Resolving Land and Energy Conflicts (Anthem Environment and Sustainability Initiative, 1) - Hardcover

Field, Patrick; Kansal, Tushar; Morris, Catherine; Smith, Stacie

Hardcover

ISBN 10: 1783088524 ISBN 13: 9781783088522

Publisher: Anthem Press, 2018

Synopsis

Resolving Land and Energy Conflicts studies energy in the landscape across gas and oil, wind, transmission and nuclear waste disposal. The authors are particularly interested in the conflicts that emerge from specific sites and proposals as well as how this unique land use plays out in terms of conflict and resolution across scales and jurisdictions while touching on broader issues of policy and values. Resolving Land and Energy Conflicts briefly explains the general context around the energy type; the impacts and conflicts that have arisen given this context; the role laws, rules and jurisdictions play in mitigating, resolving or creating more conflict; and the ways in which communication, collaboration and conflict resolution have been or could be used to ameliorate the conflicts that inevitably arise.

About this title

About the Author

Patrick Field is managing director at the Consensus Building Institute and associate director of the MIT-Harvard Public Disputes Program.

Tushar Kansal is a senior associate at the Consensus Building Institute with several years of experience as a facilitator, mediator and trainer in collaborative problem solving and negotiation within and across organizations.

Catherine Morris is a senior mediator at the Consensus Building Institute. She has more than 15 years of experience as a mediator and consensus builder and over 20 years of experience in energy and environmental regulation and policy.

Stacie Smith is a senior mediator and director of workable peace at the Consensus Building Institute.

Excerpt. © Reprinted by permission. All rights reserved.

Resolving Land and Energy Conflicts

By Patrick Field, Tushar Kansal, Catherine Morris, Stacie Smith

Wimbledon Publishing Company

Copyright © 2018 Patrick Field, Tushar Kansal, Catherine Morris and Stacie Smith
All rights reserved.

ISBN: 978-1-78308-852-2

Contents

List of Illustrations, vii, 
About the Authors, ix, 
Acknowledgments, xiii, 
1. Introduction: The Complexity and Conflicts of Energy in the US Landscape, 1, 
2. Land-Based Wind Energy Siting: The Not-So-Silent Wind, 15, 
3. Nuclear Waste Siting: Getting Good People to Accept the Bad, 39, 
4. Gas and Oil and Unconventional Shale: The New Old Frontier, 61, 
5. The Linear Challenge: Transmission and Natural Gas Pipelines, 89, 
6. Conclusions and Recommendations, 115, 
References, 133, 
Index, 141, 

CHAPTER 1

INTRODUCTION: THE COMPLEXITY AND CONFLICTS OF ENERGY IN THE US LANDSCAPE

Why Is Energy Development and Production Important in Regard to Land Use?

Gas and oil wells dot landscapes from Pennsylvania to Texas, bringing both wealth and controversy around air and water quality, wildlife habitat and community change. The advent of nuclear power in the 1950s started a boom of uranium mining, refining and energy production but brought with it the difficult problem of where and how to safely store potently lethal post-energy production nuclear waste for millennia. Appalachia has been shaped for over a century by coal extraction. More recently, the rapid expansion of wind and solar energy has given rise to host of new companies, beneficiaries and conflicts. Wind development, particularly in the more densely populated landscapes of the northeast, has generated conflicts among environmental groups, local citizens at odds with local impact versus global need. Around the country, there is a raised awareness that "clean" energy has its costs too.

Energy extraction and production have powerfully shaped the US landscape over the last hundred years. Blessed with extraordinary natural resources, the United States built the largest economy in the world. While we think of land use primarily as a local function shaped by the creation of housing, office space, tracks and roads, energy production is also a powerful player in land use.

