Wind-Energy Development and the Greater Sage Grouse: Slowed Growth of an Industry

and the Decline of a Chicken-Like Bird

By

Sean Sebastian Litz

B.A., May 2003, Rutgers College

J.D., May 2006, Temple University Beasley School of Law

A Thesis submitted to

The Faculty of

The George Washington University

Law School

in partial satisfaction of the requirements

for the degree of Master of Laws

August 31, 2010

Thesis directed by

Dean LeRoy C. Paddock

Associate Dean for Environmental Studies and Professorial Lecturer in Law

ii

TABLE OF CONTENTS

I. Introduction 1

A. Wind Energy Industry in Brief 3

B. Wind Energy Project Finance 6

1. Risks Facing a Wind Energy Project 8

2. Off-Take Agreements 10

II. Wind Turbines and Environmental Impacts 13

A. Altamont Pass Wind Resource Area in Brief 14

III. The Decline of the Sage Grouse 16

IV. The Listing of the Sage Grouse 18

A. Candidate Species Designation in Brief 19

B. The Effect of a Candidate Species Listing 23

V. The BLM and Wind-Energy Development on Federal Lands 24

A. BLM’s Response to the Sage Grouse Listing 27

VI. Wyoming and its “Core” Sage-Grouse Habitat 31

VII. The Wind Industry: Post Candidate Listing 34

A. Reprioritizing the Value System 39

B. ESA does not Consider the Attributes of Climate Change 41

Mitigation

C. Wind Turbine Guidelines Advisory Committee 44

VIII. Categorical Exclusions as a Solution 48

IX. Conclusion 55

1

I. INTRODUCTION

On March 5, 2010, the U.S. Fish and Wildlife Service (“FWS”) announced that

the listing of the greater sage grouse under the Endangered Species Act (“ESA”) is

warranted, but precluded for now, and will be placed on the “candidate list.”1 The

announcement spurred mixed reactions from wildlife activists, farmers, and the energy

sector (to name just a few stakeholders), in significant part because the breadth of

measures that will be implemented to protect the sage grouse remain unclear. This thesis

examines the growing tension between the rapid expansion of wind energy development

and long-standing concerns about protecting certain animal species; in this case, the sage

grouse.

Not too long before the sage grouse was listed as a candidate species President

Obama‟s administration made it clear that promoting renewable energy was a high

priority.2 Consistent with this position, Department of Interior (“DOI”) Secretary Ken

Salazar has spoken on numerous occasions of the need to implement policies aimed at

developing substantial portions of federal lands with solar, wind, and geothermal energy

1 Press Release, “FWS Greater Sage-Grouse Determination is Wake-Up Call to Avoid

ESA Listing: EDF, Energy Producers, Ranchers Vow to Cooperate to Recover Western

Species,” available at www.edf.org/pressrelease.cfm?contentID=10856.

2 Alan Kovski, “Interior Secretary Cautioned to Consider Renewable Energy Project

Impacts, Funding,” 40 Env‟tRep.Cur.Dev. 1317, (June 5, 2009).

2

projects.3 In order to spur renewable energy development on federal lands the DOI‟s

2010 budget includes over $50 million specifically allocated for renewable-energy

projects.4 The goal of the Obama administration is to obtain twenty-five percent of the

U.S.‟ energy from renewable-energy sources.5

Despite the financially-backed enthusiasm to develop renewable energy projects

on federal lands, the concern over the sage grouse is slowing wind projects. The

repercussions of the sage-grouse listing are being felt most intensely in states such as

Wyoming where the wind industry is sensing the chill resulting from assigning

“designated-core areas” for the sage grouse. What is striking is the fact that the

framework of the ESA does not call for recognizing the positive attributes of renewable

energy; in turn, preservation of a species is afforded paramount value.

This article will examine the affect of the candidate-species designation on the

pace of wind-energy development and possible solutions to avoid procedural roadblocks.

In particular, it is suggested that the continued growth of the wind-energy industry

requires the streamlining of the siting process. As will be discussed below, an effective

3 Id. According to the Department of the Interior there is “wind energy potential on 20.6

million acres of public land, solar potential on an additional 29.6 million acres, and over

140 million acres of public land with geothermal potential.” The Department of the

Interior Fiscal Year 2010 Interior Budget in Brief, “Creating a New Frontier,” available

at http://www.doi.gov/budget/2010/10Hilites/toc.html.

4 Id.

5 The Department of the Interior Fiscal Year 2010 Interior Budget in Brief, “Creating a

New Frontier,” available at http://www.doi.gov/budget/2010/10Hilites/toc.html.

3

streamline must be predicated on a federal policy which places priority in the deployment

of wind development-even in the face of a bird species in peril.

A. Wind Energy Industry in Brief

Wind is a clean, inexhaustible, and increasingly more affordable energy resource.

Not surprisingly, wind power is one of the fastest growing forms of electricity generation

in the U.S. In particular, thirty-five percent of all new generation capacity in 2007 added

to the U.S. electrical grid originated from wind energy.6 Still, as of 2008 only .5 percent

of U.S. energy was wind powered. Despite this, the Department of Energy has set an

ambitious goal of obtaining six percent of U.S. electricity from wind power by 2020.7

Reaching the six percent goal by 2020 is not unreasonable if one considers that

over the past five years new wind installations have been expanding at a rate of thirty-one

percent each year.8 In fact, in 2008 the U.S. wind energy industry installed more than

8,300 megawatts, expanding the country‟s wind power generating capacity by fifty

percent in a single year.9 2008 was a momentous year for the U.S. in that it generated the

most wind electricity in the world.10

6 Available at http://www.awea.org/utility/.

7 Available at http://www.awea.org/faq/wwt_statistics.html.

8 Available at http://www.awea.org/valuechain/.

9 Id.

10 Id.

4

2008 was also a milestone year globally as worldwide wind generation topped

two-hundred billion kilowatt/hours.11

This figure is equivalent to the “annual electricity

consumption of over eighteen million average households in the U.S”.12

Worldwide

wind generation increased by approximately twenty-five percent from 2007 to 2008;

since 2003 wind generating capacity has tripled across the globe.13

The major players

accounting for the dramatic growth in wind energy include the U.S., China, India, and

much of Western Europe.14

China‟s wind generation has expanded on average by

seventy percent annually since 2003.15

Also significant is the fact that close to 20 percent

of Denmark‟s electricity generation in 2008 came from wind energy.16

U.S. wind power capacity topped the 25,000 megawatt mark at the end of 2008.17

This translates into approximately 35,000 turbines across thirty-five states. In turn, the

thousands of wind turbines contributed just over 1.5 percent of electricity supply in

11

“How Much of the World‟s Electricity Supply is Generated From Wind and Who are

the Leading Generators,” EIA‟s Energy in Brief, available at

http://www.eia.doe.gov/energy_in_brief/wind_power.cfm?featureclicked=1&.

12 Id.

13 Id.

14 Id.

15 Id. This statistic is even more impressive when taking into account the significant

delays and red tape that wind developers face in the Chinese market.

16 Id. Other countries with substantial wind-energy penetration include Portugal (13

percent), Spain (10 percent), Ireland (9 percent) and Germany (7 percent).

17 Supra note 7.

5

2009.18

The U.S. wind energy industry is geared to expand its piece of the pie from the

aforementioned 1.5 percent to twenty percent by 2030.19

In order to accomplish this level

of production in the next twenty years, the wind industry will have to “more than double

from 2008‟s manufacturing and installation base of 8,300 megawatts per year. Over

70,000 new turbines would have to be installed in the coming decades.”20

Despite the

ambitious goals, the industry is optimistic that with continuing government incentives the

wind-energy sector will continue to grow.21

Deploying wind turbines not only produces more “green power,” it also

strengthens the economy. The wind energy sector employs 85,000 people as installers,

mechanics, engineers, and professional service providers (e.g., lawyers, accountants, and

marketers).22

For every megawatt of energy produced from wind, approximately $1

million is generated in economic development.23

Further, studies demonstrate that the

income generated by a single utility-scale turbine to a landowner approaches $2,000 a

year.24

18

Id.

19 Available at http://awea.org/supplychain/market_growth.html.

20 Id.

21Supra note 11.

22 Id.

23 Available at http://awea.org/legislative/wind_energy_facts.html.

24 Id. A 250-acre farm can earn on average an annual income of $14,000 from wind

leases.

6

On top of the economic benefits that attach to wind energy are the environmental

attributes of wind. Harnessing energy from wind avoids the emission of greenhouse

gases and the polluting fumes associated with other sources of electricity production.25

In

fact, wind energy has the potential of reducing U.S. emissions of the greenhouse gas

carbon dioxide by one-third and world carbon-dioxide emissions by four percent.26

In

fact, “[d]evelopment of just 10% of 10 of the windiest states could provide more than

enough energy to displace emissions from coal-fired power plants.”27

Interestingly,

forty-six of fifty states in the U.S. have wind resources that could be harnessed for energy

generation.28

B. Wind Energy Project Finance

Wind projects, both large and small, involve significant financial investments. At

its most basic level project finance in the wind sector is similar to any other type of

project in that financing flows from a combination of equity and debt.29

The ratio of

equity to debt corresponds to the risks that each project carries. That is, a project with

greater risks will demand a greater portion of equity to be allocated to the lender.30

In

25

Id.

26 Id.

27 Id.

28 Id.

29 Stefan Schmitz, “Project Finance for Wind: Pointers and Pitfalls,” Renewable Energy

World International Magazine, (April 17, 2008).

