April 01, 2020

Energy Infrastructure on Public Lands

Ariana Barusch

It is an unprecedented time for energy development. Where once renewable energies were novelties, now they are being developed with an almost evangelical fervor. The rubber meets the road in the transition to renewable energies not in grandiose congressional or executive proclamations, but in obscure offices where collaboration and policymaking produce instructional memoranda and programmatic agreements. None of them wear capes, but these heroes have created a regulatory landscape more friendly to the development of renewable energies than ever before. For those willing to play the game, new developments in energy corridor rights of way and public land policy are opening up expansive new opportunities for energy development in the West.

Executive Orders and Energy Corridors

The West is an energy breadbasket. One hundred million years ago much of the West was submerged under an ancient ocean known as the Great Cretaceous Seaway. As the waters receded, incredible amounts of organic matter were left behind and crushed under layers of sediment, producing a wealth in fossil fuels that would fuel the United States, and nations around the globe. With 41 percent of estimated and proven gas reserves in the United States, the West is the largest producer of oil and natural gas in the nation. Patricia N. Limerick et al., What Every Westerner Should Know About Energy, The Center of the American West, University of Colorado (2003).

Vast expanses of open land, variable terrain, and diverse geology make the West a prime location for renewable energies as well. Almost half of the land in the West is owned by the federal government. This public land is governed by the Federal Land Policy and Management Act’s (FLPMA) multiple use mandate, requiring federal land planning be based upon principles of multiple use and sustained yield. Multiple use has come to mean everything from recreation to grazing, and includes energy development. FLPMA also enables the Bureau of Land Management (BLM) to grant Title V Rights of Way for the generation, transmission, and distribution of electric energy. FLPMA, 43 U.S.C. § 1701 (1976).

On August 15, 2017, the president signed Executive Order 13,807, triggering a review of infrastructure projects across the United States. Exec. Order No. 13,807, 82 Fed. Reg. 40,463 (Aug. 24, 2017). The Department of the Interior, U.S. Forest Service, and Department of Energy launched regional reviews of energy corridors designated under section 368 of the 2005 Energy Policy Act. Energy Policy Act, 42 U.S.C. § 15926(a) (2005). These corridors are designated for oil, gas, and hydrogen distribution, as well as electrical transmission. The government hoped to streamline and accelerate infrastructure developments.

As section 368 corridor reviews winds down, proposed revisions would enable expansion of energy developments across public land and create a more comprehensive electrical grid. One project taking advantage of these corridors is the TransWest Express Transmission line. Beginning in 2005, this project would construct a high voltage power line delivering wind energy from Wyoming to the Southwest. The project includes a DC component allowing the transmission of energy in both directions, and a terminus in central Utah.

The TransWest line and proposed revisions to section 368 corridors create a unique opportunity for western energy developments. Renewable energies, particularly solar, wind, and geothermal energies, are poised for expansive development. As regulatory barriers to energy transmission on public lands come down, it is time to explore additional legislative and regulatory barriers to the most common forms of renewable energy to understand how future renewable development can take place.

Solar Energy and the BLM’s Red-Carpet Treatment

The solar energy juggernaut took off with the solar investment tax credit in 2006. Solar generation has grown by as much as 50 percent each year. In the first quarter of 2019, solar energy accounted for more than 50 percent of added electrical capacity in the United States. In 2018, section 201 solar tariffs went into place, which slowed both residential and utility solar growth. The tariffs have a four-year term, scaling down each year, and the solar industry continues to rebound following a 2 percent overall market decline. The Solar Energy Industries Association predicts solar capacity will double over the next five years, and the cost of solar energy continues to decline. Solar Energy Industries Association, Solar Industry Research Data (2019).

Solar panels contain photovoltaic cells that use a layer of silicon to produce direct current when exposed to radiation. Most solar panels have an adapter to turn that current into an alternating current. Where geothermal and wind energy turn a turbine, solar energy relies on the photovoltaic effect to move electrons and create a flow of current.

As a result, solar infrastructure requires less large-scale equipment, but a large surface area to absorb radiation. This makes solar panels well suited for residential projects, while creating an opportunity to rethink the role of utilities. California, a longtime leader in solar energy, now requires that every new home have solar power. Cities across California have begun mandating the same for commercial construction. These projects have the potential to reduce the requisite baseload capacity for regional energy utilities, as battery technology improves, storing energy collected throughout the day for use at any time.

