Wind Power and the Legal Challenges with NEPA and the ESA

Author:Florianne Silvestri
Position:Florianne Silvestri is a licensed, practicing attorney in Michigan. She is a proud alumnus from the University of Toledo College of Law and the University of Michigan-Ann Arbor. She is appreciative for this opportunity with the Sustainable Development Law and Policy Brief. This paper was first published by the Ohio State Bar Association and Mc...
18 Sustainable Development Law & Policy
Wind PoWer and the LegaL ChaLLenges With
nePa and the esa
Florianne Silvestri*
I. IntroductIon
The wind energy sector has emerged as a leading renew-
able energy source within the United States.1 Many
states, including Ohio, have been developing projects
that encourage the use of wind energy as a renewable source.2
Typically, the wind energy sector will establish wind farms
onshore or offshore.3 Many onshore wind farms have massive
propellers called wind turbines that generate the wind power.4
Each turbine has four basic parts: (1) “a rotor or blades (usually
three per tower)[;]” (2) an “enclosure containing a drive train
usually having a gearbox and a generator[;]” (3) “a tower which
supports the rotor and the drive train[;]” and (4) “electronic
equipment such as controls, ground support equipment, and grid
interconnection equipment.”5
These towers with three rotating blades generate electrici-
ty. 6 For onshore farms, these turbines vary in size with rotating
blades and tower heights between fty meters to ninety meters.7
Because most blades and turbines today are sturdier, lengthier,
and larger, they operate at more dependable wind speeds at
higher altitudes, and thus generate more electricity because
amount of land required is reduced, which results in cost savings
with improved efciency.8 These improvements could increase
wind energy’s production by 67% more than previously installed
turbines, regaining more than 700,000 square miles to be uti-
lized for wind energy.9
This paper focuses on the legal obstacles that wind energy
developers may encounter with National Environmental Policy
Act (NEPA) and the federal Endangered Species Act (ESA),
and uses Ohio statutes as an example of how a developer may
avoid or minimize such problems. Part II explores the wind
power within the United States and its benets and disadvan-
tages, and utilizes the Ohio administrative compliance process
as a wind energy project case study. Part III examines NEPA and
the federal ESA, and compares it to Ohio’s version of the ESA.
Following this, Part IV evaluates the legal challenges that a wind
power project, especially in Ohio, may experience with NEPA
and the federal ESA.
II. WInd PoWer: HIstory and Its
double-edged sWord
This section gives an overview of the industry of wind
power in the United States and its advantages and disadvan-
tages. Furthermore, this section evaluates the history and growth
of the wind industry in Ohio. Lastly, this section outlines the
administrative compliance process in Ohio for a wind developer
to establish a renewable energy plant.
a. Wind PoWer in the United states
Wind power has greatly expanded across the United States
during the twenty-rst century.10 An average of 20 million
Americans now power their homes with wind energy, and around
forty-one states, Guam, and Puerto Rico have implemented
“utility-scale wind energy projects.”11 As of January 2018, the
wind industry within the United States has installed enough
wind turbines to generate the ability of 89,077 megawatts of
electricity for 26 million American households.12
Presently, across Puerto Rico, Guam, and forty-one other
states in the United States, more than 52,000 wind turbines are
functioning.13 Internationally, almost two hundred countries, pre-
viously including the United States, have entered into an interna-
tional climate change agreement, focused on renewable energy.14
Behind China, the United States is the world’s second lead-
ing wind energy market generating electricity.15 Wind power
has become cheaper and more competitive.16 The cost for wind
power has continuously decreased since 1980 while the total
facility of wind energy in the U.S. has increased.17
The signicant wind energy producers are General Electric
and Vestas, which covered 85% of the U.S. market in 2016.18
Wind energy is the “third-largest source of U.S. electric-gen-
erating capacity additions” after solar power and natural gas.19
Over the last decade, wind energy has provided for an additional
31% of all new generation capability, illustrating wind power as
a frontrunner in the renewable energy resource market.20
B. advantages and disadvantages
The utilization of wind power as a renewable energy source
includes many advantages for the United States. First, the U.S.
wind power industry employed “102,500 full-time equivalent
(FTE) jobs” related to the strategy, development, and imple-
mentation of wind power ventures within the United States.21 In
2016 alone, the wind industry added 15,000 jobs.22 Wind farm
projects have also contributed economic benets to the commu-
nities around the wind farm projects.23 Local and state govern-
ment may also benet from sales and income tax from new wind
* Florianne Silvestri is a licensed, practicing attorney in Michigan. She is a proud
alumnus from the University of Toledo College of Law and the University of
Michigan-Ann Arbor. She is appreciative for this opportunity with the Sustain-
able Development Law and Policy Brief. This paper was rst published by the
Ohio State Bar Association and McMahon DeGulis LLP and can be found in
Ohio Wind Power and the Legal Challenges with NEPA and the ESA, in 17-021
32nd annUaL ohio envt, energy, and res. LaW seminar referenCe manUaL
18.23–18.53 (2017). This author has received their permission to reprint this
paper without the modications that this author and the Sustainable Develop-
ment Law and Policy Brief have made.
224813_AU_SDLP_Spg-Sum18.indd 18 10/18/18 1:53 PM
Spring/Summer 2018
farm projects’ construction as well as real estate tax from new
project equipment.24
Moreover, wind farm projects provide income to lower
socioeconomic areas with royalty payments or leases to land-
owners.25 When wind farm projects use leased lands or lands
involving royalty fees to the landowners, the landowners
receive additional income and have the opportunity to remain
on their own land to continue their daily activities, such as
farming and ranching.26 Overall, the U.S. wind energy industry
has paid landowners $245 million for annual lease payments.27
Wind farm projects also allow different uses for the land like
as habitats for wildlife, grazing for livestock, and recreational
Additionally, the wind energy initiative has signicantly
reduced our dependency on fossil fuels and saved 87 billion gal-
lons of water from Americans’ consumption.29 As wind power
had been effective to reduce the United States’ dependence on
water consumption, wind power has become a part of the diver-
sication of different renewable sources that generate electrici-
ty. 30 Wind power can contribute a signicant part to Americans’
energy conservation and needs.31
Also, wind power can assist states that have renewable
portfolio standards to achieve their targets for renewable sources
generating electricity.32 As a limitless resource, wind power
utilizes no fuel33 and generates neither greenhouse gases nor air
pollution.34 Wind energy projects also do not include any solid
or hazardous waste.35 Other types of non-renewable energy, like
coal, produce grave waste disposal problems while generating
Wind power includes its disadvantages as well. Wind does
not correlate with human consumption for energy.37 Instead,
wind power depends on atmospheric conditions, it varies with
speed and accessibility, and it cannot be stored for latter usage.38
As the wind energy industry develops better turbine design and
controls for electricity, various wind farms’ speeds largely deter-
mine the farms’ costs,39 and sites may vary.40
Other concerns for wind power involve “a man-made
plague” within communities, dividing various habitats, dev-
astating ecosystems, and negatively affecting wild birds.41
Opponents complain about the aesthetic impact of wind farms.42
The wind turbines may also provide “interference with commu-
nications, shadow icker, the noise produced by rotating blades,
effect on hunting and other forms of recreation, health effects
of low-frequency sound, impact on aircraft communications,
radar navigation and surveillance systems, safety issues and ice
throws from the blades of turbines.”43 Many bird and bat deaths
resulting from collisions with the wind energy farms have been
documented as well.44
While wind power has shortcomings on various levels, it
is important to realize that while these difculties exist, wind
energy is renewable and has many positive attributes that may
outweigh the problems.
