Another Legal Victory for America’s First Offshore Wind Project

Posted on December 5, 2014 by Katherine Kennedy

The 468 megawatt Cape Wind project, slated for construction in federal waters off the coast of Massachusetts in Nantucket Sound, is the first offshore wind project to be proposed and approved in the United States.  The project has strong support from the Commonwealth of Massachusetts, many national, state and local environmental groups, organized labor and many others. 

But being the first in an innovative venture is always difficult, and unsuccessful litigation by project opponents – some funded in large part by billionaire Bill Koch – has slowed the pace of the project.  By Cape Wind’s count, thirty-two cases have been filed by project opponents.  Cape Wind has ultimately prevailed in all of these actions.

A recently issued but unheralded district court decision now signals yet another legal victory for Cape Wind.

In April 2010, after a lengthy and comprehensive environmental review and permitting process which included preparation of two environmental impact statements, the U.S. Department of Interior approved the Cape Wind project.  Project opponents then filed three complaints in the United States District Court for the District of Columbia.

The complaints, which were ultimately consolidated, challenged approval of the project by various federal agencies and alleged violations of the National Environmental Policy Act (NEPA), the Endangered Species Act, the Migratory Birds Treaty Act, the National Historic Preservation Act, the Outer Continental Shelf Lands Act, and the Coast Guard and Maritime Transportation Act of 2006. 

Cape Wind intervened in the actions as a defendant-intervenor.  Because of the project’s clean energy significance, NRDC attorneys (including me), joined by the New England-based Conservation Law Foundation and Mass Audubon, the state’s leading wildlife protection organization, filed two “friend of the court” briefs in support of the project.

In March 2014, U.S. District Court Judge Reggie Walton issued an 88-page decision granting summary judgment to the defendants, rejecting the bulk of opponents’ challenges to the federal government’s 2010 approval of the project.  The court dismissed outright a host of claims that related to the government’s environmental review of the project under the National Environmental Policy Act and to the Coast Guard’s review of navigation issues under the Outer Continental Shelf Lands Act.

The court remanded two limited issues back to the federal agencies. First, it directed the U.S. Fish & Wildlife Service (FWS) to make an independent determination about whether a potential operational adjustment for the project was a “reasonable and prudent measure”.  The court explained that it was unable to tell, based on the record, whether the Fish & Wildlife Service had made an independent determination or had adopted a position taken by a sister agency.

Second, the court directed the National Marine Fisheries Service (NMFS) to issue an incidental take permit covering right whales.  While the NMFS biological opinion stated that the project “was not likely to adversely affect right whales” and that “incidental take was not likely to occur,” the court found that the opinion did not state that an incidental take would not occur or determine the volume of any potential take.

After the court’s decision, the two federal agencies complied with the district court’s instructions.  FWS issued its independent determination with respect to the potential operational adjustment.  NMFS amended the incidental take opinion to state that no take of right whales was anticipated, and thus the incidental take amount for this species could be set at zero.

However, that did not end the matter.  As the district court noted in its September 12, 2014 order, “history should have forewarned that any attempt to bring this [protracted] litigation to an expeditious conclusion would prove difficult.”  And as expected, the plaintiffs filed a supplemental complaint challenging the two agencies’ actions on remand.

On November 18, 2014, the district court dismissed the plaintiffs’ supplemental complaint.  The court made short work of the claims, finding them all to be barred – some because they had been previously waived or abandoned and some because the Court had previously considered and rejected them.  Indeed, the court noted that some of the claims were “difficult to understand.” With that decision, this chapter in the long string of legal challenges was concluded, at the district court level at least.  The plaintiffs filed a notice of appeal yesterday.

Meanwhile, the Cape Wind project continues to move forward.  In July, the U.S. Department of Energy issued a conditional loan guarantee commitment for the project, the first step toward securing a $150 million loan guarantee.  In August, the project selected its lead construction contractors.  Construction is expected to proceed in 2015.  

And Cape Wind’s example has spurred forward movement in the U.S. offshore wind industry.  Currently, there are some fourteen offshore wind projects in an advanced stage of development along the East Coast and elsewhere, representing 4.9 gigawatts of potential renewable electricity capacity.  Despite the protracted litigation, it’s my hope that Cape Wind, buoyed by its legal victories, will herald the start of a new renewable energy industry that will fully and sustainably tap into the United States’ huge offshore wind resource.

The answer is blowin' in the wind: Offshore wind projects moving on up

Posted on June 25, 2014 by Jeff Thaler

After sifting first through 70 proposals and then six finalists from all over the United States, on May 7, 2014 the Department of Energy announced the selection of three offshore wind demonstration projects to receive up to $47 million each over the next four years to deploy grid-connected systems in federal and state waters by 2017. The projects – located off the coasts of New Jersey, Oregon and Virginia – prevailed over project proposals from Maine, Ohio and Texas.

The Energy Department estimates offshore wind could produce more than the combined generating capacity of all U.S. electric power plants if all of the resources in state and federal waters were developed. More than 70 percent of the nation’s electricity consumption occurs in the 28 coastal states -- where most Americans live. Offshore wind resources are conveniently located near these coastal populations. Wind turbines off coastlines generally use shorter transmission lines to connect to the power grid than many common sources of electricity. Moreover, offshore winds are typically stronger during the day, allowing for a more stable and efficient production of energy when consumer demand is at its peak.

At the present time, the only offshore wind project generating electricity and connected to the grid is off of Castine, Maine; I have been legal counsel for the permitting and other project requirements.  UMaine's VolturnUS project is a 65-foot-tall floating offshore wind turbine prototype launched last summer and connected to the transmission system on June 13, 2013, making it the first grid-connected offshore wind turbine in North America. The turbine is 1:8th the geometric scale of a 6-megawatt (MW), 423-foot rotor diameter design. It has been operating extremely well in all kinds of weather and sea conditions for almost a full year. For a photo of the turbine, see a previous ACOEL blog post,

The three projects selected are required to deploy offshore wind installations in U.S. waters, connected to the grid, by 2017:

·  Fishermen’s Energy proposes five 5-megawatt direct-drive wind turbines approximately