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‐Interior Secretary Ken Salazar1 The public lands that all American citizens hold in common are a unique manifestation of our history and values. They also have historically been a battleground of the competing interests that lie along the spectrum between preservation and exploitation. Ultimately, the concept of “multiple use” on public lands is well established and generally accepted to be the enduring policy. Public lands serve many, often incompatible needs and uses, including recreation, both mechanized and musclepowered; wildlife habitat; mineral extraction; timber production; livestock grazing; watershed protection, and oil and gas development. Indeed, the major mission of the Bureau of Land Management (BLM), which oversees vast areas of land in the western U.S., is to oversee and issue permits, leases, and rights of way for commercial uses of public land. Controversies over BLM-managed public land largely revolve around the tension between the agency’s utilitarian and conservation missions.
Interior Secretary Ken Salazar
In the past few years, the government has shown new interest in advancing “renewable,” non-fossil-fuel energy, through wind, solar, and geothermal generation. A key aspect of the policy is the assumption that much of this will occur on federal public lands managed by the BLM. The 2005 Energy Policy Act called for the development of technology to deliver an additional 10,000 MW of renewable energy from public lands by 2015.2 More recently, both the scope of proposed renewable energy development and the level of financial and political commitment have increased rapidly. Shortly before taking office, president-elect Obama called for a doubling of renewable energy production by 2012. The rush for renewables is also driven from the state level, where states have established Renewable Portfolio Standards (RPS) dictating increasing percentages of power be derived from
Galbraith, Kate. New measures to aid solar on public lands. New York Times “Green” blog, June 29, 2009. Public Law 109-58. It should be noted that the Act did not mandate such development, but expressed the “sense of Congress” that it “should” occur. This is notable because references to the Act’s 10,000 MW “mandate” are rife.
renewable sources by certain dates. California, for example, has a 20 percent RPS by the end of 2010 and 33 percent by the end of 2020. Both the Administration and the Democrats in Congress favor programs to streamline and ramp up solar development on public land. S. 1642, a bill introduced in 2009 by Senator Jeff Bingaman (D-NM) sought to speed the permitting process by centralizing permits in one office per state and establish a pilot program of renewable energy projects where competitive bidding would be used for applicants to obtain leases of public land. In late 2009, Senator Dianne Feinstein introduced a bill that would also have centralized permitting and fast-tracked some solar projects.3 While aimed mostly at a specific area of the California Desert, Feinstein’s bill was the first to include provisions that would distribute some of the proceeds from solar project leases on public lands to the state and county where the project is located. This concept of distributing proceeds locally was also included in two subsequent bills sponsored by Senator Harry Reid and Rep. Dean Heller of Nevada.4 In addition, one of the Reid-Heller bills set a 60-day deadline for the issuance of leases within a pilot project area in one county in Nevada. No major legislation has yet been introduced in the 112th Congress pertaining to large-scale solar development. Clearly, however, expediting solar development on public land is an easy call for many policymakers. There is little hesitation to at least rhetorically commit whole swaths of public land to this purpose. It is not inconsistent with existing policies that large solar power-generating facilities should be proposed on public lands, particularly since vast areas of open space— with high and largely uninterrupted daytime insolation (sunlight intensity and duration)—are in the desert Southwest, where public land ownership is very high. When lawmakers and business interests turn to public lands for utilitarian purposes, however, the many non-utilitarian values of the land can be easily forgotten or discounted. What was recognized yesterday as treasured open space may now be perceived simply as empty real estate.
The main purpose of Feinstein’s bill, S. 2921, was to designate national monuments in areas of the California desert where large private holdings had been acquired for the public through donation and privately-funded purchase. Some solar applications have been submitted in these areas, and Feinstein sought to move those projects outside the proposed national monuments, then expedite their processing as compensation for relocating them. The latest version of the bill, introduced at the beginning of the 112th Congress, no longer includes the provisions that would have expedited solar developments.
The American Solar Energy Pilot Leasing Act of 2010, HR 5508/ S. 3482 and the Clean Energy, Community Investment, and Wildlife Conservation Act, HR 5735/ S. 3587.