30 Id.

7

addition, the amount of risk associated with a project will affect the level of debt that a

project can carry.31

As the size of the project increases the risk exposure correspondingly

expands.32

Typically, wind-energy project financing will be arranged using a special purpose

vehicle (“SPV”) that is established to act as “owner” of the project.33

The SPV enters

into all agreements and receives all of a project‟s funds.34

In turn, the developer of the

project becomes the project‟s “sponsor” and would not generally be liable for any of the

project‟s risk.35

Further, loan payments are not paid directly from the sponsor‟s own

resources.36

Instead, debt service is made possible by revenue that is generated by the

project. The good news for the sponsor is that “debt does not appear on the sponsor‟s

31

Id.

32 Robert Poore, “Risky Business,” U.S. Infrastructure, (June 17, 2010), available at

http://webcache.googleusercontent.com/search?q=cache:Hxny11RH7V0J:www.american

fra.com/article/RiskyBusiness/+WIND+ENERGY+TECHNOLOGY+RISKS&cd=9&hl=

en&ct=clnk&gl=us.

33 “Wind Energy-The Facts,” European Wind Energy Association, available at

http://www.wind-energy-the-facts.org/en/home--about-the-project.html.

34 Schmitz, supra note 29.

35 Id.

36 Id.

8

balance sheet, and the risk associated with a project has no direct influence on the

creditworthiness of the sponsor.”37

1. Risks Facing a Wind Energy Project

Managing risk throughout the lifecycle of the wind project is crucial to all

stakeholders involved.38

Selection of a site suitable for harnessing wind energy is an

important step in mitigating risk.39

The most obvious factors affecting the risk facing

prospective wind development relates to “technology, wind supply and off-take

arrangements for the power so produced.”40

In particular, issues with the gearboxes of

wind turbines had an adverse affect to the wind industry in the 1990s.41

More recently,

stories about faulty gearboxes occasionally resurface and continue to be of concern to

interested lenders. In addition, problems to the concrete foundations of turbines pose

considerable risk to the entire lifecycle of a wind project.42

These risks can be managed

from the start of a project through design and manufacturing warranties, manufacturing

quality assurance programs, careful operation and maintenance oversight, and the like.43

37

Id.

38 Poore, supra note 32.

39 See e.g. “What are the Factors in the Cost of Electricity from Wind Turbines,”

American Wind Energy Association.

40 Schmitz, supra note 29.

41 Id.

42 Id.

43 Poore, supra note 32.

9

The assurance of fluid and continuous operation of a project‟s wind turbines is an

important criterion for investors because it directly affects electricity generation.44

This

seems rather logical given that electricity generation translates into a project‟s sole source

of loan repayment. Accordingly, lenders usually require a robust operations and

maintenance service package that will run the life of the project.45

For offshore projects,

operations and maintenance requires special attention given that such costs are higher due

to the harsh marine conditions and access hurdles.46

Another factor contributing to the risk calculation is a project‟s wind capacity.

Investors usually require arduous wind studies before any investment is made. This

involves determining whether the site has ample and sustained wind speeds.47

Wind

speed is key to project finance given that “a turbine at a site with 5 meters/second (m/s)

winds will produce nearly twice as much power as a turbine at a location where the wind

averages 4 m/s.”48

Because lenders are concerned about sufficient wind speeds, they

generally demand that reputable wind experts be retained to conduct a substantive wind

study.49

Wind studies generate data which provide the following:

[A]n estimate of the annual electricity output of a project, based on a

probability curve, usually 75% or 90%, that the project will generate x

44

Schmitz, supra note 29.

45 Poore, supra note 32.

46 Schmitz, supra note 29.

47 Poore, supra note 32.

48 Id.

49 Schmitz, supra note 29.

10

number of full load hours. Depending on the wind turbine used, there is

therefore a 75% or 90% respectively, probability that the turbine will

generate y (sic) kW/h per year when in service.50

2. Off-Take Agreements

The million dollar question at the center of a financial model for wind

development is how much revenue the project will generate per kWh of electricity

production. The bankability (that is, the definition of those conditions necessary to

secure financing from banking institutions) of a project ultimately comes down to the

expected number of kWh.51

The sales of electricity to the electric utility are

memorialized in the contracting vehicle known as an off-take agreement. Under this

agreement, a local utility contracts to purchase a minimum amount of a project's electric

generation over a course of years.52

The off-take agreements that are easiest to finance

are ones provided by feed-in tariffs.53

Feed-in tariffs represent the “price per unit of

electricity that a utility or supplier has to pay for renewable electricity from private

generators.”54

50

Id.

51 Id.

52 Thomas Hanley, Jr., “The BOT Circular: An Evaluation of the New Regulatory

Framework Governing Privately-Financed Infrastructure Projects in the People's

Republic of China,” 5 Stan. J.L. Bus. & Fin. 59, 91, (Spring 1999).

53 Schmitz, supra note 29.

54 Kate Galbraith, “Feed-In Tariffs Contemplated in the U.S.,” The New York Times,

(February 9, 2009).

11

More specifically, a feed-in-tariff is renewable energy-generated electricity that

producers “feed” to the grid and are compensated with a above-retail rate.55

Feed-in-

tariffs were first implemented in California in the late 1970s and were ultimately viewed

as a failed mechanism due to design flaws and lack of support.56

On the other hand, the

feed-in-tariff was revived by Germany in the 2000s and has brought much success to its

renewable energy market57

The theory is that feed-in-tariffs promote market growth by

providing developers with long-term purchase agreements for the sale of renewable

energy-generated electricity.58

Germany‟s feed-in-tariff includes measures to streamline

“administrative procedures that can help shorten lead times, reduce bureaucratic

overhead, minimize project costs, and accelerate the pace of RE deployment.”59

In July of 2010, the Federal Energy Regulatory Commission (“FERC”) issued a

ruling addressing the federal government‟s role with respect to state-issued feed-in-

tariffs.60

Specifically, the California Public Utility Commission (“CPUC”) filed a

declaratory order requesting FERC to decide whether federal law preempted a limited

55

Herman Trabish, “Feed-In Tariffs Can Spur Disruptive Growth,” Green Tech Media,

(July 21, 2010).

56 Id.

57 Id.

58 Karlynn Cory, Toby Couture, “Feed-In Tariff Policy: Design Implementation, and RPS

Policy Interactions,” NREL Technical Report, NREL/TP-6A2-4559, (March 2009).

59 Id.

60 Vermont, Sacramento, and Gainesville (Florida) have feed-in-tariffs in place.

12

feed-in-tariff applicable only to cogeneration facilities of less than twenty megawatts.61

The feed-in-tariff at issue implicated two federal laws: 1) the Federal Power Act which

prohibits states from setting wholesale electricity prices; and 2) the Public Utility

Regulatory Policies Act (“PURPA”) which requires states to set wholesale prices for

“qualifying facilities” while preempting prices that exceed the utility‟s “avoided cost.”62

Determining a utility‟s avoided cost requires calculating what the utility would otherwise

pay for comparable power: for example from a natural gas or coal-fired plant.63

FERC held that the CPUC feed-in-tariff structure is lawful to the extent that the

purchases of power were made from qualifying facilities and the prices did not exceed the

utilities‟ avoided cost rates as permitted under Section 210 of PURPA.64

Industry

insiders view the FERC decision as “setting strict limits on the powers of the States

61

Tam Hunt, “The Feed-in Tariff Discussion Heats UP,” available at

http://www.renewableenergyworld.com/rea/news/print/article/2010/08/the-feed-in-tariff-

discussion-heats-up?cmpid=rss.

62 “States to Re-evaluate Feed-in Tariffs After Recent FERC Ruling,” available at

http://www.michaelbest.com/pubs/pubDetailMB.aspx?xpST=PubDetail&pub=2664.

63 Hunt, supra note 61.

64 David Yaffe, Howard Shapiro, “FERC Issues First Major Ruling on Compatibility of

State Feed-In Tariffs with Applicable Federal Energy Law,” Issue Alert: Van Ness

Feldman, (July 22, 2010).

13

attempting to follow the lead of California and Vermont by prescribing wholesale prices

for environmentally favorable forms of electric energy.”65

II. WIND TURBINES AND ENVIRONMENTAL IMPACTS

Although wind energy is generally seen as a source of “green power,” wind

projects have had their set of controversies involving ecological and wildlife impacts.

Most notably are the potential adverse affects of wind turbines and transmission lines on

certain bird and bat species.66

Bird deaths generally occur when they are struck by a

turbine‟s swiftly moving blades or collide with the ever-growing height of turbines.67

The Altamont Pass Wind Resource Area (“Altamont”) in central California is perhaps

known less as one of the Nation‟s first large wind farms and more for being the cause of

countless golden eagle mortalities. As a result of the questionable management practices

of the Altamont wind farm, the Center for Biological Diversity filed suit for violations of

state and federal wildlife protection laws.68

The press coverage of the legal blunders

65

Id.

66 Gregory Adams, “Bringing Green Power to the Public Lands: The Bureau of Land

Management‟s Authority to Discretion to Regulate Developments,” 21 J. Envtl. L &

Litig. 445, 447 (2006).

67 Id.

68 Press Release, Center for Biological Diversity et al., “Alameda County to Approve

Flawed Permits for Altamont Pass Wind Farms This Week,” available at http://www.sw-

center.org/swcbd/press/altamont9-21-05.pdf (Sept. 21, 2005).

