University of San Diego
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San Diego Journal of Climate & Energy Law

Abstract

Environmental groups, federal and state agencies, and others who support the development of renewable energy have struggled in recent years with the adverse impacts of such development on animals and animal habitat. Although renewable energy development has the benefit of creating energy without the greenhouse gas emissions associated with traditional energy development, it does so through an intensive use of land, including federal public lands, thus competing with habitats for protected species and other wildlife. Conflicts between energy and animals, of course, are nothing new. Congress, agencies, and courts have attempted for decades to balance the public interest in domestic energy development with the public interest in protecting animal species and habitat. This essay considers this history of conflict in an effort to determine whether these past disputes contain lessons for todays efforts to balance renewable energy development and the protection of animal species. In doing so, this essay focuses on judicial decisions where courts have had to balance competing statutory and regulatory mandates to both develop domestic energy supplies, including coal, oil, natural gas, and hydropower, and to protect animal species and habitat. These cases illustrate that courts often are forced to strike a balance between energy development and environmental protection in the absence of clear statutory or regulatory guidance, leading courts to defer to agency discretion when it appears that a careful consideration of the competing interests has occurred or when no statutory counterweight favoring animal species is in play. This essay concludes with some observations regarding current disputes over wind and solar development, and considers the benefits and drawbacks of various Congressional and agency approaches to reconciling this conflict.

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