SUSTAINABLE ENERGY IN ARIZONA Albert H. Acken* Matthew G

SUSTAINABLE ENERGY IN ARIZONA Albert H. Acken* Matthew G. Bingham**

This article explores sustainability in Arizona’s electric power industry. The word “sustainability” has become almost ubiquitous and yet it is very difficult to articulate a consensus meaning. This paper defines sustainability very broadly as the ability of a particular activity to continue indefinitely, as explained in the introductory paragraph to Section I. Given this broad definition, comparing the environmental sustainability of various resource options (e.g., coal, solar, nuclear) is only the beginning of the sustainability considerations related to Arizona’s electric power industry. Accordingly, this paper begins with a comparison of resources but also discusses economic impacts and the process used to site electric facilities through the prism of sustainability.

The first section is an overview of some of the major sustainability considerations related to the generation, distribution, and use of electricity in Arizona, although most of them apply equally in other jurisdictions.1 The second section provides background information about some of the various generation resources’ characteristics related to sustainability. The third and fourth sections address, respectively, the critical role of transmission lines in achieving a sustainable energy industry and the legal processes used to site new transmission lines in Arizona. The fifth section of this article describes some of the existing efforts to improve siting processes and the final section proposes additional potential solutions to specific problems with the current processes.

*. Mr. Acken is a partner in the Environmental & Natural Resources and Energy,

Telecommunications & Utilities practice groups of Lewis and Roca LLP. Mr. Acken’s full bio and contact information is available at: http://www.lrlaw.com/acken. We are grateful to Mr. John Foreman, Chairman of the Arizona Power Plant and Transmission Line Siting Committee, for helpful comments on an earlier draft of this article.

**. Mr. Bingham is an associate in Lewis and Roca’s Environmental & Natural Resources and Energy, Telecommunications & Utilities practice groups. A full bio and contact information for Mr. Bingham is available at: http://www.lrlaw.com/bingham.

1. It is important to note that this paper does not attempt to address all sustainability aspects of Arizona’s electric power industry. As explained in the next section, sustainability is such a broad field that it would be nearly impossible to discuss—or even identify—all of the sustainability considerations related to a particular subject.

670 ARIZONA STATE LAW JOURNAL [Ariz. St. L.J.

I. SUSTAINABILITY CONSIDERATIONS

This paper focuses on sustainable energy in Arizona, a subject that is intended to encompass much more than the phrase “renewable energy.” In the most general sense, sustainability means that a certain human activity can continue indefinitely without risk of collapse. The collapse of an activity, usually a specific process used by society to achieve some beneficial result, could be caused by the exhaustion of required inputs or unacceptable consequences from the activity. Sustainability is also sometimes expressed as meeting our needs without compromising the ability of future generations to meet their needs. As it is used in environmental contexts, sustainability typically means that the demands of human beings be satisfied in a way that does not deplete natural resources faster than they can be replenished.

Sustainability is an evolving concept. This is mostly due to humans’ inability to evaluate (or perhaps just a tendency to overlook) all of the consequences of a particular process. As a result, a process that is initially touted as more sustainable than the status quo might turn out to be less sustainable; or at least less of an improvement than initially thought. One good example of this phenomenon is ethanol fuel which has received federal subsidies since 1978 as an environmentally friendly alternative to foreign oil. After numerous studies, it is now believed that it takes almost as much oil to produce ethanol as is displaced by its use.2 Our understanding of the actual sustainability of current efforts in the electric power industry will also evolve. For example, one issue that has not yet been fully evaluated is the increased rare earth mining and processing required to manufacture solar and wind generating equipment. Proponents of sustainability should always attempt to look at the full picture and to take a long-term perspective.

Sustainable energy means meeting society’s electricity demands in a way that could continue indefinitely. Renewable energy means only that electricity is produced from renewable resources. Although the use of renewable resources by itself addresses some important sustainability issues, there are other sustainability considerations that can vary considerably between different renewable resources and renewable energy projects. This section discusses some of the most important sustainability issues related to Arizona’s electric power generation and distribution system

2. See, e.g., Tad W. Patzek et al., Ethanol from Corn: Clean Renewable Fuel for the Future, or Drain on Our Resources and Pockets?, 7 ENV’T, DEV. & SUSTAINABILITY 319, 326 (2005), available at http://gaia.pge.utexas.edu/papers/PublishedEDS2005.pdf; David Pimentel et al., Biofuel Impacts on World Food Supply: Use of Fossil Fuel, Land and Water Resources, 1 ENERGIES 41, 51 (2008), available at http://www.mdpi.com/1996-1073/1/2/41/pdf.

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including climate change, water, land use, cost, economic development, and demand growth.

A. Climate Change Climate change usually refers to long-term changes in the earth’s

temperature, precipitation, wind patterns, and other measures of climate as a result of human activity.3 The increasing concentration of greenhouse gases in the earth’s atmosphere since the beginning of the industrial revolution is an observational fact. The U.N.’s Intergovernmental Panel on Climate Change (“IPCC”) found that human activity is primarily responsible for this increase4 and a leading legal expert states “[t]his is not an especially controversial conclusion.”5 Further, scientists generally agree that the increasing concentration of greenhouse gases in its atmosphere is the primary cause of the earth’s increasing surface temperature—another observational fact—via the “greenhouse effect.”6 To state it simply, greenhouse gases absorb heat radiating from the earth’s surface that would otherwise pass through to space and then radiate some of it back towards the earth.7 Although the precise outcome of climate change cannot be predicted, it is widely agreed that climate change could have serious adverse effects on human life.

The electric power industry contributes to climate change by emitting nearly every type of greenhouse gas. Most obviously, the burning of fossil fuels such as coal and natural gas results in emissions of carbon dioxide, the most common greenhouse gas. According to the U.S. Energy Information Administration (“EIA”), the electric power sector accounted for nearly 40% of all carbon dioxide emissions in the United States in 2009.8 The energy sector is also the largest anthropogenic source of methane emissions with the majority of emissions coming from natural gas systems and coal

3. See Climate Change: Basic Information, U.S. ENVIRONMENTAL PROTECTION AGENCY,

http://www.epa.gov/climatechange/basicinfo.html (last updated Apr. 14, 2011). 4. INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2001:

SYNTHESIS REPORT—SUMMARY FOR POLICYMAKERS 5–6 (2001), available at http://www.ipcc.ch/pdf/climate-changes-2001/synthesis-spm/synthesis-spm-en.pdf.

5. AM. BAR ASS’N, GLOBAL CLIMATE CHANGE AND U.S. LAW 5 (Michael B. Gerrard ed., 2008).

6. Id. (“[I]t is [not] widely disputed that the principal mechanism [for observed temperature increases] is through alteration of the natural ‘greenhouse effect.’”).

7. Id. 8. U.S. ENERGY INFO. ADMIN., EMISSIONS OF GREENHOUSE GASES IN THE UNITED STATES

2009, at 2 (2011), available at http://www.eia.doe.gov/environment/emissions/ghg_report/pdf/0573(2009).pdf.


mining.9 Methane is the second most common greenhouse gas in the United States, accounting for just over 11% of emissions (in carbon dioxide equivalents).10 With respect to climate change considerations, electricity generating technologies with lower greenhouse gas emissions are more sustainable than technologies with higher emissions.

