* Partner, Noble & Wickersham LLP, Cambridge, MA; Lecturer in Planning and Environmental Law, Harvard Graduate School of Design and Kennedy School of Government. J.D., Harvard Law School, 1994; M. Arch., Harvard Graduate School of Design, 1983; B.A., Yale University, 1978. Mr. Wickersham was Assistant Secretary of Environmental Affairs for the Commonwealth of Massachusetts and Director of the Massachusetts Environmental Policy Act (MEPA) Office from 1998 to 2002.
1 See Cape Wind Assocs., Project at a Glance, at http://www.capewind.org/index. htm (last visited Jan. 31, 2004) [hereinafter Cape Wind Assocs., Project at a Glance].
2 42 U.S.C. �� 4321–4347 (2000).
3 Mass. Gen. Laws ch. 30, �� 61–62H (2002).
4 Cape Wind Assocs., Project at a Glance, supra note 1.
5 Cape Wind Assocs., How Wind Turbines Work, at http://www.capewind.org/index.htm (last visited Jan. 31, 2004).
6 Save Our Sound, Frequently Asked Questions, at http://www.saveoursound.org/ faq.html (last visited Jan. 31, 2004) [hereinafter Save Our Sound, Frequently Asked Questions].
7 Mass. Executive Office of Envtl. Affairs, Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form, EOEA No. 12643 1 (2002), available at http://www.state.ma.us/envir/mepa/downloads/12643cert.doc (last visited Jan. 31, 2004) [hereinafter MEPA Scope].
8 Cape Wind Assocs., Project at a Glance, supra note 1.
9 Save Our Sound, Frequently Asked Questions, supra note 6.
10 Cape Wind Assocs., Project at a Glance, supra note 1.
11 Mass. Tech. Collaborative, Cape & Islands Offshore Wind Stakeholder Process, http://www.mtpc.org/offshore/index.htm (last visited Jan. 23, 2004).
12 Cape Wind Assocs., Project at a Glance, supra note 1.
13 Save Our Sound, Frequently Asked Questions, supra note 6. The project as originally described would have involved 170 turbines, each with a maximum generating capacity of 2.5 megawatts, and spread over a somewhat larger area. MEPA Scope, supra note 7, at 1.
14 See Mass. Regs. Code tit. 301, �� 11.01--.07 (2003); Cape Wind Assocs., Permitting Update, at http://www.capewind.org/index.htm (last visited Nov. 20, 2003).
15 See 42 U.S.C. �� 4321--4347 (2000); U.S. Army Corps of Eng’rs, Cape Wind Data Tower Permit Application Fact Sheet, at http://www.nae.usace.army.mil/projects/ ma/ccwf/farmfact.pdf (Oct. 20, 2003).
16 MEPA Scope, supra note 7 at 4--12. Although the project is located in federal waters, beyond the three-mile limit of state waters, state permits and therefore MEPA review are required for the installation of the cables on the seafloor. Id. at 2--3.
17 U.S. Army Corps of Eng’rs, Environmental Impact Statement Scope of Work, Wind Power Facility Proposed by Cape Wind Associates, LLC, June 2002, available at http://www.nae.usace.army.mil/projects/ma/ccwf/windscope.pdf (last visited Jan. 31, 2004) [hereinafter Corps Scope].
18 40 C.F.R. � 1502.9 (2003); Mass. Regs. Code tit. 301, � 11.08(8)(b) (2003).
19 40 C.F.R. � 1502.19; Mass. Regs. Code tit. 301, � 11.08(8)(c).