C. Wind PoWer in ohio
The state of Ohio joined the renewable energy initiative as
the twenty-seventh state on July 31, 2008, when the legislature
passed a renewable portfolio standard within Ohio Revised
Code 4928.64.45 This renewable portfolio standard mandated
that Ohio generate 12.5% of its energy from renewable sources,
including wind power, by 2026.46 Even though this progress
was halted in 2014 when Ohio Governor John Kasich signed
Senate Bill 310, which froze the renewable portfolio standard
until 2017, Governor Kasich vetoed to continue the freeze in
December 2016.47
Despite this initial setback, the wind power industry in Ohio
has provided between two thousand to three thousand employ-
ment opportunities for Ohio residents.48 Additionally, the wind
power industry has given landowners in Ohio between $1 mil-
lion to $5 million in annual lease payments for wind power proj-
ects.49 Therefore, even though the renewable portfolio standard
did not increase between 2014 and 2017, wind energy continues
to develop as a renewable energy source for electricity.
d. ohio AdministrAtive ComPliAnCe ProCess
The standard application for a wind power plant within
Ohio starts with the Ohio Power Siting Board (“OPSB” or “the
Board”), which was created in 1972.50 Ohio Revised Code §
4906 outlines the powers of the OPSB.51 The Board’s purpose
focuses on encouraging energy source strategies that support the
implementation of energy capability and transmission function-
alities in Ohio, incentivizing Ohio’s economy, and conserving
land utilization and the environment.52 Wind energy projects in
Ohio cannot go forward absent OPSB’s approval.53
The Board includes eleven members, seven with voting
power and four without voting power.54 The chairperson of
the Public Utilities Commission performs as chairperson of
the Board.55 Directors from the Department of Agriculture,
Health, Natural Resources, Development Services Agency, and
Environmental Protection Agency, and a public person as an
engineer and a governor’s appointee from the Ohio Consumers’
Counsel’s nominees are the other six voting members.56 Two
state House Representatives and two Senators encompass the
last four non-voting members.57
The OPSB requires any serious utility developer, involving
a wind energy producer as an “economically signicant wind
farm,” to apply for a “certicate of environmental compatibility
and public need.”58 An “economically signicant wind farm”
includes wind turbines and other infrastructures that contain a
“single interconnection to the electric grid” and would be con-
structed, including the ability, to operate at a total capability
between ve to fty megawatts.59
The wind energy developer is required to provide a pre-
application letter to the OPSB fteen days before a public infor-
mational meeting occurs.60 A public informational meeting must
occur before the wind energy developer applies for a certicate
with the OPSB.61 The developer utilizes this meeting as a chance
to provide information about its anticipated application with the
OPSB and to receive public feedback.62 When the wind energy
224813_AU_SDLP_Spg-Sum18.indd 19 10/18/18 1:53 PM
20 Sustainable Development Law & Policy
developer meets the pre-application requirements, the wind
energy developer submits the application with the OPSB, which
has sixty days to review the application.63 During this process,
the OPSB staff request other involved parties’ and agencies’
comments to provide a recommendation to the OPSB.64 If the
OPSB approves the application, the OPSB provides a letter of
completeness to the application.65 If the OPSB rejects the appli-
cation, the OPSB addresses the application’s incompleteness
with the wind developer.66
Upon approval, the wind energy developer complies
with appropriate notication of the accepted and completed
application,67 it pays ling and other associated fees,68 and
the OPSB sets an ofcial ling deadline with additional pub-
lic and adjudicatory hearing dates.69 The local public hearing
addresses the immediate community’s concerns about the wind
developer’s application and is considered within the OPSB’s
ofcial record during the decision making process.70 The public
provides sworn statements at the local public hearing that a court
reporter transcribes, including exhibits and the public’s sworn
commentary and testimony.71
The adjudicatory hearing under an administrative law judge
presents the involved parties in the application the opportunity
to cross-examine witnesses and submit previously led sworn
testimony.72 However, a participant may not be included in both
types of hearings,73 and an intervener, an individual that engages
in the evidentiary hearing with either cross-examination or l-
ing sworn testimony,74 may withdraw to allow another person
to testify and advocate on its behalf at the local public hearing.75
Within fteen days of the OPSB’s acceptance of the wind
developer’s application, the rst public notice of the applicant’s
ling is required to be posted.76 Within the duration of sixty to
ninety days, the OPSB starts the local public and evidentiary
hearings.77 The OPSB staff will provide a report within fteen
days before the local public hearing to the OPSB.78 Another pub-
lic notice is then required to be posted within the period of seven
to twenty one days before the local public hearing as well.79
The local public hearing occurs near the proposed site for
the wind developer.80 The evidentiary hearing ensues at the
ofces of the OPSB.81 When the local public and evidentiary
hearings nish, the involved parties may le briefs or provide
closing remarks.82 Within ninety days after the hearings are
completed, the administrative law judge prepares a proposed
decision on the wind developer’s application and project and
submits it to the OPSB.83 The OPSB considers the draft proposi-
tions at their monthly meetings.84
Based upon the administrative law judge’s proposed deci-
sion, the local public and evidentiary hearings, and the OPSB’s
investigation, the OPSB decides whether or not to issue the
applicant’s certificate to permit construction.85 Upon the
Board’s issued decision, the applicant may appeal the OPSB’s
decision within thirty days for a rehearing.86 After the appeal is
led, the OPSB has thirty days from the ling date of the appeal
to decide.87 If the OPSB denies the certicate’s issuance again,
the applicant may appeal to the Ohio Supreme Court within
sixty days.88
Currently, the Ohio Power Sitting Board has approved
the wind power plant projects Greenwich, Black Fork, Scioto
Ridge, Buckeye I and II, and Hardin and Northwest Ohio are
under construction.89 Timber Road I, II, and III, Hog Creek I and
II, and Blue Creek has operational sites, and the application for
Icebreaker in Lake Erie and Republic Wind are pending stage
as of February 5, 2018.90 Therefore, as the renewable portfolio
standard has been re-evaluated and allowed to move forward,
Ohio will continue to develop and produce wind energy.91
The following section addresses NEPA and the federal ESA,
in which both acts have been utilized separately and together to
challenge wind power projects’ development. Ohio has its own
state version of the ESA as well that the paper compares, and a
wind developer in Ohio should have awareness of all both fed-
eral laws and Ohio’s version of the ESA.
