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How the Rest was Won: Creating a Universally Beneficial Legal Regime for Space-Based Natural Resource Utilization

Ian Hedges, J.D. 2015 Vermont Law School

History has demonstrated the United States’ ability to assert rapid control over vast areas of land in a sweeping manner. In 1803, Thomas Jefferson acquired the Louisiana Purchase, doubling the size of the country.Over a century later, Congress passed the Outer Continental Shelf Lands Act of 1953, asserting control over 1.76 billion acres of submerged land. And on September 10, 2014, a subcommittee in the House of Representatives sat down to discuss what could be the beginning of a new era of American property acquisition. The American Space Technology for Exploring Resource Opportunities in Deep Space Act (Asteroids Act) strives to “facilitate the commercial exploration and utilization of asteroid resources to meet national needs,” as well as “promote the right of United States commercial entities to explore and utilize resources from asteroids in outer space, in accordance with the existing international obligations of the United States, free from harmful interference, and to transfer or sell such resources.” More recently, the Federal Aviation Administration (FAA) has mirrored some of Congress’s intentions. The agency plans to “leverage the FAA’s existing launch licensing authority to encourage private sector investments in space systems by ensuring that commercial activities can be conducted on a non-interference basis.” In doing so, the FAA acknowledged “the private sector’s need to protect its assets and personnel on the moon or on other celestial bodies.”

Still in its preliminary stages, space law’s scope has yet to be defined. With private space industry on the rise, the need to define space law’s scope is increasingly apparent. Companies like Planetary Resources, with high profile investors including James Cameron and Richard Branson, are already envisioning a “new paradigm for resource discovery and utilization that will bring the Solar System into humanity’s sphere of influence.” Yet this new paradigm—largely influenced by highly developed countries and affluent individuals—tends to focus on the desires of a select few private actors within the industry. These self-interested notions run contrary to traditional principles of space law, which provide for space exploration benefitting all mankind. These competing ideals beg questions concerning property rights allocation in outer space and how to distribute acquired resources from space exploitation.

Part I of this Note will look at the issue of scarcity and its applicability to natural resources in outer space. Part II briefly discusses the types of resources available in outer space. Part III analyzes the current regime of federal and international space-related laws and how they may interact with current systems of property and resource development. In addition, this section explores how current federal public lands paradigms, and other analogous areas of the law, may cooperate with evolving space law. Lastly, Part IV provides recommendations on how space law can ultimately promote not only a deeper understanding of the cosmos, but also the knowledge of how to garner resources responsibly, benefitting humankind from the depths of a little-known frontier.

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Review of Benjamin Sovacool and Michael H. Dworkin’s Global Energy Justice: Problems, Principles, and Practices

Michael B. Gerrard 

Energy powers the world. Having enough energy is essential to maintaining even the most minimal quality of life. But extracting and using energy renders some places uninhabitable, and now threatens the ecological integrity of the planet. 

Current energy systems involve profound injustices. These injustices can arise in the ways that energy is produced—including through local and global environmental degradation, human rights abuses, corruption, and social and military conflict. Injustice can also arise in the ways that energy is or is not available—with more than a billion people having far too little for a decent existence, while hundreds of millions consume lavishly.

In Global Energy Justice: Problems, Principles, and Practices, Benjamin K. Sovacool and Michael H. Dworkin undertake an ambitious
project: understanding these injustices and proposing ways to address them. The two are professors at Vermont Law School and are both associated with its Institute for Energy and the Environment. Among their many other activities, Sovacool also holds an appointment at Aarhus University in
Denmark, and Dworkin formerly chaired the Vermont Public Service Board. Their book is well-documented and ranges across a broad array of relevant disciplines.

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Scrutinizing Strict Scrutiny

Roy G. Spece, Jr., & David Yokum 

Standards of review dominate personal liberties practice, and we must take them seriously if we heed calls to take (constitutional) lawyering seriously. Standards are poorly articulated and undertheorized. They must be properly fashioned by exploring and reconciling the logic and purpose of each of their components. We do this with strict scrutiny both to energize an important standard of review and model a proper approach. Our analysis is primarily within the context of higher education affirmative action cases because they typify the ambiguity of strict scrutiny; one such case—Fisher v. University of Texas at Austin—was set to be argued on December 9, 2015.

We derive a preferred articulation of strict scrutiny with six achievable but rights-protective requirements. Strict scrutiny is especially energized by separating its ends question about compellingness from its means question about interest advancement. Then state interests are compelling only if of a special nature. This is analogous to requiring fundamental rights to have special attributes irrespective of any intrusion. 

The preferred version of strict scrutiny is applied to Fisher, which involves a university program that considers race as one diversity factor combined with a top ten percent law. Our contrarian conclusion is that the law is unconstitutional, but that the Court should save the University program by severing it from the law. It is contrarian because most authorities—whether invoking an anti-subjugation, anti-classification, or anti-balkanization perspective—accept supposedly racially neutral top ten percent laws. We invoke a nuanced conception of anti-balkanization applicable in Fisher’s unique circumstances. Our conclusion is also based on a rich conception of academic freedom with two complementary aspects that place it at the foundation of freedom of speech. These aspects combine to protect universities from external impositions such as the Texas law, allowing them to accommodate diversity and demonstrated academic capacity.

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Co-Location, Co-Location, Co-Location: Land Use and Housing Priorities Reimagined

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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Storms Ahead: Climate Change Adaption Calls for Resilient Funding

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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The Long and Winding Road: Easement Modification and the Future of Long Distance Hiking Trails

Alexis Peters 

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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On the Absurdity of Model Rule 1.9

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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A Lesson From Icarus: How the Mandate for Rapid Solar Development Has Singed a Few Feathers

Morgan Walton 

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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