* Visiting Assistant Professor, Southern New England School of Law. The author owes great thanks to Jay Wickersham, who shared ideas that were the main impetus for this Article in a presentation to the author’s environmental law class in the spring of 2003; to her grandmother, Virginia Giese, for bringing her family to Nantucket every summer; and to Michael B. Jacobs, Coordinator of ISO and Regulatory Affairs, Trans�nergie U.S., without whom the author could not have written this Article. The author also thanks the following people who reviewed drafts and provided valuable insights: Justine Dunlap, Associate Professor, Southern New England School of Law; Arthur Pugsley, Senior Environmental Analyst, Massachusetts Environmental Policy Act Office; Richard Kennelly, Independent Energy Consultant and Attorney; Toni Hicks, Attorney, Conservation Law Foundation; and Denise Desautels, Attorney, Massachusetts Energy Facilities Siting Board. The author accepts responsibility for all remaining errors.
1 Simple Gifts (1848), reprinted in The Gift to Be Simple: Songs, Dances and Rituals of the American Shakers 136 (Edward D. Andrews ed., Dover Publ’ns 1967) (1940), available at http://www.contemplator.com/folk3/simple.html (last visited Jan. 5, 2004).
2 National Environmental Policy Act of 1969, 42 U.S.C. �� 4321–4370(f) (2000). Many states have similar environmental review statutes.
3 See Cape Wind Assocs., Frequently Asked Questions About the Cape Wind Project, at http://www.capewind.org/ (last visited Dec. 30, 2003).
4 See Winergy, at http://www.winergyllc.com/sites.shtml (last visited Dec. 30, 2003).
5 See Nat’l Ass’n of State Energy Officials, Wind Energy Opportunities, at http://www.naseo.org/energy_sectors/wind/naseowind.pdf (last visited Dec. 30, 2003).
6 See Mass. Executive Office of Envtl. Affairs, EOEA No. 12643, Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form 11 (2002), available at http://www.nationalwind.org/events/offshore/020925/presentations/Wickersham.pdf (last visited Dec. 30, 2003) [hereinafter MEPA Cape Wind Certificate]. For example, Massachusetts’s environmental review scoping document for Cape Wind states that “[t]he visual impacts of the project have been mentioned more than any other issue among comments received in opposition.” Id.
7 See discussion infra Part I.B.
8 NEPA regulations and caselaw refer to the alternative of not proceeding with a proposed agency action, such as permit approval or project funding, which often results in a project not going forward, as the “no build” or “no action” scenario or alternative. 10 C.F.R. �� 503.13(3), 1021.321(c) (2003); 40 C.F.R. � 1502.14(d); see also Found. for Horses & Other Animals v. Babbitt, 995 F. Supp. 1088, 1091 (C.D. Cal. 1998); Bergen County v. Dole, 620 F. Supp. 1009, 1023 (D.N.J. 1985), aff’d, 800 F.2d 1130 (3d Cir. 1986).
9 42 U.S.C. � 4331(a) (2000).
10 Id. � 4331(b).
11 Id. � 4331(b)(1).
12 Id. � 4331(b)(2).
13 Id. � 4331(b)(3).
14 Id. �  4331(b)(4).
15 42 U.S.C. � 4331(b)(5).
16 Id. � 4331(b)(6).
17 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 351 (1989); see also Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (commenting on the “demand that courts ensure that agency decisions are founded on a reasonable evaluation ‘of the relevant factors’”).
18 Judicial review is not permitted until an agency issues a final action, such as a Finding of No Significant Impact (FONSI) or an Environmental Impact Statement (EIS). 40 C.F.R. � 1500.3 (2003). NEPA compliance is reviewed under the Administrative Procedure Act, 5 U.S.C. �� 551–559, 701–706. See, e.g., Marsh, 490 U.S. at 375; Welch v. U.S. Air Force, 249 F. Supp. 2d 797, 808 (N.D. Tex. 2003).
19 Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976).
20 Davis Mountains Trans-Pecos Heritage Ass’n v. U.S. Air Force, 249 F. Supp. 2d 763, 776–77 (N.D. Tex. 2003) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).
21 5 U.S.C. � 706(2)(A).
22 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).
23 40 C.F.R. � 1502.2(b).
24 NEPA regulations provide that a cost-benefit analysis, when included in an EIS, should be discussed in relation to “any analyses of unquantified environmental impacts, values, and amenities . . . the weighing of the merits and drawbacks of the various alternatives need not be displayed in a monetary cost-benefit analysis and should not be when there are important qualitative considerations.” 40 C.F.R. � 1502.23.
25 See, e.g., Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 833 (D.C. Cir. 1972) (stating that the Final EIS must include “a basis for (a) evaluation of the benefits of the proposed project in light of its environmental risks, and (b) comparison of the net balance for the proposed project with the environmental risks presented by alternative courses of action”); Calvert Cliffs’ Coordinating Comm., Inc. v. U.S. Atomic Energy Comm’n, 449 F.2d 1109, 1113, 1123 (D.C. Cir. 1971); Welch v. U.S. Air Force, 249 F. Supp. 2d 797, 848 (N.D. Tex. 2003) (“Defendants were required to balance the favorable and adverse effects of the agency action . . . .”); see also Daniel R. Mandelker, NEPA Law and Litigation � 6.1 (2d ed. 1992).
26 42 U.S.C. � 4332(2)(C) (2000).
27 40 C.F.R. � 1508.8.
28 See, e.g., Fund for Animals v. Babbitt, 2 F. Supp. 2d 570, 576 (D. Vt. 1997) (stating that agencies need not give more weight to environmental concerns than other concerns); see also Strycker’s Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227 (1980) (providing that an agency need not “elevate environmental concerns over other appropriate considerations” in selecting an action under NEPA).
