The United States’ energy sector is experiencing a profound clash: accelerated departure from fossil energy sources versus commercial pressure to exploit now economically recoverable unconventional oil and gas reserves. Perhaps the most notable example of this clash is the Keystone XL oil sands pipeline proposal that was recently rejected by executive order after a highly publicized six-year environmental and inter-agency review. Since the early 2000s, the advent of horizontal drilling technology and hydraulic fracturing of rock structures containing oil and gas have led to unprecedented increases in access to unconventional reserves of oil (e.g., tight formation, or oil sands, and shale oil) and gas (i.e., shale gas). This hydraulic fracturing technological revolution has rapidly changed the structure of the U.S. oil and gas sector in under a decade. Current projections hold that, given continuity of current trends, the United States is poised to become a net energy exporter by 2035. These systemic shifts have increased the strain and strategic importance of the bottlenecks for oil and gas transportation: pipelines.
The greatest health risk in the world today is hunger. One out of nine people in the world do not get enough to eat—meaning they do not get enough calories, nutrients, or both. Hunger and malnutrition threaten global health at a greater rate than AIDs, malaria, and tuberculosis combined.
Hunger is not restricted to developing nations. Fourteen percent of United States households are food insecure—they cannot consistently access enough food for their households. Closer to home, 84,000 Vermonters, 25,000 of whom are children, are food insecure. More than a third of Vermonters report they cannot afford to buy nutritious food, or they cannot buy enough food.
Letson B. Douglass
The United States Supreme Court Justices have become very familiar with raisins over the past two years. The Hornes, raisin farmers in California, filed suit against the federal government in 2009, alleging that the requirements of a governmental program, left over from the New Deal era, constituted a taking under the Fifth Amendment. This program compelled raisin handlers in California to reserve a certain quantity of their crop each year for the federal government, free of charge. The Hornes demanded just compensation for those reserved raisins. The case first appeared before the Supreme Court in 2013, was remanded to the 9th Circuit, and returned to the Supreme Court in 2015.
In 2013, the United States Army Military District of Washington convicted army intelligence analyst Chelsea Manning of violating provisions of the federal Espionage Act by releasing highly-sensitive military and diplomatic documents to WikiLeaks. Currently incarcerated in a maximum-security prison, Manning faces solitary confinement for keeping prohibited publications in her cell without filing a book request. The Manning case represents a recent concern lodged at both the United States Disciplinary Barracks (USDB) rules and the Federal Bureau of Prisons (BOP) regulations they derive from: the ambiguity of how prison administrators may accept or deny book requests on a case-by-case basis.
Lee Anne Fennell
It is a great honor to deliver the Norman Williams lecture, and I appreciate you all choosing to co-locate yourselves here with me this evening. Everyone knows the three most important factors in choosing a home: location, location, location. In my talk today, I hope to convince you that’s not quite right. What matters most when it comes to housing is not location, in the sense of a geographic map point, but rather co-location, or a home’s position relative to other land uses and land users. This elaboration might seem obvious and trivial, but it turns out to matter a great deal, and in ways that have not been fully recognized. Taking co-location seriously changes the way we think about land use possibilities and priorities. And it can transform our thinking about housing.
This talk comes in three steps. First, I want to explain what I mean by co-location, and why it matters—not just in dense urban centers but also in small towns, rural and agricultural areas, and even in places of great natural beauty like Vermont. Next, I will articulate some land use principles that follow from recognizing the primacy of co-location. Finally, I will offer some specific policy approaches that can leverage the power of co-location.
I. What is Co-Location and Why Do We Care?
Let’s start with a thought experiment. Picture your house or apartment or condo. Think about the boundaries of your property holding, the edges of what the law says you own. Now imagine someone with a giant eraser comes along and removes every man-made element within a fifty-mile radius of your home’s property boundaries. Everything that used to be there—schools, restaurants, auto dealerships, ski resorts, your neighbors’ houses, this building, the roads, the sidewalks, the parking lots, all of it—is now gone. This eraser also subtracts the populations that go with all those land uses. Something very profound has happened to your home, even though nothing within the boundaries of your property has been touched, and your house remains rooted in the same physical location.
