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Legal Barriers to Geothermal Development

Kurt E. Seel, Energy Development: Access, Siting, Permitting, and Delivery on Public Lands

Notwithstanding the concern over climate change and the demand for renewable energy, proposed renewable energy developments encounter as much opposition from citizen and environmental groups as any other proposed developments, and often the objections are the same as for any other type of resource development. Although federal agencies are acting with relative haste in preparing programmatic geothermal leasing and pre-leasing environmental impact statements, in reality, the existing procedures for evaluating environmental impacts are slow, and legal challenges to environmental evaluations can delay development for many years, or preclude development altogether. In addition to navigating the traditional NEPA and “little NEPA” barriers, the new generation of geothermal developers will need to plan for an even greater scarcity of water resources; an increased protection of cultural resources and Native American sacred sites; and the potential impacts from possible geothermal induced seismicity. Furthermore, recent proposals to utilize existing oil and gas reservoirs and well bores, to produce or co-produce hydrocarbons and geothermal resources, will likely result in a new flurry of case law regarding owning and operating well bores; preventing economic waste; protecting correlative rights; and co-developing commingled resources. Although currently the development of renewable ener