B. Water Water is one of society’s most vital natural resources. More specifically,

ground water constitutes the “principal reserve of freshwater [in the United States] and represents much of the potential future water supply.”11 The National Ground Water Association defines ground water sustainability as “the development and use of ground water to meet both current and future beneficial purposes without causing unacceptable consequences.”12 Unfortunately, several recent studies classify significant portions of the planet as currently water-scarce and predict that many other parts will face water shortages in the coming decades under “business as usual” scenarios.13 This is especially true for Arizona and the southwestern United States. According to a June 2010 report by Tetra Tech, eight of Arizona’s fifteen counties are at extreme risk of facing water shortages by the year 2050: Maricopa, Pima, Pinal, Coconino, Yavapai, Mohave, Navajo, and Graham.14 Five other Arizona counties are classified as high risk for water shortages: Yuma, La Paz, Santa Cruz, Cochise, and Apache.15

Water and energy are intricately related. The water industry uses vast amounts of electricity to transport water and to treat both water and wastewater. Similarly, significant amounts of water are used to produce

9. Id. at 35–37. 10. Id. at 1. 11. WILLIAM M. ALLEY ET AL., U.S. GEOLOGICAL SURVEY, SUSTAINABILITY OF GROUND-

WATER RESOURCES: U.S. GEOLOGICAL SURVEY CIRCULAR 1186, at 1 (1999), available at http://pubs.usgs.gov/circ/circ1186/pdf/circ1186.pdf.

12. NAT’L GROUND WATER ASS’N, GROUND WATER SUSTAINABILITY: A WHITE PAPER 6 (2004), available at http://www.ngwa.org/Documents/PositionPapers/sustainwhitepaper.pdf.

13. U.N. EDUC., SCIENTIFIC & CULTURAL ORG., WORLD WATER ASSESSMENT PROGRAMME, THE UNITED NATIONS WORLD WATER DEVELOPMENT REPORT 3: WATER IN A CHANGING WORLD, at 150, U.N. Sales No. 09.II.A.3 (2009), available at http://unesdoc.unesco.org/images/0018/001819/181993e.pdf; THE 2030 WATER RES. GRP., CHARTING OUR WATER FUTURE 46 (2009), available at http://www.mckinsey.com/App_Media/Reports/Water/Charting_Our_Water_Future_Full_Report_001.pdf.

14. SUJOY B. ROY ET AL., TETRA TECH., INC., EVALUATING SUSTAINABILITY OF PROJECTED WATER DEMANDS UNDER FUTURE CLIMATE CHANGE SCENARIOS, at iv (2010), available at http://rd.tetratech.com/climatechange/projects/doc/Tetra_Tech_Climate_Report_2010_lowres.pdf.

15. Id.


energy. The Electric Power Research Institute calculates that 27% of all water consumed in the United States for non-agricultural purposes is used in energy production.16 The most recognized use of water in electricity generation is for cooling in thermal power plants but significant amounts of water are also used in the extraction and processing of some fuels for these plants. For example, water is used in mining coal and for transporting it as slurry.

The total amount of water used by different electricity generating technologies varies widely.17 The range of water use goes from almost zero, for wind, photovoltaic solar, and dry cooled combined-cycle gas turbine systems, to approximately 800 gallons per Megawatt-Hour of electricity produced (“gal/MWh”), for wet cooled nuclear (closed-loop), advanced coal with carbon capture and sequestration, concentrating solar, and geothermal technologies.18 Wet cooled (closed-loop) steam turbine systems, including coal, gas, and biomass, use an average of 500 gal/MWh while the same systems using dry cooling use an average of just over 100 gal/MWh.19 Similarly, while wet cooled nuclear (closed-loop) generating systems use almost 800 gal/MWh, dry cooled nuclear systems use an average of only 200 gal/MWh.20 The water usage of dry cooled concentrating solar plants can be as low as 100 gal/MWh.21

C. Land Use Land is a valuable and finite natural resource. Land can be used to build

housing or commercial structures, cultivate as farmland, or preserve as open space. All of these uses can improve the quality of life. However, land use decisions are notoriously difficult because people often value the possible uses of a particular parcel very differently.

From a sustainability perspective, generating plants and transmission lines should use as little land as possible and be built in compatible locations. With regards to land use impacts alone, utility-scale solar projects (both concentrating and photovoltaic) are less sustainable than traditional coal and natural gas plants because they use many times more acreage for

16. Id. 17. ERIK MIELKE ET AL., BELFER CTR. FOR SCI. & INT’L AFFAIRS, ENERGY TECHNOLOGY

INNOVATION POLICY DISCUSSION PAPER NO. 2010-15, WATER CONSUMPTION OF ENERGY RESOURCE EXTRACTION, PROCESSING, AND CONVERSION 8 (2010), available at http://belfercenter.ksg.harvard.edu/files/ETIP-DP-2010-15-final-4.pdf.

18. Id. 19. Id. 20. Id. 21. Id.


the production of an equal amount of energy. Wind generating plants are unique because they usually cover large areas but do not use the land on which they are sited in a way that excludes all other uses. Offshore wind farms have almost no land use impacts other than the possible visual impacts to coastal properties. Distributed generation systems also have essentially zero (or maybe even positive) land use impacts.

Defining “appropriate locations” for power plants and transmission lines is beyond the scope of this paper, but developers of these facilities should attempt to determine the preferences of relevant communities and try to address those concerns to the extent reasonably possible. It would be unreasonable to state that energy facilities should only be built in locations with the least amount of impacts to adjacent landowners and nearby residents—there are too many other factors that must be balanced in choosing a site. However, a sustainable project will proactively attempt to minimize its negative impacts on its neighbors throughout the life of the project.

D. Cost Cost is included as a sustainability consideration because a rapid or

excessive increase in electricity prices could cause unacceptable consequences that would make a particular electrical supply system socially and economically unsustainable. Energy prices impact almost every member of society directly as well as nearly every product and service offered in our economy. For this reason, electricity prices have a multiplying effect on consumers’ budgets. It would be unsustainable for prices to increase in a manner that results in some significant portion of the populace experiencing an unacceptable decrease in quality of life. It would also be unsustainable for utility companies to operate without making a profit. Therefore, the cost of developing environmentally sustainable resources must be balanced with the financial impacts it has on customers.

E. Economic Development Economic development is a key to sustainability consideration because

new energy reserves have the potential to provide a new economic driver in the state and offset some of the negative impacts of increasing electricity costs.22 Arizona’s abundant solar resources can be harnessed to provide

22. See, e.g., JOHANNES P. PFEIFENBERGER & DELPHINE HOU, THE BRATTLE GRP.,

EMPLOYMENT AND ECONOMIC BENEFITS OF TRANSMISSION INFRASTRUCTURE INVESTMENT IN


power throughout the region and will create jobs, directly and indirectly, as well as increase tax revenues. In addition, the existing renewable energy projects in Arizona often use Arizona companies, workers, and products. Striking the appropriate balance with other factors will be critical to ensuring that future developments are sustainable.

F. Demand To be sustainable, Arizona’s electric power industry must generate

enough supply to meet the growing demand for electricity. Not only is Arizona’s population increasing at the second fastest rate of all states in the country,23 but the amount of electricity used per person on average will continue to increase as living standards continue to improve and as people become more dependant on electronic devices.24 One popular solution for addressing the country’s larger energy situation—electric cars—would accelerate the increasing demand for electricity. There are many options for generating more electricity and many opinions about the best approaches, but failing to satisfy Arizonans’ growing demand would cause unacceptable consequences and, therefore, be unsustainable.

II. POWER SUPPLY AND DEMAND

This section provides a very brief overview of some of the characteristics of electrical demand and a discussion of both existing supplies and future supply options for Arizona. For this discussion, it is important to understand that electricity cannot truly be stored. It can be converted to other forms of energy such as chemical energy (batteries) or heat (molten salt tanks) and then re-converted back to electricity, but there are losses involved. In general, with existing technologies, it is easier and cheaper to simply generate electricity when it is needed.