The United States is one of the largest producers of energy in the world. In 2013, it was the world's largest producer of natural gas (30,005,254 million cubic feet) and oil (2,720,782 thousand barrels) and the second largest producer of coal (nearly 1 billion short tons) and renewable energy (at 9.33 quadrillion Btu). Fossil fuels are the main source of energy in the United States. Fossil fuel resources comprised approximately 82 percent of total US energy consumption in 2013 (with nuclear energy comprising 8 percent and renewable energy 10 percent). Beyond generating energy, these natural resources are essential to creating other products, such as oil to make asphalt and coal for steel. Energy production in its many forms cuts across locales and states, and it affects landscapes substantially, if unevenly, across the United States.

The benefits of energy extraction and production are many. They include employment, wealth creation, public revenue, technological innovation, quality of life and national security. Energy extraction, production and distribution create enormous economic benefit. Concentrated and affordable energy is, in some sense, the lifeblood of any modern economy. Yes, primitive economies survive on sunlight, wood and even manure as fuel, but they cannot deliver the variety of goods and benefits (and costs too) that advanced economies with advanced energy systems do deliver. Energy extraction in Wyoming produces over 30 percent of the state's entire gross domestic product (GDP). The gas and oil sector in Texas produces over $212 billion in GDP for the state. In states where gas and oil production is significant, the industry is a prime contributor to state budgets. Wyoming collected some $868 million in state severance taxes in 2013 while Texas collected $4.6 billion that same year. These amounts don't include any other tax benefits stemming from extraction, such as sales and property tax.

In addition to local benefits and costs, there are national and international benefits. The more the United States produces energy of any kind within its boundaries, the less it is dependent on foreign sources and all the potential costs that come with it — exporting dollars to other economies, geopolitical risk and providing revenue to governments that may be corrupt or even funding terrorism. Take, as an example, the boom in natural gas. With a rapidly growing domestic supply, costs have fallen, which has benefitted manufacturing in terms of both overall costs and raw material for certain petrochemical manufacturing. Renewables production creates jobs in construction and installation and, if equipment is made in the United States, manufacturing. The shale oil boom has led to not only growth in US production but also a fall in worldwide oil prices, disrupting the power of autocracies from Saudi Arabia to Russia to exercise geopolitical power. Of course, all of the above named sources reduce electricity production from coal, thus reducing pollutants including greenhouse gas emissions.

Though there is no reliable data to identify the total US acreage dedicated to energy extraction or production, a map of a producing state's various energy facilities shows widespread landscape impact. Take Texas, for instance. The state map is crisscrossed with pipelines, wind energy facilities, oil and gas production wells, refineries and electricity-generating plants of various kinds. For a source like wind, the land impact is both variable and disputed. Is the impact of a wind turbine facility the simple boundary of the project? Wind turbine structures typically take up less than 10 percent of a project site, with roads and other infrastructure taking up the remainder. The US National Renewable Energy Laboratory estimates that the direct site impacts are between less than 1 acre and as much as 6 acres per megawatt (MW) (turbines can range widely in size). But what about the habitat impacts that likely extend both laterally and vertically across a larger acreage? And what about the visual impacts of a wind farm, which can extend tens of miles depending on topography and viewshed?

US energy produces wealth, impact and conflict. Because private property is a fundamental principle and set of legal rights in this country, private owners have a great deal of control over both the production of energy and the landscape it uses. Private property also allows the frequent sale and purchase of assets to the highest bidder. But energy production, especially with the split estate (surface versus subsurface ownership), creates conflict and complexity of access and use for different owners. Because energy extraction and production serve not only the local but also regional, state and national economies, state and federal governments often exercise control (or even veto) over local decisions on energy that in almost all other contexts would not be allowed. And, because the United States embarked on a stronger environmental ethic beginning in the 1970s, state and federal governments also exercise regulatory powers over air and water impacts caused — or presumed to be caused — by energy development.

Why This Book?