14

surrounding the Altamont wind farm has set a less-than-ideal tone on the future of wind

development-even in more suitable locations.69

A. Altamont Pass Wind Resource Area in Brief

Construction of Altamont began in 1981 in response to the significant energy-

price increases of the 1970s.70

It is significant that Altamont holds title to the largest

concentration of wind turbines in the world71

with approximately 4,800 small wind

turbines which have a combined capacity of 576 megawatts of annual electric

generation.72

69

Adams, supra note 66, at 455-56. A report by the California Energy Commission in

2002 provided that: “[p]ublic perception, state and federal protection laws, and potential

fines and lawsuits have resulted in delays, modifications, and stoppages of new wind

energy projects in California and other states. For example, Alameda County [California]

will not approve additional permit applications to increase current electrical

production…at Altamont Pass Wind Resource Area until significant progress toward

solving the bird fatality issue is demonstrated.” Fact Sheet on Altamont Pass Bird Kills,

Center for Biological Diversity available at www.biologicaldiversity.org.

70 Id.

71 Melissa Lowitz, “Altamont Pass, California,” Encyclopedia of Earth (March 25, 2008)

available at http://www.eoearth.org/article/Altamont_Pass,_California.

72 Id.

15

Altamont is also known for being home to the highest raptor kill rate of any wind

farm in the world.73

This is due to the fact that the Altamont wind farm is located on a

major raptor migratory corridor and is home to the world‟s largest population of breeding

golden eagles.74

It has been reported that the wind turbines kill approximately 880 to

1300 birds each year, of which one-half are raptors.75

A Government Accounting Office report identified that the high number of bird

kills strongly relates to the large number of wind turbines.76

Compared to Altamont,

more modern wind facilities have significantly fewer turbines.77

In addition, the design

of the wind turbines at Altamont plays a role in the fatality of raptors.78

That is, “early

turbines were mounted on towers sixty feet to eighty feet in height, while today‟s turbines

are mounted on towers” that soar hundreds of feet high.79

This is significant because

73

“Fact Sheet on Altamont Pass Bird Kills,” Center for Biological Diversity, available at

http://www.biologicaldiversity.org. It has been reasoned that wind projects developed

subsequent to Altamont have not experienced comparable bird-kill rates given

information that has been learned from the questionable Altamont siting. Lowitz, supra

note 62.

74 Lowitz, supra note 71.

75 Id. The number of annual golden eagle fatalities is unclear, however, some experts

calculate that as many as 116 are killed annually. See supra note 73.

76 Lowitz, supra note 71.

77 Id.

78 Id.

79 Id.

16

blades that are lower to the ground can be especially hazardous to the swooping birds that

are in the midst of catching prey.80

Given the apparent danger the wind turbines at Altamont pose to avian species,

the California Energy Commission (“CEC”), with the guidance of raptor experts,

provided recommendations to the Altamont operators in an effort to reduce rates of bird

mortality.81

Among the recommendations was the suggestion that the antiquated wind

turbines (that is, more lethal) be replaced with fewer, larger turbines.82

The CEC also

proposed relocating and reconfiguring turbines, retrofitting power poles to make

electrocution less likely, and increasing the visibility of turbines for birds, inter alia.83

Most significantly, the Alameda County Board of Supervisors (“Alameda Board”)

decided in September of 2005 that half of the turbines be shut down between November

and December and the other half between January and February.84

III. THE DECLINE OF THE SAGE GROUSE

This article involves a somewhat obscure wildlife issue which has had a sizeable

impact on the rate of wind-energy development. The concern of the sage grouse in the

wind-energy context has been less “newsworthy” than other animal species perhaps

80

Id.

81 Yaffe, supra note 64.

82 Id.

83 Id.

84 Lowitz, supra note 71.

17

because the decline of sage grouse does not involve collisions with rotating blades or

barotraumas (that is, physical damage caused by differences in pressure), as in the case of

bat mortality. Instead, the threat to sage-grouse populations involves the fragmentation

of its habitat resulting from livestock grazing, infrastructure, invasive weeds, climate-

change impacts, and energy development.85

Although bird enthusiasts may be more

sympathetic to the plight of the golden eagle in the path of rotating blades than the sage-

grouse saga, the momentum of wind-energy development will be slowed by measures to

protect the sage grouse.

The sage grouse currently inhabit the lands of eleven western states which

include: California, Colorado, Idaho, Montana, Nevada, North Dakota, Oregon, South

Dakota, Utah, Washington, and Wyoming.86

The sage grouse is a terrestrial bird that

lives in a dry habitat known as the sagebrush steppe, much of which is managed by the

Bureau of Land Management (“BLM”) .87

According to FWS, the population of the sage

grouse has declined by approximately ninety percent in the past century.88

Going back

even further is a study by the FWS which estimates that sage-grouse populations have

dwindled down to almost one percent since the first European settlers arrived in the

U.S.89

Further, the bird‟s range has been reduced by half, to approximately 160 million

85

Id.

86 Supra note 1.

87 Adams, supra note 66, at 456.

88 Valerie Richardson, “Compromise on Greater Sage Grouse; Birds Gains „Candidate

Species‟ Rank,” The Washington Times (March 8, 2010).

89 Adams, supra note 66, at 456.

18

acres.90

The limited science that exists indicates that sage grouse tend to avoid nesting

near tall structures such as wind turbines and power lines.91

Accordingly, there is the

growing sense that an incompatible relationship exists between wind development and

the health of the sage-grouse population.

IV. THE LISTING OF THE SAGE GROUSE AS A CANDIDATE SPECIES

For close to a decade, environmentalists, western legislators, and energy groups

have quarreled over the potential listing of the sage grouse as its habitat intersects with

fertile areas for energy development and agriculture.92

Politicians and industry groups

have voiced concerns that affording the bird ESA protection would complicate gas

drilling, wind projects, grazing and other such development.93

On the other hand,

environmental groups have argued that measures to protect the sage grouse will have

overall positive effects on the health of the sagebrush steppe ecosystem.94

The March 5,

2010 decision to list the bird as a candidate species (also known as a “warranted but

90

Id.

91 Author unknown, “Editorial: Southern Idaho Gets a Reprieve with Sage Grouse

Ruling”, Times-News (Twins Falls, Idaho), (March 7, 2010).

92 Allison Winter, Patrick Reis, and Noelle Straub, “Sage Grouse Heads Toward

„Candidate Status,‟” Greenwire (March 5, 2010).

93 Id.

94 Id.

19

precluding” finding) is viewed by some as a “split decision, a partial victory and partial

defeat for both sides in the sage grouse controversy.”95

The FWS determination regarding the sage grouse was based on scientific data

that the bird warrants the protection of the ESA, however, such a listing was precluded by

the need for addressing species of higher priority.96

The decision that protection was

warranted stems from information from federal and state agencies that the quality of the

bird‟s habitat has diminished as a result of a combination of oil and gas exploration,

invasive plant species, drought, and wind-energy development in parts of the western

U.S.97

A. Candidate Species Designation in Brief

Candidate species are "any species being considered . . . for listing as an

endangered or threatened species, but not yet the subject of a proposed rule."98

Species

of plants and animals are listed with candidate status when the FWS has “sufficient

information on their biological status and threats to propose them as endangered or

threatened under the ESA, but for which development of a proposed listing regulation is

95

Id.

96 Greg L. Johnson, “A Little Help for Sage Grouse,” Newstex (March 7, 2010).

97 Tripp Baltz, “Activists Challenge Interior‟s Decision to Withhold Listing of Greater

Sage Grouse,” Environmental Reporter, 41 ER 562 (March 12, 2010).

98 Francesca Ortiz, “Candidate Conservation Agreements As A Devolutionary Response

to Extinction,” 33 Ga. L. Rev. 413, 455 (Winter 1999).

20

precluded by other higher priority listing activities.”99

There are currently 252 species

which are candidates for listing.100

Congress created the warranted but precluded designation to allow the FWS‟

limited funding to be diverted to those species in greater need.101

On the other hand, the

designation is not be used as a stall tactic. In particular, "to delay commencing the

rulemaking process for any reason other than that the existence of pending or imminent

proposals to list species subject to a greater degree of threat would make allocation of

resources to such a petition unwise."102

One of the complaints that wildlife activists have with candidate-status

designation is that candidate species are not afforded any of the protections provided by

99

U.S. Fish and Wildlife Services Candidate Species Section 4 of the Endangered

Species Act available at

http://www.npwrc.usgs.gov/resource/wildlife/nddanger/nddngrqa.htm.

100 Available at

http://www.fws.gov/ecos/ajax/tess_public/pub/SpeciesReport.do?listingType=C&mapstat

us=1.

101Id. at 454.

102 Id. (citing H.R. Rep. No. 97-567, at 21 (1982), reprinted in 1982 U.S.C.C.A.N. 2807,

2821.).

21

the ESA as a statutory right unless they are listed in an “emergency rule.”103

The risk of

delaying a listing, according to wildlife activists, is the deterioration of a species "to the

point where it is on the brink of extinction before it is listed" or even worse extinction

itself.104

In order to avoid the worst-case scenario, the FWS promotes the creation of

conservation partnerships (see the discussion of Candidate Conservation Agreements

below) to counter the conditions which threaten the existence of candidate species.105

The FWS asserts that an early conservation effort “preserves management options,

minimizes the cost of recovery, and reduces the potential for restrictive land use policies

in the future.”106

The goal is that with the right conservation efforts in place the most

significant threats to a species will be removed and a formal listing under the ESA will be

deemed unnecessary.107

On March 9, 2010, the environmental group, The Western Watersheds Project

(“WWP”), filed suit, challenging the Interior Department‟s decision not to list the sage

103

Id. A candidate can be listed on an emergency basis in the event the FWS makes the

decision that there is an "emergency posing a significant risk to the well-being" of the

species. Id. at 458.

