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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.


Governor Nominates Carlisle McLean to Be MPUC Commissioner

Yesterday, Governor LePage nominated Carlisle McLean of Cumberland, Maine, to serve as Commissioner of the Maine Public Utilities Commission to fill a vacancy created by the recent resignation of Thomas Welch.  If confirmed, Ms. McLean would fill the remaining two years of Welch’s six-year term.

Since 2013, Carlisle McLean has served as Chief Counsel and has previously served as General Counsel and Senior Natural Resources Policy Advisor in the Office of the Governor.

Prior to joining the LePage administration, McLean was in private practice from 2005 to 2011 handling matters ranging from permitting and compliance of energy and development permits, to obtaining LURC rezoning and development permits, to handling negotiations and settlements at Superfund Sites throughout New England and nationally.

Previously, McLean worked with the Yale Center for Environmental Policy, Trustees for Alaska, the New York State Office of Attorney General, the Pace Land Use Law Center and Freehills Law Firm in Sydney, Australia.

McLean has been an active member of the Maine and American Bar Associations since 2005 and has held leadership positions with both organizations. She earned a law degree from Pace University School of Law and a Master’s degree in environmental management from Yale University School of Forestry. She earned her Bachelor of Science degree from Bates College.

McLean will appear at her confirmation hearing before the Joint Standing Committee on Energy, Utilities and Technology in the upcoming weeks. A date has not yet been scheduled.

Learn more about Ms. McLean from her resume here.


USFWS Enforces MBTA Against Wind Power For Second Time

A pair of Wyoming wind power projects has pleaded guilty to violating the Migratory Bird Treaty Act (MBTA) and agreed to pay fines that add up to $2.5 million. The U.S. Fish and Wildlife Service (USFWS) and the Department of Justice enforced the MBTA against Portland, Oregon-based PacifiCorp Energy in connection with the deaths of 38 golden eagles and 336 other migratory birds at the company’s Seven Mile Hill and Glenrock/Rolling Hills projects, which together consist of 237 wind turbines.

In the plea agreement entered in U.S. District Court in Wyoming, USFWS reiterated its position that it “focuses its resources on investigating and prosecuting those who take migratory birds without identifying and implementing reasonable and effective measures to avoid take, exercising enforcement and prosecutorial discretion regarding individuals and companies that make good-faith efforts to avoid the take of migratory birds.”   

The two projects at issue were developed between 2006 and 2008. Neither project required federal permitting, nor were they reviewed by USFWS prior to operation. USFWS contends that the projects were built contrary to agency guidance in effect at the time and with the knowledge that preconstruction surveys indicated that take of golden eagles and other protected migratory birds was likely.

The MBTA enforcement action against PacifiCorp Energy is the second of its kind, following a November 2013 plea deal entered by Duke Energy Renewables in connection with the deaths of 14 golden eagles and 149 other protected migratory birds at two Wyoming wind power facilities. The fines in the Duke Energy case totaled $1 million.   


Two Important Clean Energy Announcements for New England

The following content was originally posted to Verrill Dana’s environmental law blog Law of the Land (and Air and Water) at

Offshore Wind
January 29, 2015 – that’s the date the Bureau of Ocean Energy Management (BOEM) has selected for the auctioning of four leases within the Massachusetts offshore Wind Energy Area (WEA). The WEA is located 12 nautical miles south of Martha’s Vineyard and encompasses more than 742,000 acres. A map of the proposed location can be found here (green shading). Department of the Interior Secretary Sally Jewell praised the Commonwealth and Governor Patrick stating, “This sale will triple the amount of federal offshore acreage available for commercial-scale wind energy projects, bringing Massachusetts to the forefront of our nation’s new energy frontier.”

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