Solar Flare Ups

A fight over the future of clean energy is pitting environmentalists against one another.

Nov 9, 2009 - Ed Humes - California Lawyer

Joe Florez/Sandia National Laboratories Near Barstow, an experimental solar project dubbed Solar Two demonstrated the feasibility of generating energy from the sun for use both at night and on sunless days.

True or false: California's plan to generate massive amounts of clean, sustainable solar power is a win for everyone—liberal or conservative, environmentalist or business executive.

Answer: True ... but only in principle.

In practice, the state's new solar gold rush is generating far more conflict than current. At issue is not whether we should green the grid, but how to do so: Should we build massive solar-powered generating plants deep in the Mojave Desert on ecologically sensitive public lands to take advantage of some of the most sun-drenched landscapes on earth? Or would it be just as effective, with less impact on the environment, to deploy thousands of smaller solar arrays closer to civilization—on abandoned farms, urban "brownfields," and rooftops?

When environmentalists clash with giant utilities on such questions, no one is surprised. But what is surprising is how much this issue is pitting environmentalists against each other.

In one corner sit the desert conservationists, who see widely distributed solar installations as far preferable to building giant power plants, even green ones. In the other are the global-warming hawks, who have lined up with big power companies in support of utility-scale solar farms, which, they say, is the most effective way to substantially reduce greenhouse gas emissions in the shortest possible time.

This disagreement is more than just a local or even regional matter. The Mojave Desert—which straddles Arizona, Nevada, and Utah as well as California—is one of the most valuable solar resources on the continent, with the potential to generate enough clean electricity to displace tens of thousands of megawatts of dirty coal-generated power. As federal and state policies increasingly emphasize renewable energy, investors and energy companies that once shied away from solar power as a money loser are now racing to the Mojave to stake their claims.

But as the stakes have risen, so has the rancor. Among the major players, Sen. Dianne Feinstein, a desert conservation advocate, wants to curtail solar development in sensitive desert areas by creating a new national monument. That puts her at odds with stalwart environmental attorney Robert F. Kennedy Jr., who spoke out against Feinstein's proposal and supported a mammoth solar power plant in the Mojave. Meanwhile, the Sierra Club and the Natural Resources Defense Council (NRDC) have lined up in some cases with utilities against such traditional allies as the Wildlands Conservancy and the Center for Biological Diversity.

And then there's Gov. Arnold Schwarzenegger, who is staking his legacy on securing renewable sources for a third of the state's energy needs by the year 2020. "If we cannot put solar power plants in the Mojave Desert," he says, "I don't know where the hell we can put them." But Peter Galvin, cofounder of the Center for Biological Diversity, says the governor is missing the point: "We're not against solar projects in the Mojave. We're against solar projects in terrible locations in the Mojave. There's a difference."

Although this battle is new, efforts in the Mojave to turn the sun's energy into a commercially viable alternative to fossil fuels date back decades. In the 1970s, after the country was hammered by a Middle Eastern oil embargo and long lines at gas pumps, President Jimmy Carter came up with a mix of tax breaks and federal subsidies to encourage development of renewable energy sources, including solar. His game-changing goal: to have the United States produce a fifth of its power through solar by the year 2000.

Under that initiative, the U.S. Department of Energy and a consortium of utility companies in 1982 began running a ten-megawatt test facility near Barstow, dubbed Solar One. It utilized fields of mirrors to focus intense amounts of sunlight on a "power tower," in which water was heated to make steam to drive otherwise conventional electrical generators. Then, in 1996, Solar One became Solar Two after the boiling water was replaced with molten salt, which could store the sun's heat for many hours, allowing the facility to continue generating energy both at night and on sunless days. In one record-breaking test run, Solar Two generated electricity around the clock for seven days straight.

