EVST 255: Environmental Politics and Law

Lecture 23

 - Renewable Energy Policies


The lecture discusses the various factors affecting the expansion of the U.S. renewable energy portfolio, as well as the importance of energy efficiency and changes to current consumption. As a case study, Professor Wargo discusses the nine-year effort to create Cape Wind, a wind farm off the coast of Massachusetts. The project has faced opposition for a number of reasons, including noise and disruption of use of private property. The lecture ties the development of more renewable energy options to issues of property rights and discusses ways to overcome challenges in siting, in noise pollution, and in the impacts on wildlife (i.e. avian mortality as a result of wind farms).

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Environmental Politics and Law

EVST 255 - Lecture 23 - Renewable Energy Policies

Chapter 1. Renewable Energy: Promise and Plight [00:00:00]

Professor John Wargo: Okay everybody, let’s settle in. We have a lot of visitors today from Yale Bulldog Days and you are all very, very welcome. And I hope you enjoy your time here at Yale. We do have a construction project going on outside and it’s really hard to manage, and I apologize for that.

Today, I want to continue talking about energy futures and alternative choices that we have to face. And I think about this as a problem of being on the horns of a quad-lemma. And after I put this slide together, I was on my way to lecture this morning, I was saying to myself it’s not really a quad-lemma, the analogy being a dilemma. It really has many more dimensions to it. But the way that it’s being characterized to the public by politicians and those that are concerned about energy futures is predominately a choice between renewables and existing production capacity with respect to fossil fuels, particularly coal, and also our nuclear future that we discussed last week. But the topic that really does not make it onto the agenda, which is one that I think is crucial, is energy efficiency and what we could achieve by altering our patterns of consumption. And I think as well, our capacity to read the energy demands of our own daily behaviors in the marketplace and in our daily lives make it extremely difficult to do that.

So that today, I want to concentrate predominately on the problem of renewables, but also specifically talk about wind energy. So the National Academy of Sciences prepared a publication that you read, hopefully, up on the Classes server for this week, on the potential of renewables, particularly wind and solar. And solar and wind, they concluded, renewable resources offer significantly larger total energy potential than do other domestic renewable resources. Solar intensity obviously varies across the nation. The land-based solar resource exceeds by several thousand-fold present annual U.S. electrical energy demand. So wind is capable is providing at least ten percent to twenty percent, and in some regions of the country, potentially higher percentages of current electrical energy demand.

Think about installed capacity. In the world, Germany is clearly the leader in terms of megawatt production, but also percentage of their total electrical energy demands at about twenty-three, twenty-four percent. The U.S. follows in second at about eighteen percent, then Spain, India, China, Denmark. But this ranking is shifting quite rapidly, particularly in China and India and other rapidly developing parts of the world.

Well, there was a statute that was passed back in 2005 that has really provided a lot of incentive, economic incentive to the private sector and to government agencies as well to think about new forms of providing energy, particularly from renewable resources. So income from activity may be excluded from gross income and not taxed if it’s expended on renewable energy facilities. Income may be taxed at a lower rate. The expense from the activity may be deducted more quickly. And those of you that filed your income taxes last week probably do not itemize your deductions. But deductions are set up in ways that you may depreciate property over different lengths of time. You may be able to depreciate a car, for example, over eight or ten years or a truck over that period of time, a house is thirty-two years, and other kinds of products that you might buy. You could depreciate those fully in the first year, meaning that you can get a total deduction on its value during the year that you purchased it.

So that these expenses may be eligible for tax credits as well. A deduction is different than a tax credit. A deduction is an itemization that you would use to reduce your total estimated or adjusted gross income, whereas a tax credit would be a reduction in your taxes at the end of your return. Most people would favor taking a tax credit, it would be more to their advantage.