104 Id. at 455.

105 Available at http://www.westernwatersheds.org/wildlife/sage-grouse.

106 Id.

107 Id.

22

grouse as an endangered or threatened species.108

Specifically, WWP claims that

“[e]xtending protection for sage-grouse under the Endangered Species Act is the best way

to ensure sage-grouse populations recover and to promote real assurances that public land

managers take seriously real conservation of the diminishing Sagebrush Sea.”109

Moreover, WWP asserts that science and the FWS‟ “warranted” determination

demonstrate that prompt protection under the ESA is necessary to prevent the bird‟s

extinction.110

National wildlife-activist groups such as the Sierra Club, Audubon Society

(“Audubon”), and The Nature Conservancy were less inclined to criticize the sage-grouse

designation. Dr. Frank Gill, President and CEO of Audubon stated, “[t]oday‟s decision

cannot and need not become an implied farewell to the Greater Sage Grouse…We won‟t

get immediate listing, but we are seeing historic progress toward preserving vital

habitat…”111

The Nature Conservancy and the Sierra Club also made statements

commending the listing as a good start, however, both groups implied concern that

108

See Western Watersheds Project v. U.S. Fish and Wildlife Service, D. Idaho, No. 06-

CV-277.

109 Id.

110 Id.

111 Statement by Dr. Frank Gill, available at

http://web1.audubon.org/news/pressRelease.php?id=2240.

23

cooperation among federal, state, and local partners to protect the sage grouse may not be

enough to save the species.112

B. The Effect of a Candidate Species Listing

For the time being, the sage grouse will not be listed as an endangered or

threatened species, and accordingly will not receive statutory protection under the

ESA.113

Nonetheless, the candidate species designation makes a strong statement to other

state and federal agencies that the threat to the sage grouse is serious and actions are

necessary for its survival.114

Secretary of the Interior Salazar stated shortly after the

decision that “[w]e want to find smart ways of protecting habitat and developing much-

needed energy on Western lands.”115

112

“New Greater Sage Grouse Listing a „Call to Action‟”, available at

http://www.nature.org/pressroom/press/press4420.html; Matt Kirby, “Sage Grouse Listed

as „Candidate‟ Endangered Species‟”, available at

http://sierraclub.typepad.com/layoftheland/2010/03/sage-grouse-listed-as-candidate-

endangered=species.html.

113 “Interior Expands Common-Sense Efforts to Conserve Sage Grouse Habitat in the

West; Western Bird Found „Warranted but Precluded‟ from Endangered Species Act

Protection,” M2 PressWIRE (March 8, 2010).

114 Stephanie Tavares, “It is Man vs. Bird in Quest for Power,” Las Vegas Sun (March 9,

2010).

115 Allison Winter, “Grouse Listing: „Warranted but Precluded‟ BLM Promises „Closer

Scrutiny,‟” E & E Reporter (March 6, 2010).

24

Despite the fact the sage grouse is beyond the reach of the ESA, the designation

brings with it a host of obligations that the BLM must follow. For instance, the BLM,

under the ESA, is obligated to ensure that an authorized action is not likely to endanger

the continued existence of a candidate species or result in the disruption and/or

destruction of its habitat.116

Moreover, under section 6840 of the BLM Manual, the BLM

is obligated to “carry out management for the conservation of candidate species and to

ensure that its actions do not contribute to the need to list such species as threatened or

endangered. BLM is required to request technical assistance on any planned action that

may contribute to the need to list a candidate species.”117

In order to fulfill its obligations

the BLM is to work with relevant stakeholders in developing and implementing wide-

scale and/or site-specific conservation strategies.118

V. THE BLM AND WIND-ENERGY DEVELOPMENT ON FEDERAL

LANDS

The BLM recognizes that one of the primary causes of the sage grouse‟s decline

is the loss of continuous and un-fragmented sagebrush habitat.119

The candidate status

designation is effective in close to 100 million acres of public land across the eleven

states mentioned above.120

Public lands are defined by statute as “lands and interests in

116

Wyoming Outdoor Council, 159 IBLA 388, 239 (2003).

117 Id. at 389-90.

118 BLM Manual § 6840(C)(2)(b).

119 Adams, supra note 66, at 457-58.

120 Winter, supra note 115.

25

land under the jurisdiction of the Bureau of Land Management in the Department of the

Interior.”121

Given that fifty-five percent of the remaining sage-grouse population resides

on BLM lands, the BLM has acknowledged that its management practices will have a

significant impact on the survival of the sage grouse.122

The BLM announced that its

goal is to “[s]ustain or reestablish the integrity of the sagebrush biome to provide the

amount, continuity, and quality of habitat that is necessary to maintain sustainable

populations of sage grouse and other sagebrush-dependent wildlife species.”123

It is critical to note that a large swath of the 100 million acres is located within

prime wind-energy territory. 124

Ideal land for a wind project has strong and steady winds

and is located within close proximity to transmissions lines connecting to the grid.125

Many pieces of land with this ideal combination can be found on public lands managed

by the BLM. It is no wonder that private wind developers have shown significant interest

in leasing federal lands in the western U.S.

Private wind-energy development on federal lands is made possible with a right-

of-way authorization according to Title V of the Federal Land Policy and Management

121

43 U.S.C.A. § 1702(3); see also Robert Glicksman & George Cameron Coggins,

“Modern Public Land Law,” 33, West Publishing (2006).

122 Id. at 457.

123 Adams, supra note 66, at 457.

124 Tavares, supra note 114.

125 Adams, supra note 66, at 448.

26

Act (“FLPMA”).126

FLPMA provides the BLM “with its first permanent authority to

manage the public lands for multiple use and sustained yield.”127

The FLPMA requires

the BLM to evaluate "ecological and environmental considerations within a broader

framework of multiple use management objectives" such as mining, grazing and energy

extraction.128

In the same light, the FLPMA declares that it is U.S. policy to make use of

all the natural resources its lands provide.129

In exchange for the use of these natural

resources, the FLPMA codifies a federal policy making way for the federal government

to receive fair market value for this use.130

The FLPMA is evidence that Congress

recognized the importance of public land protection in conjunction with development of

the Nation‟s natural resources.131

A right-of-way authorization permits private parties to use BLM land for a certain

purpose (such as roads, pipelines, transmission lines, and natural-resource extraction)

126

Roy Fuller, “Wind Energy Development on BLM Lands,” 24 J. Land Resources &

Envtl. L. 613, 624 (2004).

127 Glicksman, supra note 121, at 249.

128 Cynthia Heideman, “Multiple Use Policies in the Grand Staircase-Escalante National

Monument: Is Clinton's Promise Legitimate or Mere Political Rhetoric?” 16 BYU J. Pub.

L. 37, 39 (2001).

129 Id. at 627.

130 Id.

131 Megan Anderson, “The Energy Policy Act and its Categorical Exclusions: What

Happened to the Extraordinary Circumstance Exception?” 28 J. Land, Resources, &

Envtl. Law 119 (2009).

27

subject to a number of requirements.132

The decision to grant a right-of-way is

discretionary and must be authorized in the most efficient and economical manner

feasible.133

An application may be denied if the proposed use is not in the public

interest.134

Further, the issuing agency is responsible to limiting the right-of-way “to the

size necessary for the project, avoiding unnecessary environmental damage.”135

Generally, a right-of-way is issued for a term commensurate to the life of the project.136

A. BLM‟s Response to the Sage Grouse Listing

How the BLM will respond to proposed wind-energy projects to be developed in

and around sage-grouse territory is still not entirely clear. This uncertainty does not serve

to bolster the confidence of the wind-energy industry: uncertainty has never been known

to be a catalyst of investment. What is more certain, on the other hand, is the order of the

BLM priority hierarchy. That is, the guidance that the BLM has thus far implemented in

response to the sage-grouse listing clearly prioritizes the survival of the sage grouse over

proposed wind development. To be sure, the Instruction Memorandum (“IM”) titled

“Gunnison and Greater Sage-grouse (sic) Management” (which supplements the BLM‟s

132

Available at

http://www.blm.gov/wo/st/en/prog/energy/cost_recovery_regulations.html.

133 Id.

134 Fuller, supra note 126.

135 Glicksman, supra note 121.

136Fuller, supra note 126.

28

2004 National Sage-Grouse Conservation Strategy137

) may not convince the WWP that

the candidate-species listing was the correct finding, nonetheless, it surely establishes the

BLM‟s position that wind-energy development must not disturb sage-grouse populations

without significant conditions being set forth.

Specifically, IM provides the BLM with “new management considerations for

authorization of renewable and nonrenewable energy development.”138

What this means

is that both renewable and nonrenewable energy projects are to avoid being sited in

“priority” sage-grouse habitat when necessary to maintain sustainable sage-grouse

populations.139

“Priority habitat,” according to the BLM, is “habitat of highest

conservation value relative to maintaining sustainable sage-grouse populations range-

wide.”140

137

The BLM published the “BLM National Strategy” in November 2004 which set goals,

objectives, and management direction toward the BLM‟s sage-grouse conservation

efforts. The IM published on March 5, 2010 is a continuation of the goals set forth in the

BLM National Strategy.

138 “Questions and Answers on BLM‟s Directive on Sage-grouse Management,”

available at

http://www.blm.gov/wo/st/en/info/newsroom/sage_grouse_conservation/sage-

grouse_FAQ.html.

139 IM No. 2010-71, “Gunnison and Greater Sage-grouse Management Considerations for

Energy Development,” (March 5, 2010).

140 Id.

29

In terms of renewable-energy development, the IM instructs the BLM to screen

new right-of-way applications in order to determine whether the project area (or site

testing) is situated on priority habitat.141

If priority habitat happens to be located within a

project site, pending NEPA review (see below), then the BLM is to alert the applicant

that its right-of-way application, “may be denied or that terms and conditions may be

imposed on the right-of-way grant to protect priority habitat as supported by NEPA

analysis.”142

Development in priority habitat will not necessarily warrant a rejection as the IM

provides for consideration of methods to avoid and/or mitigate environmental impacts.143

In turn, the approval of a project may be conditioned on onsite/offsite mitigation as well

as onsite modification.144

In short, the IM mandates that new wind projects in priority

areas will be closely scrutinized. It should be emphasized that there is little, if any,

information available relating to the impact that wind farms have on sage-grouse

populations.145

141

Id.

