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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.” 


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.


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.   


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?


U.S. District Court Grants Summary Judgment to SunEdison's Oakfield Wind Power Project on All Counts

In an order issued Friday in Protect Our Lakes v. U.S. Army Corps of Engineers, No. 1:13-cv-402 (D. Me. Feb. 20, 2015), U.S. District Court Judge Jon Levy rejected claims that the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 wetlands permit to the Oakfield wind power project in Aroostook County, Maine violated the Endangered Species Act, the Bald and Golden Eagle Act and other environmental laws. 

This is the second case in Maine, following Friends of the Boundary Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105 (D. Me. 2014), which we blogged about in June, in which the court denied wind power opponents’ attempts to invalidate an Army Corps permit based on alleged violation of BGEPA and the Migratory Bird Treaty Act.  These two Maine cases join a handful of recent opinions in which federal courts have rejected similar challenges to federal approvals issued to wind power projects.    

Opponents of SunEdison’s 150-MW Oakfield project had also claimed that the Army Corps violated the ESA by relying on incomplete information about Atlantic salmon streams in the project area and by not issuing an incidental take statement regarding the project’s potential impact on Atlantic salmon.  In denying these claims, the court noted that “plaintiffs have failed to identify any scientific data or other new information that conflicts with the data cited in the [U.S. Fish and Wildlife Service] letter of concurrence or runs contrary to its conclusions.” 

SunEdison was represented in the litigation by Verrill Dana attorneys Juliet Browne and Gordon Smith.


USFWS Proposes Take Exemptions If Northern Long-Eared Bat is Listed as Threatened under ESA

The U.S. Fish and Wildlife Service (USFWS) has proposed a rule that would exempt certain activities in certain locations from the prohibitions of the Endangered Species Act (ESA) if the northern long-eared bat (NLEB) is listed as a threatened species.

In areas affected by white nose syndrome (WNS), the proposed rule would exempt forest management activities (i.e. logging), maintenance and limited expansion of existing rights of way and transmission corridors, prairie management and minimal tree removal projects from the take prohibitions of the ESA with respect to the NLEB.  For the purpose of the proposed rule, areas affected by WNS means any area within 150 miles of a county or district where WNS has been detected.

In areas not affected by WNS, any incidental take of the NLEB resulting from otherwise lawful activities would be exempted from the ESA prohibitions. 

The exemptions would only take effect if the NLEB is listed as threatened, as opposed to endangered.  If the NLEB is listed as endangered, USFWS can only authorize take through Section 7 consultation or the Section 10 incidental take permit process.    

The proposed rule and an accompanying 60-day comment period were announced today in the Federal Register



Cacophony of Opinions as Law Court Attempts to Clarify Appeal Deadlines

In a decision that included a majority opinion, a concurrence, and two separate dissents, the Maine Supreme Court struggled mightily to establish the deadline for opponents of a wind power project to appeal an approval issued by the Town of Clifton Zoning Board of Appeals.  The majority in Beckford v. Clifton, 2014 ME 156, dismissed the opponents’ appeal as untimely, but the Court’s difference of opinion on the subject was highlighted by Chief Justice Saufley’s request, in a concurrence, that the Legislature overhaul the state’s patchwork of appellate deadlines to clarify the “variations and ambiguities in the application of legislatively established time frames for appeal.”  Id. ¶ 24.

At issue in the case was whether the appeal period was triggered when the ZBA voted to deny the opponents’ appeal, or when it voted five days later to adopt written findings memorializing its decision.  The majority held that the ZBA vote disposing of the appeal – despite the absence of written findings – was sufficient to trigger the appeal period because of the combination of Maine Rule of Civil Procedure 80B, which provides that “the time within which review may be sought shall be as provided by statute,” and the ZBA statute, which states that “any party may take an appeal within 45 days of the vote on the original decision.”  30-A M.R.S.A. § 2691(3)(G) (emphasis added).

One upshot of Beckford is that a 2014 change to the text of Rule 80B, intended to clarify the triggering event for municipal administrative appeal periods, does not apply to appeals of ZBA decisions or appeals of other municipal decisions that are similarly governed by statute.  2014 ME 156, ¶¶ 8 n.2 and 14 n.5. 

Justices Silver and Jabar dissented on the grounds that the minutes of the earlier ZBA meeting stated that “it would meet [five days later] for the final decision.”  Id. ¶ 30 (emphasis in original).  The justices adopted the Superior Court’s reasoning that “there would be no need to schedule the matter [five days later] for the ‘Final Decision’ if the final decision had already been made.”  Id. ¶ 31.

Justice Alexander dissented primarily on the basis that the Court has previously expressed a policy preference for appellate deadlines running from the issuance of written findings so that potential appellants can make more informed decisions and make more efficient use of judicial resources.  Id. ¶ 36 (quoting Gorham v. Androscoggin County, 2011 ME 63, ¶¶ 15-16).

Although Chief Justice Saufley agreed with the majority’s holding and reasoning in dismissing the appeal, she wrote separately in a concurrence out of concern over the “difficulties caused by the imprecise or varying language that triggers appellate time frames.”  Id. ¶ 28.  In closing Saufley stated, “It would greatly benefit the people of the State of Maine if the Legislature undertook a thorough review of the events that trigger the running of the time for appellate review for both state and municipal appeals to establish a single, consistent, and understandable triggering event and time frame for seeking appellate review.”  Id. ¶ 29.