So that these production tax credits that came into being in 2005 really have been quite successful, as is demonstrated. There were previous production credits back in 1999 and 2001 and 2003. And then they expired at the end of those years. So that if you can see this chart, you can see the rather dramatic decline in the populations taking advantage of these credits. There is a business solar tax credit that offers a thirty percent tax credit for the purchase of equipment that produces solar electricity. Business fuel cell credits are available that are produced even using chemicals that are created by fossil fuels. There’s a residential efficient property credit, which is a personal tax credit for eligible technology, such as water heaters, furnaces, boilers, heat pumps, central air conditioners, building insulation, windows, doors, and roofs. In my income taxes this year, I installed a new energy efficient water heater that I was able to take a tax credit of thirty percent of $2000, which is a substantial savings.

Also, many states are acting on their own. And a topic that we’ve discussed repeatedly in the course is if you’re thinking about trying to change behavior, what level of government is the appropriate government to establish law or policy? And the federal government has been clearly behind the eight ball. They’ve been delinquent or neglectful of passing renewable energy standards and creating incentives in a way that really had a strong influence on renewable energy production relative to particularly fossil fuel production. So states have jumped into this problem by creating their own renewable energy portfolio standards. So for example, Massachusetts has a standard that is targeting fifteen percent renewable of their total energy demand by 2020. Ohio is twenty-five percent by 2025, New Mexico is twenty percent by 2020. California is 20 percent by 2010, and Washington is fifteen percent by 2020. So that these are legally binding standards and the states are required to figure out how to reduce their reliance on fossil fuels while increasing their reliance on renewable sources.

So if you look at the problem of wind and you think about its distribution in the nation, Texas, perhaps not surprisingly, has the largest current installed capacity, almost 9,000 megawatts, followed by Iowa, California, Minnesota, Oregon, Washington, New York, Colorado, Illinois, and then Kansas. You can also see the effect in this graph of the recession on installation of wind-provided electricity. So 2008 was far higher in new installations than 2009, so that this industry also is subject to the same kinds of limitations as any other sector.

The cost of wind and transmission that is economically available might be broken into two different categories, onshore and offshore. It’s quite obviously more expensive to develop further offshore. And the less expensive areas are those that are closest to the coastline. And what we see, we’ll see a case in a few moments known as Cape Wind that is being proposed for Nantucket Sound. And the advantage obviously is that this is in federal territory so that no private property needs to be purchased, so that the quantity available offshore is believed to be just about the same as onshore. But the difficulty of getting a wind project off the ground on private property, as we’ll see in a few moments, compared to offshore is really quite significant.

So many people are now arguing for a twenty percent target by 2030 as a goal for wind-based energy. If we choose this as a target, how do we get there? And what would be the influence on our use of alternative sources of energy? So if we have no new wind, you can see in this chart then our reliance on natural gas, coal, nuclear, hydro, and current wind would look something like this, with wind in the green. But a twenty percent wind scenario would predominately cause us to reduce our reliance on coal, but also some of our reliance on natural gas and nuclear. And why nuclear? Well, because many of the reactors are going to be approaching the end of their license periods. And many of them, as we discussed last week, are beyond their thirty to forty-year licensing period. So we’re going to be phasing out nuclear, and depending upon the incentives for investment in new nuclear plants, the future growth is going to be impeded, not just by the extraordinary capital costs and the incremental cost of securing loans for nuclear, given its uncertainty. But also, the problems of simply the amount of time it takes to build a nuclear plant.

If we rely more heavily on wind, we need to think about how to get transmission facilities, transmission lines, in close proximity to the key sources of wind. So that obviously, as you look at the United States, you find wind capacity varies geographically. The coastal areas, Washington, Oregon, California, the East Coast and the Gulf Coast are the predominant sites for offshore development. And the Midwestern United States is the predominant location for development in non-coastal areas. And this creates a problem, particularly for the Midwest, because the Midwest is not a population center in the nation. So that transmissions needed to relieve congestion in the existing system to improve system reliability for all customers, to increase access to lower-cost energy, but also to access new and remote generation resources. So that if the twenty percent scenario by 2030 is followed, this is going to have a very significant effect on Co2 emissions from the electricity sector. So that this is thought of as a really important type of investment.