142 Id.

143 Id.

144 Id.

145 JM Becker, CA Duberstein, “Sage-Grouse and Wind Energy: Biology, Habits, and

Potential Effects of Development,” prepared for the U.S. Dept. of Energy Office of

Energy Efficiency and Renewable Energy Wind & Hydropower Technologies Program

(July 2009).

30

It is worth noting that the IM calls for energy companies to enter into Candidate

Conservation Agreements (“CCAs”) which aim to reduce or eliminate threats to the sage

grouse.146

CCAs are designed with the goal of precluding “the need for listing by

encouraging private landowners and state and local land management agencies to

voluntarily conserve habitats, and thereby prevent species from reaching the level of

endangered or threatened status.”147

In exchange for land conservation efforts, parties

can receive financial incentives and assurances relating to future land use should the

species at issue become listed.148

Under a conservation agreement, a landowner or lessee of public lands commits

to a specifically designed plan whose purpose is to assist in the recovery of a particular

candidate species.149

Such efforts may include one or more of the following: “a

landowner's promise to forego harmful land uses or an agency's agreement to restore and

enhance known habitat, monitor the species' status, and use its regulatory authority to

minimize adverse impacts on the species.”150

146

Supra note 139.

147 Francesca Ortiz, “Candidate Conservation Agreements as a Devolutionary Response

to Extinction,” 33 Ga. L. Rev. 413, 421 (Winter 1999).

148Id.

149 Id, at 465.

150 Id.

31

VI. WYOMING AND ITS “CORE” SAGE-GROUSE HABITAT

The fate of the sage grouse also largely depends on decisions made by states with

large sage-grouse populations such as Wyoming. The steps being taken by the BLM post

March 5, 2010 to protect the sage-grouse are surely not the first efforts that have been

made to avoid listing the bird as a threatened or endangered species under the ESA.

Wyoming has been out on the forefront setting forth resource management plans aimed at

protecting the bird. Wyoming is a key state in the sage-grouse debate as it is home to

half of the world‟s remaining sage-grouse population.151

What makes this so significant

in the context of the bird‟s decline is that Wyoming ranked ninth in 2009 for newly-

installed wind capacity-out ranking such wind-focused states such as Colorado and

California.152

Maps generated by the National Renewable Energy Laboratory demonstrate very

impressive wind-energy potential in southeastern Wyoming and in areas in the northeast

of the state.153

Specifically, the wind industry has focused on Wyoming‟s south-central

region because of its strong and steady winds and its closer proximity to population

centers such as Las Vegas.154

The bad news is that this same high-wind corridor contains

151

Scott Streater, “Ranchers, Energy Industry Worry as FWS Nears Sage Grouse

Decision,” E & E Reporter (March 4, 2010).

152 Id.

153 Id.

154 Scott Streater, “Wind power Industry Retreating from Wyo., Citing Sage Grouse

Concerns,” Greenwire (August 6, 2009).

32

some of the highest concentrations of sage-grouse populations in Wyoming.155

Knowing

full well the implications of the aforementioned, the BLM‟s Wyoming State Office

provided guidance pursuant to Instruction Memorandum (WY-2010-012) in January of

2008 on setting strict restrictions on energy exploration in “core areas.”156

The core-area approach dictates that new “development or land uses within core

population areas should be authorized or conducted only when it can be demonstrated by

the state agency that the activity will not cause declines in Greater Sage-Grouse

populations.”157

In other words, developers must be able to prove that the project will not

have any adverse impact on the sage grouse before the project can proceed. The BLM

will consider the core-area policy when reviewing wind-energy projects on a “case-by-

case basis.” 158

Chris Keefe, wildlife biologist in the BLM‟s Wyoming State office stated

that the core areas policy will “likely result in additional restrictions, although it won‟t do

that directly.”159

It is difficult to comprehend how any interest group could be unimpressed with

the restrictive reach of Wyoming‟s core-area habitat policy. After all, these protective

155

Id.

156 Tripp Baltz, “BLM Office in Wyoming Issues Policy for Greater Sage Grouse,

Resource Planning,” 41 Env‟tRep.Cur.Dev 82 (January 8, 2010).

157 Wyoming Office of the Governor, Executive Order-Greater Sage Grouse Core Area

Protection.

158 Id.

159 Id.

33

measures cover huge swaths of land; more specifically, the core areas are estimated to

include about a quarter of Wyoming‟s territory or approximately fourteen million

acres.160

Furthermore, the core areas will protect eighty-two percent of Wyoming‟s sage-

grouse population.161

Along with expansive coverage, the Wyoming strategy will not likely be mere

empty language to be exploited by unfettered development. This should be the case

given that the FWS issued a statement to the Wyoming Game and Fish Director advising

that the construction of wind farms in core areas would highly compromise the adequacy

of the core-area policy short of a demonstration that there would be “no impact” to sage

grouse.162

Ryan Lance, Deputy Chief of Staff to Wyoming‟s Governor, Dave

Freudenthal, expounded on FWS‟ statement by advising that development in core areas

would likely prompt the FWS to withdraw support for the core-area strategy and

compromise the state‟s efforts of avoiding the listing of the sage grouse.163

Taken together, the BLM‟s March 5, 2010 Instruction Memorandum and state-

management plans such as Wyoming‟s will act to ensure that wind development will not

160

Baltz, supra note 156; Jessica Ferrell, “Sage Grouse Not Protected by ESA, But Will

Still Play Role in Western Energy Development,” available at

http://www.martenlaw.com/newsletter/20100329-sage-grouse-esa-protection.

161 Streater, supra note 151.

162 Letter from Brian T. Kelly, Field Supervisor of FWS (Wyoming Field Office) to Steve

Ferrell, Director of Wyoming Game and Fish Department (July 7, 2009).

163 Streater, supra note 154.

34

be the cause of the decline of the sage grouse. This can only prove to be true given that

both the former and the latter make it plain that the health of the bird takes precedence

over wind-energy development.

VII. THE WIND INDUSTRY: POST CANDIDATE LISTING

Shortly after the FWS‟ finding, three industry groups, the American Wind Energy

Association, Interwest Energy Alliance, and Renewable Northwest Project, wrote a letter

to Interior Secretary Salazar noting that placing the “rich wind energy resources” of the

core areas out-of-bounds for the wind energy “would ban the development of 10,000

megawatts of the highest-quality clean wind resources in Wyoming and in the nation”

and would result in a loss of more than $20 billion in investment capital.164

The BLM asserts that its management practices going forward will not necessarily

increase layers of review with respect to proposed development.165

What is apparent,

however, is that proposed wind projects within core areas may be cancelled or

substantially modified. For instance, Wasatch Wind Inc. (“Wasatch”) had originally

planned on developing 4,313 acres of mostly federal land located within Wyoming for a

fifty-turbine wind farm.166

Wasatch recently informed the BLM that it would revise its

plan since a portion of the development site encroached upon core-area habitat.167

164

Streater, supra note 151.

165 Question and Answers, supra note 138.

166 Scott Streater, “Developer Revises Wyo. Wind-Power Proposal to Avoid Grouse,”

Land Letter (April 8, 2010).

35

By reducing the size of its project by 680 acres, Wasatch addressed concerns of

both the BLM and state and federal wildlife officials.168

Critically, Wasatch‟s efforts to

avoid developing in core areas will likely allow the project to bypass a time consuming

environmental impact statement (“EIS”).169

Section 102(2)(C) of NEPA provides that all

federal agencies must include an EIS in relation to “every recommendation or report on

proposal for legislation and other major Federal actions significantly affecting the quality

of the human environment.” Preparation of an EIS includes must consider and disclose:

(1) the environmental impact of the proposed action;

(2) any adverse environmental effects which cannot be avoided should the

proposal be implemented;

(3) alternatives to the proposed action;

(4) the relationship between local short-term uses of man‟s environment

and the maintenance and enhancement of long-term productivity, and

5) any irreversible and irretrievable commitments of resources which

would be involved in the proposed action should it be implemented. 170

A “major federal action” relates to those actions “with effects that may be major and

which are potentially subject to federal control and responsibility.”171

167

Id.

168 Id.

169 Id.

170 Glicksman, supra note 121, at 110.

171 40 C.F.R. § 1508.27. Actions include “new and continuing activities, including

projects and programs entirely or partly financed, assisted, conducted, regulated, or

approved by federal agencies; new or revised agency rules, regulations, plans, policies or

36

The EIS embodies the three major goals of NEPA: 1) setting a national

environmental policy and ethos of environmental protection, 2) establishing a procedural

mechanism to ensure that the federal government meets the environmental goals of

NEPA, and 3) providing a broad platform for public participation in government

decision-making affecting the environment.172

Underscoring the NEPA analysis is the

intention to “avoid ill-considered agency decisions that sacrifice long-term social

interests for short-term gains or inflict irreversible environmental damage.”173

In this light, NEPA calls for giving effect to the saying “look before you leap” and

requires the analysis and evaluation of alternative (more/less environmental harm)

courses of action. 174

In practice, the EIS drives this initiative by providing a detailed

statement addressing how an action may affect the environment. With the analysis of a

project‟s potential adverse impacts on the environment, federal officials can take steps to

minimize the damage if they decide to approve a project.175

By considering alternatives

and adopting, where appropriate, plans with the least environmental impact, federal

procedures; and legislative proposals. §§ 1506.8, 1508.17). “Major” merely reinforces

“action” and does not have a meaning independent of significantly. § 1508.27.

