From trash to treasure: converting America's contaminated land into renewable energy havens.

• Author: Scholtes, Jeremy S.
• Position: I. Introduction through III. Mitigating Challenges B. Siting and Permitting, p. 1-27

TABLE OF CONTENTS I. Introduction A. Background B. Renewable Energy in General II. RE-POWERING INITIATIVE (SEPTEMBER 20008) A. Contaminated Land 1. CERCLA Remediation Sites on Superfund Sites 2. Brownfields 3. RCRA CA Sites B. RE-Powering Initiative: Background, Benefits, and Mechanics 1. Background 2. Benefits 3. Mechanics a. Phase 1: Initial Screening b. Phase 2: Decision Trees c. Phase 3: Feasibility Study III. MITIGATING CHALLENGES A. Community Engagement and Public-Private Partnerships B. Siting and Permitting C. Renewable Portfolio Standards D. Financing Tools 1. State and Federal Incentives 2. Financing Models E. Liability 1. CERCLA or Superfund Sites 2. Revised Enforcement Guidance for Tenants (December 5, 2012) 3. State Level Enforcement 4. The Status Quo IV. RECOMMENDATIONS A. Federal Renewable Portfolio Standard 1. Benefits 2. Mitigating Challenges 3. Clean Energy Standard B. Contaminated-Property Mandates and Incentives in State Renewable Portfolio Standards V. PULLING IT ALL TOGETHER?THE AEROJET SUCCESS STORY AND THE WAY AHEAD A. Aerojet General Corporation Superfund Site (Sacramento, CA) 1. Community Engagement 2. Siting and Permitting 3. Renewable Portfolio Standard 4. Financing Tools 5. Liability B. Conclusion and the Way Ahead This Article explores that second chance to get it right this time and to expand renewable energy project development in an even more meaningful way. In the following pages, the author examines the emerging trend of siting renewable energy projects on contaminated land. Part I briefly introduces the reader to some of the rationales for developing clean energy, and specifically discusses the growing trend of renewable energy projects. Part II explores the concept of siting some of these projects on contaminated land instead of in greenspaces. The author discusses the EPA's RE-Powering Initiative and its recommended approach to incorporating renewable energy projects into the remediation and reuse plans for contaminated property.

Part III addresses several challenges that have previously hindered siting renewable energy on such properties, but which today have been sufficiently mitigated to the extent that these properties can expand our renewable energy production. Part IV evaluates some recommendations for further facilitating renewable development on contaminated properties. Finally, Part V concludes the Article by presenting a success story, which demonstrates the success already yielded through this relatively new paradigm shift to renewing our contaminated lands and growing our nation's renewable energy portfolio.

The author hopes that as the reader progresses through this Article, the increased potential for incorporating renewable energy into the reuse plans for our nation's contaminated property is both clear and convincing. While renewable energy development is only one spoke in the wheel of energy independence, it is an important one that demands a concerted national effort and takes time to build. (1) Today is the day to convert America's limited-use land into renewable energy havens in order to promote our energy independence, green our communities, and strengthen our economy.

The National Oceanic and Atmospheric Administration (NOAA) recently reported data confirming the dangers that scientists have been cautioning society about for several years. (2) NOAA reported that in 2012, the contiguous United States saw the most extreme weather in 100 years and the third-hottest summer on record. (3) NOAA's National Climatic Data Center reported that in 2012, the United States experienced the "largest moderate to extreme drought area (based on the Palmer Drought Index) since the 1950s," and in 2011, the United States experienced a record fourteen extreme weather events. (4)

A recent survey examined over 12,000 peer-reviewed climate science papers and concluded that "[q]uite possibly the most important thing to communicate about climate change is that there is a 97% consensus amongst the scientific experts and scientific research that humans are causing global warming." (5) Regardless of the extent to which the reader believes U.S. energy generation and energy and fuel consumption contribute to our global carbon footprint, most can agree that we need to endeavor to be more environmentally responsible in our energy generation and more efficient in our use of fuel and electricity. While domestic fossil-fuel production is increasing and oil imports are at a sixteen-year low, in 2011, the United States still spent $371 billion on foreign oil--money gone abroad instead of remaining at home to strengthen our economy through reinvestment and spending cycles. (6) Of late, crude oil prices, and natural gas prices in particular, remain volatile. (7) The country is struggling to recover from the worst economic downturn since the Great Depression and many family breadwinners remain out of work. (8) These are real world, tangible examples of how climate change and fossil-fuel dependence are impacting us right here in the United States--our environment, our economy, and our way of life.

