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The conservationist group thinks it has the goods on the Bureau of Land Management’s new Western solar plan.
The Biden administration is trying to open a lot more Western territory to utility-scale solar. But they are facing a conservationist backlash that may be aided by the views of scientists within the federal government.
Yesterday, activists pushed back against the environmental review of the Bureau of Land Management’s new Western solar plan that would make more than 31 million acres available for utility-scale solar applications across 11 states. The BLM is trying to meet the next two decades of demand for renewable electricity while avoiding the kinds of environmental and social conflicts that stymie individual projects. But it appears key stakeholders filed protests against the environmental review, including counties that would host new solar farms and Republican politicians, as well as the whistleblower advocacy group PEER we wrote about last week.
Today, however, we’re going to focus on the protest filed by the Center for Biological Diversity, which submitted to BLM what amounted to the contours of a lawsuit.
The protest argued the environmental review of the plan not only failed to adequately protect the Mojave desert tortoise – a species protected as “threatened” under the Endangered Species Act – but appeared to make “arbitrary” decisions to open potential tortoise habitat and travel areas. Per the protest, the review did so without clearly explaining how it took into account guidance from the Fish and Wildlife Service, the primary species protection agency.
Zooming in, scientists at the Service said in a power-point presentation dated April of this year (that CBD happily pointed out is available online) they supported excluding occupied tortoise habitat and translocation sites from the solar plan. Employees at the Service also gave CBD guidance documents they submitted over the past year to the Bureau that outlined “extensive criteria for exclusion” that activists say were not followed and weren’t reflected in the review documents previously released by the government.
Why does this matter? Well, it could determine whether the decisions relevant can hold up in court. CBD is using the word “arbitrary” because it’s a standard followed under the Administrative Procedures Act, which forces government officials to show their work and demonstrate they considered all available information submitted to them.
CBD’s Patrick Donnelly – who we spoke with at length in our first edition of The Fight – authored the protest filing. Donnelly told me the acreage relevant to the tortoises totals only about 200,000 acres of the almost 12 million that would be available for solar under the plan, so the grievance shouldn’t be a herculean endeavor to address.
“We’re trying to go into the protest process with an open mind, not cynically,” he told me, “and make this plan a lot less harmful.”
Still, if CBD escalates, the Bureau will have to show how it went from getting these recommendations to landing on the acreage it opened to solar. It could also shake the certainty of developers with applications within the solar plan area already dealing with tortoise protection advocates on the individual project level, like EDF Renewables’ Bonanza Solar project north of Las Vegas which has a draft environmental review in public comment.
Proving a government decision is arbitrary requires demonstrating the move was not “reasonable and justifiable,” Ankur Tohan, an attorney at K&L Gates, told me. Usually the bar for the government to prove itself is “relatively low,” and courts are “very deferential to an agency” as long as “the agency’s action took into account the relevant factors.” The problems arise for the government if “the internal analysis is contradictory,” Tohan said.
Personally I’m having trouble figuring out how the Service’s initial recommendations were internalized at BLM – though I am assuming they were handled in some way, as otherwise the Service would presumably stand in the way. BLM does acknowledge that “design features and project guidelines” were modified to “better avoid impacts to species where not excluded” and said developers “shall configure solar development projects to maintain existing desert tortoise habitat.”
I asked BLM to explain this, but they declined to answer questions on the matter. “The BLM has no comment at this time,” BLM press secretary Brian Hires said, citing the need to “review all protests.” So I guess we’ll have to wait and see!
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A conversation with VDE Americas CEO Brian Grenko.
This week’s Q&A is about hail. Last week, we explained how and why hail storm damage in Texas may have helped galvanize opposition to renewable energy there. So I decided to reach out to Brian Grenko, CEO of renewables engineering advisory firm VDE Americas, to talk about how developers can make sure their projects are not only resistant to hail but also prevent that sort of pushback.
The following conversation has been lightly edited for clarity.
Hiya Brian. So why’d you get into the hail issue?
Obviously solar panels are made with glass that can allow the sunlight to come through. People have to remember that when you install a project, you’re financing it for 35 to 40 years. While the odds of you getting significant hail in California or Arizona are low, it happens a lot throughout the country. And if you think about some of these large projects, they may be in the middle of nowhere, but they are taking hundreds if not thousands of acres of land in some cases. So the chances of them encountering large hail over that lifespan is pretty significant.
We partnered with one of the country’s foremost experts on hail and developed a really interesting technology that can digest radar data and tell folks if they’re developing a project what the [likelihood] will be if there’s significant hail.
Solar panels can withstand one-inch hail – a golfball size – but once you get over two inches, that’s when hail starts breaking solar panels. So it’s important to understand, first and foremost, if you’re developing a project, you need to know the frequency of those events. Once you know that, you need to start thinking about how to design a system to mitigate that risk.
The government agencies that look over land use, how do they handle this particular issue? Are there regulations in place to deal with hail risk?
The regulatory aspects still to consider are about land use. There are authorities with jurisdiction at the federal, state, and local level. Usually, it starts with the local level and with a use permit – a conditional use permit. The developer goes in front of the township or the city or the county, whoever has jurisdiction of wherever the property is going to go. That’s where it gets political.