Chapter 2. Project Siting and Local Concerns [00:11:12]

Now siting often creates an enormously complex set of rules and regulations that have to be followed in order to gain permits from the federal government, state governments, and local governments. The predominant concerns about development include visual impacts, property value impacts, effects on local wildlife and habitat, turbine or rotor noise and land use, potential effects on adjacent land uses. So wind generation is, for example, responsible for about 0.003 percent of human-caused avian mortality, particularly among passerines and bats. And bat mortality has been found to be higher than expected, but only in certain areas of the world, in certain high elevation zones, mountain peaks, and also mountain passes. So that these are the predominant concerns that cause litigation.

People are also worried about the amount of area that it’s going to take in order to reach this objective of twenty percent by 2030. And the actual footprint that has been measured and is being used by the proponents of wind energy is really quite small. So total acreage of about fifteen million acres, roughly about the size of Rhode Island or Anchorage. So that the deceptive aspect of that statistic is that the conflict that surrounds this is not generated by the site development and the amount of area, the land area or the ocean area that has to be disturbed in order to put the facilities in, it’s generated by its visibility, predominantly by people’s impressions that I find to be really quite curious. I was driving to work this morning and admiring the wind turbine that was just put up over here next to the Q-Bridge, and was thinking about that and thinking about people’s acceptance or preferences to view landscapes without towers generally. And as I kind of surveyed the landscape quickly, I was looking at the old coal-fired power plant next to the Q-Bridge, then I was looking at the transmission lines that lie next to it. I was looking at the bridge itself. Really an industrialized landscape.

Probably not a good thing to say to people here for Yale Bulldog Days. There are very beautiful parts of New Haven and the university is a central source of New Haven’s beauty. But that part of New Haven is not, it’s one of the most industrialized zones in Connecticut. But there stands this new wind turbine, gleaming white. And actually, it’s dwarfed by other stacks, smokestacks and the transmission lines nearby. But people have problems with towers generally, and I was wondering about that.

And I’ve worked on tower siting problems in the past. And I used the example when we had the lecture on land preservation of the controversy over the Olympic Games in northern New York where the ninety- and seventy-meter ski jump were proposed that almost brought the Olympic Games to a halt because of threatened litigation by the Sierra Club. And the aversion there was the loss of the sense of a natural landscape. And this is very much a prominent part of the argument on the part of landowners in the coastal area that looks out over Nantucket Sound. They’re worried about the view. They’re worried about the visibility. Somehow, they think it’s going to diminish the sense of naturalness of that landscape, and that’s provoked their litigation.

So that there are other kinds of towers that we seem to accept, but it may be a function of whether or not we can get up into the tower to take a look. Many people up in Lake Placid eventually accepted a 300-foot tower as a ski jump that was immediately adjacent to a wilderness area. But part of the fascination was well, this is for sport, but it also is going to give the opportunity to create an observation deck that people could go up to. I was thinking about other towers that we seem to readily accept in more urbanized environments, residential towers, office buildings, or even the Eiffel Tower. So that what is it about towers and our sense of naturalness that provokes this kind of reaction? I’ve also worked on communication towers and electrical transmission lines that demand high towers. And these are commonly fought with great energy just as people are fighting the wind turbines. So that that would be the subject of a great senior essay, by the way, if anybody is looking around for one next year.

Think about also the nature of property rights to wind and to solar radiation. So does the developer, for example, have the right to block access to a resource such as wind or solar radiation or water, if you live upstream and you decide you want to put a dam in the river? Or sand, remember the shifting sands on barrier islands, and remember, if you fly out of New Haven over the coastline and you see these groins that are set up to trap sand as it moves along the coastline. And that causes a sand deficit downstream so that the person that lives next to you has to build a groin so he can catch sand to prevent his shoreline from eroding. The same basic principle here. So that if I build a structure, perhaps a high rise building that blocks your access to wind or even if I build a high rise building and it blocks your access to solar radiation, do you have the right to take me to court and either to prevent the development or do I have the right to demand that you compensate me for my property loss in value? Well common law, law passed by courts, is really unclear on the matter unless there’s clear and malicious intent. So unlike underground minerals, no one can extract wind or solar radiation from your property without your consent.