The point is simple: The structure and parcel is not your home, in an important sense. Your home encompasses a profusion of elements that surround the property itself and affect its value. Location only has meaning to the extent that we make assumptions about what is happening in the adjacent areas. This seems obviously true in urban centers like Chicago. Economists speak of agglomeration benefits that come from getting lots of people and ideas and products and services and employment opportunities all together in one place. We thus tend to associate the benefits of colocation with the energy and excitement of a dense big city, but the point is a much more general one.
Consider a place like Vermont, with beautiful natural features. It might seem that a home’s value in such a place is mostly about geographic location relative to natural features like mountain ranges. To put it in my terms, you might say that the only co-location that matters is co-location with the mountains, and the mountains aren’t going anywhere. But think again about the value that is added by mountains, such as scenic vistas and recreational opportunities. The ability to enjoy the mountains depends on the right mix of access to them and protection of them—and the way that mix is managed comes down to who and what is nearby. Are there ski resorts? How intensively developed? How about the neighbors? How many are there? Occupying what structures? Are they here year-round or seasonally? What restaurants and shops are nearby? Who works in them, and where do they live? And what about transportation infrastructure, the roads that get you up and down and through the mountains?
So regardless of what kind of setting we’re talking about, land use is highly interdependent, and co-location is the primary concern. Each use generates its own mix of benefits and detriments for the surrounding area, and—as long as it’s there—blocks innumerable other possible uses of the same land, for better or worse. The law is always intensely involved in mediating, channeling, and controlling co-location, even if it is not doing so explicitly. Can it do better?
Historically, land use law has focused on addressing land use conflicts. Land use conflicts are fundamentally co-location problems. Consider Sturges v. Bridgman, a classic co-location fail that was explored by Ronald Coase in his groundbreaking paper, The Problem of Social Cost. Dr. Sturges decided to add a consulting room to the back of his property. Bridgman was a confectioner whose candy-making operations created vibrations that disturbed Sturges’s practice. Either use would be fine on its own, or combined with innumerable other uses, but this specific combination was problematic. The court ruled for the doctor, finding the confectioner’s operations were a nuisance. Even though those operations would not be a nuisance in all times and places, they became one here, given the added ingredient of the physician’s office. The idea of problematic combinations is a recurring theme in land use law. Justice Sutherland, writing for the Supreme Court in Village of Euclid v. Ambler Realty, the case upholding the constitutionality of zoning, put it this way: “A nuisance may be merely a right thing in the wrong place,—like a pig in the parlor instead of the barnyard.” There’s nothing wrong with the pig in the abstract or the parlor in the abstract, it’s the combination, the co-location, that causes trouble.
Co-location is not always about conflict, even though that’s where the law has usually focused its attention. It is true that breaking apart incompatible uses can increase value. But so too can putting together uses that complement and benefit each other. Indeed, co-location is what gives housing most of its value. Fostering patterns of complementary uses that produce positive synergies is as an important a project for the law as keeping apart uses that conflict with each other. That’s true whether we are talking about creating lively urban districts or preserving habitats or sustainably developing natural or rural areas. These two projects— separating conflicts and putting together complements—blend into each other: A use can be in the wrong place not only when it has negative spillovers for its neighbors, but also when it impedes putting together a cluster or chunk of uses that will together generate more value.10 The “pig in the parlor” might be a road that breaks up a wildlife corridor or a vacant lot in the middle of an area that is striving for vibrancy.
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Janet E. Milne
The challenges of reducing greenhouse gas emissions have dominated international negotiations and national debates about climate change, often leaving the issue of adaptation to climate change in the shadows. The focus on mitigation is understandable, given the urgent need to take measures now to avoid greater future damage coupled with the fact that adaptation to climate change is a long-term undertaking with tangible, immediate demands on society that are now starting to emerge. Nevertheless, society is beginning to feel the impacts of climate change, underscoring the need to think more seriously about how to prepare for and minimize those impacts and how to finance the measures that society should take. As a recent United States assessment found, “[d]espite emerging efforts, the pace and extent of adaptation activities are not proportional to the risks to people, property, infrastructure, and ecosystems from climate change.”