A. The NATioNAl eNviroNmeNTAl Policy AcT
The federal National Environmental Policy Act (“NEPA”)
also inuences any wind energy implementation efforts that
include “federal action signicantly affecting the quality of
the human environment.”92 NEPA was passed in 1969, and
the Council of Environmental Quality within the President’s
Executive Ofce oversees NEPA compliance.93 NEPA focuses
on the implementation of a federal policy that advocated for
more productivity and harmony among humans and the sur-
rounding environment.94 NEPA takes a procedural approach to
reinforce that federal agencies provide a “hard look” at their
actions and the resulting environmental results.95 Importantly,
a failure to comply with NEPA can result in a lawsuit that halts
the proposed federal action until compliance is accomplished.96
A private individual may bring a lawsuit against a federal
agency, in which he or she has alleged that the agency has vio-
lated NEPA, for judicial review pursuant to the Administrative
Procedure Act after the private individual has pursued neces-
sary administrative appeals.97
As a federal agency engages in any major federal action that
signicantly affects the human environment’s quality, NEPA
requires that the federal action perform an environmental impact
statement (“EIS”).98 An EIS addresses:
(i) the environmental impact of the proposed action,
(ii) any adverse environmental affects which cannot be
avoided should the proposal be implemented,
(iii) [reasonable range of] alternatives to the proposed
(iv) the relationship between local short-term uses of
man’s environment and the maintenance and enhance-
ment of long-term productivity, and
224813_AU_SDLP_Spg-Sum18.indd 20 10/18/18 1:53 PM
Spring/Summer 2018
(v) any irreversible and irretrievable commitments of
resources which would be involved in the proposed
action should it be implemented.99
A major federal action may involve an agency’s latest or
re-visited rules, regulations, plans, policies, or procedures.100
The federal agency begins the EIS process by placing a Notice
of Intent in the Federal Register notifying the public about the
agency’s analysis and the process, in which the public may pro-
vide its input.101 The Notice of Intent allows the federal agency
and the public to decide on the concerns and potential options
to be in the EIS.102 The draft EIS allows for the public’s com-
mentary for at least forty-ve days.103 The federal agency then
considers all the public commentary and may analyze further.104
Then, the nal EIS is placed within the Federal Register,
including the federal agency’s replies to the public com-
mentary.105 The federal agency waits at least thirty days until
it concludes with a nal decision on its action, except when
the agency adds the thirty days alongside a formal internal
appeals process.106 After the federal agency places a Notice
of Availability in the Federal Register with the accessibility to
the draft and nal EIS for the public, the federal agency then
issues its Record of Decision that includes a rationale of the
agency’s conclusion, a description of the agency’s deliberated
alternatives, and the agency’s strategy for monitoring and miti-
gation.107 Sometimes, a supplemental EIS may be required when
substantial uctuations occur with the federal agency’s action
that are germane to the apprehension regarding the environ-
ment, or when new signicant events or material related to the
environmental impacts affect the federal agency’s actions.108 If a
supplement EIS is needed, the federal agency follows the same
process for a draft or nal EIS.109
A federal agency may choose to prepare an “Environmental
Assessment” (“EA”) to determine whether an EIS is neces-
sary.110 Less extensive than a full-blown EIS, an EA evaluates
with appropriate investigation and evidence whether an EIS
should be prepared depending on the federal agency’s action.111
Within its evaluation, the EA examines if a federal action has the
possibility to produce signicant impacts on the environment.112
The EA contains an explanation for the proposal, “alternative
[courses of action for any proposal which involves unresolved
conicts concerning alternative uses of available resources,] the
environmental impacts of the proposed action and the alterna-
tives, and a listing of agencies and persons consulted.”113
If a federal agency concludes that the federal action will
not signicantly affect the environment, and the federal agency
determines an EIS is not needed, the federal agency releases a
“Finding of No Signicant Impact” (“FONSI”).114 A FONSI
explains the agency’s rationale for its conclusion that no signi-
cant effects would result from the action.115 However, if the EA
illustrates that the proposal would have signicant environmen-
tal effects, the agency would create an EIS.116
A federal agency’s action may be excluded categorically
under NEPA. To qualify for this type of exclusion, the federal
agency’s action falls into a category that does “not individually
or cumulatively have a signicant effect on the human environ-
ment and which have been found to have no such effect” within
an agency’s NEPA application regulations.117 Although an agen-
cy’s action may be considered as a categorical exclusion, when
“extraordinary circumstances” occur, an agency is required to
prepare an EA or EIS.118 This action may signicantly impact
the environment, even as a categorical exclusion, under emer-
gency circumstances.119
Sometimes, a federal action may include a state or private
action that a federal agency funds, approves, or causes.120 When
this federalization of the state or private action occurs, the action
is subject to NEPA.121 For example, when a federal permit is
issued to a private or state project that would constitute a fed-
eral action falling under the realm of NEPA.122 Therefore, wind
developer as a private actor may fall under the realm of NEPA.
B. The endangered SpecieS acT (“eSa”)
The Endangered Species Act (16 U.S.C. §§ 1531 et seq.)
passed in 1973 and signicantly impacted the wind energy
implementation within the United States.123 The ESA gov-
erns the federal agencies and departments that safeguard the
ecosystems and protects threatened and endangered species,
including their critical habitats.124 The U.S. National Oceanic
and Atmospheric Administration Fisheries Services (previ-
ously known as the National Marine Fisheries Service) in the
Department of Commerce and U.S. the Fish & Wild Service
(“FWS”) within the Department of the Interior regulate under
this Act.125
The ESA provides procedural and substantive protection
for species designated as endangered or threatened under the
ESA.126 An important part of the ESA that a wind developer
should consider is Section 9, which prohibits anyone, including
a wind developer, from the “taking” of listed species on public
and private land.127 Section 9 and what constitutes a “taking” is
addressed later in more detail.
