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

Date01 July 2017
Author
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.

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