However, well before the government decommissioned this facility in 1999, Carter's successor, Ronald Reagan, killed the solar stimulus program, and without that support the clean solar technology of that era could not compete with cheaper and dirtier energy options. Now the Obama administration has brought the stimulus program back, and with it a renewed sense of urgency to fully exploit new technologies to make solar power much more competitive with fossil fuels. As of July more than 225 permit requests had been filed with the U.S. Bureau of Land Management to use federal lands as sites for new solar plants. And just under a third of those would be in California. Many would use the tower technology pioneered by Solar One and Two; others would deploy fields of electricity-generating photovoltaic solar panels like those used on rooftops.

Taken together, these proposals could increase California's relatively small solar-electricity output by nearly a hundredfold—more than enough, it seems, to help the state meet the governor's 33 percent renewable-energy goal. In 2008 nearly 11 percent of the electricity on California's grid came from sources classified as renewable, of which only a paltry one-quarter of 1 percent was solar; the rest came from wind, hydroelectric, geothermal, and biomass projects.

But while solar power itself may be green, the facilities that produce it may not be: One company, for example, proposes dropping a sprawling solar farm in the wild desert east of Twentynine Palms that would occupy 58 square miles of land—an expanse larger than the city of San Francisco. Another wants to build a 55-square-mile plant near Cadiz Lake in San Bernardino County. Meanwhile, the lure of government incentives and potential profits is so great that the conflict is spilling out of the desert and into other treasured landscapes in the state, including the Carrizo Plain in San Luis Obispo County, sometimes called the Serengeti of California, where energy companies have proposed some of the largest solar plants ever conceived. And that doesn't even include the erection of hundreds of miles of steel transmission towers and high-voltage lines that would be needed to bring the power to California's cities and towns.

In fact, it's the proposed transmission lines that are sparking some of the fiercest battles over solar power right now. Two projects in particular are worth watching. One, called Green Path North, would link Los Angeles to sources of renewable energy in the desert. The other, Sunrise Powerlink, would feed power to San Diego.

If Sunrise Powerlink's long-delayed and legally convoluted history is at all suggestive of what lies ahead, California's solar gold rush could easily come to a screeching halt. The $2 billion, 123-mile-long, 1,000-megawatt high-voltage transmission corridor, first proposed in 2005 by San Diego Gas & Electric, generally would not follow existing highways or utility rights of way. Rather, it would carve a fresh path through desert wilderness, fragile habitats, and national forestland. SDG&E had hoped to have the project mostly built by now, and up and running by 2010. But it has yet to break ground.

The utility argued that Sunrise Powerlink is needed to meet growing power demand in the San Diego region, and the California Public Utilities Commission (CPUC) agreed with that assessment. "It's something we really feel is in the best interest of our customers and in the best interest of the state in furthering a policy on renewables," SDG&E President Debra Reed has said.

But from the start, the proposal angered environmentalists, consumer advocates, and desert dwellers who felt that SDG&E could not possibly have done worse. Opponents were particularly incensed by the project's original pathway—since abandoned under pressure—which would have run high-voltage lines through Anza-Borrego Desert State Park, one of California's premier parks. Other portions of the transmission lines would have disrupted wilderness areas and habitats for a variety of endangered species, including the protected desert tortoise. Residents along the proposed path also voiced concerns about fire hazards and the despoiling of the area's scenic beauty.

Another irritant: the utility's refusal to make any legally binding commitment about what percentage of energy carried by the new lines would be clean. SDG&E's parent company owns enormous natural-gas facilities just across the border in Mexico, notes San Diego County Supervisor Dianne Jacob, and nothing in the proposal as it now stands would prevent the company from turning Sunrise Powerlink into a conduit for polluting, fossil fuel–based energy any time it wanted.

Meanwhile, some are wondering whether this project is even needed. Bill Powers, a San Diego engineer who frequently testifies as an expert witness to challenge power-plant permits, expressed his views last year at a CPUC hearing. Powers contended that equivalent amounts of energy—produced with far less environmental damage—can be brought to San Diego through a determined effort to install an array of small solar panels on suburban land and city rooftops.

