[*PG325]SACRED LANDSCAPES AND PROFANE STRUCTURES: HOW OFFSHORE WIND POWER CHALLENGES THE ENVIRONMENTAL IMPACT
REVIEW PROCESS
Abstract: The review of the 420-megawatt Cape Wind project proposed for Nantucket Sound, being conducted under the National Environmental Policy Act (NEPA) and the Massachusetts Environmental Policy Act (MEPA), challenges existing environmental review laws and programs. First, the review shows how NEPA and MEPA can provide a forum for crystallizing government policy; here, on siting and reviewing offshore wind power projects. Second, the review raises concerns that in creating a system of planning and regulating the ocean, we might zone out renewable energy projects, the way we have allowed affordable housing and other social needs to be zoned out of the land. Finally, the Cape Wind review dramatizes how our cult of wilderness, with is presumption that human actions always harm the natural environment, can impede the development of a truly sustainable approach to environmental law and policy.
The 420-megawatt Cape Wind Associates project proposed for Nantucket Sound would be, if constructed, the first major offshore wind power facility in the United States, and one of the largest in the world.1 The review of this project under the National Environmental Policy Act (NEPA)2 and the Massachusetts Environmental Policy Act [*PG326](MEPA)3 is ongoing, and any conclusions on its outcome would be premature. Nevertheless, I would like to respond to three issues that the review has raised:
(1)Is the Cape Wind project ripe for review under NEPA and MEPA, or should we stay the process until a broader planning and policy context has been established? I argue that the NEPA/MEPA review is fulfilling its goal of open and informed government decisionmaking, and that it shows how individual project reviews can provide a forum for making new policy.
(2)Should we explore the development of a system of planning and regulating the ocean? My answer is a qualified yes; I urge caution, based on what we can learn from our mistakes in zoning the land.
(3)What has the review revealed about the unstated assumptions that underlie opposition to the project? I argue that the Cape Wind review dramatizes the ways in which our cult of wilderness, accompanied by the presumption that human actions must always harm the natural environment, may impede the development of a truly sustainable approach to environmental law and policy.
As currently proposed, the Cape Wind project would consist of 130 offshore wind turbine units, generating up to 420 megawatts of electrical power.4 Each turbine would be mounted at the top of a tubular steel tower, at a height of 262 feet above mean sea level.5 The turbines would be powered by three vanes, each 164 feet in length.6 The maximum height of each unit when a vane is extended directly upward would be 426 feet—-approximately the height of a thirty-story office tower.7
[*PG327] The towers would be spaced on a grid approximately one-half mile apart.8 The location is a twenty-four square mile area of shallow water at the center of Nantucket Sound, outside of the shipping channels, known as Horseshoe Shoal.9 Electrical cables laid on the seabed would connect the towers to one another and to the onshore electrical grid in Cape Cod.10 At the nearest points to land, the towers would be located over four miles from Point Gammon in Yarmouth, Cape Cod, over eight miles from Edgartown on Martha’s Vineyard, and thirteen miles from Nantucket.11 The total power generation of the project at its peak would be 420 megawatts.12 Average generation, based on wind speeds over the course of the year, is estimated to be 170 megawatts.13
In November, 2001, the proponent, Cape Wind Associates, filed an Environmental Notification Form with the MEPA Office14 and a permit application with the New England District of the U.S. Army Corps of Engineers (Corps), the lead federal agency for review under NEPA.15 After a coordinated six-month scoping process that involved over a dozen federal, state, and regional agencies, in April, 2002, the MEPA Office issued the scope for the Environmental Impact Report (EIR) to be submitted and reviewed under MEPA.16 In June, 2002, the Corps issued its own scope, which incorporated the MEPA scope by reference, for the Environmental Impact Statement (EIS) to be submitted and reviewed under NEPA.17
[*PG328] The draft of the joint EIS/EIR has not yet been submitted to the agencies. Following the public comment period for the draft EIS/EIR, both the Corps and the Massachusetts Secretary of Environmental Affairs must find the document adequate.18 After findings of adequacy, the final EIS/EIR will be prepared, submitted, and reviewed.19 Once that document is found adequate, the project moves on to the permitting stage. The project will require up to seventeen different federal, state, regional, and local permits and approvals, each with its own standards, procedures, and opportunity for appeal.20