Solar energy is an intermittent energy source. Batteries are key for utilities to rely on solar production as baseload generators. While batteries are still being improved and without comprehensive control systems, explosions, like the one in Sunrise, Arizona, are a possibility. The vanadium-flow battery at Sunrise was a newer technology for utilities. The heat discharged from such batteries rarely reaches unsafe levels. Using the multiple valence levels of the vanadium electrolyte, the battery can rely on solutions held in separate tanks. Traditional batteries rely on distinct chemical compounds to create catholyte and anolyte solutions.

In practical terms, the unique characteristics of the vanadium electrolyte mean vanadium-flow batteries have a low risk of combustion as the electrolyte is suspended in water. The vanadium electrolyte also allows the battery to run to 0 percent charge, unlike lithium batteries, and lie dormant without negative effects. Because they rely on liquid electrolyte solutions, rather than electrodes (like the batteries you buy at the hardware store), vanadium-flow batteries’ output can be tailored to the needs of the consumer, making them ideal as utility scale energy storage devices. See UniEnergy Technologies, UET Chemistry (2018), uetechnologies.com. These batteries are also larger than your standard AAs, closer to the size of a storage container than a D-cell. They run significantly higher risks during operation, an added difficulty in the construction and permitting of utility-size solar arrays.

Currently, in the Southwest United States, where the TransWest Line proposes its terminus, the desert provides abundant solar opportunities. To that end, the BLM has created comprehensive policies around solar energy zones or SEZs, to streamline the leasing and development process. The BLM developed comprehensive regional mitigation strategies for areas designated as SEZs. These regional mitigation strategies focus on enabling developers to conduct mitigation strategies through funding conservation priorities. The extant regional mitigation strategies are particularly useful for developers, who are able to concretely identify the costs of mitigation that would go into developing an SEZ. See BLM, Solar Energy Program, Incentives for Projects in Solar Energy Zones (2013), blmsolar.anl.gov.

The BLM will also take an active role in monitoring SEZs and collecting baseline data. The BLM has had a significant hand in aiding the environmental review process, creating a programmatic environmental impact statement (EIS) under the National Environmental Policy Act (NEPA). NEPA requires an EIS for federal action that may have significant environmental consequences. NEPA, 42 U.S.C. §§ 4321–47 (2008). The EIS reviews a number of potential risks. Future developments can tier additional information, including reviewing risks to the human environment of new solar developments, on to the programmatic EIS, allowing for narrower scope of review, and a reduced time frame for the permitting process. See BLM, NEPA Review for Projects in SEZs (2017), blmsolar.anl.gov.

The programmatic EIS addresses some of the major policy obstacles to development. In creating the programmatic EIS, the BLM worked with the U.S. Fish and Wildlife Service (USFWS) to ensure compliance with the Endangered Species Act. Although 17 species could be adversely affected by existing SEZs, the USFWS did not find that development would jeopardize the species or their critical habitat. See BLM, Approved Resource Management Plan Amendments/Record of Decision for Solar Energy Development in Six Southwestern States (Oct. 2012).

The BLM consulted with six affected State Historic Preservation Officers to ensure compliance with the National Historic Preservation Act, and reached out to 316 tribes, chapters, and bands, to ensure compliance with both the American Indian Religious Freedom Act and Executive Order 13,175, requiring government-to-government consultation with tribes. The historic preservation officers signed a final solar programmatic agreement related to the designated SEZs, but currently only the Duckwater Shoshone Tribe has signed as a concurring party. The programmatic agreement includes the ability to tailor Memoranda of Agreement to specific SEZs, and to create more specific requirements based on the input of local tribes and state historic preservation officers. See BLM et al., Programmatic Agreement Regarding Solar Energy Development on Lands Administered by the Bureau of Land Management (Sept. 2012).