To answer your question about hail, I don’t know if any of the [authority having jurisdictions] really care about hail. There are folks out there that don’t like solar because it’s an eyesore. I respect that – I don’t agree with that, per se, but I understand and appreciate it. There’s folks with an agenda that just don’t want solar.
So okay, how can developers approach hail risk in a way that makes communities more comfortable?
The bad news is that solar panels use a lot of glass. They take up a lot of land. If you have hail dropping from the sky, that’s a risk.
The good news is that you can design a system to be resilient to that. Even in places like Texas, where you get large hail, preparing can mean the difference between a project that is destroyed and a project that isn’t. We did a case study about a project in the East Texas area called Fighting Jays that had catastrophic damage. We’re very familiar with the area, we work with a lot of clients, and we found three other projects within a five-mile radius that all had minimal damage. That simple decision [to be ready for when storms hit] can make the complete difference.
And more of the week’s big fights around renewable energy.
1. Long Island, New York – We saw the face of the resistance to the war on renewable energy in the Big Apple this week, as protestors rallied in support of offshore wind for a change.
2. Elsewhere on Long Island – The city of Glen Cove is on the verge of being the next New York City-area community with a battery storage ban, discussing this week whether to ban BESS for at least one year amid fire fears.
3. Garrett County, Maryland – Fight readers tell me they’d like to hear a piece of good news for once, so here’s this: A 300-megawatt solar project proposed by REV Solar in rural Maryland appears to be moving forward without a hitch.
4. Stark County, Ohio – The Ohio Public Siting Board rejected Samsung C&T’s Stark Solar project, citing “consistent opposition to the project from each of the local government entities and their impacted constituents.”
5. Ingham County, Michigan – GOP lawmakers in the Michigan State Capitol are advancing legislation to undo the state’s permitting primacy law, which allows developers to evade municipalities that deny projects on unreasonable grounds. It’s unlikely the legislation will become law.
6. Churchill County, Nevada – Commissioners have upheld the special use permit for the Redwood Materials battery storage project we told you about last week.
Long Islanders, meanwhile, are showing up in support of offshore wind, and more in this week’s edition of The Fight.
Local renewables restrictions are on the rise in the Hawkeye State – and it might have something to do with carbon pipelines.
Iowa’s known as a renewables growth area, producing more wind energy than any other state and offering ample acreage for utility-scale solar development. This has happened despite the fact that Iowa, like Ohio, is home to many large agricultural facilities – a trait that has often fomented conflict over specific projects. Iowa has defied this logic in part because the state was very early to renewables, enacting a state portfolio standard in 1983, signed into law by a Republican governor.
But something else is now on the rise: Counties are passing anti-renewables moratoria and ordinances restricting solar and wind energy development. We analyzed Heatmap Pro data on local laws and found a rise in local restrictions starting in 2021, leading to nearly 20 of the state’s 99 counties – about one fifth – having some form of restrictive ordinance on solar, wind or battery storage.
What is sparking this hostility? Some of it might be counties following the partisan trend, as renewable energy has struggled in hyper-conservative spots in the U.S. But it may also have to do with an outsized focus on land use rights and energy development that emerged from the conflict over carbon pipelines, which has intensified opposition to any usage of eminent domain for energy development.
The central node of this tension is the Summit Carbon Solutions CO2 pipeline. As we explained in a previous edition of The Fight, the carbon transportation network would cross five states, and has galvanized rural opposition against it. Last November, I predicted the Summit pipeline would have an easier time under Trump because of his circle’s support for oil and gas, as well as the placement of former North Dakota Governor Doug Burgum as interior secretary, as Burgum was a major Summit supporter.
Admittedly, this prediction has turned out to be incorrect – but it had nothing to do with Trump. Instead, Summit is now stalled because grassroots opposition to the pipeline quickly mobilized to pressure regulators in states the pipeline is proposed to traverse. They’re aiming to deny the company permits and lobbying state legislatures to pass bills banning the use of eminent domain for carbon pipelines. One of those states is South Dakota, where the governor last month signed an eminent domain ban for CO2 pipelines. On Thursday, South Dakota regulators denied key permits for the pipeline for the third time in a row.
Another place where the Summit opposition is working furiously: Iowa, where opposition to the CO2 pipeline network is so intense that it became an issue in the 2020 presidential primary. Regulators in the state have been more willing to greenlight permits for the project, but grassroots activists have pressured many counties into some form of opposition.
The same counties with CO2 pipeline moratoria have enacted bans or land use restrictions on developing various forms of renewables, too. Like Kossuth County, which passed a resolution decrying the use of eminent domain to construct the Summit pipeline – and then three months later enacted a moratorium on utility-scale solar.
I asked Jessica Manzour, a conservation program associate with Sierra Club fighting the Summit pipeline, about this phenomenon earlier this week. She told me that some counties are opposing CO2 pipelines and then suddenly tacking on or pivoting to renewables next. In other cases, counties with a burgeoning opposition to renewables take up the pipeline cause, too. In either case, this general frustration with energy companies developing large plots of land is kicking up dust in places that previously may have had a much lower opposition risk.
“We painted a roadmap with this Summit fight,” said Jess Manzour, a campaigner with Sierra Club involved in organizing opposition to the pipeline at the grassroots level, who said zealous anti-renewables activists and officials are in some cases lumping these items together under a broad umbrella. ”I don’t know if it’s the people pushing for these ordinances, rather than people taking advantage of the situation.”