Project opponents have argued that the NEPA/MEPA review process should be stayed because opportunities for public involvement have been lacking, because the review has been purely federal without adequate state involvement, and because the review will not produce adequate information.21 The principal organized opposition group, the Alliance to Protect Nantucket Sound (the Alliance), has taken the posi[*PG329]tion that the review should be halted because “the regulatory process to govern [the placement of offshore wind power] does not exist” and because the regulatory process to date has not been adequate or impartial.22 Elected officials have voiced similar views. In a joint letter to Massachusetts Governor Mitt Romney dated February 26, 2003, Massachusetts Attorney General William Reilly and Congressman William Delahunt called the NEPA process “a limited review” that was “woefully inadequate to address the many environmental, economic and public policy concerns” raised by the project.23 They also wrote that the process “did not even begin to address the state interest in the appropriate use of one of the Commonwealth’s most precious natural resources.”24 Senator Edward Kennedy, in a letter to the Cape Cod Times in August, wrote that although the project needed to receive “enough state and federal scrutiny to justify its going forward, . . . so far . . . Cape Wind hasn’t met that test, and I doubt they ever will.”25
In response, let us review the process so far. The initial ENF filed for the Cape Wind project was longer and more detailed than many EIR/EIS submittals.26 The NEPA/MEPA scoping process lasted seven months, from the filing of the ENF to the issuance of the Corps scope.27 During that time, the federal and state agencies jointly hosted six public hearings and held two oceanic site visits.28 Hundreds of people spoke at the public hearings.29 The agencies received thousands of written comments; more than once the MEPA analyst for the project re[*PG330]ceived so many email comments that his electronic mailbox was shut down.30
During the scoping process, a dozen or more federal, state, and regional agencies—most of which will ultimately issue permits on the project—met on a weekly basis to discuss the contents of the scope.31 Federal agencies involved in the scoping included the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service.32 State and regional agencies included the Massachusetts Department of Environmental Protection, the Massachusetts Department of Environmental Management (now the Department of Conservation and Recreation), the Massachusetts Department of Fisheries, Wildlife and Environmental Law Enforcement, the Massachusetts Office of Coastal Zone Management, the Energy Facilities Siting Board, and the Cape Cod Commission.33 The agencies took the collective position, reflected in the MEPA and Corps scopes, that a unified set of federal and state documents should examine the full range of project impacts, without regard for questions of territorial or subject matter jurisdiction.34 As further evidence of the level of state involvement, the MEPA Office issued the initial scope for the state-level Environmental Impact Report (EIR) in April 2002.35 The Corps then incorporated the MEPA scope by reference as the basis for the federal Environmental Impact Statement (EIS) as well, while requiring certain elements to be added to the document.36
The NEPA/MEPA review process has served to draw broad public attention to the project, extending well beyond those who commented directly. The Cape Cod Times maintains a website devoted solely to the project.37 On that website are key government documents, including [*PG331]the NEPA and MEPA scopes, an archive of the paper’s articles going back over the past two years, and links to many other sites, including those of the proponent and the Alliance.38 The project has attracted national and international press coverage.39 Finally, it has sparked a variety of proposals for legislative and executive action at both the state and federal level.40
All of this participation by permitting agencies and the public has occurred just to develop the scope of the EIS/EIR.41 The process of actually reviewing the documents,42 which will undoubtedly be even more intense, has not even begun. This has not been a “limited” or “inadequate” review; in my experience, the review process for the Cape Wind project is the best recent example in Massachusetts of a NEPA/MEPA review that has fulfilled its core functions of public input and informed agency decisionmaking.43
But even if there is a process of informed decisionmaking at work, are we making the right decision? Do NEPA or MEPA require the development of an overarching federal or state policy for offshore wind development, or of a framework for the comprehensive planning and zoning of ocean resources, before agencies make individual decisions on the Cape Wind project?
