Obstructions and Opportunities in the Complex World of Massachusetts Onshore Wind Power Development

Article excerpt

Cite as 13 J. High. Tech. L. 215 (2012)

I. Introduction

As you might vaguely remember from elementary school science class, the burning of fossil fuels creates greenhouse gases that in turn warm the planet by trapping heat from the sun. (1) In the United States, fossil fuels burned for energy consumption are the main contributors to greenhouse gas emissions. (2) Renewable energy resources such as biomass, hydropower, geothermal, solar, and wind provide sustainable alternatives and play an important role in efforts to decrease dependence on fossil fuels. (3) However, there are significant barriers to renewable energy growth, including production expense and inaccessibility to areas that can support renewable energy harvesting. (4)

Another significant barrier to the development of sustainable energy generation facilities is the state of the law, and in particular for the wind industry, the siting process for turbines. In the U.S., laws are slow to catch up to the needs of the renewable energy industry and currently do not adequately facilitate the industry's growth. (5) Some states, such as Massachusetts, are making an effort to update laws to meet the needs of the increased demand for renewable energy growth. (6) In 2008, Massachusetts Governor Deval Patrick signed the Green Communities Act (GCA) into law, a landmark piece of legislation that set an aggressive goal to increase renewable energy production in the commonwealth to 2,000 megawatts (MW) of wind power by 2020, among other provisions. (7) With an eye toward encouraging renewable energy facility growth, part of the GCA required the Massachusetts Executive Office for Energy and Environmental Affairs (EEA) to determine whether current wind turbine permitting laws were sufficient to support the new goal. (8) EEA hired a consultant company that ultimately authored a study of the com monwealth's laws. (9) This study provided suggestions for improving the permitting process so that it might sufficiently support the mandates of the new legislation, thereby adequately adjusting laws to meet the needs posed by increased renewable energy infrastructure growth. (10)

This note reviews the findings of the study, examines additional information regarding the current permitting process for turbines in Massachusetts, and proceeds to discuss possible remedies to wind development barriers. In Part II, the note considers the history and current state of wind facility siting in Massachusetts. In addition it examines the dynamic between local citizen groups and individuals and policy makers with regard to wind development. Following is a discussion of legislation involving wind development in the commonwealth with a focus on the Wind Siting Reform Act (Reform Act), a Massachusetts bill that did not pass in the 2011/2012 session, which was drafted in response to the recommendations of the TRC Report that contained provisions to streamline the wind siting process. The note will also examine if the provisions of the Reform Act interfere with jurisdiction given to localities by home rule charter. The note then considers litigation involving wind siting and the role of community groups in the siting process. Part III presents current wind development statistics for the commonwealth and compares Massachusetts to other states. In Part IV, the note analyzes Massachusetts's current wind development posture compared to that of other states and analyzes whether the Wind Siting Reform Act is a legitimate remedy for the obstacles to wind development. The note argues that legislation authorizing a local board to grant expedited permitting for wind facilities does not violate home rule and is in fact a widely accepted and implemented practice in other states. Additionally, the note purports that a different approach must be taken with regards to garnering public support if future legislation regarding permitting is to be successful.

II. History

A. …