29 Calvert Cliffs’ Coordinating Comm., 449 F.2d at 1113.
30 Id.
31 Ass’n Concerned About Tomorrow, Inc. v. Slater, 40 F. Supp. 2d 823, 831 (N.D. Tex. 1998).
32 See, e.g., Joel A. Gallob, In Search of Beneficial Environmental Impacts: Superconductive Magnetic Energy Storage, the National Environmental Policy Act, and an Analysis of Environmental Benefits, 14 Harv. Envtl. L. Rev. 411, 412–15 (1990).
33 42 U.S.C. � 4332(2)(C)(ii) (2000).
34 40 C.F.R. � 1500.2(f) (2003).
35 Id. � 1500.2(e).
36 42 U.S.C. � 4332(2)(C)(iii).
37 Id. � 4332(2)(C)(iv).
38 Id. � 4331(a).
39 Id. � 4321 (emphasis added).
40 Id. � 4331(b)(6) (emphasis added).
41 Id. � 4342 (emphasis added).
42 42 U.S.C. � 4344(4) (emphasis added).
43 40 C.F.R. � 1508.8(b) (2003) (“Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial.”).
44 See Gallob, supra note 32, at 413 n.3 (describing the results of a September 15, 1989 keyword search on Westlaw’s ALLFEDS database for “environment! benefit!” w/250 “impact statement” and stating that this search revealed only twenty-eight cases). An identical search run for the period of September 16, 1989 through July 17, 2003 revealed only eight additional cases.
45 Virginians for Dulles v. Volpe, 541 F.2d 442, 445–46 (4th Cir. 1976).
46 See, e.g., Kleppe v. Sierra Club, 427 U.S. 390, 414 (1976) (“[D]etermination of the extent and effect of [cumulate impacts], and particularly identification of the geographic area within which they may occur, is a task assigned to the special competency of the appropriate agencies.”).
47 See discussion supra Part I.B.
48 See, e.g., Kleppe, 427 U.S. at 413–15. In finding that a comprehensive, regionwide EIS for coal reserve development on federal lands in the northern Great Plains region was not necessary, the Supreme Court stated that “[e]ven if environmental interrelationships could be shown conclusively to extend across [particular geographic] areas, practical considerations of feasibility might well necessitate restricting the scope of comprehensive [environmental impact] statements.” See id. at 414.
49 See Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974) (citing cases).
50 Id.
51 Jonathan Levy et al., Harvard School of Public Health, Estimated Public Health Impacts of Criteria Pollutant Air Emissions from the Salem Harbor and Brayton Point Power Plants 28–29 (2000) (citation omitted) (“[T]here is evidence . . . that long-range transport of pollutants [from power plants] could potentially influence populations as much as 1000 km (over 600 miles) from the source.”), available at http://www.hsph.harvard.edu/papers/plant/plant.pdf (last visited Dec. 30, 2003).
52 40 C.F.R. � 1500.1(b) (2003).
53 Id. � 1502.14(a) (emphasis added).
54 The scoping documents for both the NEPA and MEPA reviews of the Cape Wind project provide for consideration of alternatives in New England states outside Massachusetts. See U.S. Army Corps of Eng’rs, Environmental Impact Statement Scope of Work Wind Power Facility Proposed by Cape Wind Associates, LLC 2–3 (2002), available at http://www.cleanenergystates.org/JointProjects/offshore%20docs/Cape_Wind_EIS_Scope.pdf (last visited Dec. 30, 2003) [hereinafter Scope of Work EIS]; MEPA Cape Wind Certificate, supra note 6, at 7.
55 Elinor Burkett, A Mighty Wind, N.Y. Times, June 15, 2003, � 6 (Magazine), at 48.
56 Telephone Interview with Karen Adams, Chief of Permits and Enforcements, U.S. Army Corps of Engineers (Aug. 20, 2003). For the 420-megawatt wind farm proposed by Cape Wind, the Army Corps of Engineers decided to limit its review of alternatives to wind farms because wind was the only feasible renewable technology in the region that could produce as much power, or even half as much power, as Cape Wind promises. Id.
57 Wind power is such a land-intensive energy source that the Army Corps of Engineers has applied an average land-to-wind power ratio of twenty acres to one megawatt—for class 4 wind areas such as the Cape Wind site—as “the general rule of thumb from the wind industry” in its preliminary screening criteria. See Mass. Tech. Collaborative, Cape & Islands Offshore Wind Stakeholder Process, Sixth Meeting, Summary 2 (2003), at http://wind.raabassociates.org/Articles/cape-mtg-summ3-12.final.doc (last visited Jan. 5, 2004); U.S. Army Corps of Eng’rs, Regulatory Program New England District, at http://wind.raabassociates.org/articles/corpsadams312.ppt. This translates into 8400 acres for a Cape Wind-sized project. See Mass. Tech. Collaborative, Cape & Islands Offshore Wind Stakeholder Process, Sixth Meeting, Summary 2 (2003), at http:// wind.raabassociates.org/Articles/cape-mtg-summ3-12.final.doc (last visited Jan. 5, 2004).
58 See Ari Reeves, Renewable Energy Policy Project, Wind Energy for Electric Power 7 (Fredrick Beck ed., 2003), available at http://www.repp.org/articles/static/1/bi-naries/wind%20issue%20brief_FINAL.pdf (last visited Dec. 30, 2003). An offshore wind turbine can generally capture fifty percent more wind energy than a comparable onshore turbine. Id. Wind shear, which reduces the life of the turbine, is also lower offshore. Id.
59 See Mass. Executive Office of Envtl. Affairs, EOEA No. 12993, Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form: Nantucket Shoals Wind Turbine Generators 2 (2003), available at http://www. state.ma.us/envir/mepa/downloads/12993enf.doc (last visited Dec. 30, 2003) [hereinafter Nantucket Shoals Wind Turbine Generators]. State environmental policy act scoping documents on an offshore wind project proposed by Winergy LLC, a competitor of Cape Wind, have stated that “[i]n Massachusetts, the most promising areas for development of wind power lie primarily off the coast.” Id.