The Supreme Court squarely addressed this issue in 1976, in Kleppe v. Sierra Club.44 The Department of the Interior proposed to grant four individual coal leases in Montana and Wyoming.45 Several environmental organizations sued, seeking to halt the leases until the Department had prepared a comprehensive EIS examining the impacts of coal leasing across the Northern Great Plans region, a large area encompassing portions of four states.46 The Court overturned a decision by the District of Columbia Circuit and permitted the individual coal leases to proceed.47
The Kleppe Court’s decision identified the two circumstances in which a broad-scale comprehensive or programmatic EIS might be [*PG332]required.48 First, an agency must prepare an EIS if it is undertaking a coherent plan or program, amounting to a major federal action, that requires NEPA review.49 If an agency decides that there is a plan or program that requires an EIS, it may employ the process known as tiering, in which it prepares an EIS for a program, plan, or policy to be followed by narrower, site-specific reviews.50 Nevertheless, the decision on whether or not there is a broad program or action that requires NEPA review is at the discretion of the agency, subject only to deferential judicial review under the “arbitrary and capricious” standard.51 In the case of Cape Wind, it is clear that the Corps has not undertaken any plan or program of seeking to permit wind farms in the coastal zone; the agency is purely reacting to private proposals that require permits.52 In these circumstances, the agency’s decision not to prepare a programmatic EIS at this time is fully defensible.53
Even if an agency has not undertaken a plan or program, a broader, comprehensive EIS may be required if it is faced with multiple site-specific proposals for federal action within the same region that might pose cumulative impacts.54 Both the CEQ and the MEPA regulations require that individual project reviews address cumulative impacts caused by other existing and proposed activities.55 Critics of the current NEPA process have raised fears of a “gold rush” of private wind farm developments with just such cumulative impacts.56 These fears appear to have been overstated, however; two years after the [*PG333]Cape Wind review began, it remains the only viable proposal in all of New England.57
The Cape Wind process shows how the reviews of individual projects under NEPA/MEPA can actually serve to crystallize policy in this new and important arena.58 It is a settled principle of administrative law that an agency may make policy through individual decisions, as well as through the adoption of plans or regulations.59 The Cape Wind review is teaching us more about the scientific, economic, legal, and political questions raised by offshore wind power than any expert commission could have done. No one can claim that there has been a lack of public debate on the issues; in fact, the review has brought the issues to the attention of the legislative and the executive branches, at both the state and federal level, giving these branches ample time to insert themselves through new legislation or regulations, if they so choose.60 The NEPA/MEPA process has served its desired role of opening up government decisionmaking to public scrutiny and of ensuring the consideration of environmental issues in those decisions.61 In this way the [*PG334]review can help guide us to an outcome that establishes valuable precedent and policy for future wind power projects.
In calling for a stay on the NEPA/MEPA review of the Cape Wind project, opponents have called for the comprehensive planning and zoning of ocean resources.62 In June, 2003, the Massachusetts Executive Office of Environmental Affairs created a twenty-three-member Ocean Management Task Force, charged with developing “principles to guide statewide planning and governance efforts for ocean resources.”63 Regardless of whether the Cape Wind review is stayed, I believe that all parties would support a more thoughtful and comprehensive approach to the management of the ocean in order to provide a context for the review of future projects.64 But I want to offer some cautions on the full scope of what such a policy framework should encompass.
