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A Lesson From Icarus: How The Mandate For Rapid Solar Development Has Singed A Few Feathers

A Lesson From Icarus: How The Mandate For Rapid Solar Development Has Singed A Few Feathers

Morgan Walton

In February 2014, the Ivanpah Solar Electric Generating System (ISEGS) began operating as the world’s largest solar thermal power plant.[1] It was built on over 3,500 acres of federal public land in the Mojave Desert near Ivanpah Dry Lake, California.[2] The plant uses more than 300,000 mirrors to direct solar radiation to the collection towers,[3] which can heat the surrounding atmosphere to temperatures between 800º and 1000º F.[4] After years of research and environmental planning, and despite benefits like creating jobs and providing renewable energy, scientists have discovered that fast-tracking clean energy development comes with an unexpected cost: the death of thousands of birds.[5]

In the summer of 2014, observers noticed “plumes of smoke” in the air when birds flew through the concentrated sun rays reflected off of the mirrors.[6] 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.[7] A U.S. Fish and Wildlife study theorizes that the intense light from the mirror field acts as a “mega-trap” by attracting insects that then attract insect-eating birds, thus “creating an entire food chain vulnerable to injury and death.”[8] These deaths are not an isolated incident—potentially tens of thousands of avian wildlife could experience a similar fate.[9]

This Note analyzes the policy decisions, their implications, and the biological impact of the Ivanpah solar plant in light of the recent bird deaths. It discusses how the avian mortality caused by the ISEGS represents an inherent conflict between the national mandate for green energy development versus longstanding principles and laws to protect wildlife.

First, this Note looks at the obligations of the Bureau of Land Management (BLM) in approving development on public land under the National Environmental Policy Act (NEPA),[10] and the agency’s duties in preparing an Environmental Impact Statement (EIS).[11]

The EIS considered 25 alternatives, including different solar technologies, amongst others.[12] The EIS, however, insufficiently addressed the potential biological impact on in-flight birds because the ISEGS is the biggest of its kind, so there are few comparable facilities.[13] While it devoted more attention to the impact on the local desert tortoise population (a threatened species),[14] the EIS only briefly explored the possibility of solar flux mortality prior to dismissing the likelihood entirely.[15] The EIS dismissed the possibility despite evidence of solar flux mortality occurring at similar solar power tower facilities.[16]

Part I of this Note evaluates how the EIS inappropriately considered certain project alternatives—phased development, alternative solar technologies, etc.—that would have been better at preventing adverse impacts to birds. Additionally, the agency’s mitigation strategy fails to ensure that “important effects” on the environment “will not be overlooked or underestimated.”[17] Furthermore, the BLM should prepare a Supplemental EIS so that it can explore more effective mitigation approaches and provide operation methods that have fewer adverse impacts to biological resources.[18]

In Part II, this Note evaluates the BLM’s other statutory obligations and the different levels of environmental protection that each federal law requires. While not binding, the BLM should consider potential adverse impacts to species that are candidates to be listed under the Endangered Species Act (ESA).[19] Furthermore, certain species in Ivanpah are protected by both the Migratory Bird Treaty Act[20] and the Bald and Golden Eagle Protection Act[21] and must not be killed or harmed through the agency’s actions.[22]

Also, the Federal Land Policy Management Act[23] mandates the BLM to balance resource use on public land and to consider “the long-term needs of future generations.”[24] The agency must not permanently impair the “productivity of the land and the quality of the environment,” and it must consider “the relative values of the resources,” not just the “uses that will give the greatest economic return.”[25] For the reasons stated above, the BLM appears to place economic return as more important than the quality of the environment and protecting wildlife resources.

Finally, this Note discusses the conflict between green energy development and wildlife protection, and it proposes that the two policies may not need to be mutually exclusive. In 2009, President Obama set a national policy to pursue new technologies and to speed up the transition to renewable energy.[26] The purpose of the national mandate is to reduce U.S. dependence on nonrenewable fossil fuels that pollute the environment.[27] Other green energy goals include: energy security, a reduced dependence on foreign oil, job growth, and economic opportunities.[28]

The policy argument for wildlife is that it has long deserved, and received, our protection.[29] The concern is that sometimes green energy development can also end up having a detrimental effect, such as bird deaths from solar power,[30] or from wind energy when the birds fly into rotating turbines.[31] The potential for such an adverse impact is troublesome because it sometimes appears as if wildlife is expendable—or at the very least a secondary concern—when confronted by the national mandate to advance green energy production.[32]

This Note proposes a solution to the conflict between green energy policies and wildlife protection by discussing a careful approach that could lead to better solar development strategies. New strategies are important given that additional solar power-tower style plants are already planned in the Mojave region.[33] With better strategies, as well as informed agency action, the nation can both develop renewable energy sources and protect important wildlife resources from irreparable harm.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.