However, a wind developer should rst understand that
Section 4 of the ESA governs the listing of the species as
endangered or threatened.128 An endangered species is consid-
ered “likely to become extinct throughout all or a large portion
of their range.”129 However, a threatened species is “likely to
become endangered in the near future.”130 The listing is on
the mere basis of science, not economics.131 If the FWS or the
NOAA Fisheries is considering a species for listing, a notice
is published with the Federal Register with supportive studies
and an explanation.132 Within one year, the FWS or the NOAA
Fisheries evaluates whether the species should be listed, and if
so, publishes a notice in the Federal Register.133 After 30 days,
the listing is operative.134
A private individual may petition the agency, i.e. FWS or
NOAA Fisheries, to add a species, and the agency may respond
within 90 days.135 If the individual’s petition is considered,
then the agency would perform more exploration and a status
review.136 Within one year when the agency received the petition,
the agency would determine whether the listing is justied.137 If
the agency fails to make a determination, then the Act provides
224813_AU_SDLP_Spg-Sum18.indd 21 10/18/18 1:53 PM
22 Sustainable Development Law & Policy
private individuals to bring a lawsuit to require the agency to
meet the deadlines and that the species obtains safeguarding.138
The ESA also permits the Secretary to designate critical
habitats of a threatened or endangered species.139 A critical habi-
tat is a location “with particular physical or biological features
essential to a listed species that may require special management
and protection if the species is to survive and recover.”140 The
Secretary has vast discretion to evaluate the critical habitat’s
designation to “the maximum extent prudent”141 with the “best
scientic and commercial data available.”142 A decision is not
considered as prudent as (1) human action or a taking threatens
the species and the critical habitat may escalate the threat to
the species, or (2) the Secretary’s designation does not benet
the species.143 The FWS or the NOAA Fisheries may decline
a location for a critical habitat, where the exclusion’s benets
outweigh the area designation’s advantages, unless the exclu-
sion would eliminate the species.144 Public feedback is involved
in public hearings and commentary.145 Once a critical habitat
is created with anticipated territory, the agency places it in the
Federal Register.146 With public feedback, the agency then nal-
izes the critical habitat’s territory, and critical habitats come into
play with federal agencies.147
Section 7(a)(2) forbids a federal action that may adversely
modify a critical habitat or may jeopardize the continued exis-
tence of a listed species.148 A federal action incorporates agency
action and private actions that a federal agency funds, permits,
or performs; therefore, for both types of actions, the agency
is required to engage with the FWS or the NOAA Fisheries to
reinforce that the action only minimally harms the protected spe-
cies and not adversely modify or terminate its critical habitat.149
The ESA mandates formal consultation when the action “‘may
affect’” a critical habitat or listed species.150 Once a formal con-
sultation is triggered, the FWS or the NOAA Fisheries creates
a biological opinion that evaluates the action’s possible effects
to the listed species and advises procedures that an agency may
implement if the action, including the “cumulative effects[,]”151
is “likely to jeopardize the continued existence” or “result in the
destruction or adverse modication of the critical habitat” of the
listed species.152
However, even if a federal agencies’ action may inuence
a critical habitat or a listed species, a formal consultation may
be preventable when a federal agency starts an informal con-
sultation with the FWS153 or NOAA Fisheries.154 The agency
participates with FWS or NOAA Fisheries to develop changes to
the action or “‘reasonable and prudent alternatives’” to prevent
“jeopardizing a listed species or adversely modifying a species’
nal critical habitat.”155 If the agency has the ability to perform
the action without adverse effect to listed species or critical
habitats, the consultation process ends.156 If the consultation
determines otherwise, then a formal consultation is triggered.157
Section 9 of the ESA prohibits anyone from “taking” a
member of a listed species.158 A “take” comprises of an action
“to harass, harm, pursue, hunt shoot wound kill, trap, capture,
or collect or to attempt to engage in any such conduct.”159 A
take includes directly hurting the listed animals or damaging the
habitat “that may indirectly cause death or injury by disrupting
feeding, breeding, or other essential behavior patterns.”160 This
section of the ESA is particularly important as discussed later
regarding wind power developer and their projects.
However, the FWSs may issue an incidental take permit
(“ITP”) pursuant to Section 10(a)(2) of the ESA to permit a
government or private individual’s activity that would inciden-
tally take a protected species.161 The permit would be granted
because the activity’s taking is necessarily incidental and not the
activity’s main objective.162 If a private individual performs the
activity that incidentally results in a taking, the ESA mandates
that an ITP must have a habitat conservation plan (“HCP”)
accompanying the ITP’s application.163 Public comments are
allowed on both the HCP and the ITP.164 An HCP imposes
minimization and mitigation measures for the activity involv-
ing the affected species before the FWS issues the ITP.165 An
HCP permits expansion when an HCP identies “with scientic
credibility that the impacts of proposed habitat changes are
minimized to the ‘maximum extent practicable’ and that the take
will not reduce the likelihood that the species will survive and
recover.”166 Having a HCP implemented reduces the likelihood
that the private individual would encounter liability or further
imposed measures.167
Finally, Section 11 outlines the criminal and civil penalties
for those who violate the ESA.168 The ESA also provides a citi-
zen suit provision, in which an individual may bring a lawsuit
against any individual or entity who violates the ESA or against
the Secretary of Interior for failure to comply with a discrete
mandatory duty.169 An individual must provide a 60-day notice
of intent before initiating the citizen suit.170 Section 11(e) also
permits the government to enforce compliance with the ESA as
well.171 The following section examines Ohio’s version of the
ESA and the protection that Ohio provides for the listed species.
C. OhiOs EndangErEd spECiEs aCt
Some states have enacted their own endangered species
laws.172 Ohio has provided state level protection to species
located within the state of Ohio that face extinction. Ohio essen-
tially prevents anyone from taking both federal and state listed
species, with a few exceptions, and punishes violators with a
misdemeanor.173 Ohio Revised Code § 1531.25 provides statu-
tory authority to the “chief of the division of wildlife” to regulate
and approve governing law that limits the “taking or possession
of native wildlife,” including eggs or offspring that the authorita-
tive gure considers as threatened on a state scale.174 The revised
code also addresses that the authority bestowed to the “chief”
includes naming endangered species, including sh and wildlife,
pursuant to Section 4 of the Endangered Species Act.175 These
endangered species would either be natural to Ohio, migrate, or
“are otherwise reasonably likely to occur” within Ohio.176 The
code allows for the taking of threatened species on the state level
for science, education, zoology, and propagation for the species’
preservation purposes with the “chief [‘s]” written permits.177
The code also acknowledges that the Ohio law would not inter-
fere with the federal law regarding the limitations on taking or
224813_AU_SDLP_Spg-Sum18.indd 22 10/18/18 1:53 PM
Spring/Summer 2018
possession of species under the federal ESA for science, educa-
tion, zoology, and preservation for species pursuant to a federal
license or permit.178 Should a violation occur under this section,
the individual is guilty of a rst degree misdemeanor.179
Having this law as a base line, the Ohio Administrative
