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DISCLAIMER: This blog is published for general information only - it is not intended to constitute legal advice and cannot be relied upon by any person as legal advice. While we welcome you to contact our authors, the submission of a comment or question does not create an attorney-client relationship between the Firm and you.

Monday
Apr062015

New Misguided Opponent of Renewables: Famous Novelist Jonathan Franzen

In a lapse of fact checking and logic, the normally rigorous New Yorker magazine published a lengthy essay by noted novelist and bird watcher Jonathan Franzen that, among other things, called wind and solar power “blights on the landscape” that should be abandoned in favor of bird sanctuaries because “drastic planetary overheating is a done deal.”

The crux of Franzen’s argument is summed up about halfway through his piece: “The Earth as we now know it resembles a patient whose terminal cancer we can choose to treat either with disfiguring aggression or with palliation and sympathy. We can dam every river and blight every landscape with biofuel agriculture, solar farms, and wind turbines, to buy some extra years of moderated warming. Or we can settle for a shorter life of higher quality, protecting the areas where wild animals and plants are hanging on, at the cost of slightly hastening the human catastrophe.”

As was immediately pointed out in several incredulous critiques of Franzen’s article, he mistakenly thinks that renewable energy and other strategies for fighting climate change preclude conservation of current animals and ecosystems

In particular, Franzen lashed out at Audubon based on his belief that the organization has lost its way by preferencing the the fight against climate change over protecting birds.  Audubon CEO David Yarnold’s excellent response is nicely encapsulated by his line that “our members can walk and chew gum at the same time.” 

Franzen also wants to give up on climate change because the problem is too big for any one person’s actions to have any effect: “The scale of greenhouse-gas emissions is so vast, the mechanisms by which these emissions affect the climate so nonlinear, and the effects so widely dispersed in time and space that no specific instance of harm could ever be traced back to my 0.0000001-per-cent contribution to emissions.”

He probably thinks voting is a waste of time too.

For more thoughtful and hilarious takedowns of Franzen’s “thinkpiece,” read Climate Progress and Get Energy Smart Now

 

Wednesday
Apr012015

USFWS Lists Northern Long Eared Bat as Threatened Species

The U.S. Fish and Wildlife Service announced today that it will publish a final rule in the April 2, 2015 Federal Register designating the northern long eared bat as threatened under the Endangered Species Act.  The listing will become effective May 4, 2015, at which time an interim 4(d) incidental take rule will also take effect.

USFWS will be accepting comments on the interim rule for 90 days, until July 1, 2015.  The interim 4(d) rule permits incidental take for all activities taking place outside of areas affected by white nose syndrome.  In areas affected by white nose syndrome, the interim rule permits incidental take for forest management (i.e. logging) and maintenance and limited expansion of utility rights-of-way, as long as those activities are conducted according to certain habitat conservation measures such as avoiding hibernacula and avoiding certain types of cutting during summer months.    

Yet to be seen is what other activities, if any, USFWS will include in the final 4(d) rule.  In earlier comments on the 4(d) rule, USFWS stated that wind energy generation is a factor causing harm and mortality to the northern long eared bat.  Wind power developers will no doubt be submitting comments to USFWS prior to enactment of the final 4(d) rule in an attempt to gain incidental take exemption by rule.  

Tuesday
Mar242015

BOEM Reviews Lease Request for Floating Wind Turbines off Hawaii

The U.S. Bureau of Ocean Energy Management is in the process of reviewing a lease request submitted by AW Hawaii Wind, LLC for two proposed 408 MW offshore wind power facilities, each consisting of 51 floating 8 MW turbines.  AW Hawaii Wind is a subsidiary of Denmark-based Alpha Wind Energy.

Last month BOEM determined that AW Hawaii Wind is legally, technically and financially qualified to hold a lease on the outer continental shelf.  BOEM’s next step is to determine whether there are competitive interests in the proposed lease area.  

The Oahu South Project is proposed to be located approximately 17 miles off the coast of Oahu in water depths of 300‐700 meters.  The Oahu Northwest Project is proposed to be located approximately 12 miles offshore in water depths of 700‐1,000 meters.  The floating turbines proposed for the project are based on Principle Power’s WindFloat design.   

One potential advantage these projects have over other offshore proposals is that Hawaiian electricity rates are already about twice as much as those of the next highest state (New York).  That means the incremental cost increase associated with offshore wind power would be relatively lower for Hawaii than for other markets, a fact that could make these projects more attractive to ratepayers and investors.

Friday
Mar202015

D.C. District Court Sides with USFWS on Indiana Bat ITP Issued to Ohio Everpower Project

The U.S. District Court in Washington, D.C. granted summary judgment on Wednesday to the U.S. Fish and Wildlife Service in a suit challenging the issuance of an incidental take permit to an Ohio wind power project for impacts to the endangered Indiana bat. 