172 Robert Dreher, “NEPA Under Seige,” The Political Assault on the National

Environmental Policy Act,” Georgetown Environmental Law & Policy Institute, 2-3

(2005).

173 Id. at 3.

174 Id.

175 Renee Kosnik, “The Oil and Gas Industry‟s Exclusions and Exemptions to Major

Environmental Statutes,” Oil & Gas Accountability Project, 16 (2007).

37

agencies can find a balance between man‟s desire to develop the land and the impact on

the environment that is caused by such development.

The BLM holds the view that development in core areas would result in a

“significant” impact, and under NEPA, an EIS would therefore be triggered.176

The BLM

has issued the “Final Programmatic Environmental Impact Statement” (“Wind PEIS”) for

BLM public land in eleven western states.177

The Wind PEIS sets out to support wind-

energy development and ultimately determines at a programmatic level whether a

proposed project will be permitted. 178

Specifically, the Wind PEIS examines the

“environmental, cultural, social and economic impacts of wind-energy development on

BLM administered public lands” and “evaluates alternatives to establish best

management approval to siting wind-energy projects.”179

On the other hand, projects sited on non-core areas would not likely be subject to

an EIS and instead would be subject to review under the less painstaking environmental

assessment (“EA”) or “mini-EIS.”180

Both an EIS and an EA, in different levels of detail,

lay out the specifics of the proposed action, the alternatives, and the associated impacts

176

Christy Hemken, “Commission Discusses Wind Development Access, Core Areas at

Med-Sept. (sic) Meeting,” Wyoming Livestock Roundup (October 23, 2009).

177 These states include: Arizona, California, Colorado, Idaho, Montana, Nevada, New

Mexico, Oregon, Utah, Washington, and Wyoming.

178 Wendie Kellington, “Federal Laws Affecting Local Land Use Decision Making,”

ALI-ABA Course of Study Materials (August 2009).

179 Id.; see also http://windeis.anl.gov/documents/fpeis/index.cfm.

180 Id.

38

on the environment.181

The EA, in particular, is a "brief but thorough” review that looks

at the need for the proposed project and takes into account alternatives to the project and

the environmental impacts of each alternative.182

If the EA yields a finding that

preparation of an EIS is unnecessary, the agency then issues a Finding of No Significant

Impact (commonly known as a “FONSI” finding);183

the threshold issue is whether there

will be a "significant" environmental impact.184

As the Wasatch project sets forward

actions to avoid “significant impacts” its proposed project will nevertheless be subject to

such an environmental assessment.

Even if the Wasatch project is subjected to a FONSI finding, this does not equate

to smooth sailing for the wind project. This is because EAs are often times an expensive

undertaking which take many months to complete.185

Somewhat ironically, “the sheer

volume of an extremely lengthy EA could lead some to conclude that an EIS was likely

the appropriate level of analysis for the action.”186

181

Kosnik, supra note 175, at 16.

182 Available at http://www.npi.org/NEPA/assessment.html.

183 Glicksman, supra note 121, at 113.

184 Jamison Colburn, “The Indignity of Federal Wildlife Habitat Law,” 57 Ala. L. Rev.

417, fn. 296 (Winter 2005). If, on the other hand, the EA demonstrates that a significant

impact may occur the agency then is obligated to prepare a Notice of Intent and a EIS

will be prepared.

185 The Judge Advocate General's School, TJAGSA Practice Notes: Environmental Law

Note, 2001 Army Law. 20, 21 (December 2001).

186 Id.

39

A. Reprioritizing the Value System

Although it is encouraging that many energy developers are not abandoning entire

projects due to challenges presented by the sage grouse, it is of particular concern that

core-areas are seemingly becoming off limits for wind-energy projects. The error at issue

is that the policies flowing from public land use planning (for example, Wyoming‟s core-

area concept) assume that development by its very nature is a negative if wildlife

protection cannot be assured. This viewpoint makes it seemingly impossible to recognize

that not all development is created equally. Chiefly, the environmental costs associated

with a wind project are historically not as grave as those resulting from other kinds of

energy development such as oil and gas production.

Important to the discourse is recognizing that the modus operandi of the

renewable energy sector is distinct from the other industries pursuing development on

BLM lands. Wind is a resource just like oil, natural gas, and coal that is harnessed for its

ability to be converted into usable energy. However, unlike its carbon-based

counterparts, the wind industry exists in large part today due to its contribution to

climate-change mitigation. Sure, wind-energy development is a lucrative business for

some, however, its main driver in the U.S. is its role in the climate-change era.

It is important to point out that the jury is still out on whether impacts on sage-

grouse populations from wind-energy development even approaches the damage caused

by oil and gas exploration/production in the sagebrush steppe. In fact, there is little

information about how the sage grouse is affected by wind-energy infrastructure.187

187

Streater, supra note 151. It should be pointed out that a group of scientists, energy

developers, and electric utilities are making plans to carry out an extensive study which

40

Adding to the mystery is the fact that researching this issue in core areas is not likely to

occur in the near term ever since the FWS expressed disapproval of construction in core

areas for research purposes.188

Even presuming that wind-energy development has some

degree of adverse effect on the sage grouse, the BLM analysis nevertheless needs to place

meaningful stock in wind energy‟s ability as a robust climate-change mitigation tool.

In order to do this, the federal lands regime must go through a paradigm shift that

tilts the scales to the benefit of renewable-energy development. What this calls for is

reevaluating the touchstone of the significant impact analysis from a decline in a species‟

population rate to the degree to which an energy project will reduce greenhouse-gas

emissions. This is crucial for the health of the sage grouse since there is little debate that

climate change poses some degree of threat to the survivability of the bird.189

More

broadly, the potential impacts of climate change cast an overwhelming list of hardships

that imperil the quality of human life world-wide. The benefits of wind energy in the

effort to reduce greenhouse-gas emissions are impressive (a debate on this topic is

will examine how wind farms affect the sage grouse. Participants in the study include

Renewable Energy Systems Americas, the Nature Conservancy, the Wyoming Audubon

Society, and various other federal and state agencies. Nate Poppino, “Group to Look at

Wind Farms' Effects on Grouse,” The Times-News (Twins Falls, Idaho), (April 12,

2010).

188 See Letter from Brian T. Kelly, supra note 162.

189 Fact Sheet: Endangered Species Act Listing Decision for the Greater Sage-Grouse,

available at http://www.fws.gov/mountain-

prairie/species/birds/sagegrouse/FactSheet03052010.pdf.

41

outside the scope of this paper). It does not take a great leap of faith to assert that the

future of the sage grouse very well depends on the health of the wind-energy industry.

B. ESA Does Not Consider the Attributes of Climate Change Mitigation

Evidence of the paradigm shift discussed above has been peppered in mandates

set forth by the Obama administration. On October 8, 2009, for instance, President

Obama instructed that all federal agency decision making must take into account how

climate change will affect the mission of each respective agency.190

Consistent with

President Obama‟s mandate is the DOI‟s recognition of the link between climate-change

mitigation and resulting environmental benefits. In particular, Secretary Salazar stated

that the “Interior is now managing America‟s public lands and oceans not just for

balanced oil and natural gas, and coal development, but also-for the first time ever-to

promote environmentally responsible renewable energy development.”191

Despite

President Obama‟s instruction to develop climate-change metrics in agency decisions,

Secretary Salazar has not made an attempt to specify how attributes of climate-change

mitigation will be considered under the DOI umbrella.192

Accordingly, endangered species continue to be held as having an infinite value-

this clearly makes progress towards a fruitful paradigm shift seemingly tenuous.193

Chiefly, the ESA does not provide for any balancing of policy considerations and instead

190

Executive Order No. 13, 514, 74 Fed. Reg. 52, 117 (October, 8, 2009).

191 Department of the Interior, Secretarial Order No. 3289 (September 14, 2009).

192 Victor Flatt, “Adapting Energy and Environmental Policy for Climate Change,” 11 Vt.

J. Envtl. L. 655, 665 (2010).

193 See e.g. Id.

42

ESA decisions are based on scientific information alone.194

Specifically, a species is

determined to be threatened or endangered due to any of the following five factors:

1. present or threatened destruction, modification, or curtailment of its habitat or

range;

2. overutilization for commercial, recreational, scientific or educational purposes;

3. disease or predation;

4. inadequacy of existing regulatory mechanisms; and

5. other natural or manmade factors affecting its continued existence.195

The decision by the Maryland federal district court in the matter Animal Welfare

Inst. v. Beech Ridge Energy LLC makes it abundantly clear that factoring the benefits of

wind-energy generation are not a part of ESA doctrine.196

The proposed Beech Ridge

Wind Farm was originally planned to include 124 wind turbines (measuring 390 feet in

height) along twenty-three miles of a West Virginia ridge top.197

Only after the

developers had received construction permits from the West Virginia Public Service

Commission did wildlife groups file suit seeking to bar construction due to the lack of an

incidental take permit for the endangered Indiana Bat.198

194

“Renewable Energy Projects Will be Held to the Same Stringent Standards of the

Endangered Species Act as Other Development Projects,” (January 25, 2010), available

at

http://www.gibsondunn.com/publications/Pages/RenewableEnergyProjectsHeldtoStandar

dsofEndangeredSpeciesAct.aspx.

195 16 U.S.C.A. § 1533(a)(1) (1974)

196 675 F.Supp.2d 540 (D. Md. 2009).

