16 May 2016
A complex tapestry of factors
A convergence of public policy, market forces, environmental imperatives, and technological innovation are transforming the nation’s electrical grid. It’s becoming increasingly clear that litigation over the Clean Power Plan, a proposed federal agency rule which would reduce carbon emissions from U.S. power plants, is a “side show” in a much bigger evolution of the energy industry. This is particularly true in the western states. In addition to the Clean Power Plan, embraced by Washington, Oregon, and California policymakers and utilities, both California and Oregon have now codified 50 percent renewable portfolio standards for major electrical utilities, and the expansion of the California ISO to include utilities throughout the western states in a regional energy imbalance market will likely spur strategic investments in new wind energy development.
These transformative forces indicate new utility scale wind energy site selection and development opportunities are on the march. Site selection involves a complex tapestry of factors that transcend purely commercial transactional imperatives. In fact, poor site selection and opposition can quickly become significant commercial impediments. Key among these factors is the potential for local project opposition. While often painted with the broad brush of “NIMBYism,” project opposition is complex and potentially fatal, and should not be brushed aside by characterizing all opponents as obsessed with views from the backyard barbeque. With new opportunities for wind energy development, and commercial and policy drivers which may accelerate project siting, let’s take a fresh look at siting best practices.
The “easy” sites; new challenges
“Easy” wind energy sites are locations where there are few homes nearby (especially really nice homes, with territorial views), no sensitive habitat, or sensitive wildlife (including avian) species, few wetland areas or stream crossings, and preferably no significant conflicts with high value agricultural and other rural natural resource uses. And of course, minimal interference with air traffic, military training flights, or military radar. And very close proximity to major high voltage transmission substations. And no-to-minimal risks to Native American cultural resources or sites. And no major engineering or constructability impediments. Not to mention the development of federal lands has not quite panned out as promised.
Which is all to say, at least outside of the mythical Texas, there are fewer “easy” sites, and siting energy facilities almost anywhere involves trade-offs, negotiations, and balancing of legal risks and environmental impacts. In areas having experienced substantial wind energy development in recent years, such as the Columbia River Plateau and California wind generation areas, the list is a bit shorter. Moreover, in recent years, in addition to battling residential opposition, those of us in the trenches permitting wind facilities, and defending them in litigation, have encountered intense real and perceived natural resource conflicts between wind generation and natural resources. These include risks to golden eagles and other raptors, sage grouse, and even seasonal habitat ranges for highly managed big game species.
The value of predictability
Energy facility developers are typically willing to pay for a predictable permitting climate. Few experiences are as unnerving as seeking a discretionary local land use permit from elected officials, who essentially act as judges in conducting hearings and making permit decisions, and walking into a hearing room packed with opponents; local citizens who know the decision-makers. The traditional conditional use permit, typically devoid of objective criteria, essentially asks an applicant to demonstrate uses such as churches, schools, and home-based industries should be allowed as an exception to the zoning code, subject to conditions. A key, mandatory finding for most conditional uses is the use will be “compatible” with and “similar to” adjacent and surrounding uses, and will not unduly “interfere” with existing uses. Energy facilities, including wind energy facilities, are typically considered as a conditional use, using the clumsy tools typically used to consider much simpler proposals.
Such development codes are not a good fit for wind energy facilities, and invite opposition and obstruction. These codes are often at odds with the consideration of natural resource and environmental impacts. In other words, to avoid view shed-issue opposition, projects are often proposed in locations with potentially significant wildlife and habitat impacts. Depending on the perspective of local and regional state and federal wildlife agencies, rather than view shed opponents, agencies with environmental expertise may negatively comment or even oppose projects, posing risks of delay as well as commercial risks. It need not be so.
Wind energy developers are skilled at pre-application due diligence. In states having applicable environmental regulations, such as CEQA in California and SEPA in Washington, as well as state siting councils, and where federal agency jurisdiction is triggered, pre-application biological surveys are standard, with well accepted and understood methodologies and parameters. These surveys are helpful in site selection as well as permitting facilities. Sometimes, they result in project modification and avoidance measures, and can even signal a site is too risky to develop. Newer natural resource issues, such as the potential impacts on critical winter range habitat for deer and elk, can usually be addressed through siting modifications and mitigation, such as habitat enhancement. In areas with a rich history of Native American occupation, prudent developers engage skilled cultural resource consultants.
Most cautious wind energy developers also cast a leery eye at residences with territorial views of the project site, mindful of potential opposition. What is surprising, however, is the level of opposition from those homeowners who may live miles from the site, and those who place high value on the ability to recreate in places that are often miles from the site. Out-of-town developers may be caught “flat footed” in perceiving these risks, and in developing strategies to address them.
Setting aside the quantifiable impacts of noise, the scientifically debunked theories of health impacts, and annoyance issues related to shadow flicker, the best strategy to address residential opposition to wind energy facilities is proactive engagement, including careful due diligence in investigating local attitudes about visual impacts. Visual impacts from individual residences should be considered separately from community-based concerns related to recreation areas and known scenic resources, such as viewpoints and historic monuments. This investigation should occur as a top-priority consideration in site selection, along with other high-priority issues.
In addition to identifying landowners needing a visit, early due diligence opportunities exist to seek and achieve amendments to locally adopted land use plans and zoning codes. Ideal local land use and environmental codes dictate accepted, objectively established levels of impacts, and clear, objective permit criteria. Compliance with criteria means presumptive permit issuance, with no room for political outcomes. There is no legal impediment to seeking and achieving code amendments establishing objective criteria and thresholds to address visual impacts (e.g. distances from development sites) within which facilities can achieve code-based findings of compliance. Moreover, focusing early on the sufficiency of the local permit process provides a valuable opportunity to engage in discussions with local land use planners and elected officials, where a developer can gain valuable knowledge of particular risks.
Absent substantial and inflexible commercial deadlines, putting these questions to the community in the form of land use plan and zoning code amendments prior to filing development permit applications is usually preferable to dealing with the strident opposition and political pressure that can arise in the traditional conditional use permit setting. In settings judged to be at high risk of visual impact opposition, various strategies and criteria can be fashioned to allow a predictable path to permitting. From the perspective of a criteria-based permit code approach, data available from “zone of visual impact” studies and visual simulations are on par with biological surveys in aiding decision-makers in making objective findings of compatibility with surrounding land uses that balance impacts in a legally defensible process, leaving little room for litigation-based obstruction.
Industry-sponsored land use plan and zoning amendments have established the following criteria-based approaches to permit compliance:
Advance, programmatic review of environmental and natural resource impacts, with acceptable, well understood frameworks for mitigation;
Presumptive levels of non-significance for visual impacts, such as 1-mile turbine tower setbacks and/or 4X turbine height setbacks;
Accounting for the presence of locally and regionally significant visual and scenic resources as bona fide issues for consideration (this focus diminishes the effect of “NIMBY” opposition and emphasizes issues of broader community concerns). Mitigation strategies may then be formulated;
Presumptive findings of no impacts for issues such as shadow flicker and alleged health impacts;
Acceptable operational noise thresholds, based on well-understood levels of substantial annoyance vs. specious claims of health impacts;
Presumptive deferential findings of no significant impacts based on wildlife agency confirmation, and similar deferential findings based on tribal and state historical resource agency consultations.
These and other criteria-based, objective codes are only adopted in an open, public legislative processes, and establish a clear, reliable permitting framework where compliance with criteria is presumptive for permit issuance.
Timothy L. McMahan is a partner at Stoel Rives, LLP where he practices in the areas of energy, land use, real estate development, environmental, and municipal law.