Finding the balance: Harmonizing renewable energy with wildlife conservation
| Author | Tina R. Goel |
| Position | J.D. candidate, May 2011, at American University Washington College of Law |
| Pages | 42-42 |
42SPRING 2010
In 2009, Secretary Salazar announced that the development
of renewable energy is a “top priority” for the Department
of the Interior (“DOI”),1 and approximately one year later he
approved the first offshore wind energy project.2 Although priori-
tizing renewable energy development is an important step towards
using fewer finite resources, renewable energy production must
not be permitted to sidestep compliance with federal environmen-
tal laws.3 Developers, regulators, and wildlife advocates must not
be permitted to ignore threats to biodiversity and other aspects of
natural ecology caused by renewable energy projects.
While energy consumption in the United States has been
on the rise for sixty years, domestic production has been unable
to keep up with the increase since 1970, resulting in substantial
energy imports.4 During the same period, domestic renewable
energy consumption also increased and in 2008, it accounted for
seven percent of total energy consumed.5 To reduce dependence
on foreign energy sources and slow the pace of climate change,
stakeholders must seriously consider increasing domestic wind
and solar energy production.6
The environmental effects of fossil fuels, such as coal and
oil, are well established and often cited as reasons for diversifying
energy production and consumption.7 Coal’s unique environmen-
tal concerns begin with adverse effects on water and land during
mining and persist well after we use coal-generated electricity,
emitting greenhouse gases that exacerbate climate change.8 Simi-
lar to coal, oil’s environmental effects begin as early as explora-
tion with the use of seismic testing to identify oil reserves and
continue through extraction, refining, transportation, and con-
sumption.9 In addition, whether for a coal mining operation or an
oil-drilling project, a related concern is biodiversity conservation
and compliance with the Endangered Species Act.10
Although the use of renewable energy has fewer adverse
environmental effects than the use of fossil fuels, there are still
numerous concerns arising from the development of wind and
solar energy.11 Before any “green” energy is generated, equip-
ment for wind and solar projects must be produced, transported,
and installed—all through a carbon-intensive process.12 In
addition, site selection for wind and solar energy projects must
take into account possible conflicts with much needed habitat
for endangered species.13 To assist in site selection, the Natural
Resources Defense Council (“NRDC”) developed and released
an interactive map highlighting areas of the western United
States that are inappropriate for development.14 This however,
should not discourage renewable energy advocates and industry;
early collaborative planning can ensure the success of renew-
able energy projects.
FINDING THE BALANCE:
HARMONIZING RENEWABLE ENERGY WITH WILDLIFE CONSERVATION
by Tina R. Goel*
* Tina R. Goel is a J.D. candidate, May 2011, at American University Washing-
ton College of Law.
Wind projects are often criticized for their potential to nega-
tively affect avian and bat populations.15 Proposed approximately
a decade ago, the Cape Wind project has been a source of great
conflict between those seeking to protect an important migratory
bird route and those seeking to develop offshore wind power; it
recently received federal approval.16 This approval bodes well for
renewable energy advocates and developers, but the cost of prog-
ress is too high if a thorough review of impacts upon endangered
species has not been conducted.17 Nonetheless, a balance between
renewable energy and biodiversity is possible.18
In December 2009, in a West Virginia wind project litiga -
tion, the court held that although “there is a virtual certainty
that Indiana bats will be harmed [during much of the year] . .
. in violation of § 9 of the [Endangered Species Act]” the tur-
bines already under construction may operate while the bats are
hibernating in the winter.19 To gain permission to operate the
turbines year-round, the court invited the developer to apply for
an incidental take permit,20 which is designed to authorize tak-
ings of endangered species, such as the Indiana bat.21 Such per-
mits often contain mitigation measures designed to limit harm
to wildlife.22 As the court noted, “[t]he two vital federal policies
. . . one favoring the protection of endangered species, and the
other encouraging development of renewable energy resources .
. . are not necessarily in conflict.”23
Solar energy projects are also anticipated to threaten endan-
gered species24 and projects near desert tortoise and pupfish habitats
can learn from the Indiana bat wind project. In addition to disturb-
ing important habitat, solar projects can cause avian mortality and
consume scarce water supplies.25 Nonetheless, by consulting the
NRDC renewable energy map prior to siting a project,26 applying
for an incidental take permit,27 and consulting with affected state
governments, such as Arizona and California,28 developers can
gain access to much needed sites for energy generation.
We must not presume that a wind or a solar project is envi-
ronmentally sound merely because it emits less carbon dioxide
than fossil fuels.29 All stakeholders—environmentalists, indus-
try, and the government—must remember that no source of
energy is truly green30 and that a legal framework exists to help
determine that a hydroelectric project in the middle of the desert
is probably not environmentally sound.
Endnotes: Finding the Balance: Harmonizing Renewable
Energy with Wildlife Conservation continued on page 56