Code Chapter 1501:31-23-01 lists the designated as endan-
gered natural species and subspecies for wild animals in accor-
dance with Ohio Revised Code §1531.25.180 This chapter also
addresses the illegality of taking, moving, proposing to retail,
retailing, or retaining the wild animals without a prior written
permit unless the wild animals are collected under subsection
B or acquired outside of the state and propagated for preserva-
tion.181 Moreover, the chapter outlines when a written permit
may be provided when an individual desires to engage with the
endangered wild animals for science, zoology, education, or
propagation purposes and the lengthy process and requirements
they entail.182 Finally, Ohio Administrative Code Chapter §
1501:31-23-02 lists the designated natural species and subspe-
cies of wild animals as threatened.183
IV. The LegaL ChaLLenges wITh federaL
esa and nePa
Wind power plants may encounter certain legal challenges,
particularly with NEPA and ESA compliance. Cases in Ohio and
other jurisdictions present examples of such obstacles that a wind
power plant, especially in Ohio, may experience with NEPA
and/or ESA. These cases also indicate how a wind developer can
avoid or minimize NEPA and ESA difculties. Particularly, a
wind developer looking to develop a project in Ohio should also
be aware that Ohio has its own version of the ESA that must be
complied with.184 However, Ohio’s version of the ESA has not
been present in much litigation.185
An Ohio case, Union Neighbors United, Inc., v. Jewell,
illustrates how a private wind developer can trigger NEPA com-
pliance issues by obtaining an incidental take permit in order to
avoid ESA Section 9 liability.186 Buckeye Wind Energy, LLC
(“Buckeye”) consulted with the FWS and Ohio Department
of Natural Resources Division of Wildlife (“Department”) to
evaluate the project’s effect on the wildlife on the plan’s site.187
Buckeye complied with pre-construction eld analysis, and the
FWS provided a notice of intent to conduct an evaluation period
on the plan and solicited public comments.188 Buckeye and the
FWS collaborated on the HCP, and Buckeye applied for the issu-
ance of an ITP to avoid Section 9 liability under the ESA.189 The
FWS then issued a nal EIS and HCP.190
Subsequently, Union Neighbors United, Inc., a third party,
proposed that the FWS evaluate another alternative during the
nal EIS’s public comments’ period.191 They suggested to exam-
ine whether a cut-in speed for 6.5 m/s would be another alterna-
tive within the HCP to reduce the number of bats’ deaths.192 The
FWS did not follow Union Neighbor’s United’s proposal and
issued the ITP to Buckeye with its Record of Decision and its
Statement of Findings.193
Union Neighbors United consequently led a lawsuit.194
The lawsuit alleged the FWS’s issuance of the ITP was
“arbitrary, capricious, an abuse of discretion, and otherwise
not in accordance with law under NEPA and the ESA.”195 A s
a result, Buckeye intervened into the lawsuit.196 The District
Court afrmed Buckeye’s and the defendants’ motions for sum-
mary judgment holding that the Service complied with the ESA’s
conditions for the ITP and NEPA’s requirement for reasonable
Union Neighbors United then appealed to the D.C. Circuit
Court of Appeals.198 The Court of Appeals examined the FWS’s
alternatives, and concluded that the alternatives stated “reect
‘a need to ensure that take of Indiana Bats is avoided and mini-
mized to the maximum extent practicable and to ensure that the
impact of any remaining take is fully mitigated’ and ‘to protect
the habitat of Indiana bats.’”199
While the court reviewed the alternatives, the court
acknowledged that the FWS “did not consider any reasonable
alternative that would be economically feasible while taking
fewer bats than Buckeye’s proposal.200 The only other alterna-
tive that the Service evaluated to take fewer bats was not . . .
economically feasible[.]”201 The FWS should have known that
other alternatives, like Union Neighbors United’s, were “eco-
nomically viable” and been awareness these other proposals
where fewer bats would be taken.202
The court concluded that the FWS did not examine “a
reasonable range of alternatives” in the draft or nal EIS,
including Union Neighbors’ proposal for the usage of a “cut-in
speed higher than 6.0 m/s,” when the FWS granted the ITP to
Buckeye.203 Therefore, the Service’s decision was “arbitrary and
capricious” and violated NEPA.204
However, Union Neighbors United did not prevail on
their ESA claim.205 The Court of Appeals determined that
that the FWS’s interpretation of “impacts” under ESA was
“persuasive.”206 The court examined the denition of impact
and concluded that “impacts” was dened as “the effect of the
taking on the species as a whole, which necessarily includes
population and subpopulations.”207 The court also evaluated
legislative history and the FWS’s interpretation as well.208
FWS’s interpretation and the legislative history, the court
dened term “impacts” as “the populations or subpopulations
of the species as a whole, rather than the discrete number of
individual members of the species.”209
Finally, the court agreed with the Department’s interpretation
of “minimization and mitigation” towards the taking’s impacts
and was not “arbitrary or capricious.”210 Union Neighbors
United addressed concerns about the “the interplay between the
phrases ‘to the maximum extent practicable’ and ‘minimize and
mitigate such impacts.’”211 Union Neighbors United argued that
the former phrase acted independently from the latter phrase.
212 However, the court determined through their evaluation of
the ESA that the FWS’s interpretation was paralleled with the
court’s conclusion213 and considered the FWS’s ndings and
Buckeye’s mitigation measures.214 The court believed the FWS
had appropriately concluded, “[I]f combined minimization
and mitigation fully offset the take, it [did] not matter whether
Buckeye could do more; Buckeye had already satised what
224813_AU_SDLP_Spg-Sum18.indd 23 10/18/18 1:53 PM
24 Sustainable Development Law & Policy
[was] required under the ESA.”215 Therefore, the court did not
consider the FWS’s ndings as “arbitrary or capricious.”216
Consequently, the D.C. Court of Appeals held that the FWS
complied with the ESA, but not NEPA.217 This case illustrated
that Buckeye’s seeking approval for an ITP assisted Buckeye to
avoid a “take” pursuant to the ESA.218 Since the ITP mandated
federal approval, the federal action triggered NEPA.219 But
as the FWS did not fully comply with NEPA, the project was
stopped.220 The case also demonstrated how Union Neighbors
United utilized both statutes to act as checks on Buckeye’s wind
plan project.221
Sierra Club v. Kenna shows how a private wind developer’s
choice to seek a right-of-way access on federal land when it also
had the option of a private road gave rise to challenges under the
ESA and NEPA.222 North Sky River Energy (“NSRE”) applied
for a right-of-way over federal property with the Bureau of Land
Management (“BLM”) to construct a service road for the wind
development project and “underground power transmission lines
and power optic communications lines.”223 Consequently, BLM
performed an EA for the service road and found that its review
should be limited to the environmental effects of the service
road since the wind development project and the service road
plan were separate entities.224 Its EA concluded with a nding
of no signicant impact (“FONSI”).225 Because of the EA and
the FONSI, BLM issued the right-of-way since the service road
would produce a smaller environmental impact than the utili-
zation of private land to gain entry to the wind development
project.226 Essentially, BLM examined that even if BLM did not
grant the right-of-way, the wind project also had the option of a
private road to gain entry to the wind development project.227
The Plaintiffs, Sierra Club and other environmental organi-
zations, brought suit to challenge BLM’s decision granting the
right-of-way, and NSRE intervened as a defendant.228 Plaintiffs
pleaded that the BLM’s decision violated NEPA and ESA.229
Plaintiffs alleged that the route over the private land option
would not be a feasible alternative because NSRE would have
to acquire access from a signicant number of private landown-
ers.230 Therefore, the United States District Court for the Eastern
District of California examined whether BLM’s decision was