Unlike almost any other kind of land use — from dumps to houses to factories — state and sometimes even the federal government actively preempt local decision making regarding the siting of energy extraction and production. We at the Consensus Building Institute (CBI) looked at conflicts over land and found that in the last 10 years rapid advances in technology in both renewables (primarily wind and solar) and gas and oil extraction have created a host of new and intensive land-use conflicts across the United States. A casual observer might find it surprising that wind turbines, seemingly clean, lean and "sustainable," have stirred intense conflicts among abutters, developers and communities. That outsider might be surprised to discover that a resurgence in US gas and oil production via hydraulic fracturing technology, resulting in lower costs, more domestic production and less dependence on unstable supplies of foreign oil, has created statewide bans, protest films and national debate about this thing called "fracking."

Building on our more general work with the Lincoln Institute for Land Policy in land-use conflict resolution, we began to explore these questions of energy in the landscape. We worked with the Department of Energy on how to use more collaborative processes to site a highly unwanted product of decades of nuclear power production — nuclear waste. We brought together communities, companies, water utilities and advocates in a variety of forums to explore how different parties might work together to manage the benefits and costs of rapid gas and oil development. Working with Macalester College, we surveyed in Michigan, North Dakota and Massachusetts local landscape values and wind energy development. We mediated site-specific wind development conflicts and state and federal regulatory proceedings around wind energy impacts. We also conducted research, interviews, literature reviews and analysis. Drawing on this range of academic and practical, on-the-ground experience, we developed this book.

This book seeks to develop a view of energy in the landscape across gas and oil, wind, transmission and nuclear waste disposal. The first three topics create conflict because of rapid or the need for rapid development or expansion. Each of these energy types or facilities are generally considered a public good and expansion promises future benefit, but they have concentrated impacts that can cause localized adverse effects and controversy. The last, nuclear waste, creates conflict because it is a public "bad" and is a legacy of choices made decades ago for benefit that, in some ways, has already been delivered (affordable electricity through nuclear power coupled with a reliable base load-generating source). We could have focused too on biomass, solar, hydro or electricity-generating facilities powered by more traditional coal, oil, nuclear or natural gas, but these types are not expanding greatly at this time (hydro or coal, for instance) or have not generated much land-use controversy (to date, solar has been sited in ways and in places that many find acceptable or even desirable).

We could have also focused on the patchwork of differing land ownership in the United States, from federal lands and offshore energy development in federal waters to state lands and the unique history, context and complexity of indigenous sovereign lands owned in trust by federally recognized tribes. However, both to manage the scope of this endeavor as well as to focus on the somewhat unique nature of widespread private ownership of energy resources in the United States versus most other developed and developing countries, we opted to focus primarily on the interface of private lands and local, state and federal government regulatory jurisdictions.

We are particularly interested in the conflicts that emerge from site-specific sites and proposals, as well as how this unique land use plays out in terms of conflict and resolution across scales and jurisdictions while touching on broader issues of policy and values. Though each energy type and its production (or disposal) is governed between various jurisdictions, with different impacts and benefits, each shares commonalities we wanted to explore further. This book seeks to briefly explain the general context around the energy type; the impacts and conflicts that have arisen given this context; the role laws, rules and jurisdictions play in mitigating, resolving or creating more conflict; and the ways in which communication, collaboration and conflict resolution have been or could be used to ameliorate the conflicts that inevitably arise.

What General Factors Shape Energy Development and Production on US Lands and What Kinds of Conflicts Arise?

Energy extraction, production and waste disposal in the United States involve and are affected by private property and private property rights, the split mineral estate diffuse benefits for many derived from concentrated impact on a few, state and sometimes federal preemption of land use that is typically under local control, cumulative landscape impacts across sites and projects and local siting issues that occasionally become proxies for national or even global policy questions. This introductory chapter seeks to describe these general factors that shape and are shaped by energy extraction and production.

Private property

Unlike many countries where the energy resources are nationalized and considered to be owned by the peoples of that country (however badly they may in fact be managed), most energy resources in the United States are held as private property. Thus, like much land-use conflict in the United States, conflict often plays out between private property owners and between the rights of private property owners and broader public interests in both benefits and adverse impacts. Less than 40 percent of production for gas, oil and coal occurs on federal lands (or in federal waters offshore, where the majority of federal revenues are derived). Much natural resource ownership in the United States has historical roots in the nineteenth century, when the federal government passed homestead and development acts to encourage settlement in the western United States. These acts, along with the General Mining Law of 1872, allowed for federal public domain lands, and the natural resources within them, to pass to private ownership.

