next three years, resulting in a "remaking of the American landscape."(fn3) More than a year later, although the economic slowdown has hampered the overall growth of the renewable energy industry, wind development in particular stands to benefit from the stimulus package.(fn4) Across the nation-from the halls of academia to the cubicles of federal, state, and local government-many are working to convert President Obama's new landscape into reality.
Wind energy facilities, and renewable energy sources in general, have certain environmental benefits over traditional energy sources such as coal, petroleum, and nuclear power. However, like any other energy generation facility, wind energy developments have measurable effects on the natural environment and neighboring landowners, and are subject to basic physical constraints, such as access to transmission lines and conflicts with other land uses. Moreover, as those in the industry know so well, siting and developing a windfarm is much more complicated than just finding a windy location and erecting turbines. Compounding the problem is the fact that there currently is no comprehensive federal or Colorado-based authority governing the siting of wind energy projects. Instead, the legal construct guiding wind energy development is a curious mix of federal, state, and local statutes, regulations, guidance, and ordinances-with a few general rules thrown in for good measure.
This article discusses legal and practical constraints associated with siting medium- to large-scale wind energy developments on private lands in Colorado.(fn5) It is intended to be a survey of these matters, rather than an in-depth analysis. Colorado-specific references are provided whenever possible to help direct readers to sources for more detail on individual topics.
Colorado's Wind Energy Potential
Colorado currently ranks eleventh in the nation for wind energy development potential,(fn6) receiving enough wind to produce annually more than 600 million megawatt-hours of electricity.(fn7) The state ranks eighth in the nation in wind energy production, generating approximately 1,241 megawatts of electricity from at least seventeen utility-scale installations.(fn8) Colorado has more than 6 million acres of "windy" lands suitable for such development, located mostly on private lands on the Eastern Plains near the cities of Lamar, Burlington, and Sterling, as well as in rural areas north of Fort Collins.(fn9) Moreover, Colorado has earned a national reputation for encouraging cleantech research and development, including wind resources; harnessing this potential is the centerpiece of the New Energy Economy.
Drivers of Wind Energy Development
In addition to the strong government support and public demand for cleaner energy technologies, wind energy development currently is driven by a mix of federal, state, and local incentives and mandates. At the federal level, the Production Tax Credit (PTC) is one of the most important incentives for wind developers. Recently extended as part of the ARRA, the PTC provides a 2-cent per kilowatt-hour credit for wind energy producers through December 31, 2012.(fn10) The federal government also offers an Investment Tax Credit (ITC), which helps individuals, businesses, and utilities offset up to 30 percent of the cost of purchasing wind turbines for small-scale energy production.(fn11) At the state level, the Colorado Legislature, the Governor's Energy Office (GEO), and local governments currently offer a variety of grant programs, property tax benefits, and incentives for small wind projects, with more programs likely in the works.(fn12)
Additionally, Colorado is one of at least twenty-nine states that have enacted a statewide Renewable Portfolio Standard (RPS) mandating that utilities purchase certain percentages of renewable energy to complement their current use of coal, natural gas, and non-renewable energy sources. First passed by voter referendum as Amendment 37 in 2004, Colorado's RPS currently mandates an incremental increase in renewable energy to 20 percent by 2020 for Investor-Owned Utilities (IOUs), and 10 percent by 2020 for rural electric cooperatives.(fn13) As this article goes to press, the Colorado Legislature is considering a far-ranging bill that, among other provisions, extends the RPS to 30 percent. The U.S. Congress also is considering a national renewable energy standard as part of a comprehensive climate change bill.(fn14)
Notorious Siting Controversies
Issues swirling around national wind energy projects at Cape Wind in Massachusetts, Altamont Pass in California, and Wabaunsee County Kansas typify the political, social, legal, and environmental complications in converting wind energy ideals to actuality. These are discussed below.
Cape Wind
Once slated to become the first off-shore wind development in the United States, Cape Wind was proposed to include 130 wind turbines with 420-foot-high rotor blades spread across approximately twenty-six miles of Horseshoe Shoals in Nantucket Sound, an area known for its historic and tourist resources, as well its wealthy and famous occupants.(fn15) The turbines would be placed directly in the middle of a popular commercial fishing and sailing area and would be clearly visible from the shores of Nantucket Island.(fn16)
Despite its potential to provide 75 percent of the energy needs for Cape Cod and the nearby islands and to offset nearly one million tons of carbon dioxide, Cape Wind has drawn fire from environmental groups, neighboring landowners, and high-ranking politicians.(fn17) Cape Wind has been embroiled in at least three lawsuits alleging adverse impacts to everything from avian and aquatic wildlife to navigation, fisheries operations, tourism, viewsheds, and property values.(fn18) Despite an originally projected operation date of 2005, as of January 2010, construction on Cape Wind has not yet commenced.(fn19) In addition to these issues, the controversy over Cape Wind is complicated by the lack of a clear siting authority, as several federal, state, and local agencies compete to assert jurisdiction over various aspects of the project.(fn20)
Altamont Pass
In contrast, the Altamont Pass Wind Resource Area (APWRA) controversy concerns one of the oldest (circa 1982) operating wind energy facilities in the United States. Housing 5,400 wind turbines, the APWRA project often is disparaged as the nation's most poorly sited wind energy facility, due to its enormous impacts on avian wildlife.(fn21) Located in one of the most heavily used flyways for birds of prey in North America, it is estimated that the turbines at APWRA kill thousands of birds each year, many of which are relatively rare and/or are protected by federal and state laws.(fn22) Several legal actions have been filed by a variety of organizations attempting to enforce these laws.(fn23)
The Kansas "Prairie Rebellion"
Closer to Colorado, concerns over the potential impacts of several large-scale wind developments recently prompted the Board of Commissioners of Wabaunsee County, Kansas to impose an outright ban on commercial wind energy installations across 791 square miles of mostly private land in the central part of the state.(fn24) In what is being called the "prairie rebellion," several environmental...
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