Fiddling as the world floods and burns: how climate change urgently requires a paradigm shift in the permitting of renewable energy projects.

• Author: Thaler, Jeffrey
• Position: I. Introduction through III. The Offshore Wind Power Permitting and Leasing Obstacle Course, p. 1101-1141

1. INTRODUCTION II. OUR ENERGY USE AND ITS RESULTANT CLIMATE CHANGE IMPACTS A. Overview B. Specific Climate Threats and Consequences 1. When Weather Extremes Increase 2. When Frozen Water Melts 3. When Liquid Water Warms 4. When Land Dries Out III. THE OFFSHORE WIND POWER PERMITTING AND LEASING OBSTACLE COURSE A. Overview of Technology and Attributes B. Federal and State Jurisdiction C. Federal Permitting and Licensing 1. The Energy Policy Act--Clarifying Interagency Jurisdiction 2. Overview of BOEM's Licensing Process 3. National Environmental PoKey Act 4. Endangered Species Act 5. Marine Mammal Protection Act 6. Migratory Bird Treaty Act D. State Permitting of Projects on the OCS IV. CONCRETE STEPS TO MODERNIZE ENVIRONMENTAL REVIEW OF PROPOSED OFFSHORE WIND PROJECTS A. Needed Legislative Action B. Needed Non-Legislative Actions V. CONCLUSION I. INTRODUCTION

   "Human beings, who are almost unique in having the ability to learn from the experience of others, are also remarkable for their apparent disinclination to do so." --Douglas Adams (1)

   "If you don't know where you "re going, when you get there you'll be lost." --Yogi Berra (2)

   This is not an Article debating whether twenty first century climate change is likely, very likely, or primarily caused by human emissions of greenhouse gases; how much global temperatures will rise by various dates; or whether to choose a carbon tax or cap-and-trade system. This Article also will not debate whether and how much to decrease subsidies of fossil fuel energy sources or increase those for renewable energy sources.

   This Article instead will start with the oft-stated goal of increasing domestic and international reliance upon carbon-emission-free renewable energy sources (3) while decreasing use of fossil fuel energy sources, (4) and ask the question few have addressed concretely: how can we more quickly achieve that goal to slow the devastating effects of increasing greenhouse gases, if we do not first tackle the significant barriers posed by the outdated and often self-defeating maze of regulatory requirements? The need to act is urgent if we are to make sufficient and timely progress toward reduced fossil fuel reliance.

   To best understand the urgency, Part II begins with a look at our current fossil and renewable energy mix in the generation of electricity, (5) and then reviews the current and predicted climate change impacts on our energy choices. At stake are several hundred billion dollars of climate change-related damages each year just in the United States--from farming, fishing, and forestry industries increasingly harmed by changing temperature and precipitation patterns, (6) to coastlines and cities progressively more threatened by rising sea levels. (7) The business and insurance sectors have been hit by a growing number of extreme weather events (most recently Hurricane Sandy), (8) public health is increasingly threatened by disease and mortality from our over-reliance on fossil fuels and from their resulting emissions, (9) and U.S. national security is increasingly at risk from having to protect more foreign sources of fossil fuels and from resource-related conflicts resulting in more violence and displaced persons. (10)

   Unfortunately, as the economic and health costs from fossil fuel emissions have grown, so too has the byzantine labyrinth of laws and regulations to be navigated before a renewable energy project can be approved, let alone financed and developed.H The root cause goes back to the 1970s when some of our fundamental environmental laws were enacted--before we were aware of climate change threats--so as to slow down the review of proposed projects by requiring more studies of potential project impacts before approval. (12) But in our increasingly carbon-based twenty first century, we need a paradigm shift. While achieving important goals, those federal laws and regulations, and similar ones at the state and local levels, have become so unduly burdensome, slow, and expensive that they will chill investment in--and kill any significant growth of--renewable carbon-free energy sources and projects, thereby imposing huge economic, environmental, and social costs upon both our country and the world unless they are substantially changed. (13) Indeed, by 2050 the U.S. must reduce its greenhouse gas emissions by 80% to even stabilize atmospheric levels of carbon, and can do so by increasing generated electricity from renewable sources from the current 13% up to 80%, (14) but only if there are new targeted policy efforts to accelerate--fifty times faster than since 1990-implementation of clean, renewable energy sources. (15)