THE U.S. AND CANADA i (2011), available at http://www.thebrattlegroup.org/_documents/UploadLibrary/Upload947.pdf.

23. PAUL MACKUN & STEVEN WILSON, U.S. CENSUS BUREAU, POPULATION DISTRIBUTION AND CHANGE: 2000 TO 2010, at 2 (2011), available at http://www.census.gov/prod/cen2010/briefs/c2010br-01.pdf.

24. See ARIZ. PUB. SERV. CO., RESOURCE PLAN REPORT 57–62 (2009) [hereinafter 2009 APS RESOURCE PLAN], available at http://www.aps.com/_files/various/ResourceAlt/APS_2009_Resource_Plan_Report_sFINAL_012909.pdf.


A. Electrical Demand Demand for electricity varies throughout the year and throughout each

day. In warm climates like Arizona, where a significant portion of the electrical demand comes from powering air conditioners, demand is usually higher in the summer than in the winter. During the summer, when daily fluctuations are greatest, demand is higher in the late afternoon than during the early morning hours. Winter days have different peak demand periods. Electrical utilities attempt to satisfy this fluctuating demand by bringing different power plants on- and off-line at different times of the day and year.

Baseload demand is the minimum amount of electricity required each minute essentially year-round. This demand can be met by baseload resources that operate year-round and are rarely taken off-line. Some types of plants, such as solar and wind, are not good baseload resources because currently they cannot produce electricity 24 hours per day, year-round.

Peaking demand is the daily increase in demand on a system. As the demand for electricity increases during a summer day in Arizona, the need for additional peaking resources increases. Some peaking resources will be brought on-line for 10 or 12 hours per day while some may be brought on-line for only two hours. The absolute yearly peak demand on a system may only be reached for a few hours on a handful of days so some peaking resources may operate for a very small portion of the year. Plants that are difficult to start and stop, such as nuclear and coal plants, do not make good peaking resources.

This discussion of baseload and peaking demand is very generalized. The relevant point is that, at least with currently-deployed technologies, some resources are not suitable to meeting some types of demand. Ensuring adequate supply at all times requires extensive long-term planning and diligent management of the electrical system. Until technological advances improve certain characteristics of a particular resource, Arizona will continue to generate energy from a variety of resources.

B. Current Supply in Arizona Traditional energy resources, including coal, natural gas, nuclear, and

hydro, accounted for approximately 98% of all electricity generated in Arizona in 2009.25 Interestingly, retail sales in Arizona amount to only 65%

25. 2009 APS RESOURCE PLAN, supra note 24, at 80–81; since APS is the leader among

Arizona utilities in implementation of renewable technologies, it is safe to assume that other utilities generated at least 98% of their electricity from traditional sources in 2009.


of all electricity generated in Arizona in 2009.26 This is because approximately 30% of all electricity generated in Arizona is exported and used by retail customers in other states, primarily California.27 In fact, most of Arizona’s large power plants are co-owned by several utilities, usually including at least one out-of-state utility.28 Arizona also imports electricity from surrounding states, primarily coal-fueled power plants in New Mexico.29 Because of the interconnectedness of the electrical grid in the Western Electricity Coordinating Council’s (“WECC”) service territory, it is impossible to know exactly where electricity used in Arizona was generated. For this reason, this section generally examines the generating capabilities of facilities located in Arizona, rather than the source of electricity used in Arizona.

1. Coal

Arizona’s primary resource for generating electricity is currently coal. According to the EIA, approximately 35% of the electricity generated in Arizona in 2009 came from coal.30 The largest coal generating plants in Arizona, in terms of capacity, are Navajo Generating Station, near Page (2,250 MW); Springerville Generating Station, near Springerville (1,614 MW)); and Cholla Power Plant, near Holbrook (1,021 MW).31

Arizona’s sole operating coal mine, the Kayenta Mine on reservation lands in northeastern Arizona, produced almost 7.5 million short tons of coal in 2009,32 all of which was used for electricity generation. During the

26. Arizona Electricity Profile: 2009 Summary Statistics (Arizona), INDEP. STAT. &

ANALYSIS U.S. ENERGY INFO. ADMIN., http://www.eia.doe.gov/cneaf/electricity/st_profiles/arizona.html (last visited Oct. 23, 2011).

27. MARTIN J. PASQUALETTI & SCOTT KELLEY, THE WATER COSTS OF ELECTRICITY IN ARIZONA: EXECUTIVE SUMMARY 2 (2008), available at http://www.adwr.state.az.us/AzDWR/StatewidePlanning/Conservation2/Documents/documents/TheWaterCostsofElectricityinArizona.pdf.

28. See Power Plants, APS, http://www.aps.com/general_info/AboutAPS_18.html (last visited Aug. 23, 2011).

29. PASQUALETTI & KELLEY, supra note 27, at 2. 30. U.S. ENERGY INFO. ADMIN., ELECTRIC POWER INDUSTRY GENERATION BY PRIMARY

ENERGY SOURCE, 1990 THROUGH 2009 (MEGAWATTHOURS) tbl. 5 (2011) [hereinafter ELECTRIC POWER INDUSTRY GENERATION BY PRIMARY ENERGY SOURCE], available at http://www.eia.gov/cneaf/electricity/st_profiles/sept05az.xls.

31. U.S. ENERGY INFO. ADMIN., TEN LARGEST PLANTS BY GENERATION CAPACITY, 2009 tbl. 2 (2011) [hereinafter TEN LARGEST PLANTS BY GENERATION CAPACITY], available at http://www.eia.doe.gov/cneaf/electricity/st_profiles/sept02az.xls.

32. OFFICE OF OIL, GAS, AND COAL SUPPLY STATISTICS, U.S. ENERGY INFO. ADMIN., ANNUAL COAL REPORT 2009, at 24 (2011), available at http://www.eia.gov/cneaf/coal/page/acr/acr.pdf.


same year, coal power plants located in Arizona used almost 21 million short tons of coal.33 Based on these numbers, Arizona imported approximately 13.5 million short tons of coal for electricity generation in 2009.

2. Natural Gas

Natural gas is a close second to coal on the list of most common resources for generating electricity in Arizona with 31%.34 Unlike all the other traditional electrical resources, approximately two-thirds of the natural gas generating capacity in Arizona is owned by independent power producers, rather than utilities.35 The largest natural gas power plants in the state are the independently-owned Gila River Power Station, near Gila Bend (2,060 MW); the Salt River Project’s (“SRP”) Santan Generating Station, in Gilbert (1,227 MW); and the independently-owned Mesquite Power Generating Station, near Arlington (1,073 MW).36 In 2009, Arizona produced 712 million cubic feet (“mmcft”) of natural gas, the most natural gas produced in Arizona since 1994.37 However, use far exceeds supply. During the same year, Arizona power plants took delivery of approximately 262,000 mmcft of natural gas.38

3. Nuclear

At 27%, the next most common resource for generating electricity in Arizona is nuclear fission.39 All of the nuclear energy generated in Arizona comes from the Palo Verde Nuclear Plant, in Wintersburg. With a capacity of 3,942 MW, Palo Verde is the largest nuclear plant and second largest power plant in the U.S.—behind only the 7,079 MW Grand Coulee Hydroelectric Plant in Washington—and by far the largest power plant in

33. Id. at 53. 34. See ELECTRIC POWER INDUSTRY GENERATION BY PRIMARY ENERGY SOURCE, supra

note 30. 35. Id. 36. TEN LARGEST PLANTS BY GENERATION CAPACITY, supra note 31. 37. Annual Arizona Natural Gas Marketed Production, INDEP. STAT. & ANALYSIS U.S.

ENERGY INFO. ADMIN., http://www.eia.gov/dnav/ng/hist/n9050az2a.htm (last updated Aug. 29, 2011).

