[*PG349]NEPA REVIEW OF OFFSHORE WIND FARMS: ENSURING EMISSION REDUCTION BENEFITS OUTWEIGH VISUAL IMPACTS
Abstract: Wind power may greatly reduce overall emissions of air pollutants from fossil fuel plants. Benefits could range from fewer premature deaths to reduced global warming, and cover the gamut of goals that the National Environmental Policy Act (NEPA) articulates. Previous NEPA reviews of wind projects, however, have focused on local aesthetic objections and given only cursory treatment to emission reductions. This imbalance threatens to frustrate, rather than further, NEPA’s goals. Beginning with the offshore wind farm proposed near Cape Cod, Massachusetts, reviewers must accord the prominence and depth of treatment to emission offset benefits that NEPA requires. Local aesthetic preferences must not be permitted to overshadow broad regional benefits.
To turn, turn, will be our delight,
’Til by turning, turning, we come round right.
—Shaker Song, Simple Gifts1
The first National Environmental Policy Act (NEPA)2 review of a proposed offshore wind farm is underway.3 Potential environmental [*PG350]impacts of the 420-megawatt Cape Wind project in the waters of Cape Cod, Massachusetts range from widely discussed visual impacts to lesser understood air emission reductions. Another developer has proposed offshore wind farms up and down the eastern seaboard.4 NEPA does not instruct reviewing agencies on the relative weight one type of impact should receive versus another, and it is up to agencies in NEPA reviews of offshore wind to ensure that visual aesthetics do not eclipse emission reductions.
Most people would prefer wind energy to other currently available power sources, if only it were invisible. Renewable energy does not involve environmentally disruptive fuel extraction from limited resources, reliance on foreign fuel imports, water flow disruptions, or nuclear waste generation. Wind power offers an increased jobs-to-power generation ratio5 and zero emissions to land, water, and air. Large-scale wind projects can reduce fossil fuel plants’ running time, significantly decreasing emissions of air pollutants. Benefits from the reduced emissions include fewer air quality related illnesses and premature deaths, decreased global warming and acid rain, and reduced haze. Offshore wind projects are particularly promising because the ocean can satisfy wind turbines’ need for broad, windy spaces, allow developers to use economies of scale, and meet the high energy demands of nearby densely populated areas that lack suitable land space.
Popular visual aesthetic preferences are the primary obstacle to obtaining the emission reductions and other benefits wind power offers.6 It is easy for the layperson to see how large offshore wind farms in the ocean will alter local ocean viewscapes. Emission reductions, conversely, are difficult even for the energy analyst or transmission engineer to pinpoint. Thus, those who value emission reductions and other benefits of wind power above aesthetics are at a great disadvantage in NEPA review. The temptation in NEPA review to focus on di[*PG351]rect local and adverse impacts rather than on indirect regional and beneficial ones exacerbates this problem.
This Article compares and contrasts the possible roles of visual and air emission impacts in NEPA review of offshore wind farms, examines why NEPA encourages unbalanced roles, and shows how agencies can correct the imbalance. While Cape Wind will merit considerable discussion as the first offshore wind project under serious environmental review in the U.S., this Article is directed at all offshore wind farms subject to NEPA review. Part I considers NEPA’s lack of guidance on prioritizing values, as well as its preoccupation with discrete, local adverse impacts. Part II discusses the emission reduction and visual impacts of offshore wind projects, and examines the roles these impacts have played in NEPA review of terrestrial wind energy projects. Part III identifies ways that a NEPA Environmental Impact Statement (EIS) may be adapted to better allow agencies and citizens to review offshore wind projects, as well as other large-scale, zero-emission energy projects subject to environmental impact review.
While there is no precedent for offshore wind, it is settled that courts apply a highly deferential standard of review to NEPA decisions.7 Agencies are free to choose how to weight each type of environmental impact of a proposed project, provided they consider each “significant” impact and their decisions are not arbitrary or capricious. Even if public outrage over visual impacts is powerful, and emission reductions are more difficult to pinpoint, agencies should devote the attention to emission reductions necessary to allow decisionmakers to take a hard look at this highly significant impact. In order to accomplish this, agencies will need to take an in-depth look at the consequences of not proceeding with an offshore wind farm,8 and explicitly recognize that emission reductions are a benefit of offshore wind farms to be weighed carefully and thoroughly against any detriments.
Utility-grade wind power is highly consistent with NEPA’s goals. Section 101(a) requires the federal government to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”9 Section 101(b) establishes “the continuing responsibility of the Federal Government to use all practicable means” to achieve certain policy goals.10 Large-scale offshore wind power can further NEPA’s goals.
Section 101(b)(1) requires the federal government to use all practicable means to “fulfill the responsibilities of each generation as trustee of the environment for succeeding generations.”11 Offshore wind can reduce future generations’ obligations to manage nuclear waste and fossil fuel pollution effects, and increase the amount of fossil fuels left for them.
Section 101(b)(2) requires the federal government to use all practicable means to “assure for all Americans safe, healthful, productive, and esthetically and culturally pleasing surroundings.”12 Offshore wind can offset fossil fuel emissions that would otherwise pose health and safety risks to Americans, create jobs, reduce emissions of visibility-impairing pollutants, offer sleek new structures that many view as beautiful, and create new tourist attractions.