197 Id. at 548.

198 Id. at 542.

43

The crux of this case centered on whether Indiana Bats were present in the

proposed project site. The concern was that livelihood of bats flying within the project

area would be threatened given the danger that rotating blades present to the animal.199

The legal argument made by Plaintiffs was that the construction and future operation of

the Beech Ridge project “will „take‟ endangered Indiana bats, in violation of § 9 of the

Endangered Species Act (“ESA”), 16 U.S.C. § 1538(a)(1)(B).”200

Section 9 of the ESA

makes it unlawful for any person to “take any [endangered] species with the United

States.”201

As explained by the court in Beech Ridge, a plaintiff establishes that a taking

has occurred when it is shown that “the challenged activity is reasonably certain to

imminently harm, kill or wound the listed species.”202

In holding that Indiana Bats will be harmed, wounded or killed in violation of

section 9 of the ESA, the court emphasized that the ESA places the preservation of

endangered species at the apex of importance. Specifically, the court recalled the opinion

in the seminal case Tennessee Valley Authority v. Hill in which that court explained ,

“„examination of the language, history, and structure of the legislation under review here

indicates beyond doubt that Congress intended endangered species to be afforded the

highest of priorities,‟…and that Congress' purpose „was to halt and reverse the trend

toward species extinction, whatever the cost,‟”.203

At no point in the Beech Ridge

199

Id. at 547.

200Id. at 542.

201 16 U.S.C. § 1538(a)(1)(B).

202 Beech Ridge, 675 F.Supp. 2d 561.

203 Id. at 544 (citing TVA v. Hill, 437 U.S. 153, 174, 184 (1978)).

44

opinion were the benefits of the wind-energy project a part of the ESA analysis. Instead,

it stands clear from this decision that wind-energy projects (and likely, all renewable

energy projects) will be met with the same stringent ESA standards that would otherwise

apply to fossil-fuel development.

It is important to note, as the court in Beech Ridge discusses, a developer is not

completely out of luck if an endangered or threatened species is present on the project

site. That is, a 1982 amendment to the ESA established an incidental take permit (“ITP”)

process which allows a party to obtain a permit to lawfully take an endangered species,

without fear of incurring civil and criminal penalties, “if such taking is incidental to, and

not the purpose of, the carrying out of an otherwise lawful activity.”204

Although ITPs

shed some flexibility to the ESA regime, they are certainly not an automatic green light

for the wind developer. This is because ITPs are known to be difficult, time-consuming,

and expensive to obtain.205

C. Wind Turbine Guidelines Advisory Committee

When the evaluation of the environmental benefits of wind energy will be an

integral part of the review process of the federal agencies is unknown. On the other hand,

what is clearer is that key stakeholders have begun to make a concerted effort to

communicate to the DOI the timeliness of recognizing the role of wind energy in the

climate-change era. Specifically, the Wind Turbine Guidelines Advisory Committee

204

§ 1539(a)(1)(B)

205 Alicia Griffin, “Beyond Harm: Abandoning the Actual Injury Standard for Certain

Prohibited Takings Under the Endangered Species Act by Giving Independent Meaning

to Harassment,” 52 Vand. L. Rev. 1831, 1855 (1999).

45

(“Committee”) issued guidance on April 13, 2010, which recommended that Secretary

Salazar take “appropriate consideration” of the benefits of wind energy-including a lack

of air pollution and greenhouse gas emissions, and low water consumption-when

conducting a review of proposed energy development.206

These recommendations come from a diverse group of twenty-two members207

that were reached during a two-year process.208

The recommendations set out voluntary

guidelines for siting and operating wind energy developments, as well as policy

206

U.S. Fish and Wildlife Service Wind Turbine Guidelines Advisory Committee,

Preamble and Policy Recommendations, (April 13, 2010).

207 Committee members include: Dr. Taber Allison (Mass Audubon), Dick Anderson

(California Energy Commission), Dr. Ed Arnett (Bat Conservation International),

Michael Azeka (AES Wind Generation), Dr. Thomas Bancroft (National Audubon

Society), Kathy Boydston (Texas Parks & Wildlife Dept.), Rene Braud (Horizon Energy

Group), Scott Darling (Vermont Fish & Wildlife Dept.), Aimee Delach (Defenders of

Wildlife), Sam Enfield (MAP Royalty, Inc.), Greg Hueckel (Washington Dept. of Fish &

Wildlife), Jeri Lawrence (Blackfeet Nation), Steve Lindenberg (U.S. Dept. of Energy),

Robert Manes (The Nature Conservancy), Winifred Perkins (Florida Light & Power),

Steven Quarles (Crowell & Moring, LLP), Rich Rayhill (Ridgeline Energy), Robert

Robel (Kansas State Univ.), Keith Sexson (Kansas Dept. of Wildlife and Parks), Mark

Sinclair (Clean Energy States Alliance), David Stout (FWS), Patrick Traylor (Hogan &

Hartson, LLP).

208 News Release: Service Transmits Wind Turbine Guideline Advisory Committee

Recommendations to Interior Secretary, U.S. Fish and Wildlife Service (April 13, 2010).

46

recommendations to help avoid or minimize impacts of wind energy facilities and

wildlife.209

The Guidelines recommend a tiered process that begins “with an analysis of

risks proposed wind projects will have on wildlife and habitats and an evaluation of those

risks to help make siting, constructing, and operations decisions. Subsequent tiers

include field studies to document wildlife conditions and predict project impacts, and

post-construction fatality studies.”210

Each tier is paired with a set of questions to help the developer identify potential

problems and accordingly provide guidance in the siting-decision process.211

The goal is

for the framework to allow the “developer to determine whether he or she has sufficient

information, whether and/or how to proceed with development of a project, or whether

additional information gathered at a subsequent tier is necessary to make those

decisions.”212

The Guidelines do not demand that every tier be satisfied before a wind

project is given the green light.213

The Guidelines lay out the tier system as follows:

Tier 1 – Preliminary evaluation or screening of sites (landscape‐level

screening of possible project sites). An early look at the geographical

area, large-scale look at the landscape while working from a list of what to

avoid.

209

“Final Recommendations on Wind Turbine Guidelines Released,” Bird Radar Blog,

June 7, 2010, available at http://www.birdradar.com/?p=199.

210 “Climate Impacts on Wildlife Should Factor into Wind Turbine Decisions, Panel

Says,” available at http://www.climate.bna.com (April 13, 2010).

211Supra note 206.

212 Id.

213 Id.

47

Tier 2 – Site characterization (broad characterization of one or more

potential project sites). Boots-on-the-ground phase, where companies

examine the future project site.

Tier 3 – Field studies to document site wildlife conditions and predict

project impacts (site‐specific assessments at the proposed project site).

Pre-construction studies including pinpointing wildlife habitats and

identification of potential risks. Tier 3 is the first tier in which

quantitative and scientifically rigorous studies would be conducted to

assess the potential risk of the proposed wind energy project.

Tier 4 – Post‐construction fatality studies (to evaluate direct fatality

impacts). Post-construction period when risk concerns are verified, and

will allow for comparison of actual fatality rates with predicted rates.

Tier 5 – Other post‐construction studies (to evaluate direct and indirect

effects of adverse habitat impacts, and assess how they may be

addressed). Tier 5 studies will not be necessary for most wind project as

they can be costly, complex and time consuming, and the committee

anticipates that these guidelines will steer away most projects that would

require tier 5 studies. “When Tier 5 studies are conducted, they will be

site‐specific and intended to: 1) evaluate the direct and indirect effects

(e.g., displacement) of significant adverse habitat impacts on species of

concern; 2) analyze factors associated with impacts, particularly direct

impacts, in those cases in which impacts significantly exceed

preconstruction predictions; 3) identify additional actions as warranted

when mitigation measures implemented for a project are not adequate; and

4) assess demographic effects on local populations of species of

concern.214

The Committee urges Secretary Salazar to take into account not only “the important role

that wind energy, as a carbon‐free energy source, will play in climate change mitigation,”

but, also its potential impact on supporting “wildlife adaptation” to climate change.215

Given that “climate change is the greatest challenge the USFWS has ever faced in

conserving fish, wildlife, and their habitats,”216

it would be expected that the DOI

214

Supra note 206.

215 Id.

216 Id.

48

secretary would closely follow the guidelines posed by the Committee. However, it is

important to point out that the function of the Committee is advisory only and therefore

there is no legal requirement that the Secretary adhere to the guidance.217

As such, the

wind energy industry should not rest assured that its best interests will be carried out

through the Committee‟s policy guidelines. Accordingly, a more substantial measure to

buttress wind development requires a streamlining mechanism that will cut through the

red tape.

VIII. CATEGORICAL EXCLUSIONS AS A SOLUTION

Over the past few years, the U.S. has been moving in the direction of embracing

wind energy as a viable industry and accessible energy resource. In fact, this Nation has

reached a point where renewable energy is viewed less as the sector for tree-hugging

types and instead an industry ripe for Wall Street and Silicon Valley investors. Despite

this, the paradigm shift that is discussed above will not occur without aggressive top-

down policymaking. In the meantime, the burdensome NEPA review process will

continue to make potential investors think twice about financing a wind-energy project.

A solution that is perhaps less lofty than the paradigm shift is akin to the NEPA review

exemption granted to the oil and gas industry during the Bush administration.

217

Benjamin Cramer, “The Power and Secrecy and the Secrecy of Power: FACA and the

National Energy Policy Development Group,” 13 Comm. L. & Pol‟y 183, 198 (Spring

2008).

49

In contrast to the policies of NEPA and FLPMA to “encourage productive and

enjoyable harmony between man and his environment”218

the mid 2000s saw a trend

toward extracting oil and gas at the expense of public land protection.219

This trend was

brought on by the National Energy Policy Act of 2005 (EPAct) and is most profound in

the context of the oil and gas industry.

