Legal Pathways for a Massive Increase in Utility-Scale Renewable Generation Capacity

• Date: 01 July 2017

7-2017 NEWS & ANALYSIS 47 ELR 10591

A R T I C L E S

Legal Pathways

for a Massive

Increase in

Utility-Scale

Renewable

Generation

Capacity

by Michael B. Gerrard

Michael B. Gerrard is Andrew Sabin Professor of

Professional Practice and Director of the Sabin Center

for Climate Change Law at Columbia Law School;

Chair of the Faculty of Columbia’s Earth Institute; and

Senior Counsel to Arnold & Porter Kaye Scholer.

Summary

Decarbonizing the U.S. energy system will require a pro-

gram of building onshore wind, oshore wind, utility-scale

solar, and associated transmission that will exceed what has

been done before in the United States by many times, ever y

year out to 2050. ese facilities, together with rooftop

photovoltaics and other distributed generation, are required

to replace most fossil fuel generation and to help furnish

the added electricity that will be needed as many uses cur-

rently employing fossil fuels (especially passenger transpor-

tation and space and water heating) are electried. is

Article, excerpted from Michael B. Gerrard & John Dern-

bach, eds., Legal Pathways to Deep Decarbonization in the

United States (ELI Press fort hcoming 2018), discusses the

four most important legal processes and obstacles involved

in this enormous project: site acquisition and approval; the

National Environmental Policy Act; state and local approv-

als; and species protection laws. It also presents recom-

mendations for lowering the obstacles and briey discusses

several corollary actions that are needed.

I. Introduction

Achieving the Deep Deca rbonization Pathways Project

(DDPP) scenarios1 to decarbonize the U.S. energy system

will require a program of building onshore wind, oshore

wind, utility-scale solar,2 and associated transmission that

is not only unprecedented—it will exceed what has been

done before in the United States by many times, every year

out to 2050.

is A rticle will discuss the four most important legal

processes and obstacles involved in this enormous project:

site acquisition and approval; the National Environmental

Policy Act ( NEPA); state and loca l approvals; and species

protection laws. It will also present recommendations for

lowering the obstacles, and it will briey discuss several

corollary actions that are also needed.

ese problems are not unique to t he United States. A

2016 study from the International Energy Agency found

that la rge renewable projects in France, Norway, and the

United Kingdom have also been plag ued in varying degrees

by delays from political/regulatory issues, site access, envi-

ronmental approvals, and grid connection.3

Approval delays are cos tly in several way s. C ons truc-

tion costs may esc alate. New technologies or require-

ments may compel a revision in designs, leadi ng to

further delays. Applic ants may become so discouraged by

the delays that they give up, or their nancing may va n-

ish, or local opposition to siting may grow. Lenders who

require speedy retu rns may be deterred from engaging at

all. During t he ye ars that a renewable facility is not yet

operating , the energy needs it will ll may be provided

by fossil fuel facilities that add to the c umulative load of

greenhouse gases.

After quantifying the number of facilities needed, this

Article discusses each of the four principal processes in

turn. First, however, it is appropriate to introduce NEPA,4

since it is so pervasive in what follows. NEPA requires fed-

1. e Deep Decarbonization Pathways Project is a global consortium of

researchers working on practical methods to deeply reduce greenhouse gas

emissions in their own countries. See http://deepdecarbonization.org/.

2. Utility-scale facilities are typically stand-alone and are designed to provide

power to the electric grid. ey are in contrast to distributed facilities,

which are often attached to buildings and are designed to help power those

buildings and perhaps the immediate community, though they sometimes

sell excess power to the grid.

3. I E A’ I A 

R E T D, F R:

D  C  R D (R-D) (2016),

available at http://iea-retd.org/wp-content/uploads/2016/03/RE-DELAYS-

nal-report.pdf.

4. 42 U.S.C. §§4321 et seq.

Author’s Note: e author thanks the following reviewers for their

comments on earlier drafts: David Cleaves, John Dernbach, David

Hayes, Michael Hindus, Ryan Jones, Yael Lifshitz, Ethan Shenkman,

Eleanor Stein, and Edward Strohbehn.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

47 ELR 10592 ENVIRONMENTAL LAW REPORTER 7-2017

eral agencies to prepare an environmental impact statement

(EIS) for any major federa l action signicantly aecting

the quality of the human environment. Utility-sca le proj-

ects on federal land, or oshore, almost invariably require

an EIS. e NEPA process can go on for several yea rs and

cost millions of dollars, and it often leads to litigation that

can take still more years.