60 James Glanz, A Nation Unplugged; Its Coils Tighten, and the Grid Bites Back, N.Y. Times, Aug. 17, 2003, � 4, at 1 (“The vast but shadowy web of transmission lines, power generating plants and substations known as the grid is the biggest gizmo ever built . . . . The grid is the invisible circulatory system of the things humanity relies on . . . . The incomprehensible complexity of the grid comes with its own irreducible pathologies . . . .”).
61 See, e.g., N. Am. Elec. Reliability Council, Summary of Testimony of Michehl R. Gent, President and CEO of North American Electric Reliability Council (NERC) (2003) (describing the complex process of investigating possible technical and human factors in the August 14, 2003 blackout), at ftp://www.nerc.com/pub/sys/all_ updl/docs/testimony/House_Cmte_Energy_Commerce_Testimony_090303.pdf (last visited Jan. 5, 2004).
62 Id.
63 Coal plants are significant contributors of carbon dioxide, nitrogen oxides, sulfur dioxide, particulate matter, and persistent bioaccumulative toxins like lead, mercury, and dioxin to the environment. Because natural gas also produces carbon dioxide, emission reductions for carbon dioxide would be significant even if wind replaced natural gas rather than coal or oil. Cape Wind’s web site shows hourly energy that would be produced if the project were running, based on wind speeds measured by an anemometer in Nantucket Sound, and translates the projected energy production into emission offset estimates for carbon dioxide, nitrogen oxides, and sulfur dioxide from coal, gas, and oil. See Cape Wind Assocs., Scientific Monitoring Station Current Conditions, at http://capewind. whgrp.com/in-dex_accepted.html (last visited Dec. 30, 2003).
64 See Interview with Michael B. Jacobs, Coordinator of ISO and Regulatory Affairs, Trans�nergie U.S., in Concord, Mass. (Sept. 6, 2003).
65 Cape Light Compact, Regional Options Study: Strategic Electric Supply & Demand Options for Cape Cod and Martha’s Vineyard 2005–2015, at 17 (review copy), http://www.capelightcompact.org/reviewcopyros.pdf (last visited Dec. 30, 2003). Natural gas would offset higher amounts of nitrogen oxides and sulfur dioxide but offset far less carbon dioxide. Id. at 9.
66 Jay Wickersham, Lecture at New England School of Law (Mar. 25, 2003). In particular, Mr. Wickersham discussed issues of regional benefits versus local impacts, scope of alternatives, and aesthetic considerations as they applied to NEPA and MEPA review of the Cape Wind project. Id.
67 See Interview with Michael B. Jacobs, Coordinator of ISO and Regulatory Affairs, Trans�nergie U.S., in Concord, Mass. (Sept. 6, 2003).
68 See Richard L. Ottinger & Rebecca Williams, Renewable Energy Sources for Development, 32 Envtl. L. 331, 344 & n.46 (2002). Massachusetts’s Electric Utility Restructuring Act (Chapter 164 of the Acts of 1997) and similar statutes in other states foster renewable energy production through this disclosure and through other means. See Mass. Gen. Laws ch. 25A, � 11D (2002).
69 See, e.g., Energy Efficiency and Renewable Energy, U.S. Dep’t of Energy, State Energy Information, at http://www.eere.energy.gov/state_energy/states.cfm?state= (last visited Feb. 12, 2004); Energy Info. Agency, U.S. Dep’t of Energy, Coal, Nuclear, Electric and Alternate Fuels, at http://www.eia.doe.gov/cneaf (last visited Feb. 12, 2004).
70 See Interview with Michael B. Jacobs, Coordinator of ISO and Regulatory Affairs, Trans�nergie U.S., in Concord, Mass. (Sept. 6, 2003).
71 For example, the 2002 U.S. budget included nearly $197 billion for health and nearly $231 billion for Medicare. Tourism, art, and recreation contributions were apparently too small to merit entries on the budget table. See Office of Mgmt. & Budget, Historical Tables, Budget of the United States Government, Fiscal Year 2004, http://www.white-house.gov/omb/budget/fy2004/pdf/hist.pdf.
72 See Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 771–72, 778–79 (1983) (“If a harm does not have a sufficiently close connection to the physical environment, NEPA does not apply.”); Breckinridge v. Rumsfeld, 537 F.2d 864, 866 (6th Cir. 1976); 40 C.F.R. � 1508.14 (2003) (addressing “economic or social effects”).
73 See, e.g., Citizens Against Toxic Sprays, Inc. v. Bergland, 428 F. Supp. 908, 927 (D. Or. 1977) (“No subject to be covered by an EIS can be more important than the potential effects of a federal program upon the health of human beings.”). One source states that:
[T]he text of NEPA sits like a Sphinx, while hordes scrutinize its face for clues as to its meaning. Though the language of the Act offers many clues, it contains no provision clearly directing federal agencies to evaluate the public health risks associated with proposed federal actions . . . [even though t]he quintessential purpose of NEPA is the protection of human health.
The Application of NEPA to Agency Actions Affecting Human Health, 13 Envtl. L. Rep. (Envtl. L. Inst.) 10,179, 10,182 (June 1983).
74 See Save Our Ecosystems v. Clark, 747 F.2d 1240, 1248 (9th Cir. 1984) (stating that the health effects of herbicide required study). If the costs to conduct the independent research are exorbitant or the means to obtain the information are unknown, however, this analysis is not required. 40 C.F.R. � 1502.22(b). Even in such a case, the agency must identify the research that is available and the research that is not. Id. � 1502.22(b)(1); see also Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 354–55 (1989) (discussing the need for a “worst case analysis” regarding impacts of a Forest Service decision to allow a special use permit for a ski resort).