20 In addition to NEPA review, federal requirements include: a permit from the Corps under section 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. � 401–413, 33 C.F.R. � 323 ; review by the U.S. Fish and Wildlife Service under the Endangered Species Act, 16 U.S.C. �� 1531--1544, 50 C.F.R. � 17; review by the Federal Aviation Administration regarding air safety, 49 U.S.C. � 44718, 14 C.F.R. � 77; and review by the U.S. Coast Guard regarding navigational safety, 33 C.F.R. � 64. In addition to MEPA review, state requirements include approval by the Massachusetts Energy Facilities Siting Board under Mass. Gen. Laws ch. 164, � 69H (2002); a license from the Massachusetts Department of Environmental Protection (MDEP) under Mass. Gen. Laws ch. 91 and Mass. Regs. Code tit. 310, �� 9.01--.55 (codification of the public trust doctrine); a Water Quality Certificate by MDEP under section 401 of the federal Clean Water Act, 33 U.S.C. � 1341 and MDEP regulations, Mass. Regs. Code tit. 314, �� 9.01--.13; federal consistency review by the Massachusetts Office of Coastal Zone Management (MCZM) under the Coastal Zone Management Act, 16 U.S.C. � 1451--1456, MCZM regulations, Mass. Regs. Code tit. 301, �� 21.01--.12; and finally, review by the Massachusetts Department of Fisheries, Wildlife, and Environmental Law Enforcement, under the Massachusetts Endangered Species Act, Mass. Gen. Laws ch. 131A, Mass. Regs. Code tit. 321, � 8.00. Regional and local requirements include a Development of Regional Impact (DRI) permit from the Cape Cod Commission, pursuant to the Cape Cod Commission Act, 1989 Mass. Acts 716 and local Orders of Conditions from the Barnstable and Yarmouth Conservation Commission under the Massachusetts Wetlands Protection Act, Mass. Gen. Laws ch. 131, � 40, and Mass. Regs. Code tit. 310, �� 10.01--.58 (and hence Superseding Orders from MDEP if the local Orders are appealed).
21 Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 67 (D. Mass. 2003).
22 Id.; see also Save Our Sound, Frequently Asked Questions, supra note 6.
23 Letter from Thomas F. Reilly, Attorney General of Massachusetts, and William Delahunt, U.S. Congressman for the Tenth District of Massachusetts, to Mitt Romney, Governor of Massachusetts (Feb. 26, 2003) (on file with author).
24 Id.
25 Sen. Edward M. Kennedy, Create a National Wind Energy Policy, Cape Cod Times, Aug. 8, 2003, http://www.capecodonline.com/special/windfarm/myview8.htm (last visited Jan. 23, 2004).
26 Envtl. Sci. Servs., Cape Wind Project, at http://www.essgroup.com/cape_wind_ project.htm (last visited Nov. 20, 2003). An expanded Environmental Notification Form was completed for MEPA Review. Id.
27 Under the NEPA regulations issued by the Council on Environmental Quality, the federal scoping process has no minimum requirements for length or public hearings. 40 C.F.R. � 1501.7 (2003). The state scoping process under MEPA lasts only 30 days, unless the proponent consents to an extension, as Cape Wind did; there is a informal public consultation session, but no required formal hearing, Mass. Regs. Code tit., 301 � 11.06(2)--(3) (2003).
28 Interview with Arthur Pugsley, Environmental Analyst, MEPA Office (Sept. 25, 2003) (on file with author).
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 MEPA Scope, supra note 7, at 3. This approach helps satisfy the mandate of the federal Coastal Zone Management Act, which requires a finding by the state that a federal action, such as a Corps permit, is consistent to the maximum extent practicable with enforceable and federally-approved state policies for the coastal zone. 16 U.S.C. � 1456(c)(1)(A) (2000); Mass. Regs. Code tit. 301, �� 21.01--.12 (2003). For a more detailed discussion of federal consistency review and how it might affect offshore wind power projects, see Rusty Russell, Neither Out Far Nor In Deep: The Prospects for Utility-Scale Wind Power in the Coastal Zone, 31 B.C. Envtl. Affairs L. Rev. 221 (2004).
35 MEPA Scope, supra note 7.
36 Corps Scope, supra note 17.
37 See http://www.capecodonline.com/special/windfarm/index.htm (last visited Nov. 20, 2003).
38 Id.
39 See, e.g., Elinor Burkett, A Mighty Wind, N.Y. Times, June 15, 2003, � 6 (Magazine) at 48; A Tempest off Nantucket, The Economist, Sept. 13, 2003, at 30.
40 See H.R. 5156, 107th Cong. (2002) (Cubin Bill).
41 42 U.S.C. �� 4321--4347 (2000); Mass. Regs. Code tit. 301, �� 11.01--.17 (2003).