With the BLM having done much of the legwork, it is surprising that the Southwest is not yet relying on solar energy. One important problem being quickly resolved is access to transmission lines, or areas where transmission lines could be placed. Revisions to section 368 energy corridors in Region One are already underway to remedy that problem. One such revision is the Dry Lake Valley North SEZ in southeastern Nevada, where section 368 corridor 39-113 runs across the Moapa Valley. This corridor was revised to connect section 368 corridors across the valley into Utah and potentially within distance of the TransWest line.

In fact, six of the designated SEZs are within spitting distance of the TransWest line. The Wah Wah Valley, Escalante Valley, and Milford Flats South SEZs are proposed in Beaver and Iron counties, both of which will be bisected by the transmission line. In Nevada, the Dry Lake Valley North, Margosa Valley, and Dry Lake SEZs are potentially within distance of the Nevada AC Substation, proposed as the southernmost point of the transmission line. With revisions to section 368 energy corridors expanding access to the SEZs, and battery technology improving every day, solar energy is already a serious provider of energy in the West.

Wind Energy and Wildlife

Wind energy is another example of an intermittent energy source that would benefit from battery advances. The American Wind Energy Association reports that in the second quarter of 2019 the wind energy industry commissioned 53 percent more capacity than it had in the first half of 2018. Projects starting construction and entering advanced development will produce 7,290 megawatts, the second highest volume of new announcements on record. There are currently more than 57,000 wind turbines operating across 41 states, and two U.S. territories. See American Wind Energy Association, U.S. Wind Industry Quarterly Market Report (2019).

The TransWest line has planned a northernmost terminus outside of Rawlins, Wyoming. Just south of Rawlins, resting on an area of Carbon County checker-boarded with private and federal land, is the Wyoming Power Company’s designated site for the Chokecherry and Sierra Madre Wind Energy Project (Chokecherry). Two thousand acres are designated for a wind energy project that will provide energy as far as California. The project has a nominal energy capacity of three thousand megawatts, meaning Chokecherry could produce five times the energy of a conventional coal plant. Union of Concerned Scientists, How Is Electricity Measured (Oct. 22, 2013).

The infrastructural issues around wind energy development are quite unique. To build a typical wind energy facility, developers must secure access to both the land and the energy transmission line. In addition to access roads, the foundation of a typical wind turbine is a concrete spread buried 9 to 12 feet underground. Each foundation has a 4- to 6-foot pedestal and is surrounded by a 10- to 15-foot gravel ring. The turbines are typically connected via overhead transmission line to the electrical grid interconnection facility, where Chokecherry will connect to the TransWest line. Infinity Renewables, Wind Construction Process (2016), infinity-renewables.com.

In addition to federal approval and a subsequent EIS, energy developments must address state and local siting considerations. Most states have adopted one of two systems. Either local governments are given discretion in dealing with siting considerations, or state governments are, typically following input from local governments depending on the proposed developments’ size. In Wyoming, any facility of 500 kilowatts or greater must obtain a permit from a county board of commissioners, which can be granted as long as it is consistent with statutory minimum standards. Wyo. Stat. Ann. § 18-5-501-04. Wyoming is also one of a handful of states that have adopted setback requirements for wind turbines. Id.

Half of Chokecherry rests on federal land, where FLPMA’s multiple-use mandate is king. For an energy utility to get access to federal land, interested entities may apply for rights of way from the BLM under Title V of FLPMA. A 2008 instructional memorandum highlights a number of concerns that must be taken into account when evaluating permits for wind energy developments, including areas of critical environmental concern (ACEC), visual rights of way, visual resource management, exclusionary zones, and wildlife and migratory bird concerns.

The primary concern for all public land policy is whether it is suited for multiple use and sustained yield. The physical infrastructure necessary for wind energy developments, even considering state level regulations, is uniquely suited to fulfill this mandate. For instance, grazing and farming activities can take place within 15 feet of a turbine pad, and the land can theoretically still be used for FLPMA grazing permits. Infinity Renewables, Wind Construction Process (2016).

Beyond multiple use, the questions of visual resource management and wildlife management are strong policy considerations to keep in mind when preparing an application for wind development rights of way. For wind energy, preserving visual resources is largely a siting issue. The BLM has produced guidelines for developers that include maintaining the turbines and nacelles in good repair and keeping them clean, and in orderly patterns at uniform heights. See BLM, Best Management Practices for Reducing Visual Impacts of Renewable Energy Facilities on BLM-Administered Land (2013).