Why would a big utility company favor billions of dollars in generation and transmission construction over a distributive approach? Attorney Michael Shames, executive director of the San Diegobased nonprofit Utility Consumers' Action Network, says it's no mystery: Big transmission projects allow utilities to maintain control of both the grid and the flow of electricity, while a distributed-generation system provides financial rewards to homeowners and businesses that generate their own power. Furthermore, big investments in transmission lines carry no risk for a utility—and a huge payoff. Once state regulators approve a project, Shames says, they guarantee that the utilities can charge ratepayers enough to recover all their costs, plus a 12 percent return on their investment.

"It's the privatization of profits and the socialization of risk," says Powers. "The incentives are all wrong. It's a terrible way to make energy policy."

Still, at the Sierra Club, Carl Zichella, who is director of western renewable programs, remains unconvinced that distributed solar power can make a difference fast enough. "You could increase [the number of rooftop solar panels] we've got by an order of magnitude, and it still wouldn't be enough," he says. "We have to have utility-scale power plants, and we have to have transmission because we are running out of time."

At 11,000 pages, the environmental impact report that SDG&E submitted to the CPUC for Sunrise Powerlink is thought to be the longest in state history. But last year the project was dealt a severe setback when an administrative review panel voted 2–1 to recommend against granting a permit. Administrative Law Judge Jean Vieth, joined by fellow ALJ Steven Weissman, found the project to be uneconomical and a serious fire risk in a region that had already been devastated by fires. In their proposed decision, Vieth and Weissman also agreed with Powers's assessment that the project was unnecessary.

Two months later, though, the appointed members of the CPUC took the unusual step of overturning that ruling, approving the project 4–1 with one major modification: The transmission lines would be routed around the Anza-Borrego state park, cutting instead through a portion of the Cleveland National Forest. But this, too, has generated opposition.

In the town of Alpine, which stands along the project's currently approved path, a protest meeting in April drew 600 people from the area, including County Supervisor Jacob, who promised she would keep fighting the project despite the CPUC's decision. Attorney Shames was also there, and he announced that his consumer group had a $500,000 war chest for litigation against the project. Already he had filed a request for reconsideration with the commission, a necessary prelude to filing suit.

Then, in August, Shames went ahead and petitioned for relief in the Fourth District Court of Appeal. He argued that the CPUC had failed to consider economically viable alternatives to Sunrise Powerlink; failed to properly consider the seismic vulnerability of the approved transmission route; used an improperly weak burden of proof (preponderance of evidence) in evaluating the utility's claims, instead of a "clear and convincing" standard; and broke its own rules by relying on information outside of the evidentiary record that opponents didn't have a chance to challenge (Utility Consumers' Action Network v. Pub. Util. Comm'n, No. D055666 (Cal. Ct. App. filed Aug 12, 2009)). At the same time, Shames's organization joined with the Center for Biological Diversity in seeking to have the California Supreme Court overturn Powerlink's approval on the grounds that it violated the California Environmental Quality Act. The petition charges the utility commission with misrepresenting and underreporting the environmental impact of Sunrise Powerlink, and failing to evaluate and require feasible mitigation of the project's greenhouse gas emissions. It also takes the CPUC to task for not requiring SDG&E to use the line exclusively for its stated purpose: transmitting renewable energy (Utility Consumers' Action Network v. Pub. Util. Comm'n, No. S175532 (Cal. Sup. Ct. filed Aug. 12, 2009)).

Meanwhile, up in Los Angeles, that city's Department of Water and Power was struggling to forge ahead with Green Path North, the 1,200-megawatt desert transmission project that would carry geothermal, as well as solar, power 118 miles to L.A. from the Salton Sea. Green Path North is not as far along as Sunrise Powerlink, yet it could end up being built faster. Because the CPUC does not regulate local public utilities, federal clearance is all that's required. Moreover, the Obama administration has told the principal agencies—the Bureau of Land Management (BLM) and the U.S. Forest Service—to move ahead as quickly as possible on renewable-energy projects.