42 42 U.S.C. � 4332; Mass Regs. Code tit. 301, � 11.08.
43 See 42 U.S.C. � 4321; Mass Regs. Code tit. 301, � 11.01.
44 427 U.S. 390 (1976).
45 Id. at 395.
46 Id. at 394–96.
47 Id. at 394.
48 Id. at 399.
49 Id. at 399; see 40 C.F.R. � 1502.4(a) (2003) (“Proposals . . . which are related to each other closely enough to be, in effect, a single course of action shall be evaluated in a single impact statement.”).
50 40 C.F.R. � 1508.28. The MEPA Regulations contain comparable provisions allowing for special review procedures, with the consent of the proponent. Mass. Regs. Code tit. 301, � 11.09(1) (2003).
51 Churchill County v. Norton, 276 F.3d 1060, 1071, 1079 (9th Cir. 2001).
52 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 67 (D. Mass. 2003).
53 See Kleppe, 427 U.S. at 402.
54 Id. at 409–10; Churchill County, 276 F.3d at 1074–75.
55 See Hanley v. Kleindienst, 471 F.2d 823, 830–31 (2d Cir. 1972); 40 C.F.R. �� 1501.7, 1508.25(a)(2) (cumulative impacts review under NEPA); Mass. Regs. Code tit. 301, � 11.07(6)(h) (cumulative impacts review under MEPA).
56 See, e.g., John Leaning, Reilly Targets Wind Farm ‘Gold Rush,’ Cape Cod Times, Oct. 18, 2002, http://www.capecodonline.com/special/windfarm/reillytargets18.htm (last visited Jan. 23, 2004).
57 As of this writing, the Corps had closed the review of all but one of a series of wind farm projects proposed in Massachusetts waters by another company, Winergy, because the proponent had failed to provide the minimum information on its plans. John Leaning, Winergy Tower Bid Tabled After Missed Deadline, Cape Cod Times, Oct. 4, 2003, http://www.capecodonline.com/special/windfarm/winergytower4.htm (last visited Jan. 24, 2003).
58 For recent examples of MEPA reviews through the Massachusetts Executive Office of Environmental Affiars (EOEA) that established new policy, see EOEA No. 12083 (review of Fan Pier development on South Boston waterfront established precedents for review of cumulative transportation impacts and standards for state approval of municipal harbor plans); EOEA Nos. 3247/5146 and 10458 (review of Logan Airport expansion gave rise to first-in-the-nation cap on total NOx emissions at airport); and EOEA No. 5834 (review of National Guard training at Massachusetts Military Reservation on Cape Cod led to legislation establishing new state environmental commission charged with oversight of military training as set forth in Memorandum of Understanding with U.S. Department of Army). Available at, http://www.state.ma.us/envir/mepa/secondlevelpages/recentdecisions.htm (last visited Jan. 24, 2003).
59 SEC v. Chenery Corp., 332 U.S. 194, 202 (1947). On similar grounds, appellate courts frequently wait until several lower courts have tackled an issue before issuing a ruling that will have broad precedential effect upon future policy.
60 Beth Daly, Wind Farm Faces New Challenge; No Formal Position on Cape Wind Farm, Boston Globe, July 25, 2003, at C24.
61 “[Compliance with NEPA] ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts; it also guarantees that the relevant information will be made available to the larger public audience.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). “NEPA’s dual mission is thus to generate federal attention to environmental concerns and to reveal that federal consideration for public scrutiny.” Found. on Econ. Trends v. Heckler, 756 F.2d 143, 147 (D.C. Cir. 1985).
62 See sources cited supra notes 21--25. Project opponents have argued in particular that the review should be stayed because the proponent cannot show any possessory interest in federal waters in the absence of a statutory system of leasing renewable energy sites. A U.S. District Court rejected this argument in a recent challenge to the Corps permitting of Cape Wind’s test tower. Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 78–79 (D. Mass. 2003). As the court noted, the Corps regulations under the Rivers and Harbors Act are “a part of a scheme designed to keep the Corps out of property disputes.” Id. at 77. Even if a leasing scheme were ultimately imposed that rendered the Cape Wind review moot, no environmental harm would have been imposed; quite to the contrary, Cape Wind has arguably conferred a public benefit by proceeding at risk with what amounts to a privately-funded research effort into the full range of environmental issues arising from offshore wind power.
