Environmental, Natural Resources, & Energy Law Blog
Bee-nergy: a Texas Pollinator-Smart Solar Program is Smart for Texas - Trevor Hance
The creation of a Texas Pollinator-Smart Solar Program will incorporate existing synergies at the federal and local level, build on Texas’ leadership in the green-energy sector, improve opportunities for biodiversity (and specifically, Species of Greatest Conservation Need), bring more businesses to Texas providing good paying, equitable employment opportunities, incentivize businesses looking to relocate to Texas, and provide private landowners new revenue streams that align with the desires for a healthier, more informed (and more populous!) Texas.
A Texas-sized Goat Rodeo
In mid-February 2021, everything that could go wrong for the Electric Reliability Council of Texas (“ERCOT”), the sole grid source for nearly every Texan, did. Two winter storms, Uri and Viola, thundered through Texas, creating an unprecedented week of high temperatures that never got above freezing (Texas ASCE, 2021). Snow, ice, sleet, and generally cloudy conditions combined with freezing temperatures to make roads impassable for essential and emergency services, and either broke, froze or rendered inoperable water pipes, gas lines, coal plants, and wind turbines. Even the City of Austin’s $460M biomass plant was in mothballs for the winter and unable to be restarted to relieve pressure. (Barer, D., 2021; Buchele, M., 2022; Fox7Austin, 2021). Millions of people were left without power and water for days.
By year’s end, the state’s Department of Health and Human Services released its official death toll of 246 people; independent reports put the figure closer to 850 (Domonoske, C. 2021, Hellerstedt, J., 2021).
Beyond the loss of human life, a report released in February 2022 from the Texas Association of Civil Engineers estimated costs associated with the storms at approximately $300Bn and noted things could have been much worse. According to the report, ERCOT was less than four and a half minutes from “black start conditions,” which means that the entire Texas electric grid would have gone down for weeks, or even months (Texas ASCE, 2021).
Wondering About Wildlife
Aside from human-centered concerns, nature had its own problems.
Texas is a natural funnel and flyway for migratory species, and the state (rather literally) comes to life each March. In Central Texas, near Austin, Texas Bluebonnets (Lupinus texensis) blanket pastures and the “cheap” alkaline soils along the highways. By mid-month, monarch butterflies start to arrive, looking to lay eggs on their remarkable 3,000 km, five-generation journey from the oyamel mountains of Mexico’s transvolcanic belt to the U.S./Canadian border.
In March 2021, monarchs arrived in Texas to find phenology disordered. An early February warm-spell (above 90 degrees in places like San Antonio) tricked some plants into early blooms that were then met with the brutal winter storms. Non-native game species such as axis deer, a grassland species that had been imported from Africa for over 80 years for exotic-game hunting, perished on a massive scale, with some ranches seeing losses upwards of 60% (Wyatt, M., 2021). Mountain Laurels did not bloom at all in many places, patches of bluebonnets popped up here and there, and the monarch’s host plant, antelope horn milkweed native to Texas, had been stunted by February’s 151 hours of freezing temperatures (Bond, L., 2021; Maeckle, M., 2021).
In Spring 2021, nature looked a lot more “worrisome,” than “wonderful” in Texas.
Connecting Solar Energy and Pollinators: SB1722
Outside of the storms, the world was moving fast. In May 2021, the CDC had announced that those who had been vaccinated were safe from COVID, and the Texas Legislature was ready to get back to business. COVID, ERCOT and the grid, an infusion of federal dollars, and a few other issues dominated discussions at the legislature. In the mix was Texas Senate Bill 1772, ultimately reaching Texas Governor Greg Abbott’s desk by mid-summer.
The Bill, sponsored by three democrats and one republican, proposed to create a Texas Pollinator-Smart Solar Program to encourage the establishment and conservation of habitats for bees, birds and other pollinators at solar energy sites.
The bill directed Texas A&M Agrilife Extension (“AgriLife”) to develop a Certification Program to educate stakeholders on the benefits of solar energy production, create a “how to” for landowners to establish and maintain native pollinator friendly habitats, and help identify avenues to find grants and other financial incentives associated with these sites (SB 1722, 2021).