The DOI is authorized, under the Mineral Leasing Act of 1920, with the

responsibility of overseeing the issuance oil and gas leasing privileges on federal lands.220

The FLPMA requires the Secretary of the Interior to implement land use plans, also

known “resource management plans” which serve to identify lands suited for oil and gas

development.221

Coupled with the resource management plan is a environmental impact

statement which “analyzes the potential impacts that may result from the decisions and

management actions that the agency makes in the plan.”222

Before an oil and gas lease is

permitted the BLM must determine whether any restrictions (also called “stipulations”)

need to be placed in order to counter potential environmental harm posed by the lease.223

218

National Environmental Protection Act, 42 U.S.C. § 4321 (2006).

219 Anderson, supra note 131, at 120.

220 Government Accountability Office, “Energy Policy Act of 2005-Greater Clarity

Needed to Address Concerns with Categorical Exclusions for Oil and Gas Development

under Section 390 of the Act”, GAO-09-872, 4 (September 2009).

221 Id. at 6.

222 Id.

223 Id.

50

Section 390 of EPAct created a “rebuttable presumption” that allows prospective

oil and natural gas activities to be analyzed and issued by the BLM under a process

known as a “categorical exclusion” (“CE”).224

The CE is notable given that it is

“considerably less comprehensive than the traditional environmental assessment…or the

environmental impact statement…and does not allow for any public comment.”225

EPAct

was passed by Congress in 2005 to help wean the country from foreign-oil

consumption.226

In furtherance of this intent, Congress established five CEs designed to

streamline NEPA review of oil and gas production.227

The CEs for oil and gas

development under section 390 apply to the following scenarios:

(1) Individual surface disturbances of less than 5 acres so long as the total

surface disturbance on the lease is not greater than 150 acres and site-

specific analysis in a document prepared pursuant to NEPA has been

previously completed.

(2) Drilling an oil or gas well at a location or well pad site at which

drilling has occurred previously within 5 years prior to the date of

spudding the well.

(3) Drilling an oil or gas well within a developed field for which an

approved land use plan or any environmental document prepared pursuant

to NEPA analyzed such drilling as a reasonably foreseeable activity, so

long as such plan or document was approved within 5 years prior to the

date of spudding the well.

(4) Placement of a pipeline in an approved right-of-way corridor, so long

as the corridor was approved within 5 years prior to the date of placement

of the pipeline.

224

Kosnik, supra note 175, at 15.

225 Id. (emphasis added).

226 Anderson, supra note 131, at 125.

227 Id.

51

(5) Maintenance of a minor activity, other than any construction or major

renovation or a building or facility.228

CEs are available for actions “which do not individually or cumulatively have a

significant effect on human environment.”229

Agencies are provided with the authority to

conduct rulemakings setting forth actions that are eligible for a CE.230

When an agency

drafts a CE the agency is obligated to include safeguards for “extraordinary

circumstances” that limit the issuance of a CE application when sensitive lands and/or

resources are at play.231

If a project is to be approved the agency must determine

“whether any extraordinary circumstances exist in which a normally excluded action or

project may have a significant effect.”232

Controversially, the CEs established under

EPAct do not include any safeguards for extraordinary circumstances.233

The five CEs provided by EPAct “allow for rapid development of local oil and

gas reserves, thereby reducing the foreign dependence.”234

The logic behind the CEs is

that it allows for a simpler and quicker review process and saves the issuing agency

228

42 U.S.C. 15942 (2006).

229 Anderson, supra note 131, at 121 (citing 40 C.F.R. §1508.4 (2007).

230 Id.

231 Id. at 125.

232 Government Accountability Office, supra note 220, at 35.

233 Id.

234 Governmental Accountability Office, supra note 220.

52

valuable time and resources.235

Utah mining executive Luke Russell likened the NEPA

process to “a monster devouring millions of dollars and years of time needlessly on

redundant studies, conflicting requirements and wasteful litigation.”236

The fluidity

created by the section 390 exclusions, on the other hand, contributed to the more than

22,000 new oil and gas permits that were authorized between 2006 and 2008.237

Of the

22,000, as many as 6,100 permit (approximately 28 percent) applications were approved

using a CE.238

The BLM has reported that it has saved upwards of $8 million since 2006

by applying CEs: the fact is that CEs translate into less paperwork.239

The controversy stemming from the EPAct CEs relates to the fact that an oil and

gas project may be permitted under a section 390 CE despite the fact that the project is

sited in an ecologically sensitive area.240

Past use of administrative categorical

exclusions, on the other hand, required the BLM staff to screen projects against a

checklist of twelve “extraordinary circumstances” relating to the potential impact of a

proposed project.241

For rather unclear reasons, the DOI and the BLM took the position

235

Id.

236 Tim Riterman, “The Nation: National Environmental Policy Act is „At a Crossroads,‟”

LA Times (July 5, 2005).

237 David Williams, “GAO Rips BLM for Sidestepping NEPA on Oil and Gas Leases,”

The Colorado Independent (September 16, 2009).

238 Id.

239 Government Accountability Office, supra note 220.

240 Id.

241 Government Accountability Office, supra note 220, at 8.

53

that oil and gas projects do not need to be considered for approval under section 390

using the extraordinary circumstances checklist ordinarily required for administrative

categorical exclusions.242

In fact, the BLM “may lack discretionary authority to require a

harder look even if it believes more information is needed to make a decision about

future development.”243

Even more, the rebuttable presumption created by EPAct shifts

the burden from the agency to the public to demonstrate that an oil and gas activity

warrants deeper scrutiny.244

This means that the public would be responsible for putting on a case in order to

demonstrate that a particular oil and gas project creates “extraordinary circumstances”

which subject it to a comprehensive NEPA review.245

Making the burden even more

thorny is the fact that EPAct does not provide a definition of the rebuttal standard.246

The CEs established by EPAct mentioned above could serve as a framework in

the wind-energy context that would allow for the type of penetration (for example, twenty

percent by 2030) envisioned by the wind industry. In particular, the CEs would serve in

untangling the NEPA process and would result in reduced compliance costs for both

private parties and the BLM. This will occur by removing the onus of the developer to

conduct a costly and time-consuming EA and/or EIS.

242

Id. at 35.

243 Id.

244 Kosnik, supra note 175, at 16.

245 Id.

246 Governmental Accountability Office, supra note 220, at 40.

54

Further, a CE scheme which does not require an extraordinary circumstances

inquiry should allow for the development of wind projects in areas populated by

candidate species. Significantly, one of the twelve extraordinary circumstances includes

“significant impact on species listed, or proposed to be listed, on the List of Endangered

or Threatened Species, or have significant impacts on designated Critical Habitat for

these species.”247

It follows then that the presence of sage grouse in a proposed project

area would not serve as basis for barring a project given that the existence of the bird

would not be a factor considered in the BLM‟s analysis.

To be sure, legislation creating CEs exempting wind energy development from

full NEPA review will bring its fair share of opposition from wildlife groups and other

“concerned” parties. The notion that the BLM could sidestep the consideration of the

sage grouse‟s livelihood in the name of wind-energy development would surely set off

environmental groups, both mainstream and radical. With regard to the CEs set forth in

EPAct, various stakeholders have raised questions as to the application of section 390

categorical exclusions. In fact, the BLM‟s absence of considering extraordinary

circumstances is a central issue to a lawsuit brought by a coalition of environmental and

historic preservation groups against the BLM in its use of section 390 CEs.248

Plaintiffs in Nine Mile Canyon Coalition v. Steiwig contended that the BLM

violated NEPA by failing to consider whether there were “extraordinary circumstances”

247

Part 516 of the Departmental Manual, 516 DM 2, Appendix 2, § 2.8.

248 See Nine Mile Canyon Coalition v. Steiwig, No. 2:08-cv-586 (D. Utah settlement

filed Mar. 31, 2010)

55

that would preclude the use of categorical exclusions to approve thirty drilling projects in

Nine Mile Canyon, Utah.249

The argument made by Plaintiffs was that oil and gas

development in the area at issue would result in the release of corrosive dust into the air

and onto neighboring rock art panels and other cultural resources in the canyon.250

The

BLM ultimately agreed to cease the use of CEs when there are "extraordinary

circumstances" such as “impacts to protected species, historic or cultural resources, or

human health and safety.”251

IX. CONCLUSION

To be sure, the Nine Mile Canyon settlement does not necessarily set a firm

foundation for Congress to set out CE policy that rules out the application of an

extraordinary circumstances inquiry. At the same time, policymakers are sure to

recognize that the degree of ill-feelings associated with oil and gas development

(especially exacerbated by the BP disaster) are not shared with regard to wind energy. In

short, the promotion of renewable energy deployment carries a great amount of political

249

Id.

250 “BLM Settles Lawsuit Involving Use of Categorical Exclusions for Oil and Gas

Leasing”, available at

http://www.blm.gov/wo/st/en/info/newsroom/2010/march/NR_03_31_2010.html (March

31, 2010).

251 Noelle Straub, “Interior Movies to Restrict Fast-Track Oil and Gas Drilling Permits,”

The New York Times (April 2, 2010).

56

capital-perhaps enough political capital to offset the environmental backlash that attaches

to wind development.

In the present day, the related goals of energy security, energy independence, and

climate-change mitigation are among the Nation‟s top-priorities. The executive branch‟s

robust agenda to see to it that renewable energy takes a significant role in the U.S. energy

portfolio is surely evidence of this. In order for the wind industry to have the type of

presence envisioned by the Obama administration, the DOI must place into practice

policies that ensure that addressing the benefits of wind energy do not become drowned

out by the discontent of sage-grouse advocates. What this calls for is Federal policy to

recognize that this is a not a chicken and egg dilemma. Chiefly, policies need to be

implemented with the viewpoint that advancing renewable energy projects such as wind

farms is paramount to the survival of the sage grouse-not vice versa.