[1] World’s Largest Solar Thermal Power Project at Ivanpah Achieves Commercial Operation, BrightSource (Feb. 13, 2014), http://www.brightsourceenergy.com/ivanpah-achieves-commercial-operation#.VBYivRbPa8D [hereinafter World’s Largest].

[2] California Clean Energy Tour: Ivanpah Solar Electric Generating System, Cal. Energy Commission http://www.energy.ca.gov/tour/ivanpah/ (last visited Apr. 16 2015).

[3] Garrett Hering, 4 Reasons the Ivanpah Plant is Not the Future of Solar, GreenBiz.com (Feb. 19, 2014), http://www.greenbiz.com/blog/2014/02/19/largest-solar-thermal-plant-completed-ivanpah.

[4] Jack Dini, Ivanpah Solar Plant Unintended Consequences, CanadaFreePress.com (Sept. 3, 2014), http://canadafreepress.com/index.php/article/ivanpah-solar-plant-unintended-consequences.

[5] Ellen Knickmeyer & John Locher, Emerging Solar Plants Scorch Birds in Mid-air, Huff. Post (Aug. 18, 2014, 11:28 AM), http://www.huffingtonpost.com/huff-wires/20140818/us–solar-birds-scorched/.

[6] Id.

[7] Id.

[8] Rebecca A. Kagan et al., Nat’l Fish and Wildlife Forensics Lab., Avian Mortality at Solar Energy Facilities in S. Cal.: A Preliminary Analysis 20 (Apr. 23, 2014), available at http://www.ourenergypolicy.org/wp-content/uploads/2014/04/avian-mortality.pdf (defining “mega-trap” as an ecological trap where an artificial feature creates a “situation that results in an animal selecting a habitat that reduces its fitness relative to other available habitats”).

[9] Knickmeyer & Locher, supra note 5.

[10] National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–70 (2014).

[11] Id. § 4332(2)(C).

[12] Bureau of Land Mgmt., U.S. Dep’t. of Interior, FEIS-10-31, Final Environmental Impact Statement for Ivanpah Solar Electric Generating System, 1–11 to 1–14 (2010), available at http://www.blm.gov/pgdata/etc/medialib/blm/ca/pdf/needles/lands_solar.Par.19048.File.dat/1-CDCA-Ivanpah-Final-EIS.pdf [hereinafter Final Environmental Impact Statement].

[13]Id. at 3–107.

[14] Id. at 1–23.

[15] Id. at 4.3–42.

[16] Id.

[17] Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).

[18] See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371–74 (1989) (discussing when an agency should prepare a Supplemental EIS); see also 40 C.F.R. § 1502.9(c)(1) (2014) (giving the two situations when an agency must supplement an EIS).

[19] Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44 (2014); USFWS, Birds of Conservation Concern, FWS.gov, http://www.fws.gov/migratorybirds/CurrentBirdIssues/Management/BCC.html (last updated April 11, 2012); see Tennessee Valley Auth. v. Hill, 437 U.S. 153, 177 (1978)(discussing the overriding purpose of the ESA is to avoid the loss of wildlife resources).

[20] Migratory Bird Treaty Act of 1918, 16 U.S.C. §§ 703–12 (2014).

[21] Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 (2014).

[22] 16 U.S.C. § 703; 16 U.S.C. § 668.

[23] Federal Land Policy and Management Act of 1976, 43 U.S.C §§ 1701–87 (2014).

[24] Id. § 1702(c).

[25] Id.

[26] Daniel Stone, Obama Pledges U.S. Action on Climate, with or Without Congress, Nat’l Geographic (Feb. 12, 2013), http://news.nationalgeographic.com/news/energy/2013/2/130212-obama-pledges-climate-change-action/.

[27] Sarah Pizzo, When Saving the Environment Hurts the Environment: Balancing Solar Energy Development with Land and Wildlife Conservation in A Warming Climate, 22 Colo. J. Int’l Envtl. L. & Pol’y 123, 125 (2011).

[28] U.S. Dept. of the Interior & U.S. Dept. of Agric., New Energy Frontier: Balancing Energy Development on Federal Lands 3 (2011), available at http://www.doi.gov/whatwedo/energy/index.cfm.

[29] See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 177, 184 (1978) (discussing how both houses of Congress, with members on either side of the political aisle, saw a need for the ESA protections).

[30] Knickmeyer & Locher, supra note 5.

[31] Final Environmental Impact Statement, supra note 12, at 3–96.

[32] See Stone, supra note 26 (discussing concerns by both opponents and proponents of energy development).

[33] California Solar Projects Plan Undergoing Major Overhaul, MyNextFone.co.uk (Sept. 7, 2014, 9:56 PM), http://www.mynextfone.co.uk/breaking-news/california-solar-projects-plan-undergoing-major-overhaul-h9979.html.  

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