Another strong policy consideration in evaluating potential wind energy developments is wildlife management. While the BLM has put together voluntary guidelines for the wind energy industry, Duke Energy’s 2013 settlement agreement with the Department of Justice paints a picture of what the future of wildlife management and wind energy might look like. After 14 golden eagles were killed by Duke Energy’s wind development, the Department of Justice brought charges against Duke Energy under the Migratory Bird Treaty Act. The result of a settlement agreement included creating elaborate infrastructure to protect the birds, which has dramatically cut down on fatalities. A number of steps were taken, including installation of a radar detection system, and a system for field biologists to call in to report sightings of golden eagles. If an eagle is spotted by either radar or biologist, the turbines are temporarily stopped.

Chokecherry has taken the additional step of applying for an Eagle Take Permit under the Bald and Golden Eagle Protection Act. To qualify for a permit, Chokecherry has put together Advanced Conservation Practices (ACPs) that have been approved and could establish guidelines for future projects. See USFWS, Final Environmental Impact Statement for Eagle Take Permits for the Chokecherry Sierra Madre Phase I Wind Energy Project (Nov. 2016).

Although the ACPs that have been approved are too expansive to cover here, a number of them model the Duke Energy settlement agreement. The Wyoming Power Company has identified areas of critical habitat and agreed to large setbacks to keep turbines away from golden eagle habitat, sage grouse habitat, and the Red Rim Grizzly Wildlife Habitat Management Area to protect big game. There are established timing windows for disruptive activities such as clearing and grading, and site checks to ensure wildlife is not disrupted. Chokecherry will also curtail the use of turbines within 1 mile of an unoccupied nest, and 2.2 miles of an occupied nest during breeding season. Id.

Wildlife management is a challenge to expanding energy infrastructure on public land. Chokecherry forges a way forward for wind energy developments, creating a precedent for plans to manage both migratory animals and large game animals, as well as guidelines for visual resource management. Although wind energy has not received the comprehensive regulatory assistance solar energy has, it remains an important and viable option for future developments.

The Geothermal Earthquake Scare

Geothermal energy holds great promise in the United States. The Department of Energy released a report this year that speculates geothermal energy resources in the West could produce up to 60 gigawatts of capacity by 2050. Dept. of Energy, Geovision: Harnessing the Heat Beneath Our Feet (May 2019).

One of the most compelling aspects of geothermal energy is its capacity to produce baseload power. Several different power plants provide energy for our existing power grid, baseload power sources, and intermittent electricity sources. Most baseload power plants rely on nonrenewable sources like coal. Baseload plants must be able to supply the minimum energy needed to sustain the power grid. Jordan Hanania et al., Energy Education: Baseload Power, University of Calgary (Sept. 18, 2015).

The world’s first commercial geothermal power plant was built in 1911 in Larderello, Italy. Others quickly followed in the 1920s. These historical power plants are distinct from contemporary geothermal resources identified by the Department of Energy. Historical geothermal energy relies on naturally occurring caverns and vents below the earth’s surface. These caverns or vents occur in relatively shallow areas with porous rock and a fluid source. This is not the case for many of the geothermal resources in the United States.

In 2005 a panel at MIT introduced the concept of the Enhanced Geothermal System (EGS). Idaho National Laboratory, Department of Energy, The Future of Geothermal Energy (Nov. 2006). EGS can take a site that has geothermal activity relatively close to the surface in nonporous rock and create the conditions necessary for geothermal production.

EGS starts with an exploratory well, drilled to a depth where rock temperatures indicate a viable environment to produce geothermal energy. Where conventional fracking technology will drill at an angle and use chemicals or sand to create new holes in the rock, EGS “slipping” uses a temperature differential. As cold water is blasted onto hot rock, called “stimulation,” weaknesses in the rock create a spider web of fissures, or a “fracture zone.” Once the fracture zone is created, a thermally degradable zonal isolation material (TZIM), a biodegradable plastic, is injected into the fissures, as different temperatures of water are used to expand the fracture zone. Once a fracture zone is complete, the cold water used to create the fissures heats, degrading the TZIM, and the area is open as a geothermal resource. AltaRock Energy, Enhanced Geothermal Systems (2014).