Section 101(b)(3) requires the federal government to use all practicable means to “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences.”13 Offshore wind can provide an endless and free source of power with no harmful emissions or health risks and negligible safety risks, reducing health and safety hazards associated with fossil fuel plants.
Section 101(b)(4) requires the federal government to use all practicable means to “preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity and variety of individual choice.”14 Offshore wind can continue a tradition of using wind energy that dates to early sailboats, and that has included significant use of windmills [*PG353]over the years for grain milling, water transport, salt production, and other purposes, while reducing the disproportionate impacts fossil fuel plants can have on persons of color, lower income, and non-U.S. origin.
Section 101(b)(5) requires the federal government to use all practicable means to “achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities.”15 Offshore wind will create a power source that is accessible to the most populated parts of the U.S.
Section 101(b)(6) requires the federal government to use all practicable means to “enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.”16 The federal government should use all practicable means to enhance offshore wind, a renewable resource.
While describing the ways in which offshore wind will achieve NEPA’s goals is conceptually simple, it is technically difficult, requiring complex modeling of electricity power pools; air patterns; resulting impacts on human health, global warming, and environmental justice; and other beneficial impacts such as environmental protection and improved visibility. Furthermore, NEPA does not prescribe the relative weight to be accorded to any of these impacts. The lack of guidance on the balancing of interests in NEPA review makes it easy to overemphasize simple issues like visual impacts and underemphasize more complex issues like emission reductions. Agencies that focus on adverse, local impacts intensify this imbalance, but they must correct it if they are to use all practicable means to achieve NEPA’s goals.
NEPA is a purely procedural statute. Compliance requires review, not results. As the Supreme Court has said, “NEPA merely prohibits uninformed—rather than unwise—agency action,”17 and judicial review is usually limited either to whether an EIS is required, or to whether an EIS is adequate.18 Courts will only invalidate an agency’s decision if the [*PG354]agency failed to take a “hard look” at the relevant impacts19 or to “articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”20 Under the Administrative Procedure Act, a court may overturn an agency decision if it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”21 In other words, only if “there has been a clear error of judgment” will the courts second-guess the agency’s decision.22
It may seem odd that a statute characterized as “procedural” has no procedure for weighing relative adverse and positive impacts or regional versus local impacts. But, this is the case with NEPA. NEPA regulations require that EISs discuss impacts “in proportion to their significance,”23 but give little further guidance. In fact, NEPA’s implementing regulations tend to broaden, rather than narrow, the discretion that agencies have in implementing NEPA’s requirements.24 Lead agencies in NEPA review have a responsibility to balance beneficial and adverse impacts of proposed actions.25 It is up to the agencies to determine where to place each issue in an EIS and how much discussion to devote to that issue.
[*PG355] Section 102(2)(C) requires agencies to conduct environmental reviews on all “major Federal actions significantly affecting the quality of the human environment.” 26 Agencies have used the EIS as the vehicle to implement this requirement. The NEPA regulations define “effects” and “impacts” to be synonymous, and to include “ecological . . . aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative.”27 Neither the statute nor the regulations, however, attributes relative weights to these various impacts. Read in isolation, this language puts aesthetics and health on an equal footing.
Few cases discuss the relative weight to be accorded various factors under NEPA, and those that do tend to state that agencies are not required to accord greater weight to environmental impacts than to other impacts.28 “‘Environmental amenities’ will often be in conflict with ‘economic and technical considerations,’” the Court of Appeals for the D.C. Circuit stated soon after NEPA’s enactment.29 The court elaborated: “To ‘consider’ the former ‘along with’ the latter must involve a balancing process. In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned and ‘systematic’ balancing analysis in each instance.”30 One court has asserted that “economic and social impacts occupy a lesser tier of importance in an EIS than do purely environmental or ecological concerns,”31 but judicially-imposed balancing instructions like this one are the exception to the rule.
The implementation of NEPA has focused on the harms, rather than the benefits, of proposed projects and technologies.32 Agencies and courts have tended to interpret statutory phrases like “prevent or [*PG356]eliminate” to mean only “avoid adverse impacts from the proposed agency action.” For example, section 102(1)(C)(ii) requires each EIS to include “any adverse environmental effects which cannot be avoided should the proposal be implemented,”33 and NEPA regulations direct agencies to make best efforts to “avoid or minimize any possible adverse effects”34 and to explore alternatives “that will avoid or minimize adverse effects.”35 Read in isolation, these directives require only consideration of adverse consequences of the proposed agency action. Yet, when NEPA is read as a whole, it becomes clear that agencies can, and should, carefully consider the benefits of proposed actions as well.