Now, I want you to think back about the lecture several weeks ago when I considered the Horse Whisperer out in Wyoming and the extraordinarily rapid development of coal bed methane gas being extracted because the federal government sold off the underlying property rights to private corporations who then basically had the right to transfer their production equipment to build towers on people’s ranches, on their private lands. So the story was the Horse Whisperer woke up to construction crews bulldozing roads over their property. And outraged, thought that he had the right to call the police and stop the development, when he didn’t, because those gas extraction companies had purchased the rights legitimately from the government. Well, in this case are the wind or solar radiation rights similarly owned as common property by the federal government? And the answer is no. So that you would have the opportunity to prevent somebody from coming onto your land and building a wind turbine. But kind of an interesting comparison here, the way that law is structured to allocate common property rights to the private sector for energy development.

Chapter 3. U.S. Wind Capacity & Potential; Key Benefits [00:19:09]

So think about wind capacity and the desirability of different areas of the country, and also think about the nature of private development in the coastal zone. And I remember the California oil spills and how the tar and the oil would wash up on the beaches. And it was kind of interesting, you’d go for a run on the beach and you get back to your house or wherever you were staying and your feet are covered by tar. Even today in some parts of California, they’re covered by tar from the Santa Barbara oil spills back in the 1970s. So that these tend to be highly developable properties, highly valued property. And if they are the site of residential structures, you’re guaranteed to have a fight for any significant offshore development. So there’s an interesting kind of coincidence here of high-end property, people that are likely to have values that are instinctively to protect the coastal zone as well as to protect the naturalness of the views from their private property. So that this conflict is the source of litigation and also legislation.

Here are the top ten states for wind energy potential. The last slide I showed you was top ten states for current generating capacity. So Texas, Kansas, Montana and Nebraska, Midwestern states and Texas particularly in the coastal as well, South Dakota, North Dakota, Iowa, Wyoming, Oklahoma, New Mexico. So very interesting that these have the highest capacity, but they tend not to be close to where the majority of people in the U.S. live. I’m going to jump ahead here.

So here is the scenario, offshore development versus land-based development. The projections are that the majority of new capacity will come from onshore or land-based development that creates all the political conflict because of questions about how to manage private property rights. So that if you look at the quantity available offshore and onshore and you look at the relative wind speed in these areas, you see that the land-based is going to likely generate more gigawatts than the offshore.

So what are the key benefits here? Well, benefits to the environment, benefits in terms of reduced air pollution from fossil fuels, and there’s no question about the fact that we’ll be facing increased coal generation, coal power generation, that is going to give us problems with particulate matter, sulfur and nitrogen oxides. And remember that statistic that I told you last week, that this is a really important statistic, particularly relative to the health effects of coal. Between 30,000 and 60,000 people are estimated in a variety of peer-reviewed and I think highly defensible studies, they suffer premature death in the United States every year due to coal production. So that you compare that to nuclear, you compare that to mortality estimates from wind or solar development, and there really is no contest. In terms of climate, the reduced CO2emissions are estimated to be about 825 million metric tons per year if the twenty percent of our electricity is produced by 2030. Reduced water, reduced coal use, reduced cost per kilowatt hour, and also the increased tax revenues that’ll be generated to local communities. So if you build a wind turbine on your property, you’re going to have to pay the local government property taxes on your revenue. And also you’re going to be paying the federal government taxes on the revenue. So the future of wind, as I mentioned earlier, is likely to have the greatest influence on our reliance on coal, but could also affect our reliance on nuclear.