38. Annual Arizona Natural Gas Deliveries to Electric Power Consumers, INDEP. STAT. & ANALYSIS U.S. ENERGY INFO. ADMIN., http://www.eia.doe.gov/dnav/ng/hist/n3045az2A.htm (last updated Aug. 29, 2011). In 2010, deliveries of natural gas to Arizona power plants dropped to 225,000 mmcft. Id.

39. See ELECTRIC POWER INDUSTRY GENERATION BY PRIMARY ENERGY SOURCE, supra note 30.


Arizona.40 Palo Verde is operated by Arizona Public Service Co. (“APS”) but owned by numerous utilities including APS, SRP, Southern California Edison, PNM Resources, Southern California Public Power Authority, and the Los Angeles Department of Water & Power.41

4. Hydropower

Conventional hydropower accounts for almost 6% of all electrical generation in Arizona.42 The two largest hydroelectric plants that provide electricity to Arizona are both on the Colorado River: Hoover Dam on the Arizona-Nevada border, with an installed capacity of 2,080 MW;43 and Glen Canyon Dam near Page, with an installed capacity of 1,296 MW.44 Both of these plants are operated by the U.S. Bureau of Reclamation. Electricity from the Hoover Dam is distributed to various entities in California, Nevada, and Arizona, with Arizona receiving just under 19% of the electricity produced by the plant.45 Similarly, electricity from the Glen Canyon Dam is sold to non-profit entities, mostly rural electrical co-operatives, in Arizona, Colorado, Nevada, New Mexico, Utah, and Wyoming.46

C. New Supply Alternatives In 2009, approximately 2% of all electricity generated in Arizona came

from renewables, including wind, solar, biomass, and geothermal.47 However, the share of Arizona’s electricity produced from renewable resources is expected to increase sharply over the next decade as a result of the Arizona Corporation Commission’s (“ACC” or the “Commission”)

40. Id.; see also TEN LARGEST PLANTS BY GENERATION CAPACITY, supra note 31. 41. Palo Verde Nuclear Generation Station, SRP, http://www.srpnet.com/about/stations/

paloverde.aspx (last visited Sept. 24, 2011). 42. See ELECTRIC POWER INDUSTRY GENERATION BY PRIMARY ENERGY SOURCE, supra

note 30. 43. Hoover Dam Frequently Asked Questions and Answers: Hydropower at Hoover Dam,

U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/lc/hooverdam/faqs/powerfaq.html (last reviewed Feb. 2009) [hereinafter Hoover Dam FAQ].

44. Glen Canyon Powerplant, U.S. BUREAU OF RECLAMATION, http://www.usbr.gov/projects/Powerplant.jsp?fac_Name=Glen+Canyon+Powerplant (last updated May 13, 2009).

45. Hoover Dam FAQ, supra note 43. 46. Fact Sheet: Lake Powell & Glen Canyon Dam, FRIENDS OF LAKE POWELL,

http://lakepowell.org/page_two/information/Lake_Powell_Facts/lake_powell_facts.html (last visited Sept. 24, 2011).

47. 2009 APS RESOURCE PLAN, supra note 24, at 80–81.


adoption of its Renewable Energy Standard and Tariff (“REST”) Rules,48 the adoption of renewable portfolio standards by neighboring states,49 SRP’s revisions to its Sustainable Portfolio Principles,50 and retail customers’ increasing support for renewable energy.51

1. Solar

It appears that the majority of the near-term growth of renewable resource utilization in Arizona will be from solar resources. The EIA reports that Arizona had only 11 MW of large scale solar capacity in 2009.52 Although this number is undoubtedly low, it is still a useful reference point. APS plans to add 60 MW of large scale solar capacity in 2011 alone.53 Tucson Electric Power Company (“TEP”) has contracted to buy the electricity produced by 107 MW of solar projects to be built in 2011 and 2012.54 When Abengoa Solar’s Solana project comes on-line in 2013, it will add 280 MWs of solar capacity to Arizona’s renewable generating portfolio.55 NRG Solar’s 290 MW Agua Caliente project, located between

48. See ARIZ. ADMIN. CODE §§ 14-2-1801 to -1816 (2009) (requiring utilities regulated by the ACC to generate a specified percentage of electricity sold each year from renewable sources, reaching 15% by 2025).

49. See States with Renewable Portfolio Standards, U.S. DEPARTMENT OF ENERGY, http://apps1.eere.energy.gov/states/maps/renewable_portfolio_states.cfm (last updated June 16, 2009) (California: 33% by 2030, Nevada: 20% by 2015, Utah: 20% by 2025, Colorado 20% by 2020, and New Mexico: 20% by 2020).

50. See SRP Sustainable Portfolio Principles, SRP, http://www.srpnet.com/environment/sustainableplan.aspx (last visited Sept. 24, 2011) (In May 2011, SRP's Board of Directors voted to increase SRP's sustainable portfolio goal to 20% by 2020.).

51. See Phoenix Bus. Journal, Arizonans Willing to Pay for Solar, PHOENIX MORNING CALL (Apr. 17, 2011, 10:21 PM), http://www.bizjournals.com/phoenix/morning_call/2011/04/arizonans-willing-to-pay-for-solar.html?s=newsletter&ed=2011-04-18&ana=e_phx_rdup (State-wide survey in February 2011 “found that 71 percent of the respondents want utilities to invest in solar and renewables . . . .”).

52. U.S. ENERGY INFO. ADMIN., STATE HISTORICAL TABLES FOR 2009 (2011) [hereinafter STATE HISTORICAL TABLES], available at http://www.eia.gov/cneaf/electricity/epa/existing_capacity_state.xls.

53. COMMITMENT TO RENEWABLE ENERGY, APS, http://www.aps.com/main/green/choice/interactive-map.html (follow “Photovoltaic Solar” hyperlink; then follow separate hyperlinks for “Cotton Center” (revised Feb. 2011), “Hyder” (revised Feb. 2011), “APS/SunEd Prescott” (revised Feb. 2011), and “Paloma” (revised Feb. 2011); then follow “View complete details” hyperlink for each project).

54. TEP Signs 160-MW of Renewables PPAs, RENEWABLEENERGYWORLD.COM (June 1, 2010), http://www.renewableenergyworld.com/rea/news/article/2010/06/tep-signs-160-mw-of-renewables-ppas.

55. STATE HISTORICAL TABLES, supra note 52; see also Patrick O’Grady, Abengoa Solar Moving Ahead With Power Plant, PHOENIX BUS. J., at 1 (Oct. 2, 2009), http://www.solanasolar.com/misc/ASI_PHX_Business_Journal_09_1002.pdf.


Yuma and Gila Bend, is scheduled for completion in 2014.56 It is under contract to sell its power to Pacific Gas and Electric Company, a California utility.57

There are two very different methods used to generate electricity from solar energy. The most common type is photovoltaic cells which are arranged in panels and convert solar radiation directly to electricity (“PV”). PV has been used for decades in small applications, but it can also be used for utility-scale projects. The second major type is concentrated solar power (“CSP”) which focuses sunlight onto a small area to create heat, which is then converted to electricity. Most types of CSP, including solar troughs and solar power towers, convert heat to electricity using a steam turbine through the same process used by coal and nuclear plants.

One major disadvantage of solar is the variability in output. The output of PV systems can decrease significantly if the panels are not directly facing the sun or if they are shadowed by clouds. More importantly, solar systems do not generate electricity at all during night-time hours. CSP projects can include thermal storage that allows the plant to continue producing electricity after sunset or during overcast conditions—making them more dispatchable than PV systems—but, at least with the technology currently being deployed, they are still considered intermittent resources.