The concept of planning and zoning ocean resources arises from an analogy to the land.65 Local zoning of land uses is the most longstanding, and most pervasive, form of governmental regulation of the [*PG335]land in this country, dating back to the early twentieth century.66 Zoning not only predates our modern environmental laws; it also springs from very different political, social, and legal roots.67 If we are going to talk about zoning the ocean, we need to acknowledge and confront that legacy—and in particular, its heritage of exclusion.68
Zoning, as it historically has been conducted in the United States, has been regulation without planning.69 Zoning was a fad that swept the country in the 1920s, along with the Charleston, the bob haircut, and prohibition gin.70 But legal fads last longer than dances and hairstyles. From the start, local zoning codes were adopted in a thoroughly ad hoc manner, without reliance on technical plans and studies or professional expertise.71 Ever since, scholars of zoning have contended that local codes should be made consistent with a local comprehensive plan, as the original Standard State Zoning Enabling Act would have required.72 Today, the majority of states—though not Massachusetts—have enacted the planning consistency standard.73 By requiring that zoning be consistent with a local comprehensive plan, the planning consistency standard seeks to ground zoning in solid technical studies, and to provide a greater degree of predictability in project decisions.74 Similar principles should apply to the ocean. Thus, at a minimum, we should delay any rush to create a system of ocean zoning until we have finished the hard work of planning: gathering technical data and developing management strategies that will balance the full range of public goals.
[*PG336] Second, conventional zoning has imposed a rigid separation of uses, discouraging the complex interplay of activities that characterizes both human and natural communities.75 Most zoning codes, starting in the 1920s, have used a system of cumulative use districts.76 Under a cumulative system, residential districts are the most restrictive.77 Within commercial and then industrial districts, more allowable uses are added in each district.78 More recently, zoning codes have turned to exclusive use districts.79 Under the exclusive use system, commercial and industrial zones, like residential, are limited to that particular set of uses.80 On land, the result has been an ever greater sorting out and separation of uses, as opposed to a more fine-grained mixing of different activities.81 Even more than the land, which is a patchwork of private landholdings and activities, Nantucket Sound and other Massachusetts waters have historically supported a wide range of overlapping activities: from steamships to rowboats and from commercial fishing to birdwatching. Without careful attention to these issues, we run the risk of creating a regulatory system that would homogenize and impoverish the ways in which we use and enjoy the ocean in the future.82
Thoughtful ocean planning could also redress the third and most flagrant flaw of land zoning: its heritage of exclusion.83 Zoning did not sweep the country in the 1920s because of the desire to protect the environment or to provide an orderly public planning process for community growth.84 As Richard Babcock wrote in his classic study, The Zoning Game: “zoning has provided the device for protecting the homogeneous, single-family suburb from the city.”85 To generalize the problem more broadly, zoning has empowered wealthy communities to exclude activities and uses that benefit society as a whole.86 Once [*PG337]the legal barriers of exclusion have been erected, it is very hard to tear them down.87 Just last fall, the Boston College Law School hosted a symposium on affordable housing.88 There, speakers described the national efforts since the 1970s to undo the exclusionary effects of zoning the land, and the limited success of those efforts.89
How can we avoid recreating the same problem of exclusion on the water? We need to look more closely at the question of public rights versus private rights in the ocean.90 This is where the analogy to land zoning becomes questionable. Let us start on the beaches, where public rights, in the form of the public trust doctrine, lap at the land.91 Much of the opposition to the Cape Wind project derives from the argument of protecting views from the shoreline.92 In almost every other state, the public trust doctrine imposes a public easement upon privately owned beaches, securing for the public the right to enjoy the use of those beaches up to the high-tide mark.93 Only in Massachusetts and Maine, thanks to colonial ordinances passed in 1641 and 1647, has the right of public access been limited to the low-tide mark94—effectively putting up a “No Trespassing” sign on the sand.
So if one of the goals of an ocean management system were defined as protecting public views, one might make a plausible argument for more protective visual buffer zones around federal- and state-designated beaches, where there is a right of public access—for example, the Cape Cod National Seashore, Monomoy National Wildlife Refuge, and certain state parks and reserves.95 But as for the rest of the shoreline, the question remains: why should the Commonwealth of Massachusetts protect views from beaches that Massachusetts citizens are not allowed to walk on?
