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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.


Natural Gas: Where Do We Go From Here?

With cold weather approaching, natural gas production expected to rise and expansion projects underway, Verrill Dana and Pierce Atwood will host their fourth annual, Natural Gas: Where do we go from here? on Thursday, October 6 at The Woodlands in Falmouth, Maine. 

The all-day event, co-chaired by Verrill Dana attorney William Harwood, will feature keynote speaker, Patrick Woodcock, Director of the Governor’s Energy Office and lunchtime speaker, Former Maine Public Utilities Chair, Tom Welch. Panel discussions will cover:

  • “Gas vs. Renewables – Allies or competitors?” - Featuring Verrill Dana attorney Jim Cohen
  • “Safety – Are we doing enough?” - Featuring Verrill Dana attorney Katie Gray
  • “Pipeline Expansion – Do we still need it?” 

 Find more details on the event and the full agenda on Verrill Dana’s website.


D.C. Circuit Flips USFWS for Issuing ITP to Ohio Wind Power Project with 6 M/S Cut-in Speed

The U.S. Court of Appeals for the D.C. Circuit has invalidated the issuance by the U.S. Fish and Wildlife Service (USFWS) of an incidental take permit (ITP) under Section 10 of the Endangered Species Act for take of Indiana bats by the 100-turbine Buckeye Wind project in Ohio.

The Circuit Court held that USFWS violated the National Environmental Policy Act (NEPA) by failing to consider a reasonable range of alternatives because it did not consider an alternative proposed by project opponents that the wind power project curtail operations with cut-in speeds of 6.5 meters per second. The ITP was issued based on the condition that the project curtail operations at 6 meters per second, the alternative proposed by Buckeye Wind.

In its NEPA analysis USFWS had considered alternatives including no action, curtailment at 5 meters per second, curtailment at 6 meters per second (Buckeye Wind’s proposal), and nighttime shutdown of all turbines at all wind speeds. USFWS argued that consideration of curtailment at 6.5 meters per second was not necessary because the agency does not need to consider “an infinite array of potential protective measures.”

However, the Court held that USFWS needed to consider at least one economically feasible alternative that was more protective than Buckeye Wind’s proposal of 6 meters per second. The lesson here apparently being that a project applicant subject to NEPA should start with a lowball proposed alternative rather than the industry standard (e.g. 6 meters per second curtailment of wind turbines for protection of bat species), because a court will invalidate a NEPA analysis that does not consider a more protective and economically feasible alternative to what the applicant has proposed.

The D.C. Circuit’s remand of Buckeye Wind’s ITP is the second time in as many months that it has flipped an agency approval of a wind power project based on a NEPA violation. In July the Court sent Cape Wind back to the drawing board when it held that the Bureau of Ocean Energy Management violated NEPA by relying on inadequate geophysical and geotechnical surveys.


Verrill Dana Hosts E2Tech Networking Event

On Tuesday, July 26, more than a hundred professionals gathered outside in Verrill Dana’s courtyard in Portland, Maine for the E2Tech Summer Networking Reception.  Attendees included numerous area businesses, government officials, professionals, and non-profit leaders from across the state within the energy and environmental sectors.  Verrill Dana partner Kelly Baetz, of the firm’s Environmental Group, is a board member of E2Tech.  Verrill Dana partner Jim Cohen, of the firm’s Utilities and Energy Group, welcomed guests to the event.

Click to read more ...


Not Just for Rooftops: A Look at Community Solar in Maine

Much of the discussion around solar policy focuses on rooftop solar. While rooftop solar is an option for certain homeowners with suitable rooftops and some extra cash in the bank (or the ability to obtain financing), rooftop solar is not available to a large segment of the population. Community solar offers the possibility of making solar panels accessible to a much larger group of interested investors. Because transaction costs and other “soft costs” make up a large portion of solar energy projects, community solar benefits from greater efficiencies and could reduce the payback period compared to smaller, single-owner projects.

Although Maine’s community solar capacity has been slow to take off, since 2014 community solar farms have begun to crop up around the state. Several large projects are currently in the works, including a large project in China, Maine scheduled for completion this fall.

Below is an overview of how community solar works in Maine.

Click to read more ...