63 See Mass. Office of Coastal Zone Mgmt., Environmental Affairs Secretary Charge to the Massachusetts Ocean Management Task Force, at http://www.state. ma.us/czm/omitaskforcecharge.htm (last visited Dec. 4, 2003). In December, 2003, the Task Force issued draft principles and preliminary recommendations for public comment, which are available at http://www.state.ma.us/czm/oceanmgtinitiative.htm (last visited Jan. 24, 2004).
64 See Greg Watson & Fara Courtney, Nantucket Sound Offshore Wind Stakeholder Process 31 B.C. Envtl. Aff. L. Rev. 263, 271–73 (2004); see also Mass. Ocean Mgmt. Task Force, Preliminary Recommendation #1, supra note 63 (recommending that the Secretary of Environmental Affairs introduce legislation for Ocean Resource Management Act, including creation of ocean resource management plans).
65 See infra notes 69–74 and accompanying text.
66 Richard F. Babcock, The Zoning Game 5 (1966); Seymour I. Toll, Zoned American 3 (1969).
67 See Babcock, supra note 66, at 3.
68 See id. at 68–69.
69 Id. at 143.
70 See Babcock, supra note 66, at 3--6; Toll, supra note 66, at 188–94.
71 See, e.g., Bell v. City of Elkhorn, 364 N.W.2d 144, 148 (Wis. 1985) (holding no comprehensive plan was needed to guide a planning commission’s zoning laws); Connor v. Township of Chanhassen, 81 N.W.2d 789, 796--97 (Minn. 1957) (invalidating a zoning ordinance not as inconsistent with the comprehensive plan, but as an impermissible taking). See generally Charles M. Haar, In Accordance with a Comprehensive Plan, 68 Harv. L. Rev. 1154 (1954).
72 Toll, supra note 66, at 303; Haar, supra note 71, at 1156.
73 A 1998 survey identified 26 states as giving legal weight to land use plans in zoning decisions. 1 Edward H. Ziegler, Jr. et al., Rathkopf’s The Law of Zoning and Planning � 12:11 to :17 (4th ed. 1998). For Massachusetts, see Town of Granby v. Landry, 170 N.E.2d 364, 367--68 (Mass. 1960) (upholding a zoning ordinance absent a comprehensive plan).
74 3 Ziegler, supra note 73, at � 36:20; Charles M. Haar, The Master Plan: An Impermanent Constitution, 20 Law & Contemp. Probs. 353, 365–66 (1955).
75 See Babcock, supra note 66, at 126.
76 Id. at 127--30.
77 Id. at 127.
78 Id.
79 Id. at 128–30.
80 Id.
81 See Jane Jacobs, The Death and Life of Great American Cities 152–77, 234–49 (1961); Jay Wickersham, Jane Jacobs’s Critique of Zoning: From Euclid to Portland and Beyond, 28 B.C. Envtl. Aff. L. Rev. 547, 550--51, 553 (2001).
82 See discussion infra Part III.
83 See Babcock, supra note 66, at 128–30; see also APT Pittsburgh Ltd. P’ship v. Penn Township, 196 F.3d 469, 476–77 (3d. Cir. 1999).
84 See Babcock, supra note 66, at 6 (“The primary, if not exclusive, purpose in the 1920’s was to protect the single family district . . . .”).
85 Id. at 3.
86 See id. at 6.
87 See id. at 15–16. Babcock wrote The Zoning Game before the famous Mt. Laurel decision. S. Burlington County NAACP v. Mt. Laurel Township, 336 A.2d 713 (N.J. 1975).