Several companies have started testing EGS technology. AltaRock, a renewable energy company in the United States, was barely beat to the punch by a geothermal site in Basel, Switzerland. The Basel plant was placed over an active fault, and, shortly after stimulation began, surrounding communities were hit by small earthquakes that did not cause injury, but did cause $9 million in property damage. Most of the damage was minor, and scientists reviewing the project concluded that the project would not activate one of the major faults, but would result in between 14 to 170 earthquakes over 30 years. See James Glanz, Quake Threat Leads Swiss to Close Geothermal Project, N.Y. Times, Dec. 10, 2009.

Even as the American heartland was shaken by earthquakes from fracking; the incident in Switzerland created an earthquake furor against geothermal energy. AltaRock’s geothermal project in The Geysers, California, was shuttered as it encountered a number of technical problems, and the community pushed back, claiming they had not disclosed the possible earthquake risk. James Glanz, Geothermal Drilling Safeguards Imposed, N.Y. Times, Jan. 15, 2010.

The risk of earthquakes, or induced seismic activity, poses a particular problem for geothermal energy developments on public lands. One of the largest roadblocks to expanding geothermal energy developments is the regulatory environment. While centralized coordinating permit offices exist for a number of different energy projects, no such coordination exists for geothermal leasing. A recent Department of Energy report speculated that, with a streamlined regulatory process, the geothermal construction timeline could be shortened from 10 years to 5. Dept. of Energy, Geovision: Harnessing the Heat Beneath Our Feet (May 2019).

A time-consuming part of this process is the EIS. While reviewing projects for risks to the human environment, the risk of induced seismic activity looms over geothermal energy developments and is a significant concern in the permitting process. In 2012 the Department of Energy created the Protocol for Addressing Induced Seismicity Associated with Enhanced Geothermal Systems. Although the document provides useful guidance, it is primarily to assuage public concerns about induced seismic activity. Ernie Majer et al., Protocol for Addressing Induced Seismicity Associated with Enhanced Geothermal Systems (DOE, Jan. 2012).

Undaunted by the fear of induced earthquakes, AltaRock pressed forward with the Newberry Geothermal Project. The project, considered a demonstration of EGS technology, is sited on the edge of the Newberry Volcano outside Bend, Oregon. In 2012 the BLM issued a sundry permit to the Newberry project to begin stimulating fracture zones in exploratory wells. Newberry EGS News Release, Newberry Geothermal Project Secures Secure Sundry Permit (Sept. 19, 2012). Backed by the Berkeley National Laboratory, the Newberry site includes 15 seismometers to monitor seismic activity as stimulation of fracture zones continues.

The hope of the Newberry project is to demonstrate the seismic safety of EGS and establish geothermal energy as a renewable source of baseline power. Someday the Newberry Project may be to EGS what Chokecherry is to wind energy––finding a way to work within the regulatory framework to produce additional renewable energy.

Another facility has emerged to test advanced EGS technologies in the hope of creating a renewable baseline energy source not far from the Utah terminal of the Transwest line. The Utah FORGE laboratory in Beaver, Utah, researches and designs EGS technology in conjunction with the Department of Energy and the University of Utah. FORGE is currently drilling exploratory wells to geothermal reserves below the surface and aims to refine EGS slipping technology. The FORGE Laboratory has the added potential of being located just east of the Utah terminal of the TransWest line. A successful EGS installation in Beaver, Utah, would be able to access the TransWest infrastructure to provide renewable baseline energy throughout the West, supplemented by wind and solar energy.

Solar, wind, and geothermal energy projects all represent different stages of growth for renewable energy opportunities on public lands. Each one is moving forward in the regulatory climate to be more viable, led by a team of policy makers and regulators trying to ensure their safe and responsible development. Meanwhile, transmission infrastructure races ahead, with section 368 energy corridors stretching across public lands to transmission lines creating a comprehensive western energy grid with the potential to be fueled by renewable energy.

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Ariana Barusch

Ms. Barusch was formerly an assistant attorney general representing Utah’s Public Lands Policy Coordinating Office. The views expressed here are not indicative of those of her employer.