This system of private property rights has allowed for the development of one of the most advanced, complex, sophisticated and innovative energy production systems in the world. Tens of thousands of companies operate all along the supply chains for various energy types. While most Americans are familiar with the big players like Chevron, Exxon, BP and Shell, they are less familiar with the tens of thousands of businesses that wildcat for new oil, sell drilling equipment, manufacturer turbines, install solar panels, develop wind projects, manage nuclear waste and mine coal. Private property rights have allowed for a diverse and often changing set of ownerships, in some ways, allowing many to benefit from the wealth that is created. Gas and oil production creates secondary jobs in transportation, inspection, retail and numerous other areas. Energy development on private property can make the owners of the mineral rights (or in the case of wind or solar, the land required to harvest the wind or sun) economically better off, in some cases even wealthy.

Typically, in the US land-use law, private property owners have been given a fair degree of latitude of how and when they can use their land. However, the US Constitution allows for the seizure of private land by eminent domain for public purpose (public purpose being perennially argued over). This property right has become more restricted over the twentieth century due to the rise of master planning and zoning, which does put some restrictions on private property use, but not without due process and due compensation.

The split estate

The split estate is a term that refers to the fact that the property right to the underlying energy or mineral resource can be split from the property right to surface ownership. As many surface owners have discovered, if you don't own the underlying mineral rights, you must grant access (with compensation) across the surface for the owners of that mineral right to develop their property right. Thus, while private property rights are a fundamental legal principle in the United States in particular, the split estate creates inherent conflict. The owner of the mineral right cannot necessarily derive economic benefit from it without having access to the surface property. Gas and oil developers need access for drilling, well pads, storage tanks or pipelines, settling ponds, roads, electricity and other infrastructure. And these needs impose impacts on the surface owner, ones that the surface owner may or may not wish to bear. Surface owners may raise concerns about soil, air and water impacts caused by possible spills, electricity lines improperly installed, disturbance of humans and animals by activity, noise and smell, and even property value degradation, not to mention for the future (or the past), abandoned equipment on their property with no financial or legal recourse to confront often defunct operators about wells and removing debris, as well as concerns.

To make matters more complicated, in many states there are statewide compulsory pooling laws that allow for some nexus between various leased surface properties and the leased underground reserves. Because oil and gas reserves underground do not respect human-drawn property lines, an oil and gas developer may be faced with some landowners within a well's pumping range who won't grant access while others will. To ensure exploitation of the subsurface property right, some thirty-eight energy-producing states have passed compulsory pooling laws that restrain a single property owner's right to resist or reject drilling.

Uneven distribution of benefits and costs

Energy in the landscape always produces a stream of both costs and benefits. It is simply not possible to extract, produce or transmit large amounts of energy of any kind at this point in time without some kind of impact across a host of resources. And, these costs and benefits are often distributed unevenly both locally (one land owner may earn revenue from a lease of various kinds while another gets nothing) and across scales. For instance, many people may not want to live anywhere near a disposal site for nuclear waste due to the real or perceived impacts, but ratepayers and users in a region overall benefit from nuclear- powered electricity generation.

(Continues...)

Excerpted from Resolving Land and Energy Conflicts by Patrick Field, Tushar Kansal, Catherine Morris, Stacie Smith. Copyright © 2018 Patrick Field, Tushar Kansal, Catherine Morris and Stacie Smith. Excerpted by permission of Wimbledon Publishing Company.
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Edition details

• Publisher: Anthem Press
• Publication date: 2018
• Language: English
• ISBN 10: 1783088524
• ISBN 13: 9781783088522
• Binding: Hardcover
• Number of pages: 162