This Article examines the role of environmental tax policy in addressing climate change adaptation, using the United States as a case study. To provide a concrete setting, it focuses on the challenges of adapting to extreme weather events. It draws in particular on the adaptation implications of Hurricane Sandy, which devastated the eastern United States in October 2012, flooded New York City’s subways and airports, left 8.5 million people without power, and prompted the United States Congress to appropriate $51 billion in disaster funding. Whether or not the storm was linked directly to climate change, it illustrates the tremendous costs of extreme weather, the need to invest in resilience, and the challenges of financing efforts that will restore communities and protect them from future damage.
After exploring the gap between adaptation costs and funding in general (Part I) and in the case of Hurricane Sandy in particular (Part II), this Article considers how environmentally related taxes might help fill the gap between the costs of adaptation in the face of extreme weather events and available public resources (Part III). It highlights the need to earmark revenue for adaptation to ensure that adequate funds are available for shortterm responses and long-term investments, and it explores, on an illustrative basis, several types of taxes that might generate new, dedicated revenue streams. Although countries with developed economies may be in a stronger position to find resources to build resilience than those with emerging economies, this case study underscores the fiscal challenge that faces even developed economies and the potential role of environmentally related taxes in meeting that challenge.
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Vermont’s Long Trail is the oldest long-distance hiking trail in the country, but it may be lost because of an amendment to the State’s conservation easement statute. While hiking in Vermont’s Green Mountains in 1909, James P. Taylor formulated the idea of creating a trail that would link the mountain range. The following year he founded the Green Mountain Club (GMC), an organization that spent the next twenty years cutting trails and building shelters from Massachusetts to the Canadian border. Since 1930, the Trail has run nearly 273 continuous miles through Vermont. In 1986, GMC recognized the pressing need to protect the land through which the Trail runs. At that time, thirty miles of the Trail were for sale, thirty miles had no guaranteed public use, and two parts were completely shut down––causing hikers to walk along the road for 3.5 miles. In order to preserve the Trail for future generations, the Long Trail Protection Program was born. Through this program, GMC has purchased land or acquired easements surrounding 60 miles of the Trail, conserving approximately 25,000 acres of land.
A conservation easement is a private land use mechanism consisting of an agreement between a landowner and a land trust or government agency. The landowner retains ownership of the property while agreeing to refrain from using it in specific ways in order to “conserve” the land. Conservation easements are negative easements, meaning they prohibit the landowner from using the land in certain ways. For example, a landowner may agree to give up her right to develop the land or farm it in a certain way so that the public can enjoy the benefit of open space. Conservation easements are also “in gross” rather than “appurtenant,” since they benefit the “holder whether or not the holder owns or possesses other land.” Conservation easements have a “conservation purpose” or create a “conservation benefit,” and are held in perpetuity. Being held in perpetuity means that “they allow easement donors to direct land uses for all time.” Because of the difficulties the common law presents to longterm easements in gross, conservation easements are a statutory, rather than common law, creation. While use of conservation easements has grown as a land management tool in recent decades, their enabling statutes still have room for improvement. For instance, many states’ conservation easement statutes remain unclear as to whether and how a conservation easement may be amended or terminated. Over the past few years, Vermont has begun to consider whether and how to change its statute to provide clearer amendment criteria and procedure. Examining Vermont’s experience could be helpful for other states wishing to change their statutes.