Solar energy sites with pollinator habitats that met program criteria would be awarded certificates by AgriLife signifying their successful participation in the program. (SB 1722, 2021)
With over 5,000 employees and a presence in every county across the state, Agrilife is well positioned to lead such a program and continue their mission of “enriching Texas through agriculture and life-sciences in a way that improves lives, environments, and the Texas economy” (AgriLife, n.d.). Alternatively, the Texas Parks and Wildlife Department would be a strong candidate to lead the program based on its unique knowledge of wildlife patterns and mission to “manage and conserve the natural and cultural resources of Texas and to provide hunting, fishing and outdoor recreation opportunities for the use and enjoyment of present and future generations” (TPWD, 2015).
The Bill was vetoed by Governor Abbott with a note stating, “Senate Bill 1772 offered a program that was totally voluntary. Voluntary laws are not needed to drive public behavior.”
While not the subject of this paper, “voluntary” programs have proven beneficial and successful in Texas. As a “property-rights state” effectively engaging landowners and the general public is a proven strategy for conservation success. For example, the Texas Department of Agriculture’s “Go Texan!” program has strengthened small businesses and the Texas economy (GoTexan.org, n.d.). Further, TPWD has long embraced volunteers and citizen science projects as a method of data collection to help inform policy makers about the status of Species of Greatest Conservation Need, and relied extensively on citizen-science platform iNaturalist during and immediately after the 2021 winter storms (Bond, L, 2022; Texas Pollinator Bioblitz 2022).
Unfortunately, with Governor Abbott’s veto, the Pollinator Smart Solar Program was not developed, and Texas moved on – perhaps to “greener pastures…”
A Year Later: Greener Pastures
Although well known as a global leader in oil and gas production, in a March 2022 speech to the U.S. Chamber of Commerce, Governor Abbott touted renewables, stating: “You can have fossil fuels while at the very same time be leaders in renewable energy… We’ve got to be very clear that all forms of energy are essential” (Taschinger, T. 2022).
Surprising to many, Texas produces far more wind power than any other state– 24.7% of the national total (Oklahoma is second at 9.7%) and is number 5 in producing solar power, and Governor Abbott has predicted that Texas will leap to the number 1 spot for solar production by the end of the year (Governors Wind Energy Coalition, 2022). With an independent electricity grid, diverse topography, geography, and plenty of sunshine and wind, Texas is well positioned to continue to lead the country in renewable energy and markets are proving the transition true (Taschinger, T. 2022). Right now, there are more than 130 gigawatts of wind and solar projects in the chute at ERCOT – quadruple their renewable capacity (Cohan, D. 2022). Additional capacity (and transmission) will be needed to continue to meet the needs of this rapidly growing state that accounted for almost 35% of total U.S. population growth between 2019 and 2020 (Texas Demographics, n.d.).
GTT…”Gone to Texas”
Texas’ booming population is largely due to the economic opportunities available in a state that is energy rich and over 96% privately owned. In 2015, Governor Abbott penned an op-ed for Forbes magazine laying out his philosophy, noting “we have built a framework that allows free enterprise to flourish, including less government, low taxes, reasonable regulations and the right-to-work laws that attract job creators and keep job growth here in the state of Texas.” (Abbott, G., 2015).
Initiatives that promote essential and effective conservation, jobs, and a more resilient and reliable grid are vital to continued successful growth in Texas. Supporting the synergy between solar energy and pollinator protection can serve as a key component of Texas’ growth, benefiting all Texans. As described below, complementary federal and local initiatives underway, provide cost saving benefits to moving forward now with a Texas Pollinator Smart Solar Program.
Federal Initiatives: Building Back through Biodiversity and Resiliance
One example of complementary initiatives relates to the 2021 Infrastructure Investment and Jobs Act that provides over $100Bn to upgrade the nation’s power infrastructure to deliver clean, reliable energy across the country. (Fact Sheet, 2021). SB 1772’s directive to “find grants and other financial incentives associated with these sites” opens opportunities to improve renewable energy production and transmission, and relieves the capacity pressure currently in the ERCOT pipeline.
