In relation to wind energy, ESA has mostly focused on utility-scale projects. with the clarification that the guidelines are designed for onshore projects of a utility scale). This article focuses exclusively on the application of the ESA to commercial onshore wind power generation installations; in future work, I will examine the use of ESA in community and distributed wind farm projects. To lay the groundwork for these related inquiries, the first part of the article provides background on how ESA and wind energy have met in policy, permitting and litigation.
BLOWN TOGETHER: THE HISTORY OF WIND POWER
Most of the ESA's regulatory weight comes from the agencies' interpretation of harm and its application to land development and natural resource extraction. For a description of the incidental take authorization procedures, see LIEBESMAN & PETERSEN, supra note 1, at 73-81. Commercial wind energy has opened up this dimension of the statute in three areas: policy, permitting, and litigation.
Nevertheless, the paper openly acknowledges the great uncertainty in both bat science and wind energy policy, with many responses pointing to a lack of sufficient empirical evidence. FISH & WILDLIFE SERV., INDIANA BAT SECTION 7 AND SECTION 10 GUIDELINES FOR WIND ENERGY PROJECTS 1 (2011), available at http://www.fws.gov/midwest/endangered/. FISH & WILDLIFE SERV., http://www.fws.gov/southwest/es/wind.html (last visited Sept. As part of Interior Secretary Ken Salazar's 'Start Up Smart' initiative to accelerate responsible development of wind energy projects throughout state, the service has begun assessing the environmental impacts of wind energy development in a 200-mile-wide corridor that stretches from Canada to the Gulf of Mexico on the Texas coast. This innovative approach to wind energy development is the first of its kind in a non-federal state.''
See WHOOPING CRANE ACTION GRP., GREAT PLAIN WIND ENERGY HABITAT CONSERVATION PLAN: FACT SHEET available at http://www.greatplainswindhcp.org/. See INDIANA ET AL., DEVELOPING A MULTI-SPECIES HABITAT CONSERVATION PLAN FOR WIND ENERGY DEVELOPMENT IN THE MIDWEST 1 (2009), available at http://www. Similarly, recent decisions specifically addressing the intersection of the ESA and wind development underscore the need for comprehensive legislative action.
The plaintiffs allege that the BLM failed to adequately consult with the FWS about the wind project's impact on the California condor and several other bird species.
THERE IS No GREEN PASS UNDER THE ESA
Finally, uncertainty about wind development and the ESA could have unexpected consequences for the ESA itself. Salazar, the San Carlos Apache Tribe, tried to block the delisting of an eagle species by citing an increased risk of damaging wind development.98 Increased wind development in the region, the tribe says, creates a significant risk to eagles without ESA protection.9 9 As such, the tribe argued that future wind development in the region should by its nature prevent delisting of the eagle.100 Although the court rejected the tribe's argument, it is important to point out that wind energy has a reflexive effect on the ESA itself, in the sense that the effects associated with wind development are used to influence ESA processes outside the HCP and ITP procedure.10'. While this is not the position of the wind energy industry or environmental groups working with it to devise ESA solutions, the question has been presented to the FWS.10 2 However, as the Agency has recognized, the ESA is not so easy to handle.10 3 It would be contrary to the letter and spirit of the statute to give wind energy such a green pass through administrative reforms.
The Letter of the Law
Accounting for Species Effects
The interagency consultation procedure in Title 7 of the ESA mandates a species-wide impact assessment regarding particular land uses or land use patterns: Will the federal agency carrying out, funding, or authorizing the land use action endanger the continued existence of the species or adversely alter the species' critical habitat? 10 5 The rationale for giving wind power (or renewable energy more generally) a pass under this impact assessment program is obvious: wind power will contribute to reducing the emission of greenhouse gases and thus to mitigating climate change, which is in the interest of all species. First, section 7 requires species-specific analyzes and thus cannot exploit the wind power effect and its overall benefits for species in general as necessarily a significant benefit for each individual species.10 6 Some species are likely to be more threatened by climate change than others, and some are likely to become more benefit from greenhouse gas reductions than others. Climate-limiting benefits for a particular species may therefore be small compared to the damage the wind power infrastructure action inflicts on the species in question.