invalid that the wind development project and the service road
were not interconnected, requiring a larger environmental evalu-
ation under the ESA and NEPA.231
First, pursuant to the ESA claim, the court examined
whether BLM could identify support that the service road pro-
vided “some benet” to BLM’s intentions separate from assist-
ing the wind development project, in which BLM’s decision
would be “reasonable” to allow NSRE to construct the service
road with NSRE’s monetary support.232 The court acknowl-
edged that BLM demonstrated “some benets” that supported
BLM’s intentions separate from the development or assistance
to the wind project.233 BLM’s intentions were for the public’s
benets at no additional cost to the public.234
Essentially, the court concluded that BLM illustrated the
wind development project was “not the ‘but for ’ cause” for the
service road since other benets were considered.235 BLM only
had to demonstrate that the administrative record contained evi-
dence that demonstrated that service road “was not the ‘but for’
cause” of the wind development project.236 Since this analysis is
intertwined with the Plaintiffs’ NEPA claim, the court presented
its more detailed rationale there.237 Consequently, its decision
that the service road and the wind development project were not
interconnected, was not considered as “arbitrary, capricious, or
contrary to law.”238 Based upon this conclusion, the court found
BLM did not violate the ESA when BLM limited the EA to the
effects of the service road and decided formal consultation was
not needed pursuant to the ESA.239
Second, the court explored the Plaintiffs’ NEPA claim that
BLM’s FONSI in its EA was contrary to the law since BLM did
not analyze the wind development’s impacts.240 In essence, the
Plaintiffs alleged that the service road and the wind development
project were within the same project.241 The Plaintiffs’ argument
rested upon the notion that BLM’s approval for the service road
was a precondition to the wind development project and consti-
tuted a major federal action.242
However, the court disagreed with the Plaintiffs’ argument
because the administrative record and its facts demonstrated that
BLM had knowledge about the number of parcels, owners, and
how much of a right-of-way would be included in the private
road alternative.243 BLM evaluated the facts and made an appro-
priate decision244 because the nal EA had illustrated the details,
including the work and timeframe, and the environmental effects
of the private road option.245 Therefore, because BLM properly
analyzed the entire situation, BLM’s decision was not “arbitrary,
capricious or contrary to law.”246 Overall, the Plaintiffs failed on
both NEPA and ESA claims presented before the court.247
The U.S. Court of Appeals for the Ninth Circuit afrmed
the lower court’s conclusions in Sierra Club v. BLM.248 The
appeals court decided that BLM appropriately considered and
consulted the direct effects of the service road, but did not need
to with the wind development project since the wind project was
a private development on private land.249 The court emphasized
that the service road and the wind project were separate plans
and not connected.250 Since the wind project was “not funded,
authorized, or constructed by any federal agency,” BLM did not
need any consultation pursuant to the ESA.251 Moreover, BLM
did not need to consider the indirect effects of the wind develop-
ment project as a part of BLM’s action for the service road since
the administrative record demonstrated that the wind develop-
ment project would be constructed and nished without the ser-
vice road, given the private road alternative.252 Furthermore, the
court agreed that the wind development project and the service
road were “separate and apart from each other” and “fail[ed] the
‘but for’ causation test” since “neither [was] an integral part of
the other, neither depend[ed] on the other for its justication.”253
The appeals court also explored the Plaintiffs’ NEPA claim
and agreed with the lower court that since the wind project
development and the service were separate, BLM did not
need to examine the wind development project’s impacts.254
BLM did not need to complete an EIS since the EA addressed
an in depth examination of the service road, and the wind
224813_AU_SDLP_Spg-Sum18.indd 24 10/18/18 1:53 PM
Spring/Summer 2018
development project was not a federal action or related to the
service road project and employed separate functionality.255
Therefore, once again, the court found that BLM did not vio-
late NEPA or the ESA.256
The United States District Court for the Eastern District
in California and the U.S. Court of Appeals for the Ninth
Circuit demonstrated that NSRE as a wind developer with two
options—either the right-of-way or the private road—to access
to the wind development project would avoid a formal consulta-
tion under the ESA and a detailing of the impact of the wind
development project under NEPA.257 Since the right-of-way for
the separate service road was not connected with the wind devel-
opment project and had separate benets, both courts concluded
that BLM only had to address the service road’s effects and that
the wind development project was not a federal project.258 In a
nutshell, the courts’ decisions showed that a wind developer may
minimize the risks of triggering NEPA and ESA by having alter-
native solutions that do not include a federal agency’s action like
the approval for the right-of-way, and by presenting the private
action (the wind development project) as a separate entity from
the federal action (the right-of-way).259
Animal Welfare Institute v. Beech Ridge Energy, LLC, is
an illustrative case that focuses on the ESA and wind power
development.260 Invenergy, the parent company, contacted
BHE Environmental to handle the environmental services and
compliance of the wind power project and the FWS in West
Virginia.261 BHE Environmental implemented a mist-nest
survey at various sites near where the project would be placed
during the summer.262 In total, seventy-eight bats were caught
and represented six different species.263 No Indiana bats were
found.264 Beech Ridge Energy then applied for a siting cer-
ticate for the project, and BHE submitted a risk assessment to
FWS and the West Virginia Department of Natural Resources
(“the Department”).265 FWS and the Department shared their
concern about the Indiana bats and recommended site surveys
before construction occurred.266
BHE performed a cave study and found no Indiana bats.267
Public and evidentiary hearings occurred, and BHE performed
another mist-net survey at twelve different areas during the
following summer, where the turbines would be built.268 No
Indiana bats were captured, and no additional evaluations were
conducted even though the FWS and Department had recom-
mended more studies.269 BHE gave FWS and the Department
BHE’s nal risk assessment and concluded that the wind project
threatened a low possibility of injury to the Indiana bats.270
In response, FWS expressed their concern about the
Indiana bats and recommended additional studies and mist-net
surveys over a three year period before construction occurred,
to follow with the FWS’ 2003 interim guidance, and the forma-
tion and production of “an adaptive management plan to mini-
mize the risk of harm” to the Indiana bats as a federally listed
species.271 Despite FWS’ concern, the Department presented an
order afrming the sitting certicate to the Beech Ridge Energy
and decided that no Indiana Bats resided near the site.272 The
Department denied re-hearing on the issued order.273 The FWS
followed up again with their recommendations for more sur-
veys and studies, including radar and thermal imagery, stating
that mist netting was not sufcient by itself.274 The FWS left
the decision to apply for an ITP to the Beech Ridge Energy.275
The Department then permitted the project’s construction to
begin as long as the issued order’s conditions before construc-
tion were met.276
Plaintiffs Animal Welfare Institute, David G. Cowan, and
Mountain Communities for Responsible Energy sued defendants
Invenergy and Beech Ridge Energy, LLC, for injunctive and
declaratory relief.277 The Plaintiffs alleged that wind project’s
development and operation would engage in a “take” of the
Indiana bats, an endangered species and would violate Section 9
of the Endangered Species Act.278 New critical information was