[*PG338] Now let us venture out into deeper waters. The Massachusetts territorial waters extend three miles from the coast.96 Beyond the low-tide mark, those waters are defined under the public trust, as codified by statute and regulation, as “Commonwealth tidelands,” in which private rights can only be created through the grant of a license by the commonwealth.97 If these waters are held in trust for all citizens of Massachusetts, then all citizens of Massachusetts should have an equal say in their use. This is the key to overcoming the legacy of exclusion that has haunted land zoning. The owner of a beachfront house in Hyannis or Edgartown or Nantucket should have no more say in decisions over Nantucket Sound than a citizen of Boston, or Worcester, or the Berkshires—or a citizen of Salem or Fall River, who lives downwind from a polluting fossil-fuel powerplant.98
Finally, if we are to review the Cape Wind project within a broader policy and planning context, we should not confine ourselves to the ocean. Any NEPA and MEPA review of an offshore wind power project, and any regime of planning and regulating ocean resources, should take into account the full range of environmental policy goals.99 In particular, ocean management policies should advance, and not frustrate, environmental policies for air quality and climate change.100 Dorothy Bisbee’s article analyzes in detail how wind power reduces air pollution and greenhouse gas emissions.101 I want to emphasize the numerical targets set by the Massachusetts legislative and executive branches to realize those benefits.
In 1997, as part of the deregulation of its electrical industry, Massachusetts introduced a requirement that all electric providers must incorporate renewable sources of power into their portfolios.102 The renewable energy portfolio standard must reach 5% by 2010, and it must increase 1% each year thereafter.103 Given the commonwealth’s relatively flat topography, cloudy weather, and windy coastline, wind [*PG339]power is currently the only feasible internal source of large-scale renewable power generation.104 If Massachusetts suppliers are to satisfy this statutory requirement from facilities within the state, Massachusetts will need to construct six renewable energy projects larger than Cape Wind by 2010, and one per year after that date.105
How long would Massachusetts need to continue building wind power facilities of this scale? Let us look at the commonwealth’s commitment to restraining greenhouse gas emissions. In 2001, the governors of the six New England states, including Massachusetts, and the premiers of the Eastern Canadian provinces, released a regional Climate Change Action Plan.106 The Plan commits the region to a short-term goal of reducing greenhouse gas (GHG) emissions to 1990 baseline levels by the year 2010; a mid-term goal of reducing GHG emissions to 10% below 1990 levels by 2020; and a long-term goal of reducing GHG emissions by 75 to 85%, in order to stabilize climate change.107
Denmark, a nation with approximately the same size population108 as Massachusetts,109 but significantly lower power consumption,110 seeks to achieve its long-term goal for GHG emissions by generating 50% of its electricity from wind power by the year 2050.111 To achieve that goal will require building one wind power plant the size of Cape Wind every two years, for the next fifty [*PG340]years112—all in a flat, well-populated country perhaps twice the size113 of Massachusetts.114
This policy framework has implications for the analysis of project alternatives for the Cape Wind project under NEPA and MEPA, as well as for the planning and regulation of ocean resources.115 The alternatives analysis should not focus on identifying a single “best” location in Massachusetts, or in New England. There may be feasible alternatives to Horseshoe Shoal—but that fact alone should not disqualify the location.116 To meet the stated public policy goals of Massachusetts for renewable energy, air pollution, and climate change will likely require many offshore wind farms at many different sites.117 That public policy goal must be incorporated into the NEPA/MEPA review of the project, and into any system of managing and regulating the ocean.118 We cannot permit local desires for exclusion to zone wind power out of the ocean the way we have zoned affordable housing and other needed public facilities out of the land.
