Overhauling ESA Private Land Provisions in Light of the Renewable Energy Boom on Federal Public Lands
Many of us are familiar with the recent rise in renewable energy development in the United States. What we are not as familiar with, however, is the story of the Mojave desert tortoise and how it succeeded in shutting down for three months what remains the largest solar energy project in the world. Taking a step back, the Endangered Species Act (ESA), now forty years old, has plodded along at a slow and steady pace, with Congress slowly chipping away at the ESA until it was transformed from “prohibitive to permissive.” While the ESA has had the benefit of a significant head start, renewable energy development in the United States has burst onto the scene in a strong and swift fashion in the last ten years, a newcomer that has developed at an accelerating pace. What may be described as a “green clash” has been created as ESA and the renewable energy development “land rush” policies diverge on limited federal public lands. This conflict is easily demonstrated by the example of the desert tortoise. The solar energy project slated for construction collided with the ESA when more desert tortoises were found at the site than the project’s ESA permit allowed, resulting in the stoppage of the entire project as remedies for the tortoise were sorted out. In a study this year, the U.S. Geological Survey has found further evidence of this clash, as demonstrated by the fact that seventeen percent of biodiversity “hot spots” are found on land designated for renewable energy development. This clash between federal green initiatives has magnified the infirmities of the ESA, and the renewable energy land rush has catalyzed the need for imminent change in how the ESA regulates (currently, how the ESA fails to effectively regulate) the habitat of threatened and endangered species on private lands in the United States.
Blair M. Warner,
Overhauling ESA Private Land Provisions in Light of the Renewable Energy Boom on Federal Public Lands,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss4/13