Chapter 4. Avian Mortality and Noise Pollution; Utility Consumption [00:23:34]

There’s a lot of concern among environmentalists over avian mortality. So it’s important to think about the different causes of avian mortality, and it’s quite striking that mortality from buildings and windows, and these are avian deaths, so that you see that the majority are being caused by birds flying into buildings and windows, followed by housecats, high transmission lines, vehicles, pesticides. Actually, the pesticide estimate is low. I worked on a panel that addressed the question about several of the largest, most produced insecticides in the world, and they are responsible for very significant avian losses. Communication towers and wind turbines, if they reach this twenty percent by 2030, are projected to be really quite low. Now, that doesn’t mean that we don’t pay attention to them, and legally we have an obligation to do so. And that’s because of the Endangered Species Act. And this will come to play when we talk in a few minutes about the Nantucket Sound case that might influence the piping plover that nests in the adjacent shorelines.

Also, there are concerns about noise, how noisy are they compared to other sources of noise? So if you look at jet aircraft at 250 meters, you look a pneumatic drill, you look at a truck, an office, a car at forty meters, then you find a wind-power plant at 350 meters would be about equivalent to a quiet bedroom or perhaps a car operating at forty miles an hour that drives by a hundred meters away. So the implications of this are kind of interesting in terms of managing noise. How might you do that? Well, you could think about using zoning. You could demand very large lot zoning. And remember the case in the Adirondacks where one new house for perhaps forty percent of the private land in the Adirondacks, forty percent of two and a half million acres. So one new house requires forty-three acres up in the Adirondacks. So what would it take you to get a buffer between the turbine location on land and a separation distance that would reduce the decibel level on adjacent properties? Well, you could imagine designing a zoning ordinance that would allow you to control noise on adjacent lands in that fashion.

Well, it’s important for you to think too about the structure of the U.S. utility industry. There are about two hundred investor-owned utilities in the nation, seventy large municipal and federal or state systems, fifty rural generation and transmission cooperatives, and three thousand local distribution companies. 

Think also about who are the dominant consumers of energy in the United States. Turns out that the federal government is the largest single consumer of electricity in the world. The federal agency electricity consumption in 2005 was more than 55,000 gigawatt hours, which would equate to approximately eighteen gigawatts of wind capacity. So federal agencies were encouraged to meet an executive order goal of two point five percent of site electricity from new renewable energy sources by the end of 2005.

By the way, we’ve not talked about executive orders in the class, but I’m going to pause here just to point out that law may be established at very different levels of government, state, local, federal. But also it may be established by regulation, so EPA has the legal authority to establish regulations. And the Executive Branch of the government, the office of the President, has the legal authority to establish executive orders that must be complied with within the federal government by federal agencies. So that in this case, to meet the ordered goal of two point five percent, this goal was actually exceeded with a final tally of about six point nine percent of electricity consumed was derived from renewable sources.

So that’s kind of an interesting idea. So figure out who are the largest consumers and then set goals for them and then challenge them, set up a competition. And we’ve seen that competitive spirit work here in the college as well. So that colleges are trying to not just reduce their waste and to increase their rate of recycling, but they’re also trying to reduce their energy consumption. So that now the federal agencies are all challenged to try to figure out how they can increase their renewable component of their energy consumption portfolios. There’s also the concept of renewable energy credits and renewable energy certificates. And these are tradable non-tangible energy commodities in the U.S. that represent proof that one megawatt hour of electricity was generated from an eligible renewable energy resource, which would include solar, wind, geothermal, hydro, biomass or energy derived from hydrogen fuel cells.

Chapter 5. The Cape Wind Case: Conflict in the Wind [00:29:02]

Now, I want to talk for a few moments about the problem up in Nantucket Sound. And this is a project, Cape Wind, that was initiated in 2001 when this company decided that they wanted to put up about 130 turbines in Nantucket Sound. And the state of Rhode Island, by the way, has taken a very different path, not just reacting to a developer’s proposal, but Rhode Island has taken the initiative to zone parts of its offshore territory. And they have designated a company, a developer, as a preferred developer, and have now proposed about a $1.5 billion farm in eastern Rhode Island. So states could basically be reactive in their approach to developing wind energy. Just wait for the developers to show up. But Rhode Island is taking a very different approach to this, so that they are in a way acting as the developer themselves.