Vermont has examined whether amendments can be necessary and desirable. In 2012, the Vermont General Assembly passed S. 179. 21 This established “a working group on perpetual conservation easements to study the issues relating to the creation of a formal and transparent public process for the amendment of perpetual conservation easements, the criteria for approving such amendments, and the entity most appropriate to review and approve such amendments.” The working group subsequently generated a report outlining what it viewed as the need for legislation regulating conservation easement amendments. For example, parties may wish to amend a conservation easement because of unforeseen circumstances. These include changes in accepted farming practices, the federal government wishing to add a piece of property to a national wildlife refuge, or a land trust seeking to eliminate ambiguity from an easement provision. A state statute laying out the amendment process could provide more uniform guidance for those seeking to amend easements, allow public participation in the process, and ensure that the easement and its purposes are preserved. Regardless of whether Vermont enacts a statute elaborating the revision process, conservation easements can be amended under Vermont statutory law. However, a revised statute would help ensure that such amendments are subject to a fairer process that is more likely to preserve the original parties’ intent.
During the 2013–2014 Legislative Session, the Vermont Senate passed S. 119, which provided criteria and procedures for amending conservation easements. The House ultimately abandoned the Bill, but the topic will likely rise again. This is due, at least in part, to tension between Vermont’s two major land trusts: Vermont Land Trust (VLT) and Upper Valley Land Trust (UVLT). VLT was concerned that the State lacked guidance in this area and advocated for the Bill in hopes of attaining more oversight of conservation easement amendments than is currently present. UVLT, on the other hand, found that S. 119 would replace more stringent common law conservation easement modification requirements and opposed such added flexibility.
This Note critiques Vermont’s current conservation easement law, and recommends revisions. Using the Long Trail as a case study, the Note examines how a new law would affect already-existing easements. Part I provides an overview of Vermont’s conservation easement statutory and common law, including a brief history of the Long Trail’s easements. Part II compares S. 119 with Vermont’s current conservation easement law, critiques the Bill, and discusses potential effects of a similar bill on the Long Trail. Part III then compares Maine’s conservation easement law to S. 119 and discusses how it would affect the Long Trail if adopted in Vermont. Finally, Part IV uses the analyses provided in Parts I–III to propose recommendations for Vermont’s potential bill.
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Michael D. Cicchini
I recently considered writing a law review article about the legal issues in a former client’s criminal case. The article would have discussed only public information from pleadings, trial-court transcripts, and the published appellate court decision. In addition to being public in nature, all of this information was (and is) easily accessible by anyone, free of cost, via the Internet. The article itself would have criticized police, prosecutors, judges, and the criminal justice system, and would have continued to advocate for the client’s innocence.
Before the project even got off the ground, however, I vaguely recalled an ethical rule restricting an attorney’s ability to discuss his or her cases— even after those cases ended. I talked about this issue with fellow members of the bar, but no one had heard of such a rule. The consensus was that, obviously, an attorney can discuss events that happened in open court, are part of a published court decision, or are otherwise part of the public record. And as long as the attorney does not disclose confidential client communications or other non-public information, a lawyer’s First Amendment right of free speech would certainly trump any obscure rule that could possibly be buried in the voluminous ethics code.
Upon further investigation, however, I discovered my state’s version of ABA Model Rule 1.9, dealing with an attorney’s duty of confidentiality to former clients. The first prong of the rule prohibits an attorney from using “information relating to the representation” of the former client. However, there are exceptions: an attorney may use information when such use would not be “to the disadvantage of the former client”; and an attorney may use information that is already “generally known.” The second prong of the rule prohibits an attorney from revealing “information relating to the representation” of the former client; there are no exceptions listed under this prong.
At first glance, this rule did not seem overly restrictive, and my colleagues’ unanimous conclusion appeared to be correct. For the sake of argument I assumed that the public documents I wanted to write about would constitute information relating to the representation. However, I certainly would not have to worry about part one of the rule that prohibits the use of that information, as my article would in no way work to the client’s disadvantage. Further, even if it somehow did (in a way that I simply could not imagine), I would only be discussing information that was already generally known, so I would easily satisfy that exception instead
Neither would I have to worry about part two of the rule that prohibits the revelation of information. Using publicly available information to write a law review article is just that: using, rather than revealing, the information. In fact, it would be impossible to reveal what is already part of the public domain—especially in today’s electronic age where virtually anything can be accessed via the Internet. Additionally, I would not be revealing confidential client communications or other information that should be kept secret. And in this case, as in most criminal cases, that type of secret information didn’t even exist.
