Fiddling as the World Floods and Burns: How Climate Change Urgently Requires a Paradigm Shift in the Permitting of Renewable Energy Projects

By Thaler, Jeffrey | Environmental Law, Fall 2012 | Go to article overview

Fiddling as the World Floods and Burns: How Climate Change Urgently Requires a Paradigm Shift in the Permitting of Renewable Energy Projects


Thaler, Jeffrey, Environmental Law


  I. INTRODUCTION  II. OUR ENERGY USE AND ITS RESULTANT CLIMATE CHANGE IMPACTS      A. Overview      B. Specific Climate Threats and Consequences         1. When Weather Extremes Increase         2. When Frozen Water Melts         3. When Liquid Water Warms         4. When Land Dries Out III. THE OFFSHORE WIND POWER PERMITTING AND LEASING OBSTACLE COURSE      A. Overview of Technology and Attributes      B. Federal and State Jurisdiction      C. Federal Permitting and Licensing         1. The Energy Policy Act--Clarifying Interagency Jurisdiction         2. Overview of BOEM's Licensing Process         3. National Environmental PoKey Act         4. Endangered Species Act         5. Marine Mammal Protection Act         6. Migratory Bird Treaty Act      D. State Permitting of Projects on the OCS  IV. CONCRETE STEPS TO MODERNIZE ENVIRONMENTAL REVIEW OF PROPOSED      OFFSHORE WIND PROJECTS      A. Needed Legislative Action      B. Needed Non-Legislative Actions V. CONCLUSION 

I. INTRODUCTION

"Human beings, who are almost unique in having the ability to learn from the experience of others, are also remarkable for their apparent disinclination to do so." --Douglas Adams (1)

"If you don't know where you "re going, when you get there you'll be lost." --Yogi Berra (2)

This is not an Article debating whether twenty first century climate change is likely, very likely, or primarily caused by human emissions of greenhouse gases; how much global temperatures will rise by various dates; or whether to choose a carbon tax or cap-and-trade system. This Article also will not debate whether and how much to decrease subsidies of fossil fuel energy sources or increase those for renewable energy sources.

This Article instead will start with the oft-stated goal of increasing domestic and international reliance upon carbon-emission-free renewable energy sources (3) while decreasing use of fossil fuel energy sources, (4) and ask the question few have addressed concretely: how can we more quickly achieve that goal to slow the devastating effects of increasing greenhouse gases, if we do not first tackle the significant barriers posed by the outdated and often self-defeating maze of regulatory requirements? The need to act is urgent if we are to make sufficient and timely progress toward reduced fossil fuel reliance.

To best understand the urgency, Part II begins with a look at our current fossil and renewable energy mix in the generation of electricity, (5) and then reviews the current and predicted climate change impacts on our energy choices. At stake are several hundred billion dollars of climate change-related damages each year just in the United States--from farming, fishing, and forestry industries increasingly harmed by changing temperature and precipitation patterns, (6) to coastlines and cities progressively more threatened by rising sea levels. (7) The business and insurance sectors have been hit by a growing number of extreme weather events (most recently Hurricane Sandy), (8) public health is increasingly threatened by disease and mortality from our over-reliance on fossil fuels and from their resulting emissions, (9) and U.S. national security is increasingly at risk from having to protect more foreign sources of fossil fuels and from resource-related conflicts resulting in more violence and displaced persons. (10)

Unfortunately, as the economic and health costs from fossil fuel emissions have grown, so too has the byzantine labyrinth of laws and regulations to be navigated before a renewable energy project can be approved, let alone financed and developed.H The root cause goes back to the 1970s when some of our fundamental environmental laws were enacted--before we were aware of climate change threats--so as to slow down the review of proposed projects by requiring more studies of potential project impacts before approval. (12) But in our increasingly carbon-based twenty first century, we need a paradigm shift. …

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