Another relates more directly to biodiversity-related conservation. In President Biden’s first days in office he signed Executive Order 14008, to leverage the nation’s lands, ocean, inland waters, and wildlife as part of his administration’s efforts to address environmental health and climate change. Biden’s executive order promised to conserve at least 30 percent of U.S. lands and waters through support from the U.S. Department of the Interior, U.S. Department of Agriculture, U.S. Department of Commerce through NOAA, and Council on Environmental Quality. (NRDC, 2021) The initiative looks to get farmers, ranchers, hunters and fishermen involved, highlighting opportunities for a broader, management-and-recreational approach to conservation (Wufei Yu, L., 2021).
While the entire effort lends itself well to this initiative, Principle 5, “Pursue Conservation and Restoration Approaches that Creates Jobs and Support Healthy Communities” and Principle 7 “Use Science as a Guide” are most applicable to this economic approach to the Pollinator Friendly Solar Program (America the Beautiful, 2021)
Federal Building a Better Grid Initiative: Engaging Federal Funds to Support a More Resilient and Reliable ERCOT
As noted, Texas’ energy portfolio is diverse, and one of the emerging challenges is developing and funding reliable energy transmission. In January, the Department of Energy (DOE) launched the Building a Better Grid Initiative to connect and upgrade the three independent grids in the United States. The initiatives include more than $20Bn in federal financing tools (Dept. of Energy, 2022). In April 2022, Michelle Manary, acting deputy assistant secretary at DOE’s Office of Electricity and point person for the administration noted that the administration is interested in interregional transmission improvements to help deliver affordable, clean while making the grid more reliable and resilient (Gerdes, J. 2022) Although Texas has been slow to explore interregional relationships, with a reliable final failsafe option, Texas might have completely avoided the 2021 blackouts.
Fed Ag Incentives
Beyond the technical elements of energy production and logistics of transmission, buy-in from stakeholders, including landowners and its stewards are paramount in balancing the needs of humans, nature, and natural resources.
In February 2021, President Biden called on farmers, ranchers, and foresters to lead the way in offsetting greenhouse gas emissions in the climate change battle (Newberger, E., 2021). A year later (February 2022), the United States Department of Agriculture announced $1Bn in incentives for regenerative agricultural practices (e.g. - no-till, cover crops, and rotational cattle grazing systems that allow soil and grass to recover by moving cattle from pasture to pasture) that help drawdown carbon in the atmosphere (Newberger, E., 2022).
USDA Secretary Tom Vilsack has said the money could go toward creating new markets that incentivize producers to sequester carbon in the soil (Newberger, E., 2021), and that the initiative is intended to “incentivize creation of climate-smart commodities that hold higher value in the marketplace that farmers can generate additional profit from.” (Newberger, E., 2022) With many farmers feeling the pinch from 2020 and the instability of 2022, many are looking for stable, long-term revenue opportunities. USDA’s initiative could promote transitional and/or transformative conservation strategies.
Coupling these federal initiatives with a Pollinator Smart Solar Program where large ranches are being divided into smaller tracts (see below) puts Texas in the “cat-bird seat” to direct how funds best match local resources and landowner interests with state-based needs.
Texas, oh Texas…
Federal funding supporting infrastructure improvements and connections between landowners and diverse revenue streams can be a great kick-start to a Pollinator Smart Solar Program, allowing the state to focus on meeting existing and emerging state-defined priorities. Specifically, focusing on effective conservation, stakeholder relationships, continued tax code benefits for changing land-ownership, and high-paying jobs in local communities will drive the program to long-term success.
One important byproduct of economic growth, a booming population, and generational change is that large landholdings frequently become smaller, fragmented landholdings. Whether through inheritance or development associated with “new wealth” created through Texas’ vibrant tech sector and strong economy, lands involved in traditional agriculture and ranching are increasingly being converted to smaller tracts with owners who do not have experience or interest in those industries. Some of the incentives for a Pollinator Smart Solar Program help these smaller tract landowners enjoy their own slice of Texas for productive purposes while maintaining cost and tax benefits of conservation-minded management.