discovered during discovery.279
The United States District Court for the District of
Maryland concluded that a citizen suit under the ESA could
be brought with an allegation of “wholly-future violations” of
the ESA when “no past violation has occurred.”280 The court
evaluated the credibility of both parties’ expert witnesses281 and
determined even though the Indiana bats would generally be less
likely to be located in caves within ve miles of the wind devel-
opment during the fall and spring, the lack of hibernacula did not
destroy the prospect that Indiana bats resided there, and also that
the externalities of the construction likely increased the chance
that Indiana bats would be found at the site.282
Based upon the court’s examination of the presented evi-
dence, the court determined with “virtual certainty” that the
Indiana bats’ were at the project site during the fall, summer,
and spring.283 But because of hibernation patterns, the Indiana
bats would be less likely to be present there during winter.284
Moreover, the bats’ hibernacula with two caves near the develop-
ment’s site and the bats’ travel distance supported the possibility
that the bats were present.285 The development’s physical attri-
butes including “suitable roosting snaps” and “habitat ‘sinks’”
that construction expanded286 together with the BHE employee’s
acoustic data supported the court’s conclusion.287
The court then turned to evaluate whether a take of the
Indiana bats would be present at the development site.288 Since
other wind power sites had reported other bat species killed,289
and post construction surveys of bats’ deaths were ineffective,290
the court agreed with the Plaintiffs’ expert witnesses that “there
[was] a virtual certainty that Indiana bats [would] be harmed,
wounded, or killed, imminently” at the development’s site,291
and the project would violate Section 9 of the ESA within the
fall, summer, and spring months.292
Therefore, the court concluded that the wind power plant
project did not adequately study the presence of Indiana bats.293
Although the project already had some wind turbines in devel-
opment during the lawsuit, the court permitted the project to
continue only if Beech Ridge Energy applied and obtained an
ITP for Indiana bats.294
Thus, this case illustrated a cautionary tale about the impor-
tance of adequate research and survey methods throughout the
duration of the wind development project to adequately assess
224813_AU_SDLP_Spg-Sum18.indd 25 10/18/18 1:53 PM
26 Sustainable Development Law & Policy
if an ITP is needed, so the wind developer can timely apply
and receive an ITP to avoid Section 9 liability for a listed spe-
cies.295 Taking the necessary, precautionary steps to account for
a listed species that occupy a certain area of land, in which the
wind developer plans to build upon, should be implemented
properly, or the wind developer may encounter a whirlwind of
ESA liability.296 However, as other previously discussed cases
demonstrated, even if a wind power project obtained an ITP, the
wind power project still would have to exercise sound judgment
with a HCP and comply with the requirements for the ESA and
NEPA since the issuance of the ITP, a federal action, would trig-
ger NEPA as well.297 This continuous process to comply with
NEPA and the ESA could allow the wind developer to minimize
risks in the future.
Although the past cases highlight that NEPA is triggered
either when a wind developer received a ITP or a right-of-way
for a service road as federal action,298 the case Protect Our
Communities Found v. Salazar, explored NEPA-based chal-
lenges to a wind project on federal land, where the Plaintiffs con-
tested the Record of Decision from the Department of Interior
for the Ocotillo wind development project in the Sonoran Desert
in California.299 The Plaintiffs alleged violations of NEPA and
sought injunctive relief under the Administrative Procedure
Act.300 Leading up to this matter, BLM developed a nal EIS to
evaluate the effects of the wind power project within the public
land, and BLM’s approval of 112 wind turbines on a 10,151-acre
The Plaintiffs pled several violations pursuant to NEPA.
The rst allegation included that the BLM only adopted the
wind power project’s aspirations as its own and thus, limited its
reasonable alternatives.302 The court, however, concluded that
BLM included in its purpose and need that the wind power proj-
ect would provide BLM an opportunity to implement the promo-
tion of renewable and safe energy, which an executive order, the
Energy Policy Act of 2005, and a Department of Interior order
The Plaintiffs also alleged BLM did not consider other
renewable sources beyond wind power.304 Yet, the court dis-
missed this allegation since the nal EIS indicated BLM did
consider the alternative sources of renewable energy.305 Finally,
the Plaintiffs argued that BLM was at fault for only consider-
ing the actual project site instead of other lands, private and
public, and for not evaluating other similarly situated projects
for other alternative renewable sources.306 Once again, the court
dismissed the allegation since the Plaintiffs did not adequately
support their allegation and concluded that the EIS did include
reasonable alternatives and did not violate NEPA.307
The Plaintiffs, moreover, alleged that BLM did not partake
in a “‘hard look’” at the wind power project’s infrasound affect-
ing public health and the low frequency noise.308 The court
evaluated BLM’s nal EIS and found that the EIS addressed
the effects of infrasound and low frequency noise, including
non-perceptible and non-audible, and deferred to BLM’s conclu-
sion that the effects would be minimal.309 The court found that
BLM’s determination was not “arbitrary, capricious or an abuse
of discretion.”310
Additionally, the court disagreed with the Plaintiffs’ other
allegations: BLM did not consider the audible noise of the
project’s effects;311 BLM was wrong to not consider the miti-
gation measures for noise impacts including the wind turbines’
setbacks;312 BLM did not analyze the full impact of the visual
effects for the project;313 and BLM did not examine the impacts
on the Peninsular Bighorn Sheep.314 The Plaintiffs nally argued
that BLM did not consider the wind power project’s impacts on
the low income and minority populations.315 Assuming arguendo
that the impacts on low income and minority populations were
relevant, the court decided BLM appropriately considered the
impacts, and the impacts would not be negatively affected.316
The court then declined the Plaintiffs’ argument that the
nal EIS did not consider nor implement all the mitigation plans
after the environmental review had occurred.317 The court found
that all mitigation plans did not have to be completely conrmed
before the Department executed the record of decision and
agreed that BLM did not violate NEPA.318
As Protect Our Communities Foundation v. Salazar dem-
onstrated, the Plaintiffs utilized NEPA for the majority of their
allegations to contest the wind power development project.
Other cases that also exemplify a plaintiff utilizing similar argu-
ments with NEPA to challenge a wind power project include
Vermonters for a Clean Environment, Inc. v. Madrid,319 Protect
Our Communities Foundation v. Jewell,320 and Oregon Natural
Desert Association v. Jewell.321
Therefore, as explored above, a wind developer may
encounter various legal hurdles with NEPA and the ESA, and
these cases illustrate the potential outcomes that may result
from such legal obstacles. First off, a wind developer should
understand that state and federal laws might overlap and apply
to their wind energy project. Having an awareness of which laws
exist and apply to the wind project will provide a wind devel-
oper a forewarning regarding which legal obstacles the project
may encounter preconstruction, during construction, and post
construction. Additionally, understanding and complying with
the local application and approval process for an energy source
project is essential to create a hopefully smooth transition from
the wind project designed on paper to its actual implementation.
Second, a wind developer must recognize that NEPA and the
ESA may be triggered by the same action. For example, when
a wind developer applies for an ITP to avoid a take under the
ESA, this ITP also triggers NEPA as well since the ITP requires
federal approval.
