Increases in the level of renewable energy production, spurred by climate change mitigation goals and regulatory programs such as state renewable energy portfolio standards, and in the level of fossil fuels extraction spurred by technological developments allowing access to previously unavailable natural gas supplies, have created a need for new energy transmission facilities. The new supplies are often located far from centers of high energy demand, requiring transportation over long distances. Some of the routes chosen for the new electric transmission lines and natural gas pipelines have already come into conflict with the environmental protections provided by the Wild and Scenic Rivers Act (WSRA). Other, similar conflicts are sure to follow. This article explores the clash between the policies that support increased production of and access to renewable energy and unconventional natural gas supplies and the preservationist impulse reflected in the WSRA. The parameters of this clash are difficult to discern, given the frustrating, obtuse, and rarely construed provisions of the Act that constrain federal assistance to and approval of energy-related facilities. This article identifies unresolved questions concerning the proper interpretation of these provisions and suggests how they should be resolved. Using the WSRA’s application to energy transmission facilities as an example of traditional conflicts between energy and environmental policies, it suggests an approach to accommodation. That approach involves avoidance, mitigation, and careful creation of exemptions from WSRA constraints that promise to serve energy policy goals and contribute to climate change mitigation, while retaining key protections for the nation’s most treasured river habitats.
34 Pub. Land & Resources L. Rev. 1 (2013)