Public and Private Conservation – a Texas Tradition
Unlike states further west, Texas is almost 100% privately owned, and effective conservation requires strategic public-private partnerships that improve biodiversity, environmental health, and equitable access to nature. Considering the lack of public lands that could be converted for projects like the Pollinator Smart Solar Program, there are basically two ways to preserve privately owned land as open space: buy it, or ask a landowner to donate or sell their development rights through a conservation easement that permanently restricts land use (Kimble, M., 2022). Current efforts are bringing together public-private partnerships and achieving natural resource conservation in ways previously not thought possible.
The Great Springs Project (Great Springs, n.d.) will create a nearly 100-mile greenway of contiguous protected lands covering 50,000 acres between Austin and San Antonio over the Edwards Aquifer – primarily on private land. Involving the Aquifer is important, as it provides drinking water for nearly 2M households and is home to six endangered species (Kimble, M., 2022).
Similarly, the Nature Conservancy’s work with the City of San Antonio and Bat Conservation International has protected Bracken Cave. At nearly 1,500 acres, Bracken is home to the world’s largest bat colony (Bracken Bat Cave, 2018).
Collectively, conservation (or “environmental”) projects receive strong bipartisan support in Texas. Over the past four years, greater than 70 percent of voters in Travis and Hays County approved nearly $100m each for parks, open spaces, and water conservation (Kimble, M., 2022). These initiatives build community, increase economic opportunity, and provide rallying points for people to recognize their “place” in the natural heritage of Texas.
Texas’ population continues to boom, and large property holdings are becoming smaller tracts that many landowners find “too big to mow but too small to graze.” These “next-gen” landowners of tracts larger than 20 acres who engage in Wildlife Management for indigenous, native wildlife in a manner that “supports a sustained breeding, migrating, or wintering population of indigenous native wildlife for human use including food, medicine, and recreation” have access to certain tax advantages identified in the Texas Constitution and Tax Code (TX Const. Art 8, § 1-d-1; TEX. TAX CODE §23.51(7)(A); Agricultural Tax Appraisal, n.d.)
Importantly, songbirds, small mammals, whitetail deer, and other native plants are all eligible for wildlife management benefits, provided the landowner engages, at a “minimum intensity”, at least three of the following seven wildlife management practices annually as designated by the Texas Parks and Wildlife Department in that land’s ecoregion:
● Habitat control;
● Erosion control;
● Predator control;
● Supplemental water;
● Supplemental food;
● Supplemental shelter; or,
● Conducts census.
(Agricultural Tax Appraisal, n.d.; Landowners: Naturalists, n.d.)
Pollinators in Peril
In addition to monarchs, other butterflies, as well as ants, bats, bees, beetles, flies, hummingbirds, moths, and wasps provide important ecosystem services, facilitating reproduction in approximately 90 percent of the world’s flowering plants, and approximately one out of every three bites of food consumed by humans (SB 1722 History, n.d.). In the United States alone, pollinators produce $40 billion worth of products annually through pollination, and their role in biodiversity is vital to maintaining healthy ecosystems (including serving as important food resources for a diverse array of animals including birds, insects, reptiles, and mammals). (Hutchins, B., Warriner, M., 2016).
Native pollinators are generally the most efficient and effective pollinators of native plants as well as many agricultural crops native to the western hemisphere like squashes and tomatoes, making them critical to the maintenance of Texas’ native landscape (TPWD Native Pollinators and Private Lands, 2016).
Unfortunately, pollinators continue to suffer from loss of habitat and diseases. Increased land use by humans and exposure to parasites and pesticides have led to a deficit in flowering plants and even local extinctions of pollinator species. (SB 1722, 2021).
Buzz…Species of Greatest Conservation Need
Recovering America’s Wildlife Act (“RAWA”) and Species of Greatest Conservation Need
Moving slowly through the United States Congress, the Recovering America’s Wildlife Act (“RAWA”) would shift funds from the federal to state level to support execution of the state’s wildlife action plan. It is estimated that if it passes, “RAWA” funds in Texas would exceed $50m (Billingsley, S., 2022).