In closing, I would like to explore an unstated assumption that helps explain the opposition to the project: the cult of wilderness, which presumes that all human impacts on the natural environment are necessarily harmful.119 To understand what I mean by the cult of wilderness, let’s look at the rhetoric of opponents to the Cape Wind project. Attorney General Reilly and others have described Nantucket Sound as akin to the “Grand Canyon.”120 Robert F. Kennedy, Jr. has compared Nantucket Sound to “Yosemite,” and said that for many people, “it’s their only access to wilderness.”121 Historian David McCullough has said that the wind farm would ruin “one of the most beautiful unspoiled places in all America.”122
The Grand Canyon, Yosemite: these are the sacred places of the American cult of wilderness, consecrated in the scriptures of writers beginning with John Muir.123 The legal designation that opponents favor is actually a religious term: “sanctuary.”124 One reason the wind farm turbines are proposed to be located more than three miles offshore, outside of Massachusetts territorial waters, is that Massachusetts has designated virtually all its coastal areas, with the exception of Boston Harbor, as “ocean sanctuaries,” within which the construction or operation of an electrical generating station is prohibited.125 Now there is a proposal that the federal waters of Nantucket Sound receive a comparable federal designation as a “marine sanctuary.”126
[*PG342] The quasi-religious value we ascribe to wilderness is America’s most original contribution to environmentalism.127 But as historian William Cronon writes in his essay, The Trouble with Wilderness, the cult of wilderness as a sacred place may also be the greatest impediment to our development of a sound attitude toward the natural environment.128
The cult of wilderness distorts our perceptions and our actions.129 Because designation of a place as a wilderness, an untouched place, may be required for it to receive legal protection, it encourages us to misrepresent the nature of places that we care about, to give them a spurious history free of any human intervention.130 Second, the cult of wilderness encourages us to disregard places that do not qualify. Places that have received a visible human imprint are fallen, no longer sacred—and so they are no longer worthy of our protection and love.131 As Michael Pollan has written: “Americans have done an admirable job of drawing lines around certain sacred areas . . . and a terrible job of managing the rest of our land.”132
I would like to draw particular attention to the visual aspect of the cult of wilderness because of its importance in the offshore wind power debate. The Grand Canyon and Yosemite are visual icons. In addition to making pilgrimages to these sacred places, we worship their images: from the paintings of Albert Bierstadt, to the photographs of Ansel Adams, to today’s postcards and television travelogues and nature shows. Much of the opposition to the Cape Wind project derives from what we must presume is a sincere and deeply-held belief that the turbine towers are ugly to look at and that introducing these elements into Nantucket Sound will irretrievably damage the visual experience of that place.133
I am not going to argue that aesthetics have no place in environmental impact review because of their inherent subjectivity. As Dorothy Bisbee’s article discusses, the regulation of visual appearance is well founded in the law, and it should not necessarily be excluded [*PG343]by the NEPA/MEPA process.134 But our analysis should acknowledge that our perceptions of beauty and visual impacts are cultural constructs, in a way that physical impacts on birds, or fish, or wave patterns, are not.
As John Costonis has written in Icons and Aliens, the demand to regulate aesthetics is rooted in a sense of social dissonance.135 Either a sacred structure or landscape (an “icon”) is threatened with change or destruction, or there is a proposal to introduce a jarring element (an “alien”) into a well-defined context.136 Often the two concepts go together and project opponents claim that it is the intrusion of an alien structure that threatens to destroy an iconic landscape.137
Yet as Costonis also points out, our notions of what is an icon and what is an alien are highly malleable: “[o]ne generation’s alien is the next generation’s icon.”138 In the late nineteenth century, a committee of three hundred concerned citizens organized themselves to try to protect a particularly well-beloved landscape from a large-scale industrial intrusion.139 A landscape “without rival in the world” would be “profaned” and subject to “dishonor” due to the construction of a “ridiculously tall tower,” which they characterized as “the grotesque, mercantile imaginings of a constructor of machines.”140 The iconic landscape was the city of Paris; the alien was the Eiffel Tower. In a sense, the opponents were right. The Eiffel Tower was wildly out of scale with a predominantly low-rise city; its exposed steel construction jarred with the predominant aesthetic of classical buildings rendered [*PG344]in stone.141 And yet the alien has become an icon: today the Eiffel Tower is the most recognizable and best loved symbol of Paris.142
