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The federal government has endorsed more extensive use of the federal public lands for the production of solar power, both to reduce the greenhouse gas emissions that contribute to climate change and to bolster the security of domestic energy supplies. Spurred by grant money made available under the American Recovery and Reinvestment Act of 2009, the Bureau of Land Management (BLM) in 2010 approved nine utility-scale solar projects on public lands in California and Nevada. These projects were designed to avoid adversely affecting the habitats of endangered and threatened species that frequent the desert southwest and cultural resources important to Native Americans and others. This article analyzes both the environmental risks created by the construction and operation of solar power projects on BLM public lands and the regulatory process the BLM has used to respond to the numerous applications for project approval it has received in recent years. It concludes that the BLM has the responsibility under the Federal Land Policy and Management Act and other laws to minimize resource impairment resulting from solar power production on public lands. The article suggests an approach that relies on a combination of zoning and conditional authorization, including the imposition of restrictions to prevent unnecessary and undue degradation of public natural resources such as wildlife and its habitat. It also discusses how the agency might define such degradation, taking into account the policy benefits of increased solar capacity and the environmental costs of haphazard oversight of the use of public lands for solar power production. Appropriately constrained, dedication of public lands to solar power production can contribute to the development of a more secure green energy infrastructure while minimizing adverse impacts on public natural resources.

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GWU Legal Studies Research Paper No. 582; GWU Law School Public Law Research Paper No. 582

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