2. Wind

There is only one commercial scale wind farm currently operating in Arizona, the 63 MW Dry Lake Wind Project near Snowflake.58 Iberdrola Renewables developed the project and SRP buys 100% of the electricity generated by the 30 turbines.59 NextEra Energy Resources’ Perrin Ranch Wind Energy Center, near Williams, is a 99 MW wind farm scheduled to begin commercial operation in 2012.60 APS has contracted to purchase all of the energy produced by this new project.61 APS also has contracts to

56. NRG Energy Buys 290 MW Agua Caliente Solar Project, RENEWABLEENERGYFOCUS.COM (Aug. 9, 2011), http://www.renewableenergyfocus.com/view/19952/nrg-energy-buys-290-mw-agua-caliente-solar-project/.

57. PG&E Teams With NRG Energy and eSolar For 92 Megawatts of Solar Thermal Power, PG&E (June 25, 2009), http://www.pge.com/about/newsroom/newsreleases/20090625/pge_teams_with_nrg_energy_and_esolar_for_92_megawatts_of_solar_thermal_power.shtml.

58. STATE HISTORICAL TABLES, supra note 52; IBERDROLA RENEWABLES, DRY LAKE WIND POWER PROJECT 1 (July 26, 2011), available at http://www.iberdrolarenewables.us/pdf/Dry-Lake-fact-sheet-final.pdf.

59. Iberdrola Renewables, supra note 58. 60. APS, THE PERRIN RANCH WIND ENERGY CENTER 1 (2011), available at

http://www.aps.com/files/_files/pdf/map/Perrin.pdf. 61. Id.


purchase the power produced by two wind farms located in New Mexico: the 90 MW Aragonne Mesa Wind Farm, which came on-line in 2006; and the 100 MW High Lonesome Mesa Wind Energy Project, which came on-line in 2009.62 There are several other wind energy projects at various stages of development across northern Arizona.63

Wind generation has some of the same intermittency problems as solar, but detailed studies of wind patterns prior to development help developers and utilities predict total annual generation and seasonal fluctuations in output from wind farms.

3. Biomass

The EIA reports that in 2009, there were three biomass plants operating in Arizona with a combined nameplate capacity of 35 MW.64 The majority of that capacity, 24 MWs, is from the Snowflake White Mountain Biomass Power Plant in Navajo County.65 This biomass plant uses forest-thinning waste and waste recycled paper fibers from a neighboring paper mill for fuel. The plant began operating in 2008 under long-term power purchase agreements with both SRP and APS.66 In 2010, the plant declared bankruptcy but was able to continue operating after APS agreed to purchase SRP’s share of the output.67 The EIA data does not show any more planned biomass plants in Arizona through the year 2014.68

62. APS, ARAGONNE MESA WIND FARM, (2011), available at

http://www.aps.com/files/_files/pdf/map/Aragonne.pdf; APS, HIGH LONESOME MESA WIND ENERGY PROJECT, (2011), available at http://www.aps.com/files/_files/pdf/map/HighLonesome.pdf.

63. Mike Sunnucks & Patrick O’Grady, BP May Develop Mighty Wind Farm in Northern Arizona, PHOENIX BUS. J. (July 1, 2011), http://www.bizjournals.com/phoenix/print-edition/2011/07/01/bp-may-develop-mighty-wind-farm-in.html?ana=e_ph; Susan Whittington, Wind Takes a Winding Road in Arizona, ENERGY NEWSDATA (Apr. 12, 2011), http://arizonaenergy.org/News_11/News_Apr11/WindTakesaWindingRoadinArizona.html.

64. State Historical Tables, supra note 52. 65. Ryan Randazzo, Biomass Plant May Shut Down Amid Lost Deal, ARIZ. REPUBLIC,

July 23, 2010, http://www.azcentral.com/business/articles/2010/07/23/20100723biz-biobankruptcy0723.html; APS, SNOWFLAKE WHITE MOUNTAIN BIOMASS 1 (2011), available at http://www.aps.com/files/_files/pdf/map/Snowflake.pdf; Snowflake White Mountain Power Biomass Electrical Plant Basic Fact Sheet, RENERGY ENLIGHTENED GENERATION, http://www.renegy.com/papers/swmp_fact_sheet_5_1_07.pdf (last visited Sept. 24, 2011).

66. Randazzo, supra note 65. 67. Id. 68. State Historical Tables, supra note 52.


4. Geothermal

There are not any geothermal power plants in Arizona at this time, although APS delivers some electricity to Arizona customers from a geothermal plant in California.69 SRP has also signed a 30-year agreement to purchase the output of a 49 MW geothermal project in California’s Imperial Valley, but this project will not become operational until 2012.70 Some early studies concluded that Arizona did not have geothermal resources of the quality needed for utility scale development but those conclusions have been questioned repeatedly.71 It appears that additional investigation is needed to determine the quality of the state’s geothermal resources. The Arizona Geological Survey is currently performing a study with funding from the U.S. Department of Energy to determine whether the state has geothermal resources that could be developed for utility scale electrical generation.72

5. Demand-Side Management

A final “renewable resource” from a planning perspective is demand-side management efforts, such as energy efficiency measures, which reduce the amount of electricity that needs to be generated, and demand response measures, which shift consumers’ energy usage away from times of peak demand. Although demand-side management efforts technically reduce or shift demand, rather than creating supply like the other resources discussed in this section, utilities and planners analyze them as a resource for purposes of balancing future supply and demand in order to compare their costs and environmental benefits to those of available supply-side resources.

Demand-side management efforts make a lot of sense from a sustainability perspective but this resource is somewhat limited because of the wide variability of costs. Some energy efficiency measures, such as

69. ARIZ. PUB. SERV. CO., 2009 APS RESOURCE PLAN 77 (2009), available at

http://www.aps.com/_files/various/ResourceAlt/APS_2009_Resource_Plan_Report_sFINAL_012909.pdf (“APS has a long-term PPA to purchase the output from a 10 MW geothermal power plant that is located in the Salton Sea area of southeastern California. This capacity is delivered to the APS system in Yuma. This project began delivering energy to APS in January 2006, and extends through 2029.”).

70. Renewable Energy, SRP, http://www.srpnet.com/environment/renewable.aspx (last visited Sept. 24, 2011).

71. See generally DANIEL J. FLEISCHMANN, GEOTHERMAL ENERGY ASS’N, GEOTHERMAL RESOURCE DEVELOPMENT NEEDS IN ARIZONA 15 (2006), available at http://www.geo-energy.org/reports/Arizona%20Geothermal%20Report%20Sept%2025%202006.pdf.

72. Geothermal Potential in Arizona, THE ARIZ. GEOLOGICAL SURVEY, http://www.azgs.az.gov/geothermal.shtml (last visited Sept. 24, 2011).


providing discounts on compact fluorescent light bulbs (“CFLs”) and including energy saving tips on customers’ bills, are very inexpensive compared to building new generating capacity. However, these measures can be exhausted over time as the proportion of CFLs increases and as customers become more aware of energy conservation opportunities. Similarly, demand response measures, such as charging more for electricity during peak hours and installing smart meters, can reduce peak demand cost-efficiently at first but their effects will soon begin to diminish. In addition, some demand response measures do not decrease the total amount of energy that must be generated—they simply shift the use to off-peak hours, thereby decreasing the need for peaking generation.

III. ROLE OF TRANSMISSION

The purpose of this section is to explain how electrical transmission lines are an essential component of Arizona’s efforts to develop a sustainable energy system. Transmission lines are generally unpopular because they can, at least in the opinions of some, obstruct scenic views, disrupt pristine environments, make adjacent properties less desirable, and cause concerns about health issues for people living nearby. High-voltage transmission lines can also be very expensive—a factor that must be considered when evaluating the costs of various generating options. However, transmission lines have traditionally been necessary to avoid building generating facilities in incompatible locations such as residential neighborhoods. Transmission lines are a necessary component of renewable energy generation for several additional reasons.