As disc ussed below, re cent lega l and a dmi nist ra-

tive reforms have shown p romis e in shortenin g NEPA

time lines a nd reducin g litigat ion for renewable energy

projec ts, but the field rema ins challe nging. Seve ral

related actions may b e considere d together in a “pro-

grammat ic” EIS, someti mes (but not always) followed

by narrower site-specif ic EIS or environmental a ssess-

ments; this “tiering” proce ss ha s the potenti al to reduce

duplic ated effort.5

It must also be noted that the Donald Trump Adminis-

tration is moving to rescind a large number of environmen-

tal regulations a nd guidance documents, especially t hose

adopted during the Barack Obama Administration. e

Trump Administration is clearly very favorable toward fos-

sil fuel development; its attitudes toward renewable energy

development remain to be seen. Readers are cautioned to

ensure that any federal regulations or orders referenced

here are still in eect.

II. The Massive Number of

Needed Facilities

e DDPP sc enarios all call for the c onstruction of a

massive number of new central station renewable energy

facilitie s, mostly w ind and solar—ma ny times h igher

than the amount of such construction ever previously

achieved. ese are required to replace most fossil fuel

generation and to help furnish the added electricity that

will be needed as many uses currently employing fossil

fuels (especially passenger transportation and spac e a nd

water heating) are electried. (Some of this needed capac-

ity could be met i nstead by small-scale distribute d units,

mostly rooftop solar photovoltaic (PV) and solar ther-

mal.) A ll of this is in addition to agg ressive programs of

energy eciency a nd, possibly, expanded use of nuclear

energy a nd hydropower.

e amount of energy produced in the United States

from wind and solar sources has been rapidly increasing, as

shown in Table 1.

5. 40 C.F.R. §1508.28. is was successfully done by the Bureau of Land

Management (BLM) in the Dry Lake, Nevada, solar energy zone. Because

of the programmatic EIS for the zone, three large projects were able to move

forward in less than 10 months under tiered environmental assessments. Press

Release, U.S. Department of the Interior, Interior Department Approves First

Solar Energy Zone Projects (Apr. 26, 2016), available at https://www.doi.gov/

pressreleases/interior-department-approves-rst-solar-energy-zone-projects.

Table 1

U.S. Net Electricity Generation6

Thousands Megawatt (MW) Hours

Year Wind Solar PV

Utility Sc ale

Solar Therm al

Utility Sc ale

Solar PV

Distributed

2006 26, 589 15 493 N/A

2007 34,450 16 596 N /A

2008 55, 363 76 788 N/A

2009 73,8 86 157 735 N/A

2010 94,652 423 789 N/A

2011 120,177 1,012 806 N/A

2012 140,822 3,451 876 N/A

2013 167,84 0 8,121 915 N /A

2014 181,6 55 15,250 2,441 11,233

2015 190,719 21,666 3,227 14,139

2016 226,485 33,367 3,388 19,467

In 2016, wind and solar amounted to 6.9% of U.S.

electricity generation.7 By 2050, this will need to go up

to 50.25% under the DDPP Mixed Scenario and 78.0%

under the DDPP High Renewables Scenario, as shown in

Tables 2 and 3.8

Table 2

Percentage of U.S. Electricity Generation—

DDPP Mixed Scenario

Year Ons hore Wind Offshor e Wind Solar PV

2016*5.50 0 1.30

2020 8.41 0.03 0.62

2030 18.09 1.38 1.11

2040 27.04 4.44 3.27

2050 31.56 7.59 11.10

* Actuals9

Table 3

Percentage of U.S. Electricity Generation—

DDPP High Renewables Scenario

Year Ons hore Wind Offshor e Wind Solar PV

2016*5.50 0 1.30

2020 9.57 0.03 1.12

2030 26.14 4.28 4.64

2040 45.3 0 7.18 7.93

2050 51.57 10.89 15.54

* Actuals

6. U.S. E I A (EIA), E P

M W D  F 2017 tbls. 1.1 and 1.1.A (2007)

[hereinafter E P M], available at https://www.eia.gov/

electricity/monthly/pdf/epm.pdf.

7. Id.

8. Source: Personal Communication with Ben Haley, DDPP (Aug. 29, 2016).

9. Source of actuals: E P M, supra note 6, tbls. 1.1 and

1.1.A. Excluded is the very small amount of electricity generated by the

Rhode Island oshore wind facility that opened on Dec. 12, 2016.

Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.