75 See, e.g., Public Citizen v. Dep’t of Transp., 316 F.3d 1002, 1024 (9th Cir. 2003). A recent district court case involving transboundary air pollution between Mexico and the United States acknowledged that an agency could determine there were no significant air impacts requiring an EIS after including a minimal discussion of health effects and Clean Air Act compliance in an Environmental Assessment. See Border Power Plant Working Group v. Dep’t of Energy, 260 F. Supp. 2d 997, 1016 (S.D. Cal. 2003). The court, however, did ultimately require an EIS in this case on other grounds. See id. at 1033.
76 Levy et al., supra note 51, at 28–29 (“[T]here is evidence . . . that long-range transport of pollutants could potentially influence populations as much as 1000 km (over 600 miles) from the source.”).
77 See id. at 22–23.
78 See Interview with Michael B. Jacobs, Coordinator of ISO and Regulatory Affairs, Trans�nergie U.S., in Concord, Mass. (Sept. 6, 2003).
79 Levy et al., supra note 51, at 23 & fig.8.
80 Id. at 22. Even at target emission rates, the study estimated twenty-five premature deaths per year from Brayton Point emissions. Id. The geographic range that the study considered was quite broad, and even if this range were reduced to a 150-mile radius from Brayton Point, the study would still predict seventy-five premature deaths per year. Id. at 29.
81 U.S. Envtl. Prot. Agency, Toxic Release Inventory Explorer, at http://www. epa.gov/triexplorer/chemical.htm (last visited Dec. 30, 2003).
82 Conservation Law Found., Help Save Hope Bay: EPA Accepting Comments on Draft Permit to Limit Brayton Point’s Impact, at http://www.clf.org/advocacy/Brayton_Point_page.htm (last visited Dec. 30, 2003) (“A single teaspoon of mercury is enough to poison an entire lake, rendering the fish unsafe to eat, but Brayton emits hundreds of pounds of mercury each year.”).
83 EPA defines environmental justice to be “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” Office of Compliance and Enforcement, U.S. Envtl. Prot. Agency, Environmental Justice, at http://www.epa.gov/compliance/environmentaljustice/index.html (last visited Dec. 30, 2003).
84 See Mass. Geographic Info. Sys., Mass. Executive Office of Envtl. Affairs, Environmental Justice Viewer, at http://maps.massgis.state.ma.us/ej/airemissions.pdf (last visited Dec. 30, 2003).
85 See id. (showing that increased air emissions cover an area of EJ concern in Fall River, just southeast of the Brayton Point plant).
86 See id. In addition, offshore wind farms could have a positive economic impact on minority and low-income populations closest to the project, because building and erecting turbines requires a large investment of labor that could be provided by people in low-income areas. See Ross Gelbspan, Editorial, Choosing Wind-power or Climate Hell, South Coast Today, May 19, 2003, http://www.s-t.com/daily/05-03/05-18-03/b02op056.htm (last visited Dec. 30, 2003).
87 Telephone interview with Arthur Pugsley, Senior Environmental Analyst, Massachusetts Environmental Policy Act Office (Aug. 20, 2003).
88 For a detailed discussion of this issue, see U.S. Envtl. Prot. Agency, Fish Consumption and Environmental Justice (2002), http://www.epa.gov/Compliance/resources/ publications/ej/fish_consump_report_1102.pdf (last visited Dec. 31, 2003).
89 Exec. Order No. 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994). Many agencies, like EPA, the Department of Defense, and the Department of the Interior, that conduct NEPA review are subject to this Executive Order, although some independent federal agencies, like the Federal Energy Regulatory Commission, are not. See Jason Pinney, Note, The Federal Energy Regulatory Commission and Environmental Justice: Do the National Environmental Policy Act and the Clean Air Act Offer a Better Way?, 30 B.C. Envtl. Aff. L. Rev. 353, 372–73 & n.151 (2003).
90 Council on Envtl. Quality, Environmental Justice: Guidance Under the National Environmental Policy Act 10–14 (1997), available at http://www.epa.gov/ Compliance/resources/policies/ej/ej_guidance_nepa_ceq1297.pdf (last visited Dec. 31, 2003) [hereinafter CEQ Guidance].
91 Id. at 10–12. The guidance, however, states that if “a proposed agency action would not cause any . . . disproportionately high and adverse human health or environmental impacts, specific demographic analysis may not be warranted.” Id. at 14 (emphasis added).
92 Id. at 8.
93 42 U.S.C. � 7609 (2000).
94 Pinney, supra note 89, at 393–95.
95 See generally Hillary Gross et al., Public Law Research Inst., Hastings Coll. of Law, Environmental Justice: A Review of State Responses (2000), at http://www.uchastings.edu/plri/PDF/environjustice.pdf (last visited Dec. 31, 2003). Particularly active states include Florida, Maryland, New Jersey, New York, Oregon, and Tennessee. Id. at 3. Massachusetts has also been active. Id. at 33. Massachusetts published an EJ policy in 2002. See Mass. Executive Office of Envtl. Affairs, Environmental Justice Policy of the Massachusetts Executive Office of Environmental Affairs 8 (2002), http://www.state.ma.us/envir/ej/EJ_Policy_English_Full_Version.pdf (last visited Dec. 31, 2003) [hereinafter Environmental Justice Policy].
96 See Environmental Justice Policy, supra note 95. The policy requires elevated EJ review for projects that trigger air thresholds rather than energy thresholds. Id. Air thresholds are based on projects’ potential to emit pollutants, and hence would cover fossil fuel plants. See Mass. Regs. Code tit. 301, � 11.03(8) (1998). Energy thresholds, in contrast, are based on projects’ levels of megawatt production. Mass. Regs. Code tit. 301, � 11.03(7). A project producing over 100 megawatts of energy, such as Cape Wind, would trigger the energy threshold. Since the policy does not require elevated EJ review for projects that trigger only the energy threshold, an opportunity to alert minority and low-income populations to the benefits that wind power in other areas could offer them is lost.