For example, many NEPA provisions empower agencies to use NEPA to examine the benefits of proposed projects. NEPA requires agencies to consider items including “alternatives to the proposed action,”36 including the no build option, and “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity.”37 The differences in short- and long-term air impacts of using fossil fuels as opposed to using wind are striking. Section 101(a) uses the verbs “restore,” “create,” and “maintain” to describe NEPA’s goals regarding the environment.38 A stated 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.”39 NEPA also states that it is the responsibility of the federal government to work to “enhance the quality of renewable resources.”40 NEPA directs the Council on Environmental Quality “to formulate and recommend national policies to promote the improvement of the quality of the environment,” 41 and “to develop and recommend to the President national policies to foster and promote the improvement of environmental quality.”42 The Council [*PG357]on Environmental Quality’s implementing regulations clearly require a consideration of positive impacts.43
Only a few cases have addressed the adequacy of NEPA review of beneficial impacts.44 In one case, the Fourth Circuit found that the Federal Aviation Administration must prepare an EIS when a citizens’ group claimed that the EIS would reveal environmental benefits of changing the airport’s hours of operation.45 Because EISs generally focus on adverse impacts, agencies reviewing environmentally friendly projects like offshore wind must create new models that ensure adequate consideration of benefits as well.
Neither NEPA nor its implementing regulations provides any guidance on the geographic scope required for an EIS.46 Because the judicial standard of review is highly deferential,47 it is unlikely that a court will overturn the agency’s decision to limit an offshore wind farm study area to the immediate vicinity of the project site, particularly if an agency can show that a broad geographic analysis of air emission impacts is infeasible.48 While agencies must include reasonably foreseeable significant impacts on the human environment in each EIS, “remote and highly speculative consequences” do not require discussion.49 Instead, the EIS only requires a “reasonably thorough discussion of the [*PG358]significant aspects of the probable environmental consequences.”50 It is reasonably probable that air emissions from fossil fuel plants will spread wide distances.51 In practice, however, it would be difficult for an agency to thoroughly consider all possible air impacts of a proposed project. Also, as stated in NEPA regulations, “NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.”52 This regulation tempts agencies to limit the scope of impacts considered to only those very close to the project site.
NEPA regulations require agencies to “[r]igorously explore and objectively evaluate all reasonable alternatives” to proposed projects.53 Given the regional nature of power generation, this means that agencies should evaluate all reasonable alternatives within the power region of the proposed project. For example, since the Cape Wind project is to supply energy to the New England power grid, alternatives throughout New England should be considered.54 Still, NEPA’s public review process to date does not adequately cover this geographic scope. Major public meetings on the proposed project have been held in the viewshed of the proposed project, rather than in areas like Fall River, Massachusetts, that would benefit from emission reductions. This limited scope of public review may minimize comment from citizens who would advocate in favor of the wind farm, thereby resulting in a record that is biased towards the preferences of those living near the project.
Opponents of offshore wind say that they would support wind in other places, but this stance could make large-scale wind energy impos[*PG359]sible in many regions of the country. Only utility-scale wind projects will make a significant dent in emissions of carbon dioxide and other pollutants. As Seth Kaplan, an attorney for the Conservation Law Foundation, remarked, “‘[t]he opponents of Cape Wind say they support renewable energy, but exactly what do they support? One or two turbines at town landfills? That’s not going to solve global warming.’”55
Wind energy, whether onshore or offshore, is arguably the only non-hydropower, clean renewable source currently capable of providing large-scale energy in densely populated coastal areas.56 Because the ocean offers undeveloped open space,57 strong winds,58 and close proximity to densely populated areas, offshore wind farms have significant advantages over terrestrial wind farms in many coastal regions.59
As many Americans learned in the August 14, 2003 blackout, energy transmission is a complex animal.60 Even experts have trouble pinpointing where and when power from a particular source will show up as electricity.61 Power flows through the “grid,” a byzantine network of connections that allows electrons to flow, mix, and land where they will.62
A rudimentary understanding of the regional power grid and the mix of different energy sources it uses, otherwise known as the “fuel mix,” is a prerequisite to estimating the change in emissions attributable to wind power. When wind power is providing electricity to the grid, less fossil fuel is burned, and harmful emissions are reduced accordingly.63 The direct offsets are difficult to calculate in light of the complexity of the grid, the response time required to change coal or nuclear power generation, variations in pollutants from different power sources, and the bid system used to determine which power source fuels the grid at a given moment.64 Estimates are possible, however, based on a look at the projected average fuel mix. One study found that, if 246 megawatts of wind energy supplied 32% of Cape [*PG361]Cod and Martha’s Vineyard’s energy needs in 2015, carbon dioxide emissions would be reduced by 415,203 tons that year, nitrogen oxides by 279 tons, and sulfur dioxide by 200 tons.65
Perhaps the greatest obstacle to adequate NEPA analysis of an offshore wind farm is that, due both to the nature of the grid and the way that air pollutants are dispersed, the project’s perceived adverse visual impacts will be largely limited to the wind farm’s viewshed, while attendant emission reductions will occur over a broad area that barely overlaps with the project site.66 The electricity used in one area may come from a far away source, and so the benefits of power generation are geographically separated from its detriments. In Massachusetts, for example, electricity comes from diverse power plants throughout the Northeast.