88 See generally Symposium, Twists in the Path from Mt. Laurel, 30 B.C. Envtl. Aff. L. Rev. 433 (2003).
89 See generally id.
90 See Matthews v. Bay Head Improvement Ass’n, 471 A.2d 335, 358 (N.J. 1984).
91 See id. (citing Borough of Neptune City v. Borough of Avon-by-the-Sea, 294 A.2d 47, 54 (N.J. 1972)).
92 See Pam Belluck, A Wind Power Plan Stirs Debate in Massachusetts, N.Y. Times, Mar. 2, 2003, � 5 at 3.
93 See Matthews, 471 A.2d at 358; In re Op. of the Justices, 313 N.E.2d 561, 565 (Mass. 1974).
94 See In re Op. of the Justices, 313 N.E.2d at 565.
95 See Dep’t of Conservation & Recreation, Div. of State Parks & Recreation, MassParks, at http://www.state.ma.us/dem/listing.htm (last visited Dec. 5, 2003) (listing Massachusetts’s state parks).
96 33 C.F.R. � 329.12(a) (2003).
97 Mass. Gen. Laws ch. 91, �� 1, 18 (2002); Mass. Regs. Code tit. 310, � 9.03(2) (2003).
98 On the potential of wind power to redress the disparate environmental impacts of fossil-fuel pollution sources upon minority and low-income communities, see Dorothy Bisbee, NEPA Review of Offshore Wind Farms: Ensuring Emission Reduction Benefits Outweigh Visual Impacts, 31 B.C. Envtl. Aff. L. Rev. 349 (2004).
99 See id. at 353–58.
100 See id.
101 Id. at 360–367.
102 See Mass. Gen. Laws ch. 25A, � 11F.
103 Id.
104 See Stephen H. Burrington, Global Warming, Energy, and Cape Cod, Cape Codder, Oct. 17, 2002, http://www.clf.org/hot/global_warming_energy_and_cape_cod.htm (last visited Jan. 25, 2004).
105 Under the renewable portfolio standard, the annual need for energy from new renewables after 2010 is estimated at 1968 Gigawatt-hours (Gwh). Mass. Div. of Energy Resources, Policy Analysis, Tbl. 1, http://www.state.ma.us/doer/programs/renew/ rps.htm (last visited Jan. 25, 2004). Cape Wind’s annual output is estimated at 1491 Gwh. Cape Wind Assocs., Project at a Glance, supra note 1.
106 See Comm. on the Env’t & The Northeast Int’l Comm. on Energy, Conference of New Eng. Governors & E. Can. Premiers, Climate Change Action Plan 2001 (Aug. 2001), http://www.negc.org/documents/NEG-ECP CCAP.pdf (last visited Dec. 5, 2003) [hereinafter Climate Change Action Plan 2001].
107 Id. at 7.
108 Thomas M. McDevitt, U.S. Dep’t of Commerce, World Population Profile: 1998 A-8 (1998) (5.334 million).
109 U.S. Census Bureau, U.S. Dep’t of Commerce, Massachusetts: 2000 tbl. 1 (2002) (6.349 million).
110 See Russell, supra note 34, at 230.
111Id. Great Britain is currently planning to supply up to 20% of its energy needs from wind power. Id.
112 See id.
113 Bureau of European & Eurasion Affairs, U.S. Dep’t of State, Background Note: Denmark (2003) (16,640 square miles).
114 Census Bureau, supra note 109, at tbl. 15 (7840 square miles).
115 The analysis of project alternatives for Cape Wind under NEPA and MEPA can help inform the understanding of large-scale planning issues that affect the siting of offshore wind power. The NEPA and MEPA scopes call for two levels of alternatives analysis. First, there is a screening analysis of potential sites, both on land and water, throughout Massachusetts and New England, to be followed by full-blown analysis of a limited number of sites. Corps Scope, supra note 17, at 2–3; MEPA Scope, supra note 7, at 17. The Corps has released a report by an independent Peer Review Committee, confirming appropriate screening criteria, including minimum project capacity, wind speeds, wave heights, available land or water area, and access to transmission lines. Peer Review Comm., Technical Review of Preliminary Screening Criteria for the Cape Wind EIS (2003), http:// www.nae.usace.army.mil/projects/ma/ccwf/prccomments.pdf (last visited Dec. 5, 2003). Following review of that report, the Corps has now specified that the EIS must include a full-blown alternatives analysis for five water-based and one land-based site: three in Nantucket Sound, one in the open ocean south of Nantucket, one combining turbines in Nantucket Sound and New Bedford Harbor, and one on land at the Massachusetts Military Reservation in Cape Cod. John Leaning, Corps Considers Six Sites for Wind Farm, Cape Cod Times, Oct. 28, 2003, available at http://www.capecodonline.com/special/windfarm/ corpsconsiders28.htm (last visited Dec. 5, 2003); see also U.S. Army Corps of Eng’rs, Public Information Meeting 23–27 (Oct. 29, 2003), http://www.nae.usace.army.mil/projects/ma/ccwf/10-29-briefing.pdf (last visited Dec. 5, 2003) (slide presentation).