97 Telephone Interview with Arthur Pugsley, Senior Environmental Analyst, Massachusetts Environmental Policy Act Office (Aug. 20, 2003); Telephone Interview with Jay Wickersham, Partner, Noble & Wickersham LLP (Aug. 6, 2003).
98 The Cape Wind project will be too far from Fall River to necessitate EJ review because the Massachusetts EJ policy only requires this elevated review for air impacts of projects within five miles of minority and low-income populations. Environmental Justice Policy, supra note 96, at 8.
99 For two recent articles on global warming’s impacts on the environment, see Camille Parmesan & Gary Yohe, A Globally Coherent Fingerprint of Climate Change Impacts Across Natural Systems, 421 Nature 37 (2003), and Terry L. Root et al., Fingerprints of Global Warming on Wild Animals and Plants, 421 Nature 57 (2003). For a general lecture on global warming, see Videotape: The Science of Global Climate Change (Harvard University 2002), http:// www.med.harvard.edu/chge/course/atmospheric/climate/climate.htm (last visited Jan. 5, 2004).
100 See generally Paul R. Epstein, Is Global Warming Harmful to Health?, Sci. Amer., Aug. 2000, at 50.
101 See, e.g., Richard S. Lindzen, Global Warming: The Origin and Nature of the Alleged Scientific Consensus, Reg., Spring 1992, available at www.cato.org/pubs/regulation/reg15n2g. html (last visited Dec. 31, 2003).
102 See, e.g., Northeast Int’l Comm. on Energy, The Comm. on the Env’t & of the Conference of New Eng. Governors and E. Canadian Premiers, Climate Change Action Plan 2001, at 1–2 (2001), http://www.massclimateaction.org/pdf/NECanadaClim-atePlan.pdf (last visited Dec. 31, 2003). In 2002, New Hampshire became the first state to enact a statute requiring decreased carbon dioxide emissions from fossil fuel plants. Multiple Pollutant Reduction Program, N.H. Rev. Stat. Ann. �� 125-O:1–10 (2003).
103 NEPA review is not required for speculative impacts. See Trout Unlimited v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974).
104 Paul Gipe, Wind Power in View: Energy Landscapes in a Crowded World 178 (Martin J. Pasqualetti et al. eds., 2002) (“Despite all these other objections, visual intrusions remain the root cause of opposition.”). State environmental policy act scoping documents on a number of proposals for wind off the shores of Massachusetts note that “visual impacts . . . have been mentioned more than any other issue among comments received.” See, e.g., Nantucket Shoals Wind Turbine Generators, supra note 59, at 11.
105 For example, a survey performed for Cape Wind Associates in 2002 identified view-related concerns as the most common reason for opposing the Cape Wind project. Memorandum from Opinion Dynamics Corporation, to Cape Wind Associates 7–8 (Oct. 3, 2002), http://www.capewind.org/downloads/public_opinion_survey.pdf. Statewide, 17% of survey respondents who opposed the project gave this as their basis for opposition, and another 17% cited generalized dislike. Id. at 7. In a sample of Cape Cod, Martha’s Vineyard, and Nantucket voters, 21% of respondents who opposed Cape Wind cited view-related reasons, and 16% cited general negative comments. Id. at 8. Overall, 31% of Cape Cod, Martha’s Vineyard, and Nantucket respondents opposed the project, as compared to 10% statewide who opposed it. Id. at 6. Studies in Europe have also shown that opponents of wind power value local aesthetics over environmental issues like climate change and nuclear power risks. See generally Steffen Damborg, Danish Wind Indus. Ass’n, Public Attitudes Towards Wind Power, at http://www.windpower.org/en/articles/surveys.htm (last visited Dec. 31, 2003).
106 Jack Coleman, An Old Wind Blows, Cape Cod Times, July 8, 2003 (on file with author).
107 Cape Wind President James Gordon has been cited as stating: “[s]ome would say that folks are afraid of seeing wind turbines that would look like a tiny mass about a half-inch tall off the horizon.” See David Kibbe, Unions Tout Wind Farm Jobs, Cape Cod Times, Apr. 25, 2003 (on file with author).
108 Nevertheless, a recent study by the Renewable Energy Policy Project (REPP) found that wind turbines on land enhanced, rather than detracted from, residential property values. George Sterzinger et al., Renewable Energy Policy Project, The Effect of Wind Development on Local Property Values 2 (2003), available at http://www.repp. org/articles/static/1/binaries/wind_online_final.pdf (last visited Dec. 31, 2003). Nine out of ten new wind farms studied were associated with viewshed property values increasing faster than they rose in the comparable community. Id.
109 These issues are beyond the scope of this Article. For further information on pros and cons, see Cape Wind Assocs., at http://www.capewind.org (last visited Jan. 5, 2004), and Alliance to Protect Nantucket Sound, Inc., at http://www.saveoursound.org (last visited Jan. 5, 2004).
110 Jennifer Peter, Associated Press, Celebrities Protest Vast Wind Farm Proposed off Massachusetts Coast (Aug. 12, 2003), available at http://www.enn.com/news/2003-08-12/s_7414.asp (last visited Dec. 31, 2003).
111 As the environmental movement has developed and citizens have sought standing to sue on the non-human environment’s behalf, courts have come to recognize aesthetic injury as a valid claim. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 562–63 (1992); Sierra Club v. Morton, 405 U.S. 727, 734 (1972). In addition to local zoning ordinances, private homeowner associations often place aesthetic restrictions on land uses, and some states have passed or considered legislation to combat this practice when it comes to renewable energy facilities and energy-saving devices like clotheslines. See, e.g., Alexander Lee, Clotheslines: A Simple Option, 7 Alb. L. Envtl. Outlook 27, 27 (2002).