Second, given the requirement that each species be assessed separately under Section 7, the case for including species-specific wind energy in the impact assessment is much less thin than the general "all species" assumption described above. The FWS should quantify the effect of wind energy for each species and compare it for each species to the potential harm to the species caused by wind energy infrastructure, as well as to other non-climate threats such as habitat loss and invasive species. But the ESA requires that FWS adhere to the best available science in making decisions under section 7.107. Using this standard, the Agency has already determined that current climate and species modeling capacity cannot support the inclusion of species-specific Section 7 analyzes to assess harm from increased emissions attributable to actions such as new ones. explains that the specific language of the consultation provision requires agencies to determine whether an action is "likely to threaten the continued existence of any threatened or endangered species or to result in the destruction or adverse alteration of the [critical] habitat of such species").
Climate change due to the effect of wind energy will affect species in the future, perhaps in the very distant future, as today's reduced emissions slowly work their way through the climate system, while damage from wind energy infrastructure is more immediate. It seems wise that the FWS does not want to claim that it can reliably quantify and weigh this time trade-off, and until it can, there is no basis for granting a green card for wind power (or any other form of renewable energy) under Section 7. .
Accounting for Individual Effects
The weakest link in this regard is the temporal trade-off between current harms and expected future benefits that would be required to support a Green Pass approach. It requires authorization through an incidental approval mechanism, regardless of whether the impact of the capture of a number of individuals on the species as a whole is fully or more than fully offset at the species scale by a compensatory mitigation action, such as reduced greenhouse gas emissions. .
The Spirit of the Law
FACILITATING RISK MANAGEMENT FOR COMMERCIAL
Not granting a green pass to wind energy or other sustainable energy infrastructure does not mean that the ESA should be completely blind to its benefits for the climate system and therefore for species. The wind energy industry has not looked for a way out of the ESA; she has been looking for a way out of the ESA that is clear, safe and fast. The question is whether the ESA can be implemented to facilitate commercial wind energy development without diluting the species conservation mission.
Its legislative protection has been most effective when directed at small, causally straightforward contexts where habitat condition is closely related to species condition and the cause of habitat degradation is direct and easily identified, such as the effects of a subdivision development on the habitat of an endangered bird .113 As was once said of the statute, it has worked well "one brook, one spring, one cave, one valley" at a time.114 The prospect of placing massive wind power infrastructure across the country's landscape, and quickly, is pushing this small scale approach. However, the commercial wind power context is not about wind power developers' incentive structures for regulatory compliance – they are on board. Instead, like the other forms of infrastructure associated with renewable energy and likely to soon be associated with climate change adaptation, commercial wind power is a massive infrastructure enterprise that poses enormous business risk management challenges for private and public investors.
Thus, the FWS should view wind power and other renewable energy projects as a major public policy and, more generally, important species conservation goal, with reform focused on reducing the business risks associated with with ESA and facilitate. ESA as a source of commercial wind energy project risk Commercial wind development is a business, and, like Ahu.
The ESA as a Source of Commercial Wind
Innovation for Risk Management
Once again, AWWI has begun to develop a comprehensive mitigation strategy for wind power projects that FWS could build upon for this purpose.120. This is how the agency has described the model in its request for comments on the structural approach for wind power permits. Finally, regardless of what was said above about the difficulty of taking into account the wind power effect as a basis for a green pass out of the ESA, the wind power effect should count for something in terms of mitigation credit.
As climate change begins to affect more species, the ameliorative benefits of wind power should be recognized within the ESA framework. For example, if a species covered by the wind power RHCP and individual HCP permits is pressured into further decline by climate change, it would be illogical to first look to the wind power industry as a supplier of additional conservation measures. This concern is not limited to the wind power industry, as there is a wide spectrum of land uses with varying emissions and climate impact profiles.
Unless national policy is willing to either give up on renewable energy or give up on endangered species conservation, the ESA will present unavoidable constraints on the development of wind power and other renewable energy infrastructure. The same spirit can and must be injected into the agency's approach to commercial wind power and all other forms of renewable energy.
