HOW TO CHOOSE BETWEEN ENVIRONMENTALLY POSITIVE ACTIONS WHEN ONE OF THOSE ACTIONS CAN HARM THE OTHER: A CASE STUDY OF THE CONFLICT BETWEEN THE CALIFORNIA CONDOR AND WIND TURBINES.

• Author: Babcock, Hope

1. Introduction 2 II. The Conflict--Condors versus Wind Turbines 6 A. An Amazing Story--the Rescue of the California Condor from the Brink of Extinction 6 B. Wind Power--A Potential Silver Bullet Against the Growth of Greenhouse Gases 10 C. Conflicts Between Wind Turbines and Birds 16 D. Where Conflicts Between Environmental Goods Are Unavoidable and Resolving the Conflict May Exact Too High a Price for One Side of the Conflict--Thinking Around the Conflict 19 III. Non-Structural Approaches to Conflict Resolution Not a Panacea 21 IV. Conclusion 22 I. INTRODUCTION

   It is not unusual to be faced with an environmentally good thing that has a negative consequence, such as recycling glass bottles and thus depriving the homeless of a small but steady income from picking up discarded bottles and collecting a deposit for each returned one. But what happens when the choice is between two environmentally positive outcomes where only one can prevail and will do so at the expense of the other? This Article looks at this situation by using the conflict between restoring endangered condors to the wild and installing wind turbines, an important source of renewable energy. (1) Unfortunately, the ideal terrain for each is the same as both are dependent on wind, and both require some degree of isolation from people. Yet, they cannot coexist in the same space without harm occurring to any condor that transects the sweep of a turbine's blades.

   This Article looks at how to determine whether condors or wind turbines should prevail in a conflict between them by looking at the comparative costs of the loss of a single condor and of delaying the transition to wind power. (2) Common sense norms like first come, first served, moral principles, or political realities are ambiguous and contestable and, therefore, do not help answer the question. Nor does looking at the durability of a choice, the breadth of its public support, or the severity of the consequences of a wrong decision, e.g., extinction of a species or a delay in reducing greenhouse gas emissions, as both are severe.

   Condors were listed in the original Endangered Species Act (3) (ESA), like the Grizzly Bear, as an example of species on the brink of extinction that might benefit from the statute's protective provisions. (4) Over the past several decades, the country has invested thirty-five to forty million dollars in restoring condors in the wild; (5) at the same time, concern about greenhouse gases has led the country to rely increasingly on renewable sources of energy like those generated by wind turbines. (6) Condors and wind turbines cannot easily coexist, as the turbine blades will kill any avian species, including condors, that fly into them. (7) While there are some steps that operators of wind turbines can take to lessen their impact on birds, like feathering turbine blades when birds are in the area or situating the turbines sufficiently apart from bird habitats, (8) each of these steps lessens their economic benefit. The benefits of condors and wind energy are incommensurable--the benefits of each are unique and are not replaced by the benefits of the other. As such, they present a "wicked" choice, where it appears that one, either the condor or a source of renewable energy, must be sacrificed to allow the other to exist, let alone flourish. (9)

   This Article looks at that choice and identifies various approaches drawn from common sense that might be used in coming to a decision as to whether condors or wind turbines should prevail. Approaches, such as first come, first served; greatest good for or least harm to the greatest number (maximal utilities); as well as in accordance with moral principles, popular choice, and alignment with political realities; offer potential approaches to resolve the conflict, but none is without analytical difficulties. Some examples of such difficulties are identifying what criteria to judge whether an entity has "come first" and when a particular site is occupied; the greatest good or harm to whom or what; which moral principles and how universal must they be to function as a standard; and popular choice by whom. Further, an approach based upon political realities suffers from impermanence and is time and content dependent. Of greater use might be a weighing that reflects how durable a choice might be, the breadth of public support, and the severity of the consequences of a wrong decision, which here could be the extinction of a species or a delay in meeting critical greenhouse gas emission reductions. While no clear answer emerges from this discussion as to which option should be selected, condor protection or use of wind turbines, the author believes that the analytical process set out in this Article may have merit to the extent it makes the ultimate decision more considerated and perhaps more durable to the extent that its consequences are better understood.

