Harmonizing Commercial Wind Power and the Endangered Species Act Through Administrative Reform

INTRODUCTION 1770I. Blown Together: The History of Wind Power AND THE ESA 1776A. Policy 1778B. Permitting 1781C. Litigation 1785II. There Is No Green Pass Under the ESA 1788A. The Letter of the Law 17891. Accounting for Species Effects Under Section 7 17902. Accounting for Individual Effects Under Section 9 1791B. The Spirit of the Law 1792III. Facilitating Risk Management for Commercial Wind Power Projects 1793A. The ESA as a Source of Commercial Wind Power Project Risk 1795B. Innovation for Risk Management 1796Conclusion 1798IntroductionWhat could be greener than wind power? That's easy - saving endangered species!The wind power industry has learned the hard way what timber companies, federal land management agencies, hydropower generators, state highway departments, real estate developers, small coastal villages, the Environmental Protection Agency, farmers, major metropolitan governments, and more like them around the nation know all too well - never, ever take your eyes off the Endangered Species Act ("ESA").1 It may be green and one of the darlings of our nation's renewable energy future,2 but wind power has no "green pass" to get out of the ESA.The reason wind power has cause for concern with the ESA is, in a nutshell, that wind power needs wind, and many bats and birds - including some protected under the ESA - like windy places.3 So, it is no wonder that wind power developers frequently find their choice facility locations in the path of protected species.4 This potential for bats, birds, and other species to collide with or otherwise feel harmful effects from wind power turbines necessarily implicates the ESA, as well as several other federal wildlife protection statutes.5 Only in the past few years, however, has wind power capacity across the landscape reached levels making the intersection of wind power and the ESA of critical importance to the nation's renewable energy policy.6Yet, while federal and state politicians and agencies have fueled the rush to put massive wind turbine arrays on the ground and get the green electrons flowing, the industry was launched without a blueprint for ESA compliance. The agency at the center of ESA policy for land-based wind power, the U.S. Fish and Wildlife Service ("FWS"), has begun forging concrete policies to integrate wind power into the ESA's fold.7 The Agency is still playing catch-up, however, working with industry and environmental interest groups8 to design and implement wind power policies and permitting mechanisms. Not all interest groups support the effort, though, as ESA litigation to stop specific wind power projects begins to mount.9Several legal practitioners and scholars have identified the ESA as a potentially significant constraint on the siting and operation of wind power facilities.10 The ESA has also been identified as a potential barrier to renewable energy power in general, as solar power, biomass, and ocean tide and wave facilities could have their own sets of impacts triggering ESA regulation.11 But the legal commentary has not touched on two deeper and more fundamental questions, both of which lie at the root of the potential for tension between our nation's renewable energy and endangered species policies: (1) to what extent can and should the ESA put a thumb on the scale for wind power and other "green" renewable energy facilities, treating them more favorably than "brown" land uses, and (2) if no such "green pass" is available, is the ESA equipped to handle the massive and rapid injection of infrastructure that the nation's renewable energy policy demands for success? …