University of San Diego

San Diego Journal of Climate & Energy Law


J. B. Ruhl


This Article explores ways of harmonizing distributed energy and the ESA, a goal consistent with the national policy for renewable energy conservation. Several legal practitioners and scholars have identified the ESA as a potentially significant constraint on the siting and operation of wind power facilities. The ESA has also been identified as a potential barrier to renewable energy in general, as solar power, biomass, and ocean tide and wave facilities could have their own sets of impacts triggering ESA regulation. But most of this attention has been devoted to utility-scale renewable energy, with distributed energy largely ignored or perhaps assumed not to be a problem. Before we dive deep into distributed energy, however, it would be prudent to develop an ESA compliance blueprint now rather than scrambling later at the “shovel ready” stage as has happened in the utility-scale wind power context.

Part II thus opens by framing the distributed energy problem for the ESA, showing how the proliferation of distributed energy facilities can present ESA compliance issues and how traditional ESA compliance solutions do not work well in that context. Part III of the Article explores compliance innovations the FWS could implement for distributed energy administratively, without need for legislative reform of the ESA. By providing low cost, expeditious compliance security and stability for distributed energy, the FWS can fulfill the ESA’s goals and promote a better energy future for all species.