A. Integration of Utility-Scale Renewables Based on many of the sustainability considerations discussed in Section

I, utility-scale renewable energy plants are an essential part of Arizona’s sustainable energy future and transmission lines are almost always necessary for these plants. The ACC has recognized this reality as discussed in Section V below.

Transmission lines are necessary for utility-scale renewable generating plants because these facilities must be built primarily based on where the best available resource is located. For example, a wind developer cannot decide to site a wind farm next to a load center just to avoid the need for transmission lines. The site also has to have quality wind resources. Similarly, to maximize the efficiencies of a solar project, one of the highest priorities for a solar developer is to find a site with optimal solar radiation


characteristics. The cost implications of building at a site with optimal resource characteristics typically outweigh the cumulative impacts of connecting the project via a new transmission line. With regards to a biomass plant, it is true that fuel could be transported to a plant located in a load center but the cost of transporting bulky bio-fuel by train or semi-truck would be considerably more over the life of a facility than the cost of transporting the electricity.

Another reason why utility-scale renewable generation facilities need transmission is that their physical characteristics are generally incompatible with load centers, which are almost always heavily populated areas with tall buildings, airports, increased air pollution, and elevated property values. Several of these characteristics would have negative consequences for each type of renewable energy project. For example, building a utility-scale solar plant in or near a load center could be a problem because of shading from tall structures (existing or future). But the biggest obstacle to building a solar plant near a load center is the lack of large undeveloped parcels and the cost of any available land compared to land in an isolated location.

B. Facilitate Power Exports Several economic and business groups have identified electricity

generation, especially from renewable resources, as one of Arizona’s best opportunities to build a stable and sustainable economy.73 The basis for this opportunity is building renewable energy facilities in Arizona, where there are quality renewable (especially solar) resources and favorable tax incentives, and then exporting this power to neighboring states.74 California is usually identified as the primary buyer of Arizona’s renewable energy. California is the largest market in the country for renewable energy because both its total demand for electricity and its renewable portfolio standard are among the highest in the country.75 It is easier to site and construct any type

73. GREATER PHOENIX ECONOMIC COUNCIL, GPEC FY2011 ACTION PLAN 7 (2011), available at http://www.gpec.org/media/docs/GPEC%20Documents/FY11%20Action%20Plan_FINAL.pdf (“Continue pursuit of solar and next-generation technologies . . . will define the next wave of business opportunities.”); Matthew Benson, Brewer Pushes For Nuclear as Key Part of Energy Goals, ARIZ. REPUBLIC, Jan. 6, 2010, http://www.azcentral.com/arizonarepublic/news/articles/2010/01/06/20100106brewer-energy0106.html (“Alternative energy represents ‘probably the most promising area of new job growth’ for the state, said Glenn Hamer, executive director of the Arizona Chamber of Commerce & Industry.”).

74. U.S. States-Arizona-Overview, U.S. ENERGY INFO. ADMIN., http://www.eia.gov/state/state-energy-profiles.cfm?sid=AZ (last updated Oct., 2009). Arizona already exports approximately 30% of the electricity generated in the state.

75. States with Renewable Portfolio Standards, U.S. DEP’T OF ENERGY, http://apps1.eere.energy.gov/states/maps/renewable_portfolio_states.cfm (last updated June 16,


of facility in Arizona than in California due to California’s more stringent environmental laws. Arizona also has a more definite timeline for obtaining siting approvals.76 In order to capitalize on this economic opportunity, Arizona must be willing to build transmission capacity to get the renewable energy generated in Arizona to the California border.

C. Satisfy Increasing Demand The continuously increasing demand for electricity in Arizona, as

discussed above, will also necessitate building more transmission capacity. Coupled with this increasing demand is the practical reality that distributed generation (solar panels on roof-tops) and demand-side management efforts will not generate sufficient supply. Most structures do not have enough roof space to fit the number of PV panels that would be necessary to supply the structure’s entire energy usage. Hence, more utility-scale generation will be necessary. Since utility-scale power plants, both traditional and renewable, are not generally amenable to being sited in, or even close to, load centers, new transmission lines will be required.

IV. SITING PROCESSES

Before construction can commence on a transmission line that is 115kV or larger, a project proponent must obtain, at a very minimum, a Certificate of Environmental Compatibility (“CEC”). CECs are issued by the Arizona Power Plant and Transmission Line Siting Committee (“Line Siting Committee” or the “Committee”) and then affirmed and approved by the ACC. In addition to obtaining a CEC, proponents of transmission lines that will cross state trust lands or federal lands also must obtain rights-of-way from the appropriate land manager(s).

A. Certificate of Environmental Compatibility The Line Siting Committee is a unique regulatory body. Its sole function

is to consider CEC applications using the statutory criteria set forth in A.R.S. § 40-360.06.77 These criteria are broad and vague; one factor cryptically requires the Committee to consider the “total environment of the 2009); State Electricity Profiles: 2009 Edition, U.S. ENERGY INFO. ADMIN., http://www.eia.doe.gov/cneaf/electricity/st_profiles/e_profiles_sum.html (last visited Oct. 23, 2011).

76. ARIZ. REV. STAT. ANN. §§ 40-360 to -360.13 (2011). 77. Id.


area.”78 As a result, the Committee has a great deal of discretion when determining whether to issue a CEC, and if so, what conditions to impose on the project.

Even after the Line Siting Committee makes its decision, an applicant cannot begin construction until the CEC has been “affirmed and approved” by the ACC.79 The language of the statutory regime suggests that the ACC’s action should be ministerial, except when a party requests review.80 However, in practice, the Commission reviews every CEC, regardless of whether a request for review has been filed.

The Commission may confirm, deny or modify a CEC granted by the Committee.81 In doing so, the Commission must balance “the need for an adequate, economical and reliable supply of electric power with the desire to minimize the effect thereof on the environment and ecology . . . .”82

B. State Lands In Arizona, approximately 9.3 million acres, 13% of the total land mass,

are State Trust Lands.83 These State Trust Lands are held in trust for the benefit of public education and other named beneficiaries.84 The Arizona State Land Department (“SLD”) manages these lands and has the authority to grant rights-of-way for transmission lines that cross State Trust Lands.85 The right-of-way application process includes an appraisal to determine the fair market value for the land, along with evaluations to assess potential environmental impacts.86 The SLD will only issue a right-of-way if it determines that the action is in the best interest of the beneficiaries.87

78. Id. § 40-360.06. 79. Id. § 40-360.07(A). 80. Id. 81. Id. § 40-360.07(B). 82. Id. 83. ARIZ. STATE LAND DEP’T, ANNUAL REPORT 2009–2010, at 17, 19 (2010) [hereinafter

ASLD 2010 ANNUAL REPORT], available at http://www.land.state.az.us/report/report2010_full.pdf.

84. Id. at 22. 85. ARIZ. REV. STAT. ANN. § 37-461. 86. ARIZ. CONST. art. 10, § 4; ARIZ. ADMIN. CODE § 12-5-801 (2010); ARIZ. STATE LAND

DEP’T, RIGHT OF WAY INSTRUCTIONS (2010), available at http://www.land.state.az.us/programs/operations/pdfs/ROWAppInstructions.pdf.

87. ASLD 2010 ANNUAL REPORT, supra note 83, at 4.


However, the SLD also has a policy of facilitating solar development efforts.88

C. Federal Lands Over 70% of the land in Arizona is owned by the federal government.89

As a result, most transmission lines that are developed to move remote generation resources to load centers will cross federal lands. To construct and operate a transmission line that crosses federal lands, rights-of-way must be obtained from all federal agencies with management responsibility for the lands in question.

