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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.

Entries in wind power (17)

Thursday
Aug132015

30-Year BGEPA Take Permit Invalidated by Federal District Court

The U.S. District Court for the Northern District of California on Tuesday struck down a U.S. Fish and Wildlife Service regulation allowing issuance of 30-year take permits under the Bald and Golden Eagle Protection Act.  The court’s holding is a blow, albeit likely temporary, to wind power developers seeking certainty about liability for take of eagles under BGEPA.  

The court in Shearwater v. Ashe held that USFWS violated the National Environmental Policy Act by adopting the 30-year permit rule without conducting an environmental impact statement or environmental assessment.  USFWS claimed that the rule was “strictly administrative” in nature and therefore fit within the NEPA categorical exclusion for federal actions that have no significant effect on the environment.  The court disagreed, citing, among other things, USFWS staff comments that it was a “no-brainer that [FWS] needed to do a NEPA analysis” and that the 30-year permit rulemaking process was a “trainwreck.”    

The 30-year take permit framework was adopted by USFWS in December 2013, replacing the previous regulation that allowed issuance of BGEPA take permits for a maximum duration of five years.  The increase to 30 years was adopted primarily to address concerns by wind power developers that “the five-year maximum tenure of permits under the Eagle Take Rule is fundamentally unworkable for the industry considering the life of most wind projects is 20 to 30 years.”  The court noted that, “[w]hile promoting renewable energy projects may well be a worthy goal, it is no substitute for the [agency’s] obligations to comply with NEPA and to conduct a studied review and response to concerns about the environmental implications of major agency action.” 

The court remanded to rule back to USFWS, which will presumably revive the 30-year permit program by conducting an EA or EIS to satisfy NEPA’s procedural requirements.

Monday
Jul062015

Foundations for First U.S. Offshore Wind Farm Head for R.I. 

The following was originally posted by Christopher Monroe on Verrill Dana’s Maritime Law Blog, Law on the Water Line: www.atlanticmaritimelaw.com.

Recent reports from the Associated Press indicate that massive steel foundations for the Nation’s first offshore wind project will soon leave fabrication facilities in Houma, Louisiana, destined for Block Island, Rhode Island. According to Deepwater Wind, the 5-turbine Block Island Wind Farm is scheduled to be online during the third quarter of 2016 and could supply most of Block Island’s power.

The full article can be read here.

Thursday
Jul022015

Wind Industry Service Operation Vessels Christened in Germany 

The following was originally posted by Christopher Monroe on Verrill Dana’s Maritime Law Blog, Law on the Water Line: www.atlanticmaritimelaw.com.

Siemens and ESVAGT A/S recently announced the christenings of two purpose-built Service Operation Vessels (SOV’s) specifically engineered to service and maintain offshore wind power plants. According to company literature, the christenings demonstrate ESVAGT’s ongoing commitment to transfer their maritime vessel competencies from offshore oil and gas to the somewhat younger offshore wind industry.

While ESVAGT owns the service vessels, Siemens provides their proprietary BlueDriveTM propulsion system to reduce CO2 emissions and fuel consumption, as well as hydraulic systems to support the Amplemann active access gangway. The new vessels will purportedly revolutionize offshore wind service by increasing productivity, accelerating response times, and implementing advanced safety mechanisms that will allow turbine access in significant wave heights of up to 2.5 meters (8.2 ft), which is higher than the safety limits of traditional crew transfer vessels (CTV).

The recent investment in the purpose-built vessels reflects a global trend in the offshore wind industry to build wind facilities further offshore. The two recently-christened vessels will service the North Sea and Baltic Sea, while a third vessel will join the fleet in autumn 2016 and service wind facilities off the east coast of England.

Wednesday
Jun242015

USFWS Explores MBTA Incidental Take Permit

The U.S. Fish and Wildlife Service has announced that it is looking into the creation of an incidental take permitting program under the Migratory Bird Treaty Act.  Currently the regulations under the MBTA only authorize incidental take for hunting; military readiness; scientific collection, falconry and other special purposes; and to control birds that cause depredation.  

USFWS will be preparing a programatic environmental impact statement (PEIS) to evaluate the impacts of setting up a comprehensive incidental take permitting program.  Four initial options have been identified:

  • Programmatic authorization for take associated with certain activities and industries.  The activities initially identified by USFWS are oil, gas and wastewater disposal pits; gas exhaust pipes at oil production facilities; communication towers; and electric transmission and distribution lines.  Other activities, specifically wind energy generation, are under consideration.
  • Individual permits authorizing activities on a case-by-case basis.  This option could exist in tandem with the programatic authorization option to permit incidental take for activities not included in the programmatic exemption.
  • Memoranda of understanding with federal agencies.  This is analogous to a programmatic authorization for incidental take caused by federal agency activities.  Whether such an MOU would authorize take by a third party acting under a federal regulatory program (e.g. pursuant to an Army Corps Section 404 permit) is under consideration.
  • Voluntary guidance.  This option would be a continuation of the status quo, where USFWS would not provide legal authorization in the form of a permit, but would use its enforcement discretion to give a pass to activities conducted in accordance with its guidance.  

USFWS will be accepting comments regarding its initial proposals until July 27.  In the meantime, USFWS is holding “open houses” on its proposal and will present a webinar on July 8.  USFWS has also created a website just for the MBTA rulemaking.

Hundreds of millions of migratory birds protected under the MBTA are killed by human activity every year.  The creation of a permitting system that allows otherwise lawful, socially desirable activity to go forward without relying on USFWS’s enforcement discretion to avoid criminal liability is long overdue.

Wednesday
May062015

News Flash: Wind Power Reduces Carbon, Other Harmful Emissions

A report released this week finds that wind power plays a significant role in reducing carbon and other harmful emissions in the state of Maine by displacing energy generation from traditional power plants.

The study, conducted by Massachusetts-based consulting firm Sustainable Energy Advantage, examined the environmental impacts of the 431 MW of wind power existing in Maine as of 2013, as well as a projection of 1,782 MW expected to be installed by 2020. 

The report estimates that Maine’s 2013 wind power fleet resulted in annual reduced carbon emissions equal to 1.1 billion miles driven by an average car. By 2020, the reduction in carbon emissions is projected to be equal to 4.8 billion car miles.

The full report can be read here.

Wednesday
Apr152015

Halleluja: The Clean, Green Renewable Future Is Upon Us!!!

The American Wind Energy Association released its annual market report for 2014 today.  As expected, most of the report’s findings are quite positive, with “more wind power capacity under construction at the end of 2014 than at the end of any other year.”  Over 100 U.S. wind power projects totalling 12,700 MW were built last year.  There are now over 65,000 MW of installed wind energy capacity in the United States.

The AWEA report was not all sunshine and daisies however, noting that development-chilling uncertainty about the production tax credit continues: “The lapse of the PTC at the end of 2012 drove a 92% drop in installations in 2013” and “PTC uncertainty continues with an extension through the end of 2014 that came only two weeks before the end of the year.”    

Among the report’s other optimistic findings were that the cost of onshore wind energy has dropped by over 50 percent between 2009 and 2013, and that wind energy was the largest source of new electricity generation in the United States in 2014.

The AWEA report is grounded in graphic analysis based on concrete wind energy development figures, which sets it apart from predictive renewable energy studies that are sometimes promoted under strikingly upbeat headlines.  In general though, the renewable news is good.  Here is just a sampling of rosy headlines from the renewable energy news media that came out in the past few days:

 Take that Pat Sajak!

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