Will the Cape Wind turbines someday become an equally well-loved icon of Cape Cod? That may seem improbable—although if press reports are accurate, the Danish public has embraced the Horns Rev wind farm, off Denmark’s western coast, and the Middelgrunden wind farm at the mouth of Copenhagen Harbor.143 But even in America, different people see very different things when they look at wind turbines. David McCullough, when he imagines the Cape Wind project, sees “a sprawling factory,” and “a 24-square-mile city.”144 But Bill McKibben, author of The End of Nature,145 sees something “lovely”; he calls wind turbines “the breeze made visible.”146
As Cronon and Pollan point out, the cult of wilderness springs from the same presumption that haunts the environmental impact review process: that human impacts on the environment always cause harm.147 There are easy cases where anyone can see that this presumption is wrong, and that human action is needed to undo past damage: the restoration of a tidal flow to a degraded salt marsh, the removal of a dam to restore free flow to a river, the remediation of a brownfield site.148
Global warming and climate change pose greater challenges to the ways in which environmental laws weigh the impacts of human actions.149 The environmental impact of fossil fuel power has already [*PG345]occurred, and it continues today.150 Even if we were to reduce carbon emissions dramatically, atmospheric concentrations and global temperatures would continue to increase for decades.151 A recent study predicts that global warming could cause the extinction of between fifteen and thirty-seven percent of all species worldwide.152 More locally, the New England Regional Assessment describes a wide range of future impacts due to climate change, from coastal flooding and salt-water intrusions into drinking water aquifers, to the disappearance of the region’s spruce-fir and maple-beech-birch forests.153 The wildlife and industries that depend on these ecosystems—from tourism to maple sugaring—may disappear, too.154 It is increasingly clear that the only way to restore the environmental damage we have already done, to Massachusetts, to New England, and to the planet, will be to carry out a sweeping and wrenching shift from our reliance on fossil fuels to a reliance on wind power and other renewable energy sources.155
Existing environmental laws have difficulty balancing the regional, statewide, national, and even international benefits of wind power and other renewable energy facilities against their localized impacts, real and perceived.156 To use the terminology of environmental impact review, we need to think of wind power and other renewable energy projects as “mitigation measures,” that will offset or even reverse the otherwise unavoidable negative impacts of carbon emissions from fossil-fuel power production.157
[*PG346] The MEPA scope for the Cape Wind project addresses this problem directly. The scope requires the EIS/EIR to describe the impacts, including increased air pollution and GHG emissions, of a “no build” baseline alternative that presumes the generation of the same level of electricity by a conventional fossil-fuel powerplant.158 The scope would ensure that the environmental benefits of wind power generation would be part of the record for public and agency review.159 This approach to the baseline should be a standard part of the analysis of any wind power project, and a part of the technical studies for any regime of ocean management and regulation.160
But we may need to go still further. Any good regulatory system needs carrots as well as sticks.161 Environmental laws should contain positive incentives to do the right thing, and not just punish the wrongdoer.162 Maybe we need to define a category of projects that would file Environmental Benefit Statements, rather than Environmental Impact Statements.163
For the ultimate challenge of the wind power debate is a moral challenge: a challenge to us to recognize, accept, and embrace the full implications of our actions. We congratulate ourselves much too easily in Massachusetts on our enlightened environmental attitudes, policies, and laws. We are fooling ourselves. We are no wiser, or better, than anyone else. If our environmental laws are more protective, that is because we happen to live, through historical accident, in a place that no longer has natural resources worth exploiting.164 But through our consumer choices, we harm the environment every day. We drill for oil in the Gulf of Mexico; we cut down rain forests in the Amazon and the Pacific Northwest; we dump industrial wastes in the rivers of [*PG347]India and China; we raise sea levels and flood Pacific atolls.165 We just do not happen to see any of those consequences at first hand. Through the workings of the global economy, they take place in other people’s backyards, not in ours.
So when we are confronted with a choice that has real consequences, environmentally and morally, for our own backyards and our own daily lives, how will we choose? The Nantucket Sound wind farm poses us that question. I trust that we will choose wisely and well. In the future, when we look upon a landscape or a seascape with wind turbines in it, perhaps we won’t see a fallen, sinful, desecrated landscape. Perhaps we will see a landscape of hope. Perhaps we will see the landscape of our own salvation.