112 See generally Patrick J. Rohan, Zoning and Land Use Controls � 16.06(1)(a) (2003).
113 See Georgette C. Poindexter, Light, Air, or Manhattanization?: Communal Aesthetics in Zoning Central City Real Estate Development, 78 B.U. L. Rev. 445, 486–88 nn.308–09 & 314 (1998).
114 See Berman v. Parker, 348 U.S. 26, 33 (1954), cited in Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978).
115 See Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 129 (1978). Attorney Jay Wickersham has noted that this is the landmark aesthetic regulation case. Memorandum from Jay Wickersham, Partner, Noble & Wickersham LLP, to Dorothy Bisbee (Aug. 12, 2003) (on file with author).
116 See Rohan, supra note 112, � 16.06(1)(a) (“Indeed, it might be said that almost every important advance in the role of aesthetics came about in the context of a billboard case.”).
117 See Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 502, 508, 510 (1981).
118 See 42 U.S.C. � 7409(b) (2000). The Clean Air Act makes public health primary, and public welfare, which includes aesthetics, secondary. See id. � 7409(b)(1) (primary standards); id. � 7409(b)(2) (secondary standards); Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act: A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 Envtl. L. 845, 852 (1997) (“The political reality seems to be that morals and aesthetics are generally rated as less substantial and less socially useful than other utilities, particularly direct human health and safety, and cash.”).
119 Daniel R. Mandelker, NEPA Law and Litigation � 2:2 (2d ed. 1992) (“NEPA’s legislative history provides some but only limited guidance on the meaning of the statute.”).
120 For example, a NEPA House Report states:
[C]itizens may not always organize themselves to protect an environmental system. One group may be interested only in visual pollution, while another is interested in noise, and it is an unfortunate fact of life that the normal resolution of a pollution problem is to push it into another area which may not be so vigorously defended. The public concern with power generation facilities producing air pollution in the form of coal dust, oil droplets, and increased sulfur dioxide emissions has played a significant role in the encouragement of nuclear plants, which involve none of these problems but which may have their own problems in terms of radioactive and thermal pollution of cooling water. What we need is groups with a total environmental concern.
Frank M. Potter, Jr., Progress Means Pollution: An Idea Whose Time Has Come—and Gone, in The Environmental Decade (Action Proposals for the 1970s) 342 app.4 (1970).
121 Compare 42 U.S.C. � 4321 (stating that the purpose of NEPA is “to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man.” (emphasis added)), id. � 4331(c) (“Congress recognizes that each person should enjoy a healthful environment . . . .” (emphasis added)), id. � 4344(4) (providing that the Council on Environmental Quality must “develop and recommend to the President national policies to foster and promote the improvement of environmental quality to meet the conservation, social, economic, health, and other requirements and goals of the Nation.” (emphasis added)), and id. � 4372(d)(4) (stating that the Council on Environmental Policy director must perform work including “promoting the advancement of scientific knowledge of the effects of actions and technology on the environment and encouraging the development of the means to prevent or reduce adverse effects that endanger the health and well-being of man.” (emphasis added)), with id. � 4331(b)(2) (providing that it is the responsibility of the federal government under NEPA to work to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.” (emphasis added)).
122 See id. � 4331(b)(2).
123 See 487 F.2d 1029, 1038–39 (D.C. Cir. 1973).
124 Id.
125 See Daniel R. Mandelker, NEPA Law and Litigation � 8.43 n.5 (2d ed. 1992) (citing cases).
126 See, e.g., Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772 (1983) (finding that only effects on the physical environment need be considered and that psychological impacts of fear of nuclear power plant disasters did not necessitate an EIS, because of the lack of “closeness of the relationship between the change in the environment and the ‘effect’ at issue”).
127 River Rd. Alliance, Inc. v. Corps of Eng’rs of U.S. Army, 764 F.2d 445, 451 (7th Cir. 1985) (citing Md.-Nat’l Capital Park & Planning Comm’n, 487 F.2d at 1038–39).
128 An agency may prepare an Environmental Assessment to determine whether a project will have significant impacts, such that NEPA review is required. 40 C.F.R. �� 1501.4(b), 1508.9 (2003). After an Environmental Assessment is complete, the lead agency may issue a Finding of No Significant Impact, or may require an EIS. Id. �� 1501.4(e), 1508.13.
129 River Rd. Alliance, 764 F.2d at 451.
130 Breckinridge v. Rumsfeld, 537 F.2d 864, 866 (6th Cir. 1976) (“Although factors other than the physical environment have been considered, this has been done only when there existed a primary impact on the physical environment.”).
131 33 U.S.C. � 403 (2000).
132 33 C.F.R. � 320.4(a)(1).
133 River Rd. Alliance, 764 F.2d at 451 (citing Town of Orangetown v. Gorsuch, 718 F.2d 29, 39 (2d Cir. 1983)).
134 40 C.F.R. � 1508.27(b)(4).
135 Town of Orangetown v. Gorsuch, 718 F.2d 29, 39 (2d Cir. 1983).
136 Id. (citing Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972)).
137 See Hanly v. Kleindienst, 471 F.2d 823, 830 (2d Cir. 1972). This court established a two-part test for “significance” that begins with “the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected by it . . . .” Id. The second prong of the Hanly test considers “the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area.” Id. at 830–31. Cumulative visual impacts of offshore wind projects should not be significant, as boats and other uses closer to shore will obscure the view of the turbines.
138 See 40 C.F.R. � 1502.14(d) (2003); see also Welch v. U.S. Air Force, 249 F. Supp. 2d 797, 816 (N.D. Tex. 2003) (“The CEQ intended that agencies compare the potential impacts of a proposed major federal action to the known impacts of maintaining the status quo. In other words, requiring consideration of the No Action alternative constitutes use of the current level of activity as a benchmark.” (citations omitted)).
139 40 C.F.R. � 1502.2(b) (“Impacts shall be discussed in proportion to their significance.”).