President Barack Obama stated in his 2012 State of the Union Address, "with only 2 percent of the world's oil reserves, oil isn't enough. This country needs an all-out, all-of-the-above strategy that develops every available source of American energy. A strategy that's cleaner, cheaper, and full of new jobs." (9) He called for more natural-gas exploration, enough renewable energy development to compete on a global scale, clean-energy standards that promote economic growth and energy innovation, and double the efforts focusing on energy efficiency. (10)

All of this is to say that we, as Americans, need to take more action to achieve our national goals to reduce our carbon footprint, diversify our energy base, strengthen our economy, and achieve energy independence. With all of these motivations for development and national goals to attain, let us look at U.S. efforts to develop a strong clean-energy industry, and, in particular, a renewable energy industry.

2. Renewable Energy in General

   In 2012, the United States invested $48 billion in clean energy and now has the opportunity to engage in the competition over a $2 trillion, global clean-energy market. (11) Current renewable-energy-sourced electricity generation is on the rise as "[r]enewable electricity represented nearly 13% of total installed capacity and more than 12% of total electric generation in the United States in 2011," and "accounted for more than 35% of all new electrical capacity installation in the United States." (12) Additionally, "[i]n 2011, cumulative installed wind capacity increased by nearly 17% and cumulative installed solar photovoltaic capacity grew more than 86% from the previous year." (13)

   A 2012 U.S. Energy Information Administration report stated that "[o]f the major renewable fuel categories, biomass accounted for over half (53 percent) of total renewable energy consumption in 2010, while hydroelectric power accounted for nearly a third (31 percent). Wind was the source of 11 percent of total renewable energy consumption, and solar and geothermal combined contributed 5 percent." (14) In short, recent trends in renewable energy development and consumption demonstrate short-term successes.

   The Department of Energy's (DOE) 20% Wind Energy by 2030 report indicated that 40% of total greenhouse gas (GHG) emissions come from power-generation facilities, but if domestic investment reaches 20% wind electricity by 2030, then the amount of carbon dioxide emissions could be reduced by 825 million metric tons annually, or approximately 25% of a no-new-wind scenario. (15) This same investment could reduce natural-gas consumption for utilities by 50%, reduce natural-gas consumption by 11% across industry, and reduce coal use by 18% across industry. (16) Additionally, it simultaneously saves domestic fossil fuel for distribution across time, moves the United States closer to energy independence, and cleans our environment. The report also found that by 2030, this wind expansion could support up to 500,000 jobs in the wind industry, support more than 150,000 jobs in associated support industries, yield 200,000 jobs through economic expansion, increase annual property tax revenues by more than $1.5 billion, and increase annual payments to rural landowners to more than $600 million. (17)

   The solar industry is also an engine for economic growth, technological innovation, and energy independence. (18) In 2012, the solar industry grew to over 119,000 solar workers in 5600 businesses spread across every state in the country. (19) The value of solar electric installations increased from $6 billion in 2010 to $8.6 billion in 2011, and to $11.5 billion in 2012. (20) With technological innovation leading to better quality and lower cost solar components, the average price of solar panels and completed photovoltaic systems continues to drop. (21) The over 7700 megawatts (MW) of installed solar electric capacity through 2012 (enough to power more than 1.2 million American households)--which includes an increase of 26% of commercial market installation over 2011--demonstrates solar's strong contribution to future energy independence. (22) Less capital investment in photovoltaic solar occurred in 2013 as compared to 2012 because of the explosion in market growth over the last several years, which resulted in an energy surplus and a lower project cost basis. But experts anticipate a recovery in capital investment again in 2014. (23)

   While President Obama has not necessarily committed to a federal renewable portfolio standard (RPS), he made clean energy a centerpiece of his energy strategy. (24) His goal is to "double the share of electricity from clean energy sources to 80 percent by 2035 from a wide variety of clean energy sources, including renewable energy sources like wind, solar, biomass, and hydropower; nuclear power; efficient...