USFWS had issued the ITP to Everpower’s proposed 100-turbine Buckeye Wind Power Project pursuant to Section 10 of the Endangered Species Act.  The ITP approves 26 Indiana bat takes over five years and 130 takes over 25 years.  The permit requires the project to curtail operations at cut-in speeds ranging from 3 to 6 meters per second and to mitigate impacts through the acquisition of 217 acres of habitat near Indiana bat hibernacula.

USFWS concluded that the combination of curtailment and habitat protection would be “fully commensurate with the level of impacts” and therefore met the ESA statutory requirement that the project “will, to the maximum extent practicable, minimize and mitigate the impacts” of the expected take.  Project opponents argued that USFWS should have interpreted the ESA’s “maximum extent practicable” standard to require adoption of the alternative with the lowest possible take limit without consideration of mitigation measures. 

The court disagreed, noting that the Service’s 1996 Habitat Conservation Planning and Incidental Take Permit Handbook allows “an agency to place less emphasis on whether a program is the ‘maximum that can practically be implemented by an applicant’ if an applicant can first demonstrate that the minimization and mitigation measures provide substantial benefits to the species.”  In this case, USFWS concluded that the curtailment and habitat conservation included in the ITP would “fully offset” the projected take cause by operation of the wind power project.

In short, the court noted that under the ESA, “Once the impact was fully mitigated, it was not necessary for FWS to determine whether more mitigation was possible, or whether the impact could possibly be minimized further.” 

Thursday
Mar122015

DOE Says 35% of U.S. Electricity Can Be Generated by Wind Power by 2050

The U.S. Department of Energy released an in-depth analysis today entitled Wind Vision: A New Era for Wind Power in the United States The report models various scenarios of wind power penetration into the U.S. energy market and concludes that under “an ambitious but credible scenario” 35 percent of the nation’s electricity could be generated by wind power by 2050.  Of that projected 35 percent, seven percent would consist of offshore wind power. 

The report also models a “baseline” scenario in which wind power development halts at the currently installed 61 gigawatts of domestic capacity and a “business as usual” scenario in which wind power development continues based on current market conditions and policies.  Under the business as usual scenario, the report projects that wind power will meet 25 percent of U.S. electricity demand by 2050. 

The report uses these various projections to estimate the economic, environmental and social costs and benefits of such development.       

The report also sets forth “a detailed roadmap of technical and institutional actions necessary to overcome the challenges to wind power making a significant contribution to a cleaner, low-carbon, domestic energy economy.”  The roadmap is organized around three main themes: reducing wind power costs, expanding developable areas and increasing wind power’s economic value to the nation.

Wednesday
Mar112015

USFWS, Congress Explore Incidental Take Exemption Under MBTA

The U.S. Fish and Wildlife Service is reportedly planning to issue a notice of intent to create an incidental take permitting regime under the Migratory Bird Treaty Act.  The permitting scheme would theoretically allow otherwise lawful activities to go forward with greater regulatory certainty, while allowing USFWS to require conservation measures to protect migratory birds.  USFWS has not publicly announced its plans to initiate an incidental take rulemaking process under the MBTA.

Meanwhile, Congress is considering H.R. 493, a bill introduced in January, that would carve out all incidental take from liability under the MBTA.  If H.R. 493 becomes law, the prospective USFWS incidental take permitting regime under the MBTA would become unnecessary, or at least vastly different.  H.R. 493 also proposes to require by statute that incidental take permits under the Bald and Golden Eagle Protection Act be issued for a term of 30 years or greater.  Thirty-year BGEPA permits are currently issued by USFWS by rule.   

Wind power developers and other energy companies will likely support both of these federal efforts to clarify potential liability under the MBTA.  Currently, such entities must rely on voluntary adherence to agency guidelines and USFWS’ prosecutorial discretion in an attempt to quantify the risk of MBTA enforcement actions.   

Thursday
Mar052015

First U.S. Offshore Wind Power Project Will Likely Be Deepwater Wind's Block Island Facility

Providence, Rhode Island-based Deepwater Wind announced this week that it has secured $290 million in financing needed to construct its five-turbine, 30-megawatt Block Island Wind Farm.  Deepwater expects to begin placing turbines in the water this summer with commercial operations projected to start at the end of 2016.

The news means that Block Island Wind will likely be the first commercial-scale offshore wind power project in the United States, leapfrogging ahead of the larger and currently stalled Cape Wind project planned off the coast of Massachusetts.  In January, the two utility companies that had agreed to buy electricity from Cape Wind backed out of the deal because the project had failed to make enough forward progress, mainly due to a dogged litigation strategy pursued by well-funded opponents (namely Bill Koch).  The developers of Cape Wind are now trying to convince the utilities to revive the disputed power purchase contracts.  More litigation anyone?