140 Exec. Order No. 12,898, � 5–5(c), 59 Fed. Reg. 7629 (Feb. 11, 1994).
141 The author does not intend to criticize any particular environmental review. Each review is tailored to particular circumstances. The author has been particularly impressed by the efforts that the Massachusetts Executive Office of Environmental Affairs and the U.S. Army Corps of Engineers have taken in beginning environmental impact review of the nation’s first proposed utility-scale offshore wind project in Nantucket Sound.
142 None of the wind power NEPA documents reviewed contained an in-depth discussion of air emission reductions. See, e.g., Scope of Work EIS, supra note 54; Bonneville Power Admin., U.S. Dep’t of Energy, No. DOE/EIS-0321, Condon Wind Project Final Environmental Impact Statement 5 (2001), available at http://tis.eh.doe.gov/nepa/ eis/eis0321/tocindex.html (last visited Jan. 4, 2004) [hereinafter Condon FEIS]; Bonneville Power Admin. & County of Benton, Wash., U.S. Dep’t of Energy, No. DOE/EIS-0333, Maiden Wind Farm Draft NEPA/SEPA Environmental Impact Statement (2002) (on file with author) [hereinafter Maiden DEIS]. For the Final EIS for the Maiden Wind Far, see Bonneville Power Admin. & County of Benton, Wash., U.S. Dep’t of Energy, No. DOE/EIS-0333, Maiden Wind Farm Final NEPA/SEPA Environmental Impact Statement (2003) (on file with author).
143 Bonneville Power Admin., U.S. Dep’t of Energy, No. DOE/EIS-0813, Business Plan Final Environmental Impact Statement (1995) (on file with author) [hereinafter Business Plan EIS].
144 See id. � 4.5.4, at 4-159 (“The environmental effect of replacing new combustion turbines with conservation or renewable resources is to substitute the impacts of the conservation and renewables for the impacts of the combustion turbines.”); see also id. at 4-160 fig.4.5-1 (finding that each average megawatt of wind power could replace 3310 tons of carbon dioxide, and smaller amounts of nitrogen oxides, total suspended particulates, and sulphur dioxide as compared to the same average megawatt generated by new combustion turbines that would otherwise be built to meet rising energy demand).
145 Condon FEIS, supra note 142, at 5.
146 Id. at 37 (citing Business Plan EIS, supra note 143; Bonneville Power Admin., U.S. Dep’t of Energy, No. DOE/EIS-0162, Resource Programs Environmental Impact Statement (1993) [hereinafter Resource Programs EIS]); see supra note 144.
147 E-mail from Sarah T. Branum, BPA Environmental Specialist, BPA, to Dorothy Bisbee (Dec. 12, 2003, 14:30:31 PST) (on file with author).
148 Id.
149 Resource Programs EIS, supra note 146, summary, at 11 tbl.S-1, summary, at 16 fig.S-2, ch. 4, at 10–11 figs.4-1 & 4-2, ch. 5, at 53 tbl.5-15. Data in the Resource Programs EIS was calculated using several analytical models, including the Industrial Source Complex Short-Term (ISCST) model for criteria pollutants, id. ch. 5, at 2, and the Integrated System for Analysis of Acquisitions (ISAAC) resource acquisition model for decision analysis in the Northwest, id. ch. 5, at 3–4.
150 Condon FEIS, supra note 142, at 5.
151 Id. at 19.
152 Id. at 27.
153 Id. at 29.
154 This “Need for Action” statement in the FEIS was, however, a significant improvement over the Draft EIS, which did not mention emission reductions at all. Bonneville Power Admin., U.S. Dep’t of Energy, No. DOE/EIS-0321, Condon Wind Project Draft Environmental Impact Statement � 1.2, at 1-1 (2001) [hereinafter Condon DEIS].
155 Id. � 5.10, at 5-5.
156 Maiden DEIS, supra note 142.
157 Id. � 3.12.5, at 3-130 to 3-131. The Draft EIS states: “Nitrogen oxides contribute to ozone generation in the lower atmosphere and carbon dioxide is considered a greenhouse gas. In addition to the emissions from generation itself, a gas turbine generation facility also would have emissions of sulfur oxides, nitrogen oxides, and particulates associated with the extraction of natural gas and transportation by pipeline.” Id. at 3-131.
158 Office of NEPA Policy and Compliance, U.S. Dep’t of Energy, Mini-guidance Articles from Lessons Learned Quarterly Reports � 2-2 (2000), (emphasis added), http://tis.eh.doe.gov/nepa/tools/guidance/ll_miniguide.pdf (last visited Dec. 31, 2003) [hereinafter Mini-guidance].
159 See, e.g., Notice of Intent to Prepare a Programmatic Environmental Impact Statement (EIS) to Evaluate Wind Energy Development on Western Public Lands, 68 Fed. Reg. 59,814 (Dep’t of the Interior Oct. 17, 2003); Notice of Intent to Prepare a Plan Amendment and Environmental Impact Statement for Wind Energy, 68 Fed. Reg. 47,928 (Dep’t of the Interior Aug. 12, 2003) (Ukiah Field Office Project in Lake and Colusa Counties, California); Notice of Intent to Prepare an Environmental Impact Statement/Land Use Plan Amendment, 67 Fed. Reg. 77,801 (Dep’t of the Interior Dec. 19, 2002) (Cotterel Mountain Wind Energy Project in Cassia County, Idaho); Notice of Intent to Prepare an Environmental Impact Statement, 66 Fed. Reg. 52,398 (Dep’t of Energy Oct. 15, 2001) (Horse Heaven Wind Project in Benton County, Washington); Notice of Intent to Prepare an Environmental Impact Statement for the Proposed Wind Farm at the Nevada Test Site, 66 Fed. Reg. 38,648 (Dep’t of Energy July 25, 2001); Notice of Intent to Prepare an Environmental Impact Statement, 66 Fed. Reg. 31,624 (Dep’t of Energy June 12, 2001) (Maiden Wind Farm in Benton and Yakima Counties, Washington); Notice of Intent to Prepare an Environmental Impact Statement, 66 Fed. Reg. 19,473 (Dep’t of Energy Apr. 16, 2001); Notice of Intent for a Table Mountain Environmental Impact Statement Focusing on Wind Power Projects and Other Planned Energy Projects, 65 Fed. Reg. 83,078 (Dep’t of the Interior Dec. 29, 2000).