Each state’s wildlife management plan includes a listing of Species of Greatest Conservation Need. In Texas, the state’s Conservation Action Plan includes over 1300 species, 30 of which are native pollinator/flower visiting species (TPWD Species of Greatest Conservation Need, n.d.)
Designation as a Species of Greatest Conservation Need means the plant or animal is declining or rare and without attention, may need federal protection under the Endangered Species Act. RAWA would transfer managerial responsibility to states in an effort to apply local knowledge to efforts to prevent acceleration of threatened species to Endangered Species Act listing.
A Pollinator Friendly Solar Program could be designed to include targeted certification for Species of Greatest Conservation Need. If targeted certifications were available, these landowners could be “fast-tracked” for additional RAWA funding for landowners and their solar projects in accordance with the language of SB 1722.
Texas: Bundling Carbon Contracts
Pollinator-friendly solar can also unlock revenue for landowners through other means, including carbon-contracts. In a carbon contract, a landowner agrees to set aside land from use or development, which reduces the amount of carbon dioxide in the atmosphere (Janzen, T., 2021). The Pollinator Friendly Solar Program would provide a pathway for landowners to better understand this opportunity while restoring their lands in a way that supports biodiversity.
A February 2022 Texas Monthly article references a study that estimates global croplands could store an additional 1.85 gigatons of carbon each year, enough to offset the emissions of the entire global transportation sector (McCullar., E. 2022)
Texas: Bringing Business To Texas
Along with wildlife migration, human migration to Texas, both in-country and international, is occurring at an unprecedented pace, with front-page players like Elon Musk and Joe Rogan, as well as tech giants like Samsung and Apple, all calling Texas home these days and others looking for a foothold. As Texas grows, adding opportunities to incorporate and improve investor, customer, and employee perception of companies will be increasingly important (for companies – and for the state). The Pollinator Smart Solar Program gives businesses an opportunity to expand and incorporate PSSP into their campus and corporate strategy by building biophilic design into their expansion plans and improving increasingly relevant Environmental, Social, and Corporate Governance (“ESG”) scores. (Deckelbaum, A., Karp, B., Curran, D., Johnson, J. C., Lynch, L., & Bergman, M. (2020).
Locals Only: For Local Communities (county/city).
Creating a pollinator-solar connection would also be attractive to local economies. Local economies love growth that provides their community with strong, stable, and high-wage job opportunities, something not traditionally available in raw-land or agricultural settings. Some local communities are ahead of community investment, looking to put workers just entering the workforce into stable, good-paying jobs, and incentivizing green infrastructure and green jobs for those historically underserved.
Austin - CCC
Many cities, including Austin and Houston, have developed job training programs that prioritize green industry skills. Austin’s Civilian Conservation Corps is a workforce development program focused on green jobs, modeled (in spirit) after 1930s Civilian Conservation Corps program, with a focus on creating equitable access to low-barrier programs that provide income, support, and pathways to additional jobs/careers/training. Austin is strongly committed to the program that works with multiple local partners for job placement and is building a pipeline to good paying job through an equity lens in the community. Importantly, solar installation and green-space improvement (i.e. - trails, pollinator spaces) are amongst the training offered by ACCC (Austin’s Conservation Corps, n.d.).
Austin Watershed - an analogy
With a strong workforce, the City of Austin provides hundreds of thousands of dollars to individual residents and business who improve their water infrastructure and/or shift to gray water; while AustinEnergy has incentives for homeowners who install solar on their property. (Rebates, Tools & Programs, n.d). Similar incentives can be offered to diversify local energy sources and offset pressure on energy producers, avoiding situations such as that in February 2021.
The creation of a Texas Pollinator-Smart program connects people through things we have in common: healthy environments, clean, reliable energy, and communities who are responsible stewards of our precious natural resources. Texas is a leader in many arenas and an expert in bringing stakeholders together to accomplish what’s most important to our state. Continued leadership in the green-energy sector, improved opportunities for biodiversity (and specifically, Species of Greatest Conservation Need), more businesses in Texas with good paying, equitable employment opportunities, and providing private landowners new revenue streams that align with the desires of a healthier, more informed (and more populous!) Texas is good for everyone. The economy is humming and renewable energy is in high gear – let’s make it buzz…
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