If Not in Your Backyard, Where?

Many agree that the United States would benefit from greater energy independence, but there is no consensus on how to achieve that goal.  A variety of approaches are currently being discussed.  Perhaps due to concerns about global warming, however, the unprecedented investment in "green" technology that will result from the 2009 American Recovery and Reinvestment Act or even the interest being "bought" by The Pickens Plan (the wind energy effort of billionaire T. Boone Pickens), attention has focused on solar, wind and other sustainable energy technologies as a partial solution. 

Within the realm of what is viable today, many tout solar and wind power as the most likely means of achieving some measure of sustainable, domestically produced energy independence.  Both solar and wind energy rely largely on renewable resources to generate power even though they also require larger tracts of land that meet very specific criteria.  While hardly perfect, given their benefits and compared to other alternatives such as nuclear or coal fired power plants, one might think that new solar and wind energy developments would have few opponents and little trouble securing required regulatory approvals. 

In reality, to date, the same parochial concerns that derail and delay development of any kind also apply to many sustainable energy projects.  For example, opponents of wind energy have launched www.windaction.org.  This website from the Industrial Wind Action Group, which proudly admits that it "stands ready to assist communities threatened with industrial wind energy projects," is devoted to publicizing information designed to defeat wind energy projects and highlighting the "successes" of project opponents. 

Unfortunately for the renewable energy industry, project opposition is not limited to fringe elements of society.  The United States Air Force appears to be on the verge of killing a $700 million solar thermal power plant near Nellis A.F.B. in Nevada.  The Cape May Wind Energy project, a proposal for 130 wind turbines off the coast of Cape Code, Mass., has seen strong opposition from the likes of Sen. Ted Kennedy. Not to be outdone, earlier this year, Sen. Diane Feinstein announced her opposition to any solar or wind energy development on 600,000 acres in the Mojave Desert that is owned by the U.S. Government.

While the above high profile cases garner much of the media attention, plenty of opposition exists to renewable energy projects and the transmission lines that bring that power to population centers.  In fact, the "Not in My Back Yard"ers or NIMBYs have become so prevalent that the United States Chamber of Commerce launched "Project No Project" at http://pnp.uschamber.com.  The stated goal of the website, which maintains information about sustainable energy projects and the organizations (including many well known environmental groups) that oppose them, is to make policy makers more aware of the problems posed to the burgeoning renewable energy field by "Not in My Back Yard" attitudes.

Given today's political climate, the question becomes: What is a proponent of a sustainable energy development to do? The following are a few ways of potentially increasing a project's likelihood of success:

1. Strategic Site Selection: Sites appropriate for solar and wind energy development must meet specific, technical criteria. To succeed, a project proponent's preliminary assessment must also include issues such as environmental constraints and the political climate.

2. Creative Contract Negotiations: With all the uncertainty that now exists in the approval process, a well negotiated and drafted contract can make all the difference.  Option contracts, tiered lease structures, liquidated damage clauses and generous due diligence periods are just some of the vehicles that a renewable energy developer might want to consider.

3. Development of an Effective Community Outreach Program: The ultimate success of any development project sometimes has less to do with that project's merits and more to do with how the public and the decision makers perceive the project.  Despite the upfront costs, a sustainable energy developer would be wise to engage a team that can analyze the legal, political, social and economic elements and formulate creative strategies for a project's specific circumstances.

4. Know Your Rights: Especially in California, but not exclusively, the approval process itself serves as a significant impediment to renewable energy projects.  Recognizing this fact, some states have enacted legislation to simplify and expedite the process.  For example, California has adopted Government Code section 65850.5 to limit the ability of local governments to impose more costly permit processing requirements for solar energy systems.  A working knowledge of all such laws could save a sustainable energy developer significant money and time.

5. Promote Regional Planning and Master Environmental Documents: One bright spot is offered by those governmental agencies that have commenced master planning and environmental review of large areas with good sustainable energy potential.  For example, on June 29, 2009, the Interior Secretary Ken Salazar announced plans to "fast‑track" solar development on 670,000 acres of Federal land in western states.  Although often time consuming and loaded with politics, an area with approved master planning and environmental documents has a distinct advantage.  Savvy sustainable energy companies will want to promote, monitor and participate in such efforts to ensure that industry interests are adequately protected. 

While it may be high time that the public at large starts asking those who oppose sustainable energy developments – "If not in your backyard, where?" –  the fact remains that "Not In My Back Yard"ers will continue to have a significant impact on such projects.  Hoping that opposition will not materialize is wishful thinking.  Further, with the entrenched interest groups that operate at the various governmental levels and the infeasibility of a one‑size‑fits‑all solution, meaningful legislative relief also seems unlikely.  Therefore, using techniques such as those described above, sustainable energy developers will continue to have to take matters into their own hands for the U.S. to achieve greater energy independence.

Brian C. Fish is a Partner at Luce, Forward, Hamilton & Scripps, LLP, where he focuses his practice on land use, redevelopment, environmental and real estate matters. He can be reached at bfish@luce.com.