Determining the broad geographic impacts of emissions is complex, but it is far more feasible today than it was a decade ago.67 With energy deregulation, many states now require utilities to disclose information on the sources and types of fuels used in particular areas and their emissions.68 An agency or private entity preparing an EIS can easily determine the average fuel mix of a particular state and pinpoint emissions from each source.69 Identifying the impacts that a new renewable energy source will have on the mix requires multiple simulations, since factors like price and availability are the basis for daily decisions about which power source to use.70 Still, since wind [*PG362]power emits no pollutants, even the most conservative finding of emission reductions from a large-scale wind farm will be significant.
The state’s interest in protecting human health is more substantial than its interest in protecting aesthetic values. Public health agencies receive higher funding and greater statutory authority than tourism, art, and recreation agencies.71
While significant health effects require an EIS, social, economic, and psychological considerations alone do not, and need only be considered if other natural or physical environmental effects occur that are sufficiently interrelated with such effects.72 Furthermore, while NEPA does not prioritize interests, at least one court has stated that human health is the most important subject in an EIS.73 Courts have held that agencies must conduct independent research when health effects are essential but unknown, provided this research is feasible.74 While NEPA does not prescribe the required extent of study of the effects of air pollutants on human health, courts have found that even [*PG363]a “marginal degradation” of air quality could easily pose a significant impact on the environment for purposes of NEPA regulation.75
The geographic scope of environmental review is critical in evaluating air impacts. While fossil fuel emissions are difficult to assign to specific populations because air pollutants can travel great distances,76 some emissions, like particulate matter, can have a disproportionately high impact on persons living near power plants.77 The air pollution reductions from Cape Wind will therefore have a greater impact on Southeastern Massachusetts and Rhode Island than other areas of New England, due to interactions between the power plants in this area. Because Cape Wind is in the same transmission-limited area as two coal plants and an oil-burning plant, the increased electricity production from Cape Wind would necessitate a decrease in electricity and attendant pollution from the other power plants in Southeastern Massachusetts and Rhode Island.78
A study issued by the Harvard School of Public Health in 2000 found that premature deaths increase, on a per capita basis, with proximity to the Brayton Point coal plant near Fall River in Southeastern Massachusetts.79 This study attributed 106 premature deaths per year to particulate matter emissions from the Brayton Point plant at current emission rates.80 Mercury, a byproduct of burning coal, is also a significant concern for human health if ingested, as it bioaccumulates and causes neurological damage. The U.S. Environmental Protection Agency’s Toxic Release Inventory reported 234 pounds of mercury emissions from the stacks of electric utilities in Massachusetts [*PG364]in 2001.81 This is a substantial amount of mercury, as very small quantities can do significant damage.82
Environmental Justice (EJ) addresses disparate environmental impacts on people of color, low income, and foreign origin.83 Power plants and other locally unwanted land uses are more often sited in these communities than in wealthier areas that have more political clout. For example, Geographic Information System maps prepared by the Commonwealth of Massachusetts show minority and low-income populations near most major sources of air emissions, including power plants.84 A significant portion of the population subjected to the health risks caused by the Brayton Point coal plant fits the profile of an area of EJ concern.85 Minority and low-income populations exist on Cape Cod, Martha’s Vineyard, and Nantucket, but these areas have lower populations overall than Fall River.86 Persons with small fixed incomes tend to live and work close to power plants and other sources of air pollution, while oceanfront properties tend to have high real estate values and lower minority and low-income populations. Arthur Pugsley, a Massachusetts Senior Environmental Analyst, recognized how the Cape Wind project relates to EJ concerns [*PG365]when he stated, “I think environmental equity is an inescapable but unspoken thing . . . . You know that the alternative is an oil-fired plant in a minority neighborhood. We don’t put them on the Vineyard.”87 Furthermore, minority and low-income populations often have significantly greater dietary exposure to bioaccumulative toxins like mercury, found in fish and other aquatic organisms, than other groups.88 Mercury from power plants can fall in a wide range, so that fish in a broad area, which could also include Cape Cod, Martha’s Vineyard, and Nantucket, may be impacted. Thus, even minority and low-income populations near Nantucket Sound could be disparately impacted by emissions that turbines there would have offset.
EJ is an important consideration in NEPA review. Executive Order 12,898 states that “each Federal agency shall make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations . . . .”89 The Council on Environmental Quality guidance describes EJ considerations for various stages of the NEPA process, including scoping, public participation, and determining the affected environment.90 This guidance indicates that agencies should identify affected populations during the scoping process,91 and requires lead agencies to analyze human health effects, along with social and economic effects, on minority and low-income populations.92
[*PG366] Non-NEPA law and policy also often mandate a consideration of EJ. For example, section 309 of the Clean Air Act93 allows EPA to comment on air-related EJ issues in an EIS.94 Many states have EJ offices, laws, or policies that may require review when state environmental impact review is involved.95
Like environmental impact statutes, EJ tends to focus on opposing adverse impacts rather than promoting beneficial ones. As a result, EJ policies may not include provisions for advocacy of renewable energy projects. For example, unlike fossil fuel projects, renewable energy projects are not subject to elevated EJ review under the Massachusetts Environmental Policy Act.96 The decision not to subject renewable energy projects to EJ review was made to reduce roadblocks to renewable energy projects.97 An unintended consequence of this decision, however, is that it ignores emission reductions and therefore removes the argument that agencies should take a hard look at regional, as opposed to local, impacts of utility-scale wind projects on minority and low-income populations.98 The final consequences of reduced state EJ scrutiny for a federal/state project like Cape Wind are not significant, since federal EJ requirements still apply. Nevertheless, this is an important example [*PG367]of the need to consider regional as well as local impacts, and benefits as well as detriments, when conducting renewable energy environmental review.