But if a dozen years of practicing criminal law has taught me anything, it is that rules often don’t mean what they clearly say. And in this case, as Part II of this Article demonstrates, Rule 1.9 does not mean anything remotely close to what it says.
To begin, courts interpret Rule 1.9 so broadly that every conceivable piece of information—including information that was not provided by the client and is not even about the client—constitutes information relating to the representation, is therefore protected, and cannot be used or revealed. Further, when a lawyer seeks to invoke one of the rule’s exceptions, courts routinely hold that the exceptions are not available for the lawyer’s contemplated use. And even when the exceptions are technically available, they are of little value. For example, not even widespread public information that is easily accessible via the Internet is considered to be “generally known,” and every imaginable use of the information is deemed to “disadvantage” the former client in some intangible way and is therefore prohibited.
But Rule 1.9 goes much further than preventing the would-be attorney-author from writing a law review article. In fact, all attorneys are affected by this incredibly broad rule on a near-daily basis. For example, the rule also prevents an attorney from presenting material at a continuing legal education seminar, engaging in “shoptalk” with colleagues, and even telling their family or friends what types of cases they have litigated. Worse yet, Rule 1.9 is so far-reaching and irrational that an attorney who attempts to comply with it would, in some cases, necessarily violate other, conflicting ethics rules.
The ethics rule of confidentiality wasn’t always this suffocating. Part II of this Article explains that, before Rule 1.9, the predecessor ethics rule sought to promote full communication between lawyer and client, and therefore protected a client’s “confidences and secrets” from disclosure. But then, without justification, Rule 1.9 expanded the scope of this protected information from “matters communicated in confidence by the client . . . to all information relating to the representation, whatever its source.”
Rule 1.9’s incredibly far reach serves no legitimate purpose and, worse yet, is often harmful—sometimes even to the clients the rule is supposed to protect. In light of this, Part III recommends reform of Rule 1.9 that is rooted in clients’ actual and reasonable expectations regarding confidentiality. In reality, a former client simply would not expect—and probably could never even imagine—that his or her attorney would be subjected to a perpetual gag-order with regard to public information (such as, for example, the client’s published appellate court case). Instead, what a former client would expect is that the attorney will keep the client’s confidences and secrets, and, when using or discussing publicly available information about the case, that the attorney remain loyal to the client’s interests.
Given clients’ actual and reasonable expectations, Rule 1.9 should be reformed—or, rather, merely reinterpreted—to permit an attorney to use or disclose already-public information about a former client’s case, provided that such use or disclosure is consistent with, or at least neutral with regard to, the former client’s position in that case. This would permit, among other things, an attorney’s use of pleadings, transcripts, and appellate court decisions to write a law review article about the legal aspects of a former client’s case.
This reinterpretation of Rule 1.9 also has the benefit of bringing order and structure to what is currently a chaotic, indecipherable, and unpredictable legal landscape. Equally important, Part IV demonstrates that this reinterpretation also satisfies other significant, but often overlooked interests. More specifically, allowing an attorney to discuss and write about public information from a former client’s case will enable effective continuing legal education for the profession, will serve the public’s interest in critical commentary about our legal system and public officials, and will restore the attorney’s First Amendment right of free political speech.
Model Rule 1.9 reads, in relevant part, as follows:
A lawyer who has formerly represented a client in a matter . . . shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except . . . when the information has become generally known; or (2) reveal information relating to the representation . . . .
When attempting to decipher this rule, the order of the analysis is important. The first question is what, exactly, constitutes information relating to the representation? Then, if the information falls within this protected category, the attorney must decide whether the contemplated course of conduct—for example, writing a law review article—would use, or instead reveal, that protected information. This use-reveal distinction is potentially important. The use-prong of the rule—that is, the prong that prohibits an attorney’s use of the information—contains two exceptions. Conversely, the reveal-prong of the rule offers the attorney no exceptions; instead, it appears to be absolute.