So if you take a look at this wind map of the southern New England coastline, you see that there are areas, particularly off of Rhode Island and particularly here in Nantucket Sound, which are really quite suitable in terms of the amount of wind energy that is available for development. So the Cape Wind proposal would involve, as I said, 130 different turbines. On average, it would provide about seventy-five percent of the entire electrical requirements for the Cape and the islands. So I don’t know if this is going to work. But let me see if I can show you a YouTube video here, just briefly. Here is a scene that shows a boat of sightseers just moving through a wind farm off the coast of Denmark, just to give you a sense of what it would be like.

Now, there are questions here about navigation. There are questions about interference with others’ property rights. So offshore waters, if you’re beyond the three-mile jurisdictional limit then it becomes federal lands. If you’re between the mean high water mark and the three-mile zone, that is state land. And what this means is because these power lines will have to lie beneath the surface as they run from the turbines back to the mainland, that they clearly will cross from federal lands into state lands. And then they will cross private lands. Or in some instances, they will require dredging of wetland areas up onto local government property. So that local, state, federal, and private property rights are all at play in this case.

 So that there are also issues that arise from conflicts with fishermen who may have the right to lobster in this area. Perhaps they use a form of fishing that drags over the bottom. These are known as the Nantucket Shoals, known to be former clamming areas. The Nantucket area, the Buzzard’s Bay area, has a long and rich history as being important as a commercially viable fishing area. So that there are also potential conflicts here with air rights with respect to flight paths, so that the Federal Aviation Administration is also involved. So that this is really a legal quagmire in a way, it’s a cobweb of rights that touch off jurisdiction on the part of three different levels of government and many local jurisdictions and different state and federal agencies as well.

So the location in the Sound that is being proposed is pretty much between and to the north of Nantucket, which lies over here on the right side on the bottom, and Martha’s Vineyard, roughly five to six miles offshore. Now, this has become most controversial because that is close enough so that the towers would be visible from shoreline areas. So they’ve completed six years of environmental studies of the surface and subsurface geology, wind, tide, waves, sediment transport patterns, benthic infauna and shellfish resources, fish habitat, commercial and recreational fisheries, and marine mammals and threatened and endangered species.

And what’s interesting about this is also that they’ve been quite successful. Cape Wind, the corporation, has been successful in federal court litigation. So that all of the permitting on the part of local governments and the state government, is now complete. This also fell under the requirements of the National Environmental Policy Act that demanded that an environmental impact statement be prepared. And this was done with great care and it also pointed to all of the possible effects on fish, on wildlife, on endangered species, but also was clear in identifying conflicts between the developers and the wind turbines with the various interest groups that currently have rights to use the area.

So that state permitting status is complete as of the Fall of 2008. And there’s a Facility Siting Board in Massachusetts. There is a state environmental quality permitting process that was required to be complied with. There also are state wetlands laws in Massachusetts that are particularly protective of coastal wetlands so that all of these permits have been now granted. The federal permitting status is managed by the Minerals Management Service, and that sits within the Department of the Interior. So that a favorable draft impact statement was prepared in 2004 and then it released a favorable final Environment Impact Statement on January 15 of 2008.

Favorable comments on the part of different organizations, including the Natural Resources Defense Council, known for being very protective of coastal areas around the nation and being very concerned about issues of climate change. “Cape Wind (NRDC argued) is to our knowledge the largest single source of supply-side reductions in CO2 currently proposed in the United States and perhaps the world.” And the Department of Energy assistant secretary said, “As the first shallow-water offshore project under review in the United States, utility-scale projects like Cape Wind are important to our national interests and a crucial first step to building a domestic globally competitive wind supply.” And another former U.S. Department of Energy assistant secretary and now Massachusetts Secretary of Environmental Officers, Susan Tierney commented, “The Cape Wind draft environmental impact statement is thorough, it’s detailed. It identifies and analyzes and describes a wide array of impacts with great care, detail, and comprehensiveness. Indeed, it’s one of the most thorough that I’ve ever seen.” So wide support among a variety of different agencies.