Arbitration Award of $1.5 Million to Xpress Natural Gas, LLC Affirmed by Maine Supreme Judicial Court

Recently, the Maine Supreme Judicial Court affirmed an arbitrator’s award of $1.5 million to Xpress Natural Gas, LLC. The court upheld the arbitrator’s decision that Cate Street Capital Inc. was responsible for payments to Xpress Natural Gas that Cate Street’s subsidiary, GNP Parent, LLC (formerly known as Great Northern Paper Company, LLC) owed Xpress Natural Gas for the delivery of compressed natural gas to the Great Northern Paper Mill in East Millinocket (and for the installation costs of certain associated facilities).

The dispute arose from GNP’s failure to prepare the mill for the installation of equipment and for delivery of gas by March 31, 2013. After agreements to extend that deadline expired and GNP failed to make required payments, the parties proceeded to private arbitration. Deferring to the arbitrator’s interpretation of the “guarantee” in a particular commercial agreement, the Court found that arbitrator’s interpretation was “rationally derived from the agreement.” The Court rejected GNP’s argument that the arbitrator exceeded his authority by interpreting the guarantee in a way that showed “manifest disregard for the contract.”

When explaining the standard that the Court applies when reviewing an arbitrator’s award, the Court noted that even when the arbitrator’s interpretation is erroneous, if the interpretation is rationally derived from the agreement, the arbitrator has not exceeded the arbitrator’s authority. However, an arbitrator may not base an award on the arbitrator’s “own individual concept of justice in the particular area involved” or directly contradict the agreement. 


4.4 MW Solar Facility to Provide Power for Madison Electric Works Customers

IGS Solar recently announced that Madison Electric Works will buy power from IGS’s 4.4 MW solar array under a long-term contract. IGS will finance, own and operate the 4.4 megawatt generation facility, which will include more than more than 13,000 solar panels.

MEW serves customers in Madison, Starks, Anson and Norridgewock, including the Madison Business Gateway and Backyard Farms. According to Calvin Ames, the utility’s general manager, energy from the solar facility will help MEW to keep its rates competitive for its approximately 2,500 customers. IGS expects that energy from the facility will fulfill about 20% of MEW’s customers’ annual energy needs. 


D.C. Circuit Remands BOEM Cape Wind Lease under NEPA and ESA, Punts on MBTA Challenge

The U.S. Court of Appeals for the D.C. Circuit has dealt another setback to the Cape Wind offshore wind power project by holding yesterday in Public Employees for Environmental Responsibilities v. Hopper that the Bureau of Ocean Energy Management (BOEM) and the U.S. Fish and Wildlife Service (USFWS) violated the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in approving Cape Wind’s lease on federal land in Nantucket Sound.

However, the Court declined to rule on the more controversial question of whether BOEM’s regulatory approval of Cape Wind violated the Migratory Bird Treaty Act (MBTA) despite the fact that the parties stipulated that operation of the project would result in incidental take of protected migratory birds. The Court also declined to rule on the larger issue of whether the MBTA applies to incidental take at all.  

The D.C. Circuit referenced the 9th Circuit’s recent holding in Protect our Communities Foundation v. Jewell, which rejected the same “novel argument” that the MBTA prohibits federal agencies from authorizing activities that may or will result in prohibited take under the MBTA (or the Bald and Golden Eagle Protection Act), but chose not to engage the question in any substance. Instead, in a lengthy footnote 11, the Court sidestepped project opponents’ MBTA claim based on statements made by BOEM and Cape Wind at oral argument to the effect that Cape Wind would obtain an MBTA permit from USFWS prior to operation of the project. The Court acknowledged that USFWS is currently “considering” whether to adopt regulations that would allow issuance of an MBTA incidental take permit and that there is currently no established process for obtaining such a permit, but was apparently untroubled by those details.

The D.C. Circuit did note without comment that USFWS’s “longstanding position has been that the [MBTA] also applies to harm that occurs incidental to, and which is not the purpose of, an otherwise lawful activity.” The Court did not address the fact that this longstanding USFWS position is inconsistent with the law within the jurisdictions of the Fifth, Eighth and Ninth Circuit Courts of Appeals, which have held that the MBTA only applies to intentional take. The Tenth Circuit and, to a lesser extent, the Second Circuit have gone the other way and upheld the application of the MBTA to incidental take.

It is possible that this circuit split may be resolved before too long by the Supreme Court, but for the time being the D.C. Circuit has decided that it does not want to join the discussion.

And Cape Wind will continue to plod forward, Terminator-like in its apparent willingness and ability to withstand consecutive bludgeonings from opponents, utilities, regulators and the judiciary.