   Part II.A presents background information on condors--the history of the government's efforts to save them and repatriate them in the wild, the cost of those efforts, and where reintroduction efforts stand today. Part II.B describes the growth in wind power in the United States, the optimal sites for placing wind turbines, and the current status of the industry, including governmental support for the industry's development, its projected growth over the next decade and obstacles to achieving that growth. Part II.C identifies pragmatic ways of avoiding the conflict between repatriating condors in the wild and growth in wind power, such as redesigning wind towers to reduce the sweep of the blades, painting them to appear more clearly as obstacles to the birds, limiting their use to times when condors are unlikely to be in the area, and separating them to allow condors to fly between instead of at them. (10) Concluding that while those initiatives hold some promise for reducing the killing of individual condors in the short term, the implementation of each would reduce the attractiveness of wind energy as a long-term solution to the conflict by increasing its costs and reducing its benefits.

   The absence of a clear winner in this conflict leaves decision makers with the difficult task of deciding between environmental "goods" that are irreconcilable. Part III identifies different approaches to resolving conflicts with no clear winners, such as utility maximization; first come, first served; popular choice; moral principles; and political reality, and evaluates the availability of viable alternative solutions. The author finds merit, however, only in an alternative solution due to the availability of alternative renewable energy sources but finds no way to assure the condors' continued existence unless hazards, like wind turbines, are removed. Although this approach makes the choice in favor of condors more apparent, as their loss cannot be mitigated, it is important to develop other sources of renewable energy that will not threaten the condor's continued existence or the existence of any other endangered species, lest the goal of expanding sources of renewable energy in a timely fashion not be met.

   To the extent that the Article has identified an approach for resolving the rather esoteric condor-wind energy dispute, other more common "wicked" problems involving incommensurable conflicts between environmental goods may also be resolvable. (11)

2. THE CONFLICT--CONDORS VERSUS WIND TURBINES

   The conflict between condors and wind turbines is somewhat atypical as it does not pit local environmentalists against a nationally important renewable energy project. (12) Rather, two important national interests, energy conservation and protection of endangered species, conflict. What follows explains the nature of that conflict--why it is both unavoidable and difficult to resolve.

   1. An Amazing Story--the Rescue of the California Condor from the Brink of Extinction

      The California condor is the largest land bird in North America. (13) It has a wingspan of 9.5 feet, is 3 to 3.5 feet tall, and weighs up to 25 pounds, making it roughly the size of a small child. (14) Condors feed on carrion and do not have sharp talons for killing or grasping prey, unlike hawks. (15)

      They reproduce slowly, reaching sexual maturity between the age of five to seven, and lay a single egg at a time. (16) They may lay a second egg, if the first is lost to predators or gets broken. (17) Although "[c]ondors are long-lived birds," they produce only one chick every other year. (18) This means the species' ultimate recovery will take a long time, and the death of even a single bird can substantially influence recovery. (19)

      Condors soar on warm thermal updrafts and can do so for hours, reaching speeds over fifty-five miles per hour and altitudes of 15,000 feet. (20) They "require vast, undeveloped landscapes with canyons, cliffs and rocky outcroppings" for nesting, perching, and roosting habitats. (21) Cliffs and canyons create wind patterns that enable this large, heavy "bird to climb and soar in search of food." (22) They feed primarily on ungulates which are found in open areas on foothills and flats. (23) The condor's historic range spread from California to Florida and Western Canada to northern Mexico. (24) Today, its range is restricted to parts of California, Arizona, and northern Mexico. (25)

      The ESA listed the condor as an endangered species. (26) In 1979, the United States Fish & Wildlife Service (FWS) began a program to recover condors in the wild. (27) In 1982, there were just twenty-three California condors in the world. (28) Five years later, in 1987, when there were twenty-seven condors in the world, the agency captured the five surviving wild birds in the United States and distributed them between the San Diego Zoo's Safari Park and the Los Angeles Zoo as part of a captive breeding program. (29) National Audubon Society sued to keep some birds in the wild in case the captive breeding did not...