Adding to the challenge of siting transmission lines on federal lands, management is splintered over a wide cross-section of federal agencies, including the Bureau of Land Management, the Bureau of Reclamation, the Forest Service, the National Park Service, the Fish and Wildlife Service, the Department of Defense, and the Bureau of Indian Affairs.90 Each agency processes rights-of-way applications pursuant to their specific statutory and regulatory authority. The one commonality among the various federal approval processes is the requirement to comply with the National Environmental Policy Act (“NEPA”).91

D. Consequences of Multiple Regulatory Processes The need to obtain multiple approvals creates significant challenges. The

chief concern is that one regulatory body will approve one location for a transmission line, while another will select a different location. This can occur because each agency has unique roles and responsibilities. The ACC must select a route that best balances the need for power against the desire to minimize environmental effects.92 If that route crosses State Trust Land, the line cannot be built unless the SLD determines that granting the right-of-way is in the best interests of the trust’s identified beneficiaries. If a

88. See Overview-Arizona State Land Department Role in Renewable Energy, ARIZ. STATE LAND DEP’T (Feb. 11, 2010), http://azgovernor.gov/renewable/documents/Feb2010/ArizonaStateLandDepartment.pdf.

89. ASLD 2010 Annual Report, supra note 83, at 19. 90. U.S. GEOLOGICAL SURVEY, THE NATIONAL ATLAS OF THE UNITED STATES OF

AMERICA, ARIZONA, FEDERAL LANDS AND INDIAN RESERVATIONS (2003), available at http://www.nationalatlas.gov/printable/images/pdf/fedlands/AZ.pdf.

91. 42 U.S.C. §§ 4321–4370H (2006). 92. Commission Approves Power Plant but Adds Tough New Emissions Requirements,

ARIZONA CORP. COMM’N (Apr. 4, 2001), http://www.azcc.gov/divisions/utilitiestest/news/pr04-04-01a.htm.


proposed route crosses federal lands, each affected federal land manager must decide whether the proposed route is consistent with the land management goals and responsibilities that are specific to the federal lands in question.

This is not just a theoretical risk. A transmission line that the Commission ordered be built in 1999, still has not been constructed because the proponents have been unable to obtain a right-of-way over federal land within the corridor identified by the Commission.93

Even if the various regulatory agencies ultimately approve the same route, obtaining multiple approvals is a time-consuming and inefficient proposition. Because each application process is separate and distinct, it is inevitable that analyses are duplicated, and some time is not well-spent.

V. EXISTING EFFORTS TO ADDRESS LINE-SITING BARRIERS

Although the current landscape is far from ideal, the good news is that state, regional and federal policy makers recognize the need for new transmission lines and the need to make siting processes more efficient. To date, their primary efforts have been developing plans to identify potential areas for new transmission lines and to establish standards for evaluating specific projects.94

For example, the ACC conducts a biennial review of adequacy of the existing and planned transmission lines to meet present and future energy needs.95 In its recent reviews, the Commission has required transmission owners to develop plans to facilitate renewable energy development.96 In its

93. Citizens Util. Co., No. 62011, at 3–4 (Ariz. Corp. Comm’n. Sept. 8, 1999), available at http://images.edocket.azcc.gov/docketpdf/0000032266.pdf (required Citizens Utility Company to construct a second transmission line); Citizens Util. Co., No. 64356, at 1 (Ariz. Corp. Comm’n. Jan. 15, 2002), available at http://images.edocket.azcc.gov/docketpdf/0000028687.pdf (authorized construction of the line); Letter from Philip Dion, Vice President, Public Policy at UniSource Energy Corporation to Steve Olea, Director, Utilities Division, Arizona Corporation Commission, 1–2 (July 27, 2010), available at http://images.edocket.azcc.gov/docketpdf/0000113247.pdf (“[F]ederal right-of-way issues are unresolved . . . .”).

94. S.B. 1517, 50th Leg., 1st Reg. Sess. (Ariz. 2011); Tony Davis, Strange Bedfellows Join Forces to Kill Power-Line-Siting Bill, ARIZ. DAILY STAR, April 24, 2011, at B1, available at http://azstarnet.com/news/science/environment/article_eae4c3ce-bcbd-5db5-aca9-68ecbb7a4d0b.html.

95. ARIZ. REV. STAT. ANN. § 40-360.02(G) (2011). 96. See, e.g., Fourth Biennial Transmission Assessment, No. 69389, at 8 (Ariz. Corp.

Comm’n. Mar. 22, 2007), 2007 WL 1752523, available at http://images.edocket.azcc.gov/docketpdf/0000069229.pdf; Fifth Biennial Transmission Assessment, No. 70635, at 9 (Ariz. Corp. Comm’n. Dec. 11, 2008), available at http://images.edocket.azcc.gov/docketpdf/0000091783.pdf.


latest assessment, the Commission ordered transmission studies to identify specific transmission corridors that should be used to export renewable energy.97 Efforts to address siting challenges on a regional basis have also focused on identifying zones for renewable energy development.98

When it comes to sheer number and scope of planning efforts, however, no one can match the federal government. One example is Section 1221 of the Energy Policy Act of 2005, which requires the Department of Energy to study transmission congestion and designate, as necessary, national interest electric transmission corridors.99 Another is the Department of Energy and Bureau of Land Management’s jointly prepared Draft Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States.100 This 11,000-page policy proposal would not authorize any specific project. Instead, the purpose of the exercise is to set standards for subsequent analyses of specific projects and identify zones best suited for solar energy development.101

VI. POTENTIAL SOLUTIONS TO LINE-SITING BARRIERS

While the planning efforts described above are well-intentioned, we respectfully submit that the most efficient way to facilitate renewable energy development is not to create new plans and regulatory processes, but to streamline existing ones to the fullest extent possible.102 Following are some specific suggestions.

97. Sixth Biennial Transmission Assessment, No. 72031, at 9 (Ariz. Corp. Comm’n. Dec.

10, 2010), 2010 WL 5143869, available at http://images.edocket.azcc.gov/docketpdf/0000121086.pdf.

98. See, e.g., W. GOVERNORS’ ASSOC. AND THE U.S. DEP’T OF ENERGY, WESTERN RENEWABLE ENERGY ZONES - PHASE 1 REPORT, at 5 (2009), available at http://www.westgov.org/rtep (follow Western Renewal Energy Zones - Phase 1 Report (2009) hyperlink).

99. 16 U.S.C. § 824P(a) (2006). This program has had an inauspicious start. On February 1, 2011, the Ninth Circuit overturned the Department’s initial 2006 study and 2007 corridor designations. Cal. Wilderness v. U.S. Dep’t. of Energy, 631 F.3d 1072, 1095 (9th Cir. 2011).

100. U.S. Dep’t of the Interior Bureau of Land Mgmt. and U.S. Dep’t of Energy, Draft Programmatic Environmental Impact Statement for Solar Energy Development in Six Southwestern States, SOLAR ENERGY DEV. PROGRAMMATIC EIS (Dec. 2010), http://solareis.anl.gov/documents/dpeis/#vol1.

101. Id. at 1-1, available at http://solareis.anl.gov/documents/dpeis/Solar_DPEIS_Chapter_1.pdf.

102. In addition to the specific suggestions described in this section, we believe that a comprehensive review of the current process is needed. To our knowledge, no such comprehensive review has been conducted since the Line Siting Committee was created nearly 40 years ago.