Now, right now the Cape Wind Company is awaiting a decision on the part of Ken Salazar, who is the Secretary of the Interior. And Ken Salazar is responsible for the National Park Service that also sits within the Department of the Interior. And you might ask the question, well, what does the Park Service have to do with permitting for a facility such as this? Well, the Park Service curiously is responsible because of the National Historic Preservation Act. This requires that historic facilities in the United States be identified and ranked for their relative importance, and if they’re found to be of national significance, they are eligible to be placed on the National Registry of Historic Places. So that the Secretary of the Interior — I’m going to have to jump ahead here for a second. The Secretary of the Interior had the ability to decide that either the national significance of this as Native American burial grounds was so high that it would be designated and therefore this wind farm would not be allowed to go forward. And he’s committed to reaching a conclusion about this within the next two weeks, so pay attention to the press, it will turn out to be quite interesting.

So the Secretary went out and took a look at the site several months ago and has held a variety of press conferences over the past couple of weeks that demonstrate that he is really on the edge, not knowing whether or not he should be pursuing the national objective of increasing the renewable energy portfolio of the United States. I’m going to have to jump ahead here, because I’ve got way too much material, so forgive me.

Chapter 6. Comparisons and Conclusions [00:38:54]

I wanted to talk just a moment about comparing this case to other kinds of problems that we’ve discussed in class or that you may be familiar with, and the idea of the government role of providing either credits or subsidies. I want you to think about the relative historical absence of federal subsidy of renewable energy sources and compare that to the subsidies that have occurred for the oil industry. And perhaps the greatest subsidy that I can think of is in part a reflection on what happened when a major automobile company, tire company and oil companies in the early 1900s went around to different cities and purchased up the trolley lines, the tram lines. They purchased them up as a way of diminishing the public’s ability to use public transit and to develop an increased reliance on automobiles.

Now think also about the national cost to maintain and build or rebuild our national highway system. And where would the auto industry and the oil industry be in the United States if that were not accomplished by our tax dollars? So now I think about the highway system as being really an enormous subsidy for the oil industry as well as for the auto industries. Think also about how we have in the past year subsidized the auto industry and banks as well, so that how do we come to choose to subsidize certain private ventures and not others? We have a clear problem that we need to deal with there.

I also want you think about a variety of different conclusions with respect to land use regulation. We’ve looked at land use regulation and we’ve looked at problems of controlling private behavior, taking away rights from individuals on private land. And I want you to think about the opportunities for a variety of new land use regulation and subdivision regulation schemes that might zone lands for wind farms, so that if you think back on the Adirondack Park zoning scheme, where they did zone certain areas for industrial growth. They zoned other areas for agricultural growth, food farms, that why not the concept of zoning for wind farms?

Now, you could argue that well, if you’re going to zone for wind farms, you need to think about how you’re going to manage the externalities that might fall onto adjacent landowners. Well, that could be dealt with, as I mentioned a few moments ago, in a variety of ways. And these might include offering development credits to adjacent landowners to increase density elsewhere. In other words, transferable development rights might be a component of these land use regulations. So that the adjacent landowners are actually given a bonus, they’re given a development right that would be assignable to an area that was zoned to receive increased density. These would be bankable, so they wouldn’t have to physically develop it. They could put the credit into a bank and somebody else, another developer who wanted to build in that high-density zone, could purchase that credit. So there’s a potential here to tie zoning for wind farms to transferrable development rights. Require minimum acreages, a hundred acres, two hundred acres, a thousand acres, whatever it would be. And regulate lot dimensions. So you could imagine a thousand acres in a relatively narrow strip of land going on for miles. But you could also think about how you might design lot dimension requirements in a way that would ensure that you would have a separation distance from the turbine to the adjacent landowners that might sense a fence.

