Utility-Scale Renewable Generating Capacity
| Author | Michael B. Gerrard |
| Pages | 463-488 |
Page 463
I. Introduction
Achieving the Deep Deca rbonization Pathways Project
(DDPP) scenarios to decarbonize the U.S. energy system
will require a program of building onshore wind, oshore
wind, utility-scale solar, and associated transmission that
is not only unprecedented—it will exceed what has been
done before in the United States by several times, every
year out to 2050. (Utility-scale facilities are t ypically
stand-alone and are designed to provide power to the elec-
tric grid. ey are in contrast to distributed facilities—the
subject of Chapter 19—which are often attached to build-
ings and are designed to help power those buildings a nd
perhaps the immediate community, though they some-
times sell excess power to the grid.)
is chapter 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 local approvals; and species
protection laws. It will also present recommendations for
lowering the obstacles, and it will briey discuss several
corollary actions that a re also needed.
Other factors can delay the constr uction and operation
of central station renewable energy facilities. ree are
discussed in other chapters— obtaining nancing (Chap-
ter 5), connecting to the transmission grid (Chapter 20),
and addressing the demands for la nd created by renewable
energy (various chapters).
Others do not appear to require legal reform, and thus
are beyond the scope of this book, most notably performing
studies of the wind resource; locatin g and purchasing private
land; obta ining technology a nd components; negotiating
power purchase agreements; and resolving labor disputes.
ese problems are not unique to the United States. A
2016 study from the International Energy Agency found
that large renewable projects in France, Norway, and the
United Kingdom have also been plagued in va rying degrees
by delays from political/regulatory issues, site access, envi-
ronmental approvals, and grid connection.1
Approval delays are costly in severa l ways. Construc-
tion costs may escalate. New tech nologies or require-
ments may compel a revision in designs, leading to
1. 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.
Chapter 18
Utility-Scale Renewable Generating Capacity
by Michael B. Gerrard
Summary
Achieving the Deep Decarbonization Pathways Project scenarios to decarbonize the U.S. energy system will
require a program of building onshore wind, oshore wind, utility-scale solar, and associated transmission that
will exceed what has been done before in the United States by several times, every year out to 2050. ese facili-
ties, 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 currently employing fossil
fuels (especially passenger transportation and space and water heating) are electried. is chapter 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 approvals; and species protection laws. It also presents
recommendations for lowering the obstacles and briey discusses several corollar y actions that are needed.
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.
Page 464 Legal Pathways to Deep Decarbonization in the United States
further delays. Applica nts may become so discouraged by
the delays that they give up, or their nancing may van-
ish, or local opposition to siting may grow. Lenders who
require speedy returns may be deterred from engaging at
all. During the yea rs that a renewable facility is not yet
operating, the energy needs it wil l ll may be provided
by fossil fuel facilities that add to the cumulative load of
greenhous e gases.
As discussed below, the Cape Wind project o Cape
Cod has infamously endured 17 years of delays and may
or may not be dead. However, this experience is far from
typical. A s shown here, new procedures have allowed some
other projects to proceed much more swiftly, and use of
these procedures can be expanded.
After quantif ying the number of facilities needed, this
chapter discusses each of t he four principal processes in turn.
It then describes several needed complementary actions.
First, however, it is appropriate to introduce NEPA,2
since it is so pervasive in what follows. NEPA requires fed-
eral agencies to prepare an environmental impact st atement
(EIS) for any major federal action signicantly a ecting the
quality of the human environment.3 Uti lity-scale project s
on federal land, or oshore, almost invariably require an
EIS. (Where there is a question about whether the project
is signicant enough to require an EIS, or where an EIS
has been issued but subsequent developments warrant fur-
ther review, a shorter document called an environmental
assessment is sometimes prepared.) e NEPA process can
go on for several years and cost millions of dollars, and it
often leads to litigation that can t ake still more years. As
discussed below, recent legal and administrative reforms
have shown promise in shortening NEPA time lines and
reducing litigation for renewable energy projects, but the
eld remains challenging. Several related actions may be
considered together in a “programmatic” EIS, sometimes
(but not always) followed by narrower site-specic EIS or
environmental assessments; this “tiering” process has the
potential to reduce duplicated eort.4 e NEPA process is
overseen by the Council on Environmental Quality (CEQ ),
a unit of the Executive Oce of the President established
by the NEPA statute. CEQ has issued governmentwide reg-
ulations on the NEPA process. Many agencies have issued
their own regulations on how they will conduct the NEPA
process, but these are all subject to the CEQ reg ulations.
It must also be noted that the Donald Trump Adminis-
tration is moving to rescind a large number of environmen-
2. 42 U.S.C. §§4321 et seq.
3. Id. §4332(C); 40 C.F.R. §1502.3.
4. 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.
tal regulations and guidance documents, especially those
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 eect.
II. The Massive Number of Needed
Facilities
e DDPP scenarios all call for the construction of a
massive number of new central station renewable energy
facilities, mostly wind and solar —many times higher
than the amount of such construction ever previously
achieved. ese are required to replace most fossil f uel
generation and to help furnish the added electricity that
will be needed as many uses currently employing fossil
fuels (especially passenger transportation and space and
water heating) are electried. (Some of this needed capac-
ity could be met instead by small-scale distributed units,
mostly roof top solar photovoltaic (PV) and solar t hermal;
these are discussed in Chapter 19.) All of this is in addi-
tion to aggressive programs of energy eciency (discussed
in Chapters 9-12) and, possibly, expanded use of nuclear
energy (Chapter 21) and hydropower (Chapter 22).
e amount of energy produced in the United States
from wind and solar sources has been rapidly increasing,
as shown in Table 1.
Table 1
U.S. Net Electricity Generation5
Thousands Megawatt (MW) Hours
Yea r
Wind
Solar PV
Utility Scale
Solar
Thermal
Utility Scale
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 73,886 157 735 N /A
2010 94,652 423 789 N/A
20 11 120 ,17 7 1,012 806 N/A
2012 14 0,8 22 3 ,451 876 N /A
2013 16 7,8 40 8 ,121 915 N/A
2014 181,6 55 15, 250 2 ,441 11 , 2 33
2015 19 0,719 21,666 3,227 14 ,139
2016 226 ,993 33,67 0 3,384 18 ,812
2017 254, 254 49,68 8 3,269 2 4,139
5. U.S. E I A (EIA), E P
M W D to April 2018 tbl. 1.1.A [hereinafter E
P M], available at https://www.eia.gov/electricity/monthly/
epm_table_grapher.php?t=epmt_1_01_a.
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