With More Clean Energy Comes More Responsibility

By Colorado Law Student Robert DeMarco

For the past several decades, the United States has taken steps to develop more clean energy in the face of climate change, which has promoted developments in solar, wind, water, and geothermal power production. The Business Counsel for Sustainable Energy annual report from 2018 shows that eighteen percent of all electricity in the United States came from renewable sources, up three percent from 2016, and double the 2009 amount (nine percent). The report also showed that sixty-two percent of the renewable power sources constructed in 2018 were solar and wind projects, likely aided by the falling cost of developing solar and wind power facilities. This progress is welcomed and applauded by many but may pose unforeseen environmental risks. .

While developing more renewable energy is a key component of fighting climate change and reducing power plant emissions, impacts to animal species and their environments must be considered. For example, the development of wind energy farms across the Midwest has sparked a conversation over the protection of bird and bat species from wind turbines. The American Bird Conservancy (ABC) estimates that hundreds of thousands of bird and bat species suffer casualties from collision with wind turbines, with an additional eight to fifty-seven million casualties from collisions with power lines associated with wind farms. While the ABC notes that wind turbines cause significantly less deaths than traditional coal power plants, the development of more wind farms poses a substantial threat to birds and bats in the United States.

Additionally, energy developers must be mindful of possible legal violations associated with these deaths. For instance, the Migratory Bird Treaty Act of 1918 protects over 1,000 bird species from being harmed or killed. Furthermore, takings of species protected by other laws, such as the Endangered Species Act and the Bald and Golden Eagle Protection Act, may result in criminal penalties.

The potential impact of wind turbines on bird and bat species in the continental United States sheds light on a broader concern surrounding renewable energy development. The development of offshore wind farms along the Atlantic and Pacific coastlines demands careful, strategic planning that must occur before deeming large scale development projects environmentally friendly. While the United States has been constructing wind farms on land for several decades, planning large-scale offshore wind farms is a more recent development. As of 2017, wind farms were responsible for only six percent of the total electricity generation in the United States. Adding wind farms several miles offshore will increase the grid’s capacity to harness wind energy without occupying land that can be put to other uses. Several states, particularly in the Northeast, have recognized this potential and implemented legislation to require the future development of offshore wind energy. The Block Island Wind Farm, off the shore of Rhode Island, was the first outgrowth of these initiatives and the first offshore wind facility in the country. Block Island has been contributing to Rhode Island’s clean energy mix since December 2016, with five turbines and a maximum output of thirty megawatts.

As states look to develop more offshore wind farms, they must be mindful of the impacts that development could have on the ocean and its inhabitants. While migratory bird routes remain a familiar conflict to developers, there are many other species in the ocean that might be impacted by offshore wind farm construction and operation. For example, the North Atlantic Right Whale is a critically endangered species that migrates, feeds, and breeds up and down the Atlantic Coast, where many offshore wind farms will be built. Only about 300 of these whales remain in the Atlantic region. Sound, as well as collisions with infrastructure and ships, may cause accidental takings during construction. While state and federal plans for offshore wind development mention the potential impact of development on whales and other species, endangered or not, both the Marine Mammal Protection Act and Endangered Species Act provide more stringent protection. These laws further the maintenance of sustainable populations of certain marine mammals, and accordingly require incidental take permits for non-fishing activities, including renewable energy development.

The safeguards currently in place can be successful in protecting specific species and mitigating losses, but they fail to address the larger impact that offshore wind development has on ocean species and their behavior and habitats. In the context of the North Atlantic Right Whale, construction and development can impair their ability to communicate through low-frequency sounds. Additionally, it is unclear how large-scale development of offshore wind farms will impact breeding and migration cycles of whales. Even though the Marine Mammal Protection Act and other statutes aimed at protecting ocean species may help mitigate some impacts, many consequences remain unexamined. Legislation should be enacted to ensure that vibrations from construction and operation do not interfere with whales’ health or communication. This can include restricting construction timing to ensure that vibrations do not impair breeding or migration cycles, or imposing stricter limitations on developers to ensure that operation noise from offshore wind farms remains below a harmful level.

Legislation could also require that development applications include comprehensive monitoring plans for protected species known to exist near proposed sites. Not only would this requirement help protect vulnerable ocean species and ecosystems, but it would also highlight the significance of protecting species prior to development. This could also promote technological innovation and competition among wind farm developers, giving agencies the power to choose developers that will perform best while making the strongest effort to protect ocean species. Applying stricter limitations on developers would help establish affirmative compliance and limit costs on state and federal agencies involved with the planning process. For the above reasons, legislators should ensure that the protection of ocean species and habitat remains a priority in the development of offshore wind farms during the planning, financing, and permitting, construction, and operation phases of any project.

Robert DeMarco is a rising 2L at Colorado Law and a Staff Writer for the Colorado Natural Resource, Energy, and Environmental Law Review