116 See Corps Scope, supra note 17, at 2–3.
117 See Climate Change Action Plan 2001, supra note 106, at 16.
118 See Corps Scope, supra note 17, at 2–3; see also supra text accompanying note 38.
119 See Roderick Nash, Wilderness and the American Mind ch. 9 (3d ed. 1982).
120 Eric Williams, Reilly Says Sound Is “Our Grand Canyon,” Cape Cod Times, Apr. 12, 2003, http://www.capecodonline.com/special/windfarm/reillysays12.htm (last visited Dec. 5, 2003).
121 Belluck, supra note 92, � 5, at 3.
122 John Leaning, Historian David McCullough Denounces Wind Farm, Cape Cod Times, July 25, 2003, http://www.capecodonline.com/special/windfarm/historiandavid25.htm (last visited Dec. 5, 2003). It is worth noting that virtually the entire outer arm of Cape Cod has already received permanent federal open space protection, through the creation of the Cape Cod National Seashore and the Monomoy National Wildlife Refuge. See 16 U.S.C. � 459b (2000) (Cape Cod National Seashore); 16 U.S.C. � 1132 (Monomay National Wildlife Refuge).
123See Nash, supra note 119, at 122, 156–60.
124 Jack Coleman, Progress Slow on Sound Proposal, Cape Cod Times, Aug. 12, 2003, http://www.capecodonline.com/special/windfarm/progressslow12.htm (last visited Feb. 12, 2004).
125 Mass. Gen. Laws ch. 132A, � 15 (2002).
126 See Coleman, supra note 107. Stellwagon Bank, between Cape Ann and the northern tip of Cape Cod, was designated a federal marine sanctuary in 1992. Oceans Act of 1992, Pub. L. No. 102-587 106 Stat. 5039 (codified at 16 U.S.C. � 1431).
127 See Nash, supra note 119, chs. 3–9.
128 William Cronon, The Trouble with Wilderness, in Uncommon Ground 69–90 (William Cronon ed., 1995).
129 See id.
130 Michael Pollan, Second Nature 179–80, 186–87 (1991).
131 See id. at 186–88.
132 Id. (“The reason is not hard to find: the only environmental ethic we have has nothing useful to say about those areas outside the lines.”).
133 See supra notes 92--98 and accompanying text.
134 Bisbee, supra note 98, at 369–73. Courts have limited the importance of aesthetic impacts in NEPA review, relative to physical impacts on the environment. See River Rd. Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 451 (7th Cir. 1985); Md. Nat’l Capital Park & Planning Comm’n v. U.S. Postal Serv., 487 F.2d 1029, 1038–39 (D.C. Cir. 1973). See generally, Bisbee, supra note 98, at 370–73.
135 See John J. Costonis, Icons and Aliens 16–19 (1989).
136 Id. at 46, 51.
137 Id. at 55–57.
138 Id. at 62–65.
139 Norma Evenson, Paris: A Century of Change, 1878-1978, at 131 (1979) (“This Committee of Three Hundred (one for each proposed meter of the tower) provided certain historians of the modern movement with a classic example of unenlightened reaction. Included in its membership were Bouguereau, Charles Gounod, Massenet, Alexandre Dumas, Sully Prudhomme, J.L.E. Meissonier, J.A.E. Vaudremer, and Charles Garnier.”).
140 Id. at 132 (quoting Comm. of Three Hundred, Au Jour le Jour, Le Temps, Feb. 14, 1887, at 2–3).
141 See id.
142 More than 200 million people have visited the Eiffel Tower since its construction. The Official Site of the Eiffel Tower, Facts & Figures, at http://www.tour-eiffel.fr/ teiffel/uk/documentation/chiffres/index.htm (last visited Dec. 5, 2003).