Once the attorney understands whether the information relates to the representation, and whether it would be used or revealed, the attorney can then explore the rule’s two explicit exceptions. Is the information already generally known? If it is, then the attorney may use (but not reveal) it. And if the information is not generally known, would the contemplated use be to the disadvantage of the former client? If it would not be, then, once again, the attorney may use (but not reveal) it.
Finally, if these two explicit exceptions are not applicable to the contemplated use of the information, or if the attorney wishes to reveal (rather than use) the information, the attorney can then consider whether some of Rule 1.9’s other, implied exceptions can be used.
In answering these questions, it will often be helpful to look to Rule 1.6, its comments, its annotations, and the cases and other legal authorities that interpret it. Rule 1.6 is, in relevant part, identical to Rule 1.9, except that Rule 1.6 pertains to current clients rather than former clients. In fact, court decisions often confuse Rules 1.6 and 1.9, or at least consider them to be interchangeable, and the comments and annotations of each rule even cite the other.
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Philip C. Aka, Aref A. Hervani, & Elizabeth Arnott-Hill
Retirement security is financial readiness. It exists when a worker, especially one on the cusp of retirement, subjectively believes that he or she has enough resources to guarantee a standard of living similar to that before retirement—and when in fact, objectively, a full complement of savings in Social Security, employer-sponsored benefits, and personal assets exists to guarantee that pre-retirement standard of living. The economic difficulties of the past decade, signified by the Great Recession of 2007 to 2009 and an accompanying slow recovery, have combined to synergistically inflict a negative effect on many financial investment resources, including Black retirement security. To be sure, the recession did not create the situation that some commentators poignantly liken to a “crisis.” For example, “[f]rom 1979 to 2006, African-American private sector workers saw their overall pension coverage go down” by 8.3%, compared to Whites, who experienced a decline of just 3.7%. However, the economic hard time and its aftermath have exacerbated the retirement unreadiness of many older Americans, notably including Blacks.
We argue that in the aftermath of the economic downturn, retirement security for Black people is predicated on micro steps comprised of changes in the tripod of Social Security, employer-sponsored pension plans, and personal assets, implemented in tandem with macro steps in the form of a reduction in disparities between Blacks and Whites in education, healthcare, and housing. These are three critical areas of American national life; without reducing disparities in these areas, the chances for Black retirement security may be bleak for many years to come. In developing our argument, we did three things. First, we highlighted the shape of the retirement security gap between Blacks and Whites in a discussion that integrates the six variables at the focus of this Article. Second, we presented a historical narrative necessary for proper understanding of our research that, among other materials, draws on President Franklin D. Roosevelt’s model of a right to adequate protection from the economic fears of old age, as part of a bill of economic rights meant to complement the original bill of political rights that the United States adopted in 1791. Third and finally, we zeroed in our attention on the six steps for closing the retirement gap between Blacks and Whites at the cynosure of this work. Of those six steps, we devoted extensive space and analysis to personal assets, commensurate with the threat that this benefit source poses for the retirement security regime, which is indicative of the shift in responsibility for retirement readiness to individual workers over many years that predated the economic difficulties of the past decade.
The micro steps are measures that, by their nature, are not focused on Black people as such because they benefit all United States workers, without subscribing to the amorphous notion of a “rising tide lifts all boats.” In contrast, the macro steps focus more directly on Black people and Black seniors. As the ensuing analysis makes clear, the two sets of steps somewhat overlap. Studies on retirement security focus on United States seniors as a whole. But there are equally many studies on minorities, among them Black people. This Article belongs in the latter category, but at the same time departs from those studies in that it is more specifically focused on Blacks, in an integrated approach that assembles under one analytic bundle the key elements of changes and disparity reduction that we identify as critical for Black retirement security in the aftermath of the Great Recession and its accompanying slow recovery. Blacks and Whites are just two of several races in the United States’ multiethnic society. Accordingly, the measurement or comparison to Whites is a mostly heuristic tool meant to facilitate analysis, focusing on the national government.