All fossil fuel sources, including natural gas, emit substantial quantities of carbon dioxide. There is a growing scientific consensus that greenhouse gas emissions like carbon dioxide cause global warming.99 Global warming’s detrimental impacts are well documented to include accelerated spread of infectious disease and other adverse health impacts, rising seas, smaller land masses, and other environmental impacts.100 NEPA and its implementing regulations do not specifically discuss global warming, and skeptics deny that global warming exists. 101 Many states, however, are now seeking to reduce greenhouse gas emissions.102 Assuming global warming is a reasonably foreseeable consequence of fossil fuel emissions,103 global warming under the no build scenario of offshore wind proposals should play a significant part in NEPA analysis.
Aesthetic objections are the single most important impediment to wind farm siting,104 and this is likely to be particularly true when it [*PG368]comes to offshore wind because it is visible to so many people.105 Americans do not view turbines as a part of the natural or historical landscape, despite the fact that thousands of windmills used to line the shores,106 while innumerable sailboats continue to dot the horizon and sail coastal waters.
Like other offshore wind farms, the Cape Wind project will change the ocean landscape, with turbines appearing to be about one-half an inch above the horizon when viewed from the closest points on shore.107 Opponents of offshore wind argue that the turbines will harm tourism and lower property values.108 There are other objections as well, ranging from the public trust doctrine to avian and aquatic impacts, but each of these objections can be mitigated or explained.109 Visual impacts cannot be avoided, and they are the greatest source of objections to wind farms. Pulitzer Prize-winning historian David McCul[*PG369]lough, a thirty-year resident of Martha’s Vineyard, recently summarized the sentiment by stating: “I’m not against wind turbines. I’m against 130 of them over 400 feet tall right smack in the middle of one of the most beautiful places in America.’’110
How should permitting agencies balance the benefits of emission reductions against visual objections? NEPA gives no clear answer, but there are arguments that aesthetic considerations merit less weight than concrete environmental impacts. First, aesthetics did not become a valid subject of regulation until the 20th century, and aesthetics were not widely accepted as a pure basis for regulation until the 1980s. Second, courts have found that NEPA review should focus on objective, physical impacts, and that aesthetic impacts alone will rarely, if ever, require an EIS. Third, courts have stated that the existence of strong opposition does not necessarily constitute “public controversy” that would require an EIS.
While U.S. law has come to recognize visual aesthetic injury and accept the protection of visual aesthetic values as a valid regulatory goal,111 no body of common or statutory law considers whether visual aesthetics are more important than health in the hierarchy of values. In fact, until recently, visual beauty had no place as a right or a valid regulatory endpoint in the U.S., even under zoning laws.112 While common law nuisance claims have often focused on aesthetics, the subjects of these claims have generally been nonvisual—noise, odor, and physical pollutants like effluents and dust. Courts have usually rejected visual aesthetic nuisance claims.113 But since the appearance of cases on the [*PG370]issues of urban renewal,114 historic preservation,115 and billboard siting,116 courts now accept visual aesthetic considerations as valid subjects of local regulation.117
Human health is a more important public policy consideration than natural beauty.118 American law and society, however, often fail to reflect the principle that traditional conceptions of beauty are secondary to health, justice, and long life. From lawn pesticide applications to fad diets, the law gives society the autonomy to make choices that favor aesthetic values at the expense of human health and the environment. NEPA, however, empowers agencies to examine all the facts, thereby allowing agencies to make healthy choices. In reviewing the debate between landscape and air quality, and aesthetics and health, agencies can use NEPA to correct the imbalance.
NEPA’s cryptic legislative history,119 though largely silent on aesthetics, does show an awareness that citizen groups tend to focus on one issue at a time, and fail to appreciate the downsides of their choices.120 If NEPA is to solve this problem, lead agencies must ensure [*PG371]that persons focused primarily on visual impacts will not monopolize the debate over renewable energy.