We also need to think carefully about zoning for new transmission lines. And zoning in corridors has always been a part of local and state land use regulations. So think about where the corridors are right here in New Haven. We have a rail corridor that also serves as a highway corridor. It’s also a power line corridor. So that building new transmission lines in areas where rail and highway corridors already exist make a lot of sense. If we have to buy new land to create new transmission lines, that’s going to be an extraordinarily expensive venture. And think about again this problem of having the production being located in large distance away from the points of higher population densities and consumption.

So another conclusion that I want you to walk away with here is with respect to property rights. So that offshore development is going to be much easier to accomplish than onshore development. Now here we are in 2010, the Cape Wind developers made their proposal in 2001. They’ve wandered their way through this regulatory permitting process for nine years. There’s a lesson there. The lesson has been followed in a variety of other regulatory contexts and it’s called one-stop shopping, one-stop shopping for a permit. What if we had one renewable agency, renewable energy agency that had all of the authority to grant the permits? And yes, they would have to consult with state representatives, they would have to consult with local representatives. But a developer could go through this process perhaps in three or four years instead of nine years. The capital carrying costs that are involved here when you’re purchasing property and trying to figure out what state of technology you’re going to apply, capital costs here are enormous and can be discouraging. I mentioned the coal bed methane issue and think distinctively about how that coal bed methane property right was allowed to be purchased by the private sector, whereas the wind property right, like the solar property right, is generally assigned with the surface lands. So who has the right to block wind? Who has the right to block solar radiation? And are these legitimate bases for civil actions as nuisances?

Now, I’d like to close by having you think about damages and how we calculate damages. And as you think about every case that we’ve discussed in this term, when we think about environmental effects, you should be thinking about the magnitude of the effect and you should be thinking about the distribution of the effect. So think about this comparison between nuclear power on the one hand and wind energy on the other. What are the adverse environmental effects from wind power likely to be? Well, we’ve gone through a variety of them, biological resources, land area that’s going to be required. But they all pale in response to the problems associated with constructing and operating nuclear power plants and then figuring out what to do with the waste.

And one way to think about distribution is just to think about how something spreads geographically. But think about distribution in a temporal way as well. So that the fact that the Environmental Protection Agency is required to develop a nuclear waste disposal plan to cover one million years for the management of the Yucca Mountain storage facility that has to do with the persistence of the radionuclides, particularly plutonium isotopes. I mean, think about that, the persistence of the problem over time is another way to consider distribution. So the consideration of magnitude and distribution as well, by thinking about questions of equity, who are these damages going to fall onto? How should they be managed?

And some people are much more capable of managing risk than other people are. So they can buy higher quality insurance than poorer people can. So once again, magnitude and distribution for a variety of different kinds of effects. So the effect in my opinion on wildlife and fish, on noise, on esthetics and vibration, on the shadow and flicker effects that are being studied, along with the vibration effects right here in the Yale Medical School. There is a claim, by the way, that these wind turbine farms create vibrations that you can’t actually feel but they’re strong enough if you are in close enough proximity to these fields to have your sleep disturbed. And also on property values and on recreational access, these are the core points of contention. But compared to managing nuclear waste over hundreds of thousands of years, these seem like relatively minor issues.

And I’d like to close with just one thought, and that is as you think about difficult tradeoffs such as this, I encourage you to consider the idea of reversibility. Reversibility is a concept that has been built into a variety of different laws. So that under many different statutes, the government is required to consider whether or not the effect is reversible. So plutonium, the creation of plutonium is not a reversible decision, given the length of persistence. The construction of a coal-fired power plant such as you see here in the upper left, yeah, that’s reversible. You could pull that apart. But if we look at our history of rehabilitation of damaged sites and industrial facilities in the nation, they tend not to be rebuilt because they’re so highly contaminated. Think about the disassembly of a turbine farm or the disassembly of a solar generating facility such as this out in the New Mexico desert. These are easily disassembled. So just consider the idea of reversibility as you think about how these kinds of choices might be made. Okay. Well, that is the end of lecture twenty-three, and we’ll wrap with a final lecture on Thursday. Thank you.

[end of transcript]

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