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On February 13, 2014, the Ivanpah Solar Electric Generating System (ISEGS) began to produce energy as the world’s largest solar thermal power plant. It was built on over 3,500 acres of federal public land in the Mojave Desert near Ivanpah Dry Lake, California. BrightSource Energy, Inc. developed the ISEGS with significant third-party investments and approval from the Bureau of Land Management (BLM) and the U.S. Department of Energy. The project was expected to (1) create jobs, (2) reduce carbon emissions, and most importantly, (3) generate enough green energy to power almost 140,000 homes. The project appears to have accomplished some of these goals, such as creating jobs and providing renewable energy to California, with additional plants proposed in other parts of the desert. However, despite these benefits and years of research and environmental planning, scientists have discovered that fast-tracking the national mandate for clean energy comes with an unexpected cost: the death of thousands of birds.
In the summer of 2014, just a few months after the plant started production, local observers noticed “smoke plume[s]” in the air when birds flew through the concentrated sun rays reflected off of the mirrors. The workers called these birds “streamers” for the image they created as the animals spontaneously ignited in midair and hurtled to the ground in a smoking, smoldering ball. These deaths are not an isolated incident where only a few stray birds might accidentally fly through the area—reports estimate that over 3,500 birds have experienced a similar fate during the plant’s first year, although the exact number is a subject of debate.
The ISEGS uses more than 300,000 mirrors on almost 4,000 acres to direct solar radiation to the collection towers, which can heat the surrounding atmosphere to temperatures between 800º and 1000º Fahrenheit. The BLM is the federal agency responsible for evaluating the project’s environmental impact because the solar plant is on public land. The BLM complied with its statutory obligation under the National Environmental Policy Act (NEPA) and performed an Environmental Impact Statement (EIS) prior to approving the project. In the Final EIS, the agency considered 25 alternatives, including different project sites and other solar technologies. BLM dismissed all but three of the alternatives as unviable.
While the agency followed NEPA guidelines, some environmental groups contend that the BLM rushed the EIS process, fast-tracked development, and failed to consider all of the appropriate alternatives
The Final EIS lacks a sufficient evaluation of the potential biological impact on migratory or in-flight birds. The Ivanpah solar reactor is the biggest of its kind, therefore few comparable solar plants exist that can provide insight into the likely environmental impacts. One of the proposed alternatives, suggested via public comment, was to build the project in phases so that the operational impacts could be studied before the full mirror field was completed and activated. The BLM rejected this alternative and failed to fully consider that the mirrors might have a detrimental effect on the environment. In the Final EIS, the only alternatives explored were slight variations of the proposed plan, and none of these alternatives included the possible impact the mirrors and the reflected sun rays might have on birds.
This Note analyzes the policy decisions, their implications, and the biological impact of the Ivanpah solar plant on the Mojave Desert region in light of the recent bird deaths. Part I discusses the initial push to build the facility, as well as the initial impacts to some species that the Final EIS analyzed. Part II analyzes the Final EIS and the BLM’s NEPA compliance by examining the alternatives addressed, the conclusions reached, and where the EIS was lacking. This Note focuses solely on those areas of environmental impact that pertain to wildlife. Part III discusses the other federal statutes implicated by the solar plant including: the Endangered Species Act (ESA); the Migratory Bird Treaty Act (MBTA); the Bald and Golden Eagle Protection Act (BGEPA); and the Federal Land Policy Management Act (FLPMA). Part IV addresses national environmental policy in the context of clean energy development versus wildlife protection, and whether a mandate to rapidly develop energy sources must override wildlife protection. Specifically, it looks at the green policy conflict through the lens of the development and operation of the Ivanpah solar project. Finally, Part V looks towards the future of clean energy in the Mojave. With three solar projects planned, and using Ivanpah as a model, Part V discusses the biological resource implications in those areas and proposes that both clean energy development and wildlife protection may not necessarily be mutually exclusive.
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