143 See Charles Sennott, Denmark’s Windmills Flourish as Cape Cod Project Stalls, Boston Globe, Sept. 27, 2003, at A1.
144 See Leaning, supra note 122. Note how the use by project opponents of terms such as “factory” or “industrial” structures misleadingly imply that wind turbines are somehow spewing pollutants into the environment, like a fossil-fueled factory or powerplant. See id.
145 Bill McKibben, The End of Nature (1999).
146 Bill McKibben, Enough: Staying Human in an Engineered Age 115 (2003).
147 See Pollan, supra note 130, at 188 (“[T]he wilderness ethic can’t make distinctions between one kind of intervention in nature and another---between weeding Cathedral Pines and developing a theme park there.”); Cronon, supra note 128, at 83.
148 Cronon, supra note 128, at 87 (citing This Is Dinosaur: Echo Park Country and Its Magic Rivers 17 (Wallace Stegner ed., 1955)).
149 Countless data support the theory of global warming. See, e.g., Gale E. Christianson, Greenhouse: The 200-Year Story of Global Warming (1999) (examining social, historical, and scientific data in support of the theory). Federal policies in response to the issue remain uncertain. See James Sterngold, State Officials Ask Bush to Act on Global Warming, N.Y. Times, July 17, 2002, at A2. For regional policies in New England, see Climate Change Action Plan 2001, supra note 106.
150 A broad scientific consensus supports the causal link between industrial uses of fossil fuel, rising atmospheric concentrations of carbon dioxide and other greenhouse gases, and global trends of warming temperatures and other climate changes. See generally Christianson, supra note 149.
151 IPCC Working Group I, Intergovernmental Panel on Climate Change, Climate Change 2001: The Scientific Basis, Summary for Policymakers 12–17 (2001), http://www.ipcc.ch/index.htm (last visited Jan. 25, 2004).
152 James Gorman, Scientists Predict Widespread Extinction by Global Warming, N.Y. Times, Jan. 8, 2004, at A4.
153 U.S. Global Change Research Project, The New England Regional Assessment of The Potential Consequences of Climate Variability and Change 42, 57, 66–67 (March 2002).
154 Id. at 51, 98--104.
155 See Climate Change Action Plan 2001, supra note 106, at 4–5.
156 See NEPA, 42 U.S.C. �� 4321--4347 (2000); MEPA, Mass. Gen. Laws ch. 30, �� 61–62H (2002).
157 See 40 C.F.R. �� 1502.14(f), 1502.16(h), 1505.2(c), 1505.3 (2003) (requirements to study, monitor, and enforce mitigation measures in NEPA process); Mass. Regs. Code tit. 301, � 11.12(5)(a) (2003) (requirement that proponents shall minimize and mitigate damage to environment to maximum extent practicable in MEPA process).
158 MEPA Scope, supra note 7, at 5–6.
159 See id.
160 Bisbee, supra note 98, at 358–67.
161 See, e.g., Model Land Dev. Code � 7-301(4) (1975) (providing that the state can override a municipality’s disapproval of “development of regional benefit”).
162 See id.
163 See id.; Fla. Stat. ch. 380.06(3) (2003) (similar statute); Wash. Rev. Code Ann. � 36.70A.200(2) (West 2003) (local land use plans and regulations cannot veto “essential public facilities”); James H. Wickersham, The Quiet Revolution Continues: The Emerging New Model for State Growth Management Statutes, 18 Harv. Envtl. L. Rev. 489, 521–22, 544–45 (1994). As Bisbee points out, NEPA’s mandate includes positive actions to “enhance the quality of renewable resources” and to “promote the improvement of environmental quality.” See Bisbee, supra note 98, at 353, 356 (citing 42 U.S.C. �� 4331(b), 4344 (2000)).
164 On the historical relationship between shifts in the Massachusetts economy and its impacts on the environment, see Mass. Executive Office of Envtl. Affairs, The State of Our Environment 6--20 (2000).
165 For early analysis of the environmental impacts of consumer spending, see generally Rachel Carson, Silent Spring (1994 ed.).