160 Notice of Availability of Draft Environmental Impact Statement for the Kenetech Windpower, Wyoming Wind Energy Project, 60 Fed. Reg. 3256-01 (Dep’t of the Interior Jan. 13, 1995), available at http://www.epa.gov/EPA-IMPACT/1995/January/Day-13/pr-374.html (last visited Feb. 9, 2004).
161 Id.
162 Peter, supra note 110; Telephone Interview with Karen Adams, Chief of Permits and Enforcement, U.S. Army Corps of Engineers (Aug. 20, 2003).
163 Mass. Technology Collaborative, Cape & Islands Offshore Wind, at http:// wind.raabassociates.org (last visited Dec. 31, 2003).
164 Meeting summaries, presentations, and other documents are available at http:// wind.raabassociates.org/events.asp?type=dte (last visited Dec. 31, 2003).
165 Public meetings have not been geographically convenient for all affected persons, especially those living near polluting power sources elsewhere in the New England power region.
166 Scope of Work EIS, supra note 54, at 7.
167 Id. at 2.
168 Id. at 3.
169 MEPA Cape Wind Certificate, supra note 6, at 7.
170 See Energy Info. Admin., U.S. Dep’t of Energy, State Electricity Profiles 2001 tbl.5, http://www.eia.doe.gov/cneaf/electricity/st_profiles/massachusetts/ma.html (last visited Dec. 31, 2003).
171 Mass. Gen. Laws ch. 30, �� 61–62H (2002).
172 MEPA Cape Wind Certificate, supra note 6, at 7.
173 Id.
174 42 U.S.C. � 4332(2)(C) (2000).
175 40 C.F.R. � 1502.16(d)–(f) (2003).
176 Id. �� 1502.14, 1502.16.
177 The Massachusetts Secretary of Environmental Affairs’ Certificate on the Cape Wind Environmental Notification Form contains an inspiring discussion of renewable energy opportunities in the Purpose section. The Alternatives section mentions that the Environmental Impact Report (EIR) should use a gas-fired terrestrial plant as a baseline for “such parameters as air emissions . . . .” MEPA Cape Wind Certificate, supra note 6, at 7. The discussion of these factors in the MEPA Certificate is an excellent start, but it will need to be expanded and placed prominently in the analysis in the EIR if the reader is to be expected to understand the choices being made in deciding for or against offshore wind.
178 See CEQ Guidance, supra note 90, at 11. The Council on Environmental Quality’s EJ policy directs agencies to “seek input from low income populations, minority populations, or Indian tribes as early in the [NEPA] process as information becomes available.” Id. This guidance document suggests outreach methods, means of identifying minority and low-income populations, and other techniques. Id. at 8–16.
179 See supra Part IV.A.1; see also supra notes 150, 157.
180 See, e.g., U.S. Dep’t of Energy, No. DOE/EA-1475, Chariton Valley Biomass Project Final Environmental Assessment and Finding of No Significant Impact (2003), http://tis.eh.doe.gov/nepa/ea/EA1475/index.html (last visited Dec. 31, 2003). A recent final environmental assessment for a proposal to supplement coal at a generating station with switchgrass in a biomass co-fire feedstock operation with partial funding from the Department of Energy devoted ten pages to environmental impacts of the proposed project and one short paragraph to the no build alternative, despite the fact that biomass energy generation is thought to reduce global warming. See id. at 6, 25–35. While the assessment did not provide significant detail in its section covering environmental impacts of the no build scenario, it did discuss beneficial impacts of biomass use on carbon sequestration and reduced global warming in the Background section and in its discussion of the proposed action. See id. at 3–5, 7–14. Two of the five sentences devoted to the no action alternative concerned benefits of the proposal: “The potential long-term environmental benefits from the Proposed Action (less agricultural runoff, increased carbon dioxide sequestration, reduced sulfur oxide emissions) would not be realized. The goal . . . to eventually use switchgrass as a fuel to replace a portion of the coal burned . . . would be delayed or derailed.” Id. at 35.
181 Mini-guidance, supra note 158, at � 2–2.
182 See Work Group on the Coordination of Fed. Mandates, Interagency Task Force Report on NEPA Procedures in FERC Hydroelectric Licensing 1 n.1 & 4 (2000), http://www.ferc.gov/industries/hydropower/gen-info/itf/nepa_final.pdf (last visited Dec. 31, 2003). A task force including the Federal Energy Regulatory Commission, the Departments of Interior, Commerce, and Agriculture, Environmental Protection Agency, and the Advisory Council on Historic Preservation “was unable to resolve” the issue of how to characterize the baseline. Id.
183 See Mini-guidance, supra note 158, at � 2–2; see also Hydroelectric Licensing Group, Fed. Energy Reg. Comm’n, Preparing Environmental Assessments: Guidelines for Applicants, Contractors, and Staff 8 (2001), http://www.ferc.gov/indus-tries/hydropower/enviro/eaguide.pdf (last visited Dec. 31, 2003) [hereinafter FERC Guidelines].
184 FERC Guidelines provide several short examples for environmental effects of no action alternatives, including a one-paragraph example for a no action alternative to licensing a hydropower project that includes the following brief reference to air impacts: “The power that would have been developed from a renewable resource would have to be replaced from nonrenewable fuels. The noise and air quality impacts of the existing diesel fuel-fired generation system would continue unabated or at increased levels as the local electrical demand increased.” FERC Guidelines, supra note 183, at 41.