Variations of the word “health” appear five times in NEPA, in contrast to one appearance of the word “aesthetic.”121 Moreover, where NEPA mentions aesthetics it is a single item of a lengthy list.122
Less than three years after NEPA’s enactment, an appellate court considered whether aesthetics warrant an EIS. In Maryland-National Capital Park & Planning Commission v. U.S. Postal Service, the D.C. Circuit decided that visual impacts of a new postal facility did not require in-depth NEPA review.123 Addressing the difficulties of “precisely defining what is beautiful,” the court explained:
[T]he difficulties have a bearing on the intention of Congress, and whether it contemplated, for example, a requirement of a detailed “environmental impact statement,” and concomitant investigation, because of the possibility that each new Federal construction would be ugly to some, or even most, beholders, on such issues as: Is this proposed building beautiful? Or, what is the esthetic effect of placing the “controversial” Picasso statute [sic] in front of the Civic Center building in Chicago? These types of problems lead us to conclude that a “substan[*PG372]tial inquiry” or “hard look” was not contemplated, as a matter of reasonable construction of NEPA, where the claim of NEPA application is focused on alleged esthetic impact and the matters at hand pertain essentially to issues of individual and potentially diverse tastes.124
Subsequent cases similarly minimized or refused to address the importance of aesthetic impacts to NEPA review.125
The few appellate courts that have addressed the issue have found that nonphysical impacts are unlikely to require an EIS.126 Regarding a temporary barge facility that would be visible on the water, the Seventh Circuit stated that “[a]esthetic objections alone will rarely compel the preparation of an environmental impact statement. Aesthetic values do not lend themselves to measurement or elaborate analysis.”127 The court reasoned that an EIS was designed for analysis of more objective factors, and that an Environmental Assessment128 would be sufficient to address aesthetic objections.129
Offshore wind siting differs from this case because offshore wind is believed to have some significant nonaesthetic adverse impacts, and therefore an EIS may be required for reasons other than visual objections. Courts have held that once physical factors trigger an EIS, nonphysical factors like aesthetics should be considered as well.130
It is important to note that many offshore wind projects, like Cape Wind, will be subject to Army Corps of Engineers permits under section 10 of the Rivers and Harbors Appropriation Act of 1899.131 Regulations for the permitting process explicitly include consideration of aes[*PG373]thetics.132 Still, nothing in NEPA requires aesthetics to dominate the review.
While NEPA is designed to involve the public in debate, it is not a vehicle for public preferences to override rational agency decisions. “The fact that there was public opposition” to a proposed project “cannot tip the balance” to require an EIS.133 In considering whether an impact is intense enough to be “significant,” NEPA regulations look to “[t]he degree to which the effects on the quality of the human environment are likely to be highly controversial.”134 Courts have found that the existence of public opposition alone does not render a proposal “highly controversial.” In other words, “[o]pposition and a high degree of controversy . . . are not synonymous.”135 Instead, controversy exists where “a substantial dispute exists as to the size, nature or effect of the major federal action . . . .”136 The nature of the effect is related to the baseline environment, so that a new use similar to existing uses would not be considered problematic.137 NEPA asks agencies to weigh the merits of proposed agency actions, not to count the number of public comments received. Popular opinion is expressed through legislation, and lawmakers entrust agencies, with their specialized expertise, to implement laws.
If NEPA is to foster careful consideration by both agencies and the public of the environmental impacts of federal agency actions, then the EIS should place the most important information in a place and form that allows readers to balance the costs and benefits of a proposed pro[*PG374]ject against the alternatives, including the alternative of retaining the status quo.138 The most significant issues demand priority.139 In addition, Executive Order 12,898 requires agencies to “work to ensure that public documents . . . relating to human health or the environment are concise, understandable, and readily accessible to the public.”140
A sampling of onshore wind power Environmental Assessments and EISs shows significant attention to the adverse impacts of wind farms, with brief, general statements about air impacts.142
Some specific examples are cited below.
The Bonneville Power Administration (BPA) has conducted a number of NEPA reviews of large-scale renewable energy projects. Of particular interest are the Condon Wind Project in Oregon and the Maiden Wind Farm in Washington State. EISs for both projects incorporate findings of a business plan that the BPA prepared to evaluate [*PG375]the use of renewable energy.143 The BPA has clearly considered concomitant emission reductions resulting from operation of utility-scale renewable energy projects.144 Still, for reasons specific to the BPA, the discussions have not been as prominent or detailed in EISs for these terrestrial projects as they should be for offshore wind projects.
There are several factors in the BPA’s decision not to include a deeper evaluation of emission offsets in EISs for wind power. First, the agency concluded that natural gas burning combined cycle combustion turbines would likely be built if wind projects did not go forward.145 Second, the agency issued a programmatic EIS in 1993 that “evaluates the environmental tradeoffs among generic resource types . . . and the cumulative effects of adding these resources to the existing system.”146 As BPA Environmental Specialist Sarah Branum has explained:
The reason we didn’t put detailed info[rmation] on emission offsets in the wind EISs is that it would not have impacted the decision of whether to go forward with the project. We had a discrete project proposed to us by a private developer for a decision. Our NEPA alternatives were to 1) sign contracts with the developer for power purchase and transmission arguments, or 2) not sign contracts. Because we tiered the wind EISs to the Business Plan (BP) and Resource Programs (RP) EISs, we didn’t have to look at the universe of alternative sources of energy and . . . all their various impacts—we did that in the BP and RP EISs.147
[*PG376]Finally, it is notable that “the vast majority of power that [the BPA] markets” is derived from hydropower sources.148 Air emissions are not a concern with hydropower.
