December 31, 2009
Salkin & Ostrow on Cooperative Federalism and Wind
Patricia E. Salkin (Albany) and Ashira Pelman Ostrow (Hofstra) have posted Cooperative Federalism and Wind: A New Framework for Achieving Sustainability, forthcoming in the Hofstra Law Review, Vol. 37 (2009). The abstract:
This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active in providing wind siting guidance to local governments or preempting local control for large-scale wind energy facilities, a majority leave primary siting responsibility in the hands of local zoning boards. Part II then evaluates some of the most commonly raised local objections to wind siting, including concerns over aesthetics, wildlife, noise, safety, and property values. Part III presents an overview of the federal policies that impact the development of wind energy. Although numerous federal grants and tax incentives promote wind energy development, federal policies in this arena are largely uncoordinated and inefficient. Moreover, projects supported by federal dollars and regulatory policies may be unreasonably delayed or entirely prohibited by the local permitting process. Part IV proposes a federal regulatory regime for the siting of wind turbines, modeled on the TCA’s Siting Policy. Specifically, this Part argues that a national wind siting regime that leaves primary siting authority in the hands of local zoning officials but places procedural and substantive constraints on the decision-making process would provide the regulatory uniformity necessary for this capital-intensive industry to fully develop, without sacrificing the benefits of local tailoring or experimentation. The Article, thus, concludes that such a national wind siting policy strikes an appropriate balance between local concerns regarding wind turbine siting and the national interest in developing wind as a renewable domestic energy source.
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