   Thus, Part III focuses on one promising technology to demonstrate the flaws in current licensing permitting regimes, and makes concrete recommendations for reform. (16) Wind power generation from onshore installations is proven technology, generates no greenhouse gases, consumes no water, (17) is increasingly cost-competitive with most fossil fuel sources, (18) and can be deployed relatively quickly in many parts of the United States and the world. (19) Offshore wind power is a relatively newer technology, especially deep-water floating projects, and is presently less cost-competitive than onshore wind. (20) However, because wind speeds are on average about 90% stronger and more consistent over water than over land, with higher power densities and lower shear and turbulence, (21) America's offshore resources can provide more than its current electricity use. (22) Moreover, since these resources are near many major population centers that drive electricity demand, their exploitation would "reduc[e] the need for new high-voltage transmission from the Midwest and Great Plains to serve coastal lands." (23) Therefore, in light of Part III's spotlight on literally dozens of different federal (let alone state and local) statutes and their hundreds of regulations standing between an offshore wind project applicant and construction, Part IV makes concrete statutory and regulatory recommendations to more quickly enable the full potential of offshore wind energy to become a reality before it is too late.

2. OUR ENERGY USE AND ITS RESULTANT CLIMATE CHANGE IMPACTS

   1. Overview

      Greenhouse gases (GHGs) trap heat in the atmosphere. (24) The primary GHG emitted by human activities is carbon dioxide (C[O.sub.2]), which in 2010 represented 84% of all human-sourced GHG emissions in the U.S. (25) "The combustion of fossil fuels to generate electricity is the largest single source of C[O.sub.2] emissions in the nation, accounting for about 40% of total U.S. COs emissions and 33% of total U.S. greenhouse gas emissions in 2009." (26) Beginning with the 1750 Industrial Revolution, atmospheric concentrations of GHGs have significantly increased with greater use of fossil fuels--which has in turn caused our world to warm and the climate to change. (27) In fact, climate change may be the single greatest threat to human society and wildlife, as well as to the ecosystems upon which each depends for survival. (28)

      In 1992, the U.S. signed and ratified the United Nations Framework Convention on Climate Change (UNFCCC), the stated objective of which was:

      [To achieve] stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Such a level should be achieved within a time-frame sufficient to allow ecosystems to adapt naturally to climate change, to ensure that food production is not threatened and to enable economic development to proceed in a sustainable manner. (29) In 2007, the Intergovernmental Panel on Climate Change (IPCC) concluded that it is "very likely"--at least 90% certain--that humans are responsible for most of the "unequivocal" increases in globally averaged temperatures of the previous fifty years. (30)

      Yet in the twenty years since the UNFCCC, it also is unequivocal that GHG levels have not stabilized but continue to grow, ecosystems and food production have not been able to adapt, and our heavy reliance on fossil fuels perpetuates "dangerous anthropogenic interference with the climate system." (31) Equally unequivocal is that 2011 global temperatures were "the tenth highest on record and [were] higher than any previous year with a La Nina event, which [normally] has a relative cooling influence." (32) The warmest thirteen years of average global temperatures also "have all occurred in the [fifteen] years since 1997." (33) Global emissions of carbon dioxide also jumped 5.9% in 2010--500 million extra tons of carbon was pumped into the air--"the largest absolute jump in any year since the Industrial Revolution [began in 1750], and the largest percentage increase since 2003." (34)

      In order to even have a fifty-fifty chance that the average global temperature will not rise more than 2[degrees]C (35) beyond the temperature of 1750, (36) our cumulative emissions of C[O.sub.2] after 1750 must not exceed one trillion tons. However, by mid-October 2012 we had already emitted over 561 billion tons, and at current rates, we will emit the trillionth ton in June 2043. (37) The consequence is that members of "the current generation are uniquely placed in human history: the choices we make now--in the next 10-20 years--will alter the destiny of our species (let alone every other species) unalterably, and forever." (38) Unfortunately by the end of 2011, the more than 10,000 government and U.N. officials from all over the world attending the Durban climate change conference (39) agreed that there is a "significant gap between the aggregate effect of Parties' mitigation pledges in terms of global annual emissions of greenhouse gases by 2020 and aggregate emission pathways consistent with having a likely chance of holding the increase in global average temperature below 2[degrees]C or 1.5[degrees]C above pre-industrial levels." (40)

      What are some of the growing...