A. State Process Improvements

1. Make explicit that need exists for additional transmission.

When the Arizona siting statutes were enacted, the legislature recognized the existing need for new facilities: “The legislature hereby finds and declares that there is at present and will continue to be a growing need for electric service which will require the construction of major new facilities.”103 However, over time, the state siting process has evolved so that applicants are expected to demonstrate why a specific project is needed. Given the general consensus that additional transmission is needed, this adds unnecessary time, expense, and uncertainty to the siting process.

Rather than challenge the need for a specific project, if a party does not believe that the route proposed is the best way to meet the known need, there is an existing mechanism available to address their concern. They can suggest, and the Line Siting Committee can consider, a different route than the one proposed by the applicant.104

2. Require consideration of regional factors for interstate projects.

Arizona’s siting statutes neither prohibit nor require consideration of regional needs and benefits. If the recommendation in Section VI.A.1 is not implemented, at a minimum, it should be mandatory to consider regional needs so that projects with significant regional benefits are not stopped due to parochialism or protectionism.

3. Promote coordination with the State Land Department and federal land managers.

To eliminate the potential for conflicting decisions among the Commission, the SLD and federal land managers, Commission-approved routes should provide the SLD and federal land managers with flexibility to determine the best project locations on the properties they manage. This can be done by approving wide corridors on State and federal lands. Additionally, fallback alternative routes should also be authorized, if requested by the applicant, in case the SLD or federal land managers do not authorize any route that crosses the lands they manage. These changes

103. Act of April 16, 1971, ch. 68, 1971 Ariz. Sess. Laws 180, 180. 104. ARIZ. REV. STAT. ANN. § 40-360.04(A) (2011).


would prevent a project from becoming stuck in the bureaucratic quagmire of conflicting agency decisions.

State and federal land managers will not reject projects on the lands they manage simply because fallback alternatives exist. Because it received full market value for rights-of-way, the SLD’s trustee obligations will ensure it carefully considers its applications. Similarly, federal land managers will authorize property on their lands so long as they have the duty and authority to do so.

The SLD could also be more proactive in determining where transmission lines are sited across State Trust Land. The SLD could designate transmission corridors under its broad planning authority105 prior to the Line Siting Committee’s hearing. The Committee would then be required to consider those plans under A.R.S. § 40-360.06(A)(1).106 The SLD also has the ability to participate in hearings before the Committee in cases in which State Trust Land may be considered as a site for new facilities.

4. Eliminate duplicative analyses and processes.

If a draft or final environmental impact statement or environmental assessment has been prepared for a project, an applicant ought to be able to provide that document in lieu of the exhibits otherwise required for a siting application. Currently, the state siting process requires an applicant to provide both.107

In addition, electric facilities should not need separate approvals from municipalities after receiving a CEC from the ACC. The CEC process was intended to be the final approval needed for electric facilities (at least with respect to location) and not just one step in a siting staircase. The Committee is already required to either condition each CEC on the applicant’s compliance with all local ordinances, master plans, and regulations or to notify the local jurisdiction of a potential issue with the applicant’s plans.108 Cities and towns have the ability to participate in line siting proceedings and any issues with proposed locations should be resolved during those proceedings.

105. See id. § 37-132(A). 106. Id. § 40-360.06(A)(1) (requiring the Committee to consider “[e]xisting plans of the

state . . . for other developments at or in the vicinity of the proposed site”). 107. ARIZ. ADMIN. CODE § R14-3-Exhibit 1 (2010). 108. ARIZ. REV. STAT. ANN. § 40-360.06(D).


5. Require the Line Siting Committee and Commission to consider sustainability factors.

The Committee already has broad authority to consider environmental issues when siting power plants and transmission lines.109 However some of the sustainability considerations discussed in Section I, such as climate change, water use,110 and economic development, do not clearly fit within that authority. The Line Siting Committee and the ACC should be required to consider these issues when siting new electrical facilities.

B. Federal Process Improvements

1. Impose time limits for decision making.

Over the past forty years, NEPA has devolved from its laudable purpose to inform federal agency decision-making to its current incarnation of inaction resulting from endless analysis. Skillful advocates know that they can (mis?)use the procedural statute to perpetually block approvals for projects to which they object on substantive grounds.

The Council on Environmental Quality has previously considered, and rejected time limits for all projects on the grounds that limits are “too inflexible.”111 In addition, although an agency must establish time limits if requested by an applicant, there is no maximum length of time that an agency can set.112

Procrastination is a near-universal trait. Without deadlines, many tasks, such as this article, would go unfinished. It is simply unrealistic and unfair to expect federal decision-makers to be immune to procrastination’s call. Accordingly, it is time for the Council to reconsider and impose maximum time limits for projects in which the applicant is willing to pay the additional costs that may be incurred to expedite the process. In addition to establishing time limits for the entire process, limits should be set for each major component, to ensure that projects stay on course.

109. Id. § 40-360.06(A)(2) (requiring Committee to consider “[f]ish, wildlife and plant life

and associated forms of life upon which they are dependent”); Id. § 40-360.06(A)(6) (requiring the Committee to consider “[t]he total environment of the area”).

110. Note that Arizona Revised Statutes Annotated Section 40-360.13 requires the Committee to consider “the availability of groundwater and the impact of the proposed use of groundwater” only in Active Management Areas. Id. § 40-360.13.

111. 40 C.F.R. § 1501.8 (2011). 112. Id.


2. Revise right-of-way and planning rules to reflect transmission need.

Rules governing rights-of-way on, and resource planning for, federal lands should be revised to ensure federal land managers have the authority and the obligation to consider the need for transmission to support renewable energy. For example, the Bureau of Land Management’s current right-of-way program objective is as follows:

It is BLM's objective to grant rights-of-way under the regulations in this part to any qualified individual, business, or government entity and to direct and control the use of rights-of-way on public lands in a manner that: (a) Protects the natural resources associated with public lands and adjacent lands, whether private or administered by a government entity; (b) Prevents unnecessary or undue degradation to public lands; (c) Promotes the use of rights-of-way in common considering engineering and technological compatibility, national security, and land use plans; and (d) Coordinates, to the fullest extent possible, all BLM actions under the regulations in this part with state and local governments, interested individuals, and appropriate quasi-public entities.113

If the federal government wants to facilitate renewable generation and transmission, then it should say so explicitly in this regulation and others that govern federal land management objectives and right-of-way applications. For example, language along the following lines could be added to 43 CFR § 2801.2: “(e) Promotes the use of federal land for the development of renewable generation and associated transmission lines.”

3. Facilitate collaboration with other agencies.

Collaboration among the various agencies can streamline existing processes and also minimize the potential for conflicting decisions to occur. For example, federal agencies should take advantage of the existing opportunity to participate in the state siting process. While they cannot commit to a specific route until their own processes are complete, their participation would ensure that the Line Siting Committee and the Commission have a chance to hear their concerns and perspectives.

The federal processes would also benefit. Since federal agencies are directed to coordinate their plans with the plans of state governments,114

113. 43 C.F.R. § 2801.2 (2011). 114. See, e.g., 43 C.F.R. § 1610.3-1 (2011).


federal participation in the state process will ensure that state plans also incorporate federal considerations.

The state could also initiate collaboration by authorizing the Line Siting Committee or the ACC to participate in the federal NEPA process as cooperating agencies.

VII. CONCLUSION

There are many factors that must be considered when evaluating and improving the sustainability of Arizona’s electric power industry. In many cases, not all sustainability considerations will point in the same direction. As with other aspects of modern society, creating a sustainable electric power industry will require expansive vision and a long-term perspective. However, it seems clear at this point that new transmission lines are a critical component of developing a sustainable energy future. Policy makers must streamline current licensing and approval processes if they wish to facilitate a timely transition to a sustainable future.