The factors that argued against the BPA’s deeper consideration of emission offsets will not apply to offshore wind projects where oil and coal are major contributors to the energy mix, and programmatic EISs that consider comparative emission offsets are not available. For this reason, despite the high quality of the Condon and Maiden EISs, offshore wind project proponents should not use the Condon and Maiden EISs as models for the evaluation of emission offsets. Preparers of offshore wind EISs will, however, find useful material in the BPA’s Business Plan and Resource Program EISs.
The BPA Resource Program EIS compared adverse and beneficial impacts of thirteen alternatives that allowed the agency to increase available power through various combinations of conservation, efficiency improvements, coal, natural gas, combustion turbines, nuclear power, renewable energy, and energy imports. The EIS includes tables that allow the reader to compare and contrast environmental impacts, including air emission impacts.149 The data in these tables are limited to certain criteria air pollutants and other environmental impacts, and they do not compare location-specific impacts on particular populations. Site-specific offshore wind power EISs should include discussions of pollutants and populations of particular concern to the power regions those sites will impact.
The 2001 Final EIS for the Condon Wind Project includes the following in its two-paragraph statement on the no action alternative:
Under the No Action Alternative, a greater proportion of other energy resources would be developed. The predominant resource is most likely to be combined-cycle combustion turbines (CTs) fueled by natural gas . . . . [The BPA]’s Resource Programs EIS (RP EIS) and Business Plan EIS in[*PG377]cluded an evaluation of the environmental impacts of energy resources including CTs.150
The half-page discussion of air quality151 does not discuss emission reductions, and the table on potential impacts and mitigation does not compare project impacts against no action impacts for air or any other issue.152 The Final EIS added the following paragraph in the “Need for Action” section:
Technologies like wind power generation can help displace additions to the power system that might otherwise come from fossil fuel combustion or hydro-powered generation. Wind power can help meet energy needs without additional emissions of greenhouse gases. The Condon Wind Project is an opportunity to satisfy consumer demand for increasing the amount of renewable energy resources in the region’s power supply.153
This general paragraph alerts the reader to some of the benefits of alternative energy, but does not allow the reader to evaluate these benefits.154 Section 5.10 of the Draft EIS provides the following brief mention of emission reductions and benefits to global warming concerns: “The proposed project would not generate emissions of gases (such as carbon dioxide) that contribute to global warming. To the extent wind energy reduces the amount of fossil fuel generation, global warming impacts can be avoided.”155
The Maiden Wind Farm Draft EIS, prepared jointly by the BPA and the County of Benton, Washington,156 is similar to the Condon EIS, although there is more detail on emission reductions and the project itself is ten times larger. The discussion of air impacts of the no action alternative includes two paragraphs stating that the gas-burning combined cycle combustion turbines that would likely be built in place of [*PG378]the project would emit about 5.81 tons of nitrogen oxides and 3,094 tons of carbon dioxide per average megawatt per year.157
Elsewhere, the U.S. Department of Energy (DOE) has been the lead agency in several environmental reviews of terrestrial wind power and other alternative energy proposals. DOE has a written policy that distinguishes between the “affected environment” and the “no action alternative,” which is critical to exploring emission reductions. DOE explains that:
[T]he affected environment’s air quality discussion might describe the general climate, wind, temperature, rainfall, ambient concentrations of air pollutants at the site, and current site emissions and emission rates. Also, this discussion would, as appropriate, identify existing air quality permits and specify the attainment status for criteria pollutants. In contrast, impact assessment for the no action alternative would project future site emissions and emission rates without the proposed action. The impact assessment also would identify the impacts of such future emissions on compliance with applicable air quality regulations and permits, the attainment status for criteria pollutants, and human health and environment.158
Consistent with this policy, renewable electricity generation EISs should forecast what site emissions and cumulative emissions will be in the future in the event that the renewable project does not go forward. This calculation will require a projected increase in air emissions.
None of the eight Federal Register Notices of Intent for wind power EISs surveyed159 specifically mentioned potential emission off[*PG379]set benefits or benefits to human health or the environment. This is significant because these publications are designed to notify members of the public who may wish to attend scoping meetings or otherwise become involved in the NEPA public participation process. Instead, renewable energy is referenced in a general way that assumes the reader already knows all the impacts. A Bureau of Land Management/DOE EIS announcement for a wind project in Wyoming summarizes the potentially significant impacts of the renewable energy project that the Draft EIS addresses, including avian mortality and visual changes, but makes no mention of any beneficial impacts.160 The statement does not allow the reader to consider that human mortality may accelerate if wind farms are not built.161
The Cape Wind EIS will not be finished before 2004.162 Public participation and discussion has been substantial, including a series of public stakeholder meetings organized by the Massachusetts Technology Collaborative that were held on Cape Cod in 2002–03.163 These meetings have included a number of presentations on the power grid, global warming, and air quality issues.164 For those stakeholders in the project that reside in Cape Cod, Martha’s Vineyard, and Nantucket, [*PG380]this process has offered a significant opportunity for public education about the offshore wind debate.165
The Scope of Work for the Cape Wind EIS, issued in June 2002, suggests the benefit of emission reductions when it states that “[t]he EIS will include a description of compliance with the requirements of the Clean Air Act for construction and operation phases. Any potential for impact on the climate of the region should also be addressed.”166 This brief mention of air and climate is twelfth in a list of thirteen considerations, does not explicitly identify air emission reductions, and does not establish a baseline for comparison purposes.