But desert residents reacted even more angrily to the Los Angeles utility's plans than they did to Sunrise Powerlink. "The desert route for Green Path North runs through three preserves and protected lands," notes April Sall, who chairs the California Desert Coalition (CDC) and also manages the Pipes Canyon Wilderness Preserve for the Wildlands Conservancy. "It is not environmentally responsible."

Desert activists were particularly incensed when they learned that the utility's work crews had made secretive forays into the area, placing survey markers for the proposed power line on both public and private land without proper notice.

In a fence-mending exercise, David Nahai, chief of the L.A. Department of Water and Power, appeared at a town hall–style meeting in Yucca Valley to apologize for missteps made before he became general manager in late 2007. He also promised a more open approval process—and consideration of alternative routes that would satisfy environmentalists.

Sall said her group preferred a route that would run alongside the I-10 freeway, which already serves as a right-of-way for Southern California Edison (SCE) and where the environmental impact would be negligible. Nahai responded that SCE and L.A.'s power department were meeting regularly to see if such a shared-use plan could be negotiated. So far, however, those negotiations have not altered Green Path North's proposed route through nature preserves, prompting threats of court action to block the project.

Are such court fights inevitable? In an effort to avoid the costs and delays that so often come with such conflicts, the state formed a task force three years ago to plan future renewable-energy projects. The goal of the Renewable Energy Transmission Initiative (RETI)—comprised of industry, government, and environmental representatives—is to flip the planning process for power projects on its head and deal with environmental concerns first, before new routes are proposed.

"We want RETI to identify the sites that are least damaging to the environment and that make the most sense economically. We're looking for the sweet spot where those two issues intersect," says Johanna Wald, senior attorney at the NRDC's San Francisco regional office. Wald, a seasoned legal eco-warrior in California, is one of two environmental stakeholders on the state's 29-member RETI board. (The Sierra Club's Zichella is the other.) "There will always be impacts," says Wald, "but our job is to keep them to a minimum. The bottom line is there's no free lunch when it comes to meeting our energy needs."

As Wald explains it, RETI is mapping out the areas of the state where renewable energy can be produced most efficiently and with the least impact on important wild lands and habitats. The utility industry supports the process because it reduces its legal and financial risk and the potential for delays—even though that means utility-preferred sites such as Anza-Borrego are off the table. The approach may sound like common sense, says Wald, but the fact is, it's never been tried before.

She ought to know. As one of the NRDC's first staff attorneys in California, she has been engaged in environmental litigation since 1973. Beginning in 1976, Wald litigated the landmark Natural Res. Def. Council v. Hodel (819 F.2d 927 (9th Cir. 1987)), which ended the BLM's long-standing practice of letting ranchers graze their livestock on public lands without regard to the environmental impact. Now she works nearly full time on renewable-energy issues because, in her view, there is no more important environmental cause.

Even environmental groups that do not have a direct voice on the RETI panel appreciate Wald and Zichella's efforts, but they express concerns as well. Larry Hogue, blogger and former communications director for the Desert Protective Council, complains that RETI embraces the assumption behind the Sunrise Powerlink project: that large-scale projects deep in the desert are the only practical solution to our energy problems. "I'm glad that Carl and Johanna are on RETI, because we would have seen much worse renewable-energy zones [without them] than we've got," says Hogue. "But it's not a process that started out by asking what is the best solar solution for our state. ... They had already made up their minds."

RETI initially justified its preference for locating large solar thermal projects in the desert by citing numbers showing they were by far the cheapest way to produce renewable energy. But Bill Powers, the San Diego engineer, submitted documents showing RETI was using outdated data, so its assumptions about the cost of building smaller, ground-based solar-panel installations near electrical substations, augmented by rooftop systems, were twice the current estimates. Planning documents issued by RETI have since conceded the point.

Still, the trajectory of current plans—ramping up renewable energy by embracing utility-scale solar plants and big transmission projects like Sunrise Powerlink—did not change in the task force's latest report, released in September. RETI argues that, no matter how California's energy future pans out, placing new transmission lines in areas such as the Mojave will lead to the "least regrets" in the years to come—a notion desert conservationists wholeheartedly dispute.