Too easily and too often, policy-makers turn to public land as a cash-cow, a warehouse, or a liquid asset. In lean times, proposals to sell off public land will always arise, and big schemes are proposed to make use of land that seems to be wasted if it is not “in use.” With 253 million acres in BLM-managed lands alone, it may seem that the public lands, and their potential for use, are endless. Yet much of this area is already damaged or fragmented by mining, urban encroachment, oil and gas operations, livestock grazing, motorized recreation, and other uses. Large, contiguous areas that retain their ecological integrity are increasingly rare: these are some of the areas most acutely threatened by large-scale uses such as industrial solar. Both the climate crisis and our acute need to find alternative energy sources are relatively new phenomena; the headlong rush to make use of every square inch of public land is not. We must find a way to address the former without perpetuating the latter.
The scale, intensity, and duration of impacts introduced by industrial solar are massive. Solar plants are proposed to be sited on public land for which the developer rents a right-of-way. However, unlike the typical right-of-way issued by the BLM— where a buried pipeline or an above-ground transmission line has a limited footprint that does not preclude other uses—industrial solar plants comprise near-total coverage (and total land-use conversion) on the sites they occupy. The average utility-scale solar plant will occupy 5,000 acres, just shy of 8 square miles. Although leased rather than sold to the developer outright, the site will be utterly transformed, completely converted to its industrial use, will no longer serve non-industrial functions, and will be off-limits to the public. In essence, public land used for these plants is no longer public. Moreover, even beyond the 30- to 50-year duration of “virtual privatization” (the average lifetime of the projects), conversion to industrial use is probably permanent. The environmental impacts are likely to be such that restoration to or recovery of previous ecological function cannot occur. The sites may be permanently relegated to industrial uses. Having been stripped of the special qualities and functions we value in public lands, they will in effect become private industrial land. In addition to the rights-of-way for the plants themselves, many miles of transmission lines will be proposed to carry the energy. Because it is not known which solar projects will ultimately be approved and constructed, the transmission-line mileage cannot be quantified. However, a decision on federal plans for energy corridors to be designated in the 11 western states (for
pipelines, transmission lines, or both) proposes 6,000 miles of corridor on federal lands, about 5,000 miles of them across BLM land.5 The states in which solar developers have applied or are expected to apply to use federal land are California, Nevada, Arizona, New Mexico, Utah, and Colorado. According to the information issued by the Interior Department in June 2009, there were about 225 applications on file for solar development on BLM land, of which 158 were active.6 As of February 2011, a state-by-state review showed 62 active applications. (Inactive projects are ones that, for example, are second-in-line for a site for which there is a prior applicant, or have been down-listed by the BLM for an applicant’s failure to provide cost-sharing funds). The numbers regularly change, as some applications are withdrawn, others may move to first-in-line, and inactive projects may become active. In addition, the BLM is attempting to better determine which projects comprise serious proposals, as opposed to the many speculative projects that filed applications in an initial “land rush.” In 2010, a total of 14 projects were on a “fast track,” as part of an Interior Department initiative announced in 2009 that would expedite review and processing of projects it found had already made substantial headway in the permitting process. Rather than the usual first-come, firstserved permitting approach, these projects were moved to the head of the line. Many proponents were rushing to show progress that would qualify them for federal stimulus funding By the end of that year, 9 fast-track projects had been approved. These decisions were signed by the Secretary of the Interior, rather than at the State or Field Office level, eliminating the administrative appeal process that would have normally applied, and making it so that any challenges would have to be filed in the federal courts.
Bureau of Land Management news release, 6/29/09. Secretary Salazar, Senator Reid Announce ‘Fast- Track’ Initiatives for Solar Development on Western Lands.