Third, a wind developer may be proactive by lawfully
avoiding NEPA and the ESA if the wind developer takes pre-
ventive steps to avoid triggering either law. For instance, with
adequate research and survey methods, a wind developer may,
just in case, seek an ITP to avoid potential liability under Section
9 of the ESA for a listed species. As noted above, this ITP would
trigger NEPA since the issuance of the ITP is a federal action,
and the wind developer would need to develop a HCP as well
pursuant to the ESA.
224813_AU_SDLP_Spg-Sum18.indd 26 10/18/18 1:53 PM
Spring/Summer 2018
Fourth, a wind developer may limit the risks of triggering
the ESA and NEPA by developing an alternative solution that
does not require a federal agency’s action, such as a private road,
allowing the wind project to remain separated as a private entity.
Thus, proactivity, knowledge about the existing state and
federal laws, and understanding the local application and permit
process provide a wind developer the necessary tools to have a
successful development of a wind energy project.
V. ConClusion
All over the United States, wind power has developed into a
powerful renewable energy source. As discussed above, private
wind energy developers should be worried about ESA “takes.”
While an approved ITP may assist a wind developer to avoid or
minimize liability pursuant to Section 9 of the ESA, an issued
ITP as a federal action could bring the wind developer under the
scope of NEPA. Other federal actions such as federal funding,
land, or authorizations such as a right-of-way may addition-
ally prompt NEPA compliance. Both NEPA and the ESA could
be used as a plaintiff’s sword and a defendant’s shield when a
wind energy developer properly complies, avoiding liability and
minimizing risk to its development. As a wind energy developer
pursues development and implementation of a wind farm, this
paper provides a strategy with the hope that that wind develop-
ers, including those in Ohio, may minimize or evade the pos-
sible entanglements with NEPA and the ESA. A proactive wind
energy developer is better than a reactive one.
See Chris Mooney, The U.S. Wind Energy Boom Couldn’t Be Coming at
a Better Time, Wash. Post (Aug.10, 2015),
be-coming-at-a-better-time/?utm_term=.003f5e60ec6f (reporting that increased
wind turbine installation, low costs, and advancing technologies have resulted
in wind production making up ve percent of U.S. electricity demand).
U.S. Wind Energy State Facts, am. Wind EnErgy assn, http://www.awea.
org/resources/statefactsheets.aspx?itemnumber=890 (last visited Feb. 25, 2018)
(graphing the installed wind generating capacity across the United States).
See Ofce of Energy Efciency & Renewable Energy, Wind Vision: About,
dEPt of EnErgy, (last visited Feb. 25,
2018) (analyzing the installed wind power generation across the United States).
See Ronald H. Rosenberg, Making Renewable Energy a Reality—Find-
ing Ways to Site Wind Power Facilities, 32 Wm. & mary Envtl. l. & Poly
rEv. 635, 649 (2008) (explaining that wind turbines convert wind force into
Id. at 650.
Id. at 651.
See U.s. dEPt of EnErgy, rEvolUtion . . . noW: thE fUtUrE arrivEs for
fivE ClEan EnErgy tEChnologiEs–2015, 4 (2015), [hereinafter rEvolUtion
. . . noW]les/2015/11/f27/Revolution-
Now-11132015.pdf (reporting that modern wind turbines blades are 108%
longer than those installed in 1999 and 48% taller).
Id. at 4-5.
See Wind Energy Facts at a Glance, am. Wind EnErgy assn, http:// (last visited Feb.
25, 2018) (graphing the increase in wind generation across the United States
between 2001 and 2017 and nding an 80,000 megawatt increase across that
See Wind Power Closes 2017 Strong, Lifting the American Economy,
am. Wind EnErgy assn (Jan. 30, 2018),
(explaining that technological advances and ingenuity have led to the increased
wind energy production).
Wind Energy Facts at a Glance, supra note 10.
See Paris Agreement—Status of Ratication, UnitEd nations ClimatE
ChangE, (noting that 175 of
the 197 parties to the Paris Climate Agreement have ratied the Convention).
The current Trump administration announced plans to remove the United States
from the international climate change agreement called the Paris Agreement;
Kim Willsher, World Leaders Take Aim at Climate Change and Trump, la
timEs (Dec. 12, 2017, 1:30 PM),
france-climate-change-summit-20171212-story.html. Despite this, Americans,
thirty-eight states, and cities have illustrated their commitment to the Paris
Agreement, promoting renewable energy. Id.
U.s. dEPt of EnErgy, offiCE of EffiCiEnCy & rEnEWablE EnErgy, 2016
Wind tEChnologiEs markEt rEPort iv (2016),
(reporting that China produced nearly 15,000 more megawatts than the United
States in 2016).
Id. at vii-viii (stating that costs have decreased despite increases in the size
of turbines).
rEvolUtion…noW, supra note 8, at 3.
2016 Wind tEChnologiEs markEt rEPort, supra note 15, at v (noting that
Vesta controlled 43% of U.S. turbine installations in 2016, while GE captured
42% of the market).
Id. at iv.
21 U.S. Wind Indus. 2016 Annual Market Update: Economic Benets of U.S.
Wind Energy, am. Wind EnErgy assn, [hereinafter U.S. Wind Indus. 2016
Annual Market Update] http://awea.
Economic%20Benets.pdf (last visited Mar. 12, 2018).
Id.; see also U.s. dEPt of EnErgy, EffiCiEnCy & rEnEWablE EnErgy
advantagEs and ChallEngEs of Wind EnErgy,
advantages-and-challenges-wind-energy (last visited Mar. 12, 2018) (reporting
wind power can support “more than 600,000 jobs in manufacturing, installation,
maintenance, and supporting services.”)
Rosenberg, supra note 4, at 663.
27 U.S. Wind Indus. 2016 Annual Market Update, supra note 21.
Rosenberg, supra note 4, at 663.
U.S. Wind Indus. 2016 Annual Market Update, supra note 21 (using wind
energy reduces the need for fossil-fuel in power plants resulting in diminished
water consumption).
Rosenberg, supra note 4, at 659; advantagEs and ChallEngEs of Wind
EnErgy, supra note 22 (citing wind power as a constant low-priced energy
source of electricity).
Rosenberg, supra note 4, at 659; see Celeste Waner, Top Trends from the
Fourth Quarter of 2017, am. Wind EnErgy assn,
top-trends-fourth-quarter-2017/ (last visited Feb. 1, 2018); see also advantagEs
and ChallEngEs of Wind EnErgy, supra note 22; U.S. Wind Indus. Fourth
Quarter 2017 Market Report, am. Wind EnErgy assn http://awea.les.
Report%20Public%20Version.pdf (last visited Mar. 12, 2018 (reporting twenty-
nine additional wind projects commissioned in the U.S. during the last quarter
of 2017).
Rosenberg, supra note 4, at 659; Jocelyn Durkay, State Renewable
Portfolio Standards and Goals, natl Conf. of statE lEgislatUrEs (Aug. 1,
(reporting thirty states in the United States have renewable portfolio standards).
continued on page 42
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