Overhauling ESA Private Land Provisions in Light of the Renewable Energy Boom on Federal Public Lands
Warner, Blair M., Notre Dame Law Review
"I am the Lorax, and I'll yell and I'll shout for the fine things on earth that are on their way out!" (1)
Many of us are familiar with the recent rise in renewable energy development in the United States. What we are not as familiar with, however, is the story of the Mojave desert tortoise and how it succeeded in shutting down for three months what remains the largest solar energy project in the world. (2) Taking a step back, the Endangered Species Act (ESA), (3) now forty years old, has plodded along at a slow and steady pace, with Congress slowly chipping away at the ESA until it was transformed from "prohibitive to permissive." (4) While the ESA has had the benefit of a significant head start, renewable energy development in the United States has burst onto the scene in a strong and swift fashion in the last ten years, (5) a newcomer that has developed at an accelerating pace. What may be described as a "green clash" has been cre ated as ESA and the renewable energy development "land rush" (6) policies diverge on limited federal public lands. This conflict is easily demonstrated by the example of the desert tortoise. The solar energy project slated for construction collided with the ESA when more desert tortoises were found at the site than the project's ESA permit allowed, resulting in the stoppage of the entire project as remedies for the tortoise were sorted out. (7) In a study this year, the U.S. Geological Survey has found further evidence of this clash, as demonstrated by the fact that seventeen percent of biodiversity "hot spots" (8) are found on land designated for renewable energy development. (9) This clash between federal green initiatives has magnified the infirmities of the ESA, and the renewable energy land rush has catalyzed the need for imminent change in how the ESA regulates (currently, how the ESA fails to effectively regulate) the habitat of threatened and endangered species on private lands in the United States.
First, Part I of this Note provides a background of the relevant ESA and renewable energy laws and policies in play today with regard to the renewable energy land rush in the United States, chronicling the recent explosion in renewable energy development on federal public lands in particular. Second, in Part II this Note details the lack of effectiveness of the ESA with regard to federal public lands and the conflict created for the Bureau of Land Management (BLM) with the diverging "green" mandates from the ESA and renewable energy policy. This Part then addresses the failure of the ESA with regard to private lands regulation and posits that the expansion of renewable energy development on public lands is rapidly accelerating the need to change how the ESA regulates and incentivizes private landowners. Finally, in Part III this Note concludes by addressing two methods--subsidies and market-based approaches--by which the ESA can be modified to successfully provide a positive habitat protection structure. By focusing on the ESA's private lands infirmities, the United States can provide suitable private land habitat for endangered species amidst an accelerating need to devote federal public lands to renewable energy projects and away from endangered species' critical habitats.
I. THE ESA AND RENEWABLE ENERGY POLICY IN THE UNITED STATES
This Part first provides a background regarding the evolution of federal laws leading up to the enactment of the Endangered Species Act of 1973 and the purposes given for its enactment. This is followed by an overview of some of the ESA's key provisions. Next, a summary of the development of renewable energy policy and laws in the United States is given along with an account of the rapid growth of renewable energy development and a few of the reasons for this swift expansion.
A. The Endangered Species Act
1. Development and Evolution
Congress began its species protection legislation in 1966 with the Endangered Species Preservation Act. …