As shown in the table below, active applications as of February 2011 cover more than 700,000 acres of public land. PENDING PUBLIC LAND SOLAR APPLICATIONS February 2011 STATE TOTAL ACTIVE APPLICATIONS 23 TOTAL ACREAGE 196,355 NUMBER/ACREAGE APPROVED FAST -TRACKS
9 50,000 acres
1 4,000 acres
4 13,790 acres
New Mexico Utah Colorado TOTAL
3 0 0 62
In announcing the Fast Track policies, Secretary Salazar stated in late 2009 that the Interior Department had identified 23 million acres of public land with solar energy potential. 7 The next big step for solar development on public lands is planned to come out of the Solar Study Areas initiative, another one of the components of Interior’s Fast-Track policy.
US Department of the Interior press release: Salazar Highlights Fast-Track Renewable Energy Projects, November 5, 2009.
Separate from the active projects described above, the BLM Solar Programmatic Environmental Impact Statement (PEIS) is a special planning-level project conducted under the National Environmental Policy Act (NEPA) that is looking at areas of BLM land with high solar potential and characteristics conducive to utility-scale solar plant development. Leading up to the issuance of the Draft PEIS, all accounts of its purpose indicated that the intent was to identify the best areas for “solar energy zones” to be established, to analyze the potential environmental impacts of large-scale solar projects, and to propose standard mitigation requirements projects must meet. The selection of lands to be carried forward as established Solar Energy Zones (SEZs)—where solar applications would receive priority status over other uses— was supposed to ensure the exclusion of lands with environmental or other conflicts, such as endangered species habitat, visually sensitive areas, wildlife corridors, cultural sites, etc. Prior to the release of the draft EIS, maps of the Solar Study Areas (SSAs), potential SEZs, were provided to the public, encompassing 24 land tracts in Arizona, California, Nevada, New Mexico, Utah, and Colorado. The areas with the most land under consideration lie in the Mojave, Colorado, and Sonoran deserts of California, Arizona, and Nevada. The original, mapped SSAs comprised a total of 676,000 acres. It was anticipated that through public input and further analysis, the acreage under consideration would be substantially reduced as environmental or other conflicts were identified, and that the overall goal was to steadily eliminate areas and focus acutely on lands most suitable for industrial-scale solar development. Against all expectations, however, the Draft PEIS, released in mid-December 2010, identified a Preferred Alternative called the Solar Energy Development Program This aerial view of a solar power plant in California Alternative, keeping 21.5 million acres shows the scale of these projects. available for solar applications, coinciding closely with the total amount of BLM land thought to have solar potential. The selection of this alternative signaled that Interior was not willing to limit the amount of land under consideration, and was accommodating the industry’s demands for this flexibility. In their joint scoping letter for the draft PEIS, three industry groups—the Large-scale Solar Association,, Solar Energy Industries Association, and Center for Energy Efficiency and Renewable Technologies—had asked that much more land be added for consideration, and had provided a list of specific areas and types of public land that should be available for right-of-way
applications. “It is critical that the 24 already-designated [Solar Energy Study Areas] do not become a prescriptive constraint on utility-scale solar energy development,” the letter said.8 With the Preferred Alternative now encompassing 21.5 million acres, the SSAs became the Solar Energy Zone Program Alternative, with 677,384 acres. The choice of the multi-million-acre Preferred Alternative has caused considerable consternation in the environmental community. For the most part, the national environmental organizations support the concept, and most of the particulars, of the SEZ Program Alternative, and are recommending that the BLM choose that alternative, with some changes. Others, however, are calling for consideration of a much broader range of alternatives that would include prioritizing distributed generation in the built environment (e.g. rooftop solar), and secondarily, projects sited only on degraded or previously developed public land. Ultimately, not all of the public lands being eyed for industrial solar development will be exploited for this use. Yet, while driven by the real need to develop renewable energy, policymakers are clearly not giving adequate consideration to the consequences of turning public lands into an energy factory. It is essential that we not lose sight of the environmental impact and virtual privatization of public lands that could result from a heedless pursuit of remote, industrial-scale solar development. Error! Bookmark not defined.
Paul, Hastings, Janofsky and Walker LLP, Comments of LSA, SEIA, and CEERT on Solar Energy Study Areas and Solar Energy Zones dated September 14, 2009.
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