Yet another series of proposed big solar projects that has touched off fierce battles involves an Oakland-based company called BrightSource Energy, which has contracted with Southern California Edison and Pacific Gas & Electric to provide more than four gigawatts of renewable energy through a variation of the tower technology that was used in experimental facilities dating back to the '80s. The company's investors include Morgan Stanley, Google, Chevron, and Silicon Valley's VantagePoint Venture Partners. Their plan was to begin construction on the first 3 of 14 solar thermal plants by the end of 2009 on a 4,000-acre site in the Ivanpah Valley near the California-Nevada border. The site is adjacent to existing transmission lines, so it was considered ideal except for the fact that it is the home of a small population of endangered desert tortoises.

BrightSource spokesman Keely Wachs says the company and the Sierra Club are working together to deal with the endangered-species issues. "The site was selected for its environmental characteristics," Wachs says. "We want to do this responsibly." But the Center for Biological Diversity intervened in the permit hearings before the California Energy Commission. According to the center's Peter Galvin, the Ivanpah site supports a number of imperiled species and habitats in addition to the desert tortoise. "It's a big desert," he says. "There are plenty of alternative sites."

As head of the Wildlands Conservancy, which presides over the state's largest private system of nature preserves, David Myers is widely known within environmental circles for his ability to broker quiet compromises. But recently he found himself at the center of a highly publicized fight over another big BrightSource solar project slated for a pristine desert area known as the Catellus lands. A 600,000-acre expanse of that property between the Mojave National Monument and Joshua Tree National Park was once owned by railroad companies and then donated to the federal government during the Clinton administration, with the understanding that the area would be preserved in its wild state in perpetuity. Myers's group engineered the unprecedented donation, the largest such private land gift in U.S. history, so he was naturally outraged when the BLM opened those areas for possible solar development. Nineteen companies filed applications to develop solar plants there.

In response to that threat, Myers turned to Senator Feinstein for help. Feinstein had been involved in the Catellus negotiations, and after hearing from Myers she went to work on a proposal for a 1-million-acre national monument. That legislation would force BrightSource and other solar developers to relocate their projects.

BrightSource, however, had powerful allies as well, including attorney Robert Kennedy Jr., who complained that some conservationists were so focused on local concerns that they were "putting the democratic process and sound scientific judgment on hold to jeopardize the energy future of our country."

The argument got particularly nasty when a New York Times article in September quoted Myers as complaining that Kennedy's advocacy for BrightSource might have more to do with his financial ties to the company than his concern for the environment. Kennedy responded in kind. He pointed out that the Wildlands Conservancy's major financial backer (and the source of the $45 million to buy and donate the Catellus lands) is also an investor in a rival company, eSolar, which Myers has praised for eschewing pristine and remote desert sites in favor of less sensitive lands closer to cities. (ESolar has developed a compact form of tower technology that takes up less space than competing systems.)

The spectacle of conservationists as prominent as Kennedy and Myers sniping at one another in the pages of the New York Times underscored the widening rift within the environmental community over the future of renewable energy. And even when BrightSource itself backed down (just ten days after the Times story ran, the company scrapped its plans to build in the Catellus lands), the two sides were hardly closer to a reconciliation. As Myers noted, other companies were still pursuing solar projects in the same area.

And so the battle goes on. At first blush, it seems to be about competing priorities—protecting wilderness versus curbing global warming—but in truth opponents agree that both goals are vital. Rather, the fight is over direction: Who has the best technology, which are the best locations for it, and what is the proper role for utilities in producing the renewable energy that our well-being, as well as the planet's, depends upon.

Meanwhile, conservationists and environmentalists alike say that inaction on greenhouse gasses is not a viable option. With a "one-degree rise in global temperature, we lose about 20 percent of species in California," estimates Zichella of the Sierra Club. A "four-degree rise by the end of the century, [and] we lose a third of the world's species. That's pretty horrifying."