The Scope of Work does indicate that there will be a discussion of the New England power grid,167 but it is not clear that this statement contemplates a detailed comparison of projected air emissions in New England with and without renewable energy. The Scope gives no information about a baseline of air emissions other than to say that the no action alternative “may be either an alternative not involving Corps jurisdiction or denial of the permit.”168
At the state level, the Secretary of Environmental Affairs suggested that a gas plant on the mainland would be used to establish a baseline for the Cape Wind project.169 This baseline, while a good start for a conservative analysis of benefits, fails to account for offsets from higher-polluting power sources like coal, which play a major role in the current power mix.170
The Massachusetts Environmental Policy Act (MEPA)171 Certificate for the Cape Wind project states that comparison of emissions should be made between coastal and inland gas-fired plants and wind turbines.172 The MEPA Certificate states that “the EIR [Environmental Impact Report] should also briefly discuss the impacts of an oil-fired 420 MW plant and a coal-fired 420 MW plant.”173
Pursuant to section 102(2)(C), each EIS should consider the following:
(i) The environmental impact of the proposed action; (ii) Any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii) Alternatives to the proposed action; (iv) The relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity; and (v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.174
More specific NEPA regulations require consideration of the following in the part of the EIS that discusses environmental consequences: “(d)The environmental effects of alternatives including the proposed action . . . . (e)Energy requirements and conservation potential of various alternatives and mitigation measures. (f)Natural or depletable resource requirements and conservation potential of various alternatives and mitigation measures.”175
The discussion of these factors “forms the scientific and analytic basis” for the alternatives comparison portion in the EIS.176 Since the no build scenario is considered an alternative, the EIS should discuss the environmental effects of emission reductions, consistent with these regulations, in considering the environmental consequences for any wind power project.
Given the broad geographic scope of fossil fuel emission impacts, the complexity of predicting energy uses and pollution effects, and the danger that local objections to visual aesthetics will dominate the debate, it is critical that agencies prepare EISs for offshore wind farms that fully explain the costs and benefits to agencies and the public. Otherwise, opponents will be able to shape confusing data into a form that appears to argue against a resource that may well have more benefits than costs.
The location of discussions in NEPA documents can prejudice the reader’s understanding of the review. For example, if air emission impacts are listed at the end of the document in a short paragraph, the reader may come away deciding that these impacts are less significant than those that were discussed first, and at more length. Additionally, these discussions must appear in the substantive portions of review documents, rather than only in preambles.177
The localized nature of offshore wind farms’ perceived adverse visual impacts, combined with the highly deferential nature of judicial review of agency decisions under NEPA, make it difficult to consider emission reduction benefits that may occur far from the project site. Nevertheless, it is critical that NEPA review of offshore wind cover a geographic scope that is adequate to allow full consideration of emission reductions that will result from the wind farm, no matter where these offsets or resulting improvements in air quality occur. From the beginning, it is important that lead agencies cast a wide geographic and socioeconomic net in seeking comments on offshore wind developments. If public meetings are primarily held on the coast, for example, and not in the neighborhoods of the power plants whose emissions the turbines will offset, emission reduction benefits will be obscured. People who will view the turbines are likely to attend the coastal meetings, while people who will benefit most from the emission reductions are less likely to attend. Thus, an opportunity for increased attention to health benefits and disparate impacts will be lost. This is particularly important in light of environmental justice considerations.178
Consideration of the no action alternative often does not allow EIS readers to compare air pollution levels if the proposed project is built with the levels that will occur without the project. This is the case even when the project involves renewable energy proposals. For example, the EISs for the Maiden and Condon wind power projects by the BPA devoted short paragraphs to environmental impacts of the no build alternative.179 Some NEPA documents address environmental benefits at length,180 but in choosing not to place these discussions in the no action section or to highlight them in the Executive Summary, EIS preparers ensure that the benefits will receive less attention from EIS readers than the detriments.
A cursory no action alternative review is not appropriate for renewable energy projects. First, as DOE guidance emphasizes, the no action alternative is not the same as the affected environment.181 Consistent with DOE policy, renewable electricity generation EISs should forecast what site emissions and emission rates will be in the future in the event that the renewable project does not go forward. This calculation will require a projected increase in air emissions.
Determination of the baseline of air emissions in the no action alternative for purposes of evaluating the proposed agency action and other alternatives in energy projects is complex and controversial.182 If [*PG384]alternate energy sources will be needed to fill the demand that the renewable energy project would serve, then according to DOE guidance, the impacts of those energy sources should be considered in the baseline.183 Yet, the same guidance documents that provide examples of no action alternative descriptions give no details on these impacts.184
Offshore wind power can reduce emissions of air pollutants that are contributing to global warming and causing premature deaths. This is the most important impact of offshore wind, and it deserves immediate, in-depth attention. Used appropriately, NEPA can show decisionmakers that when they choose to save the view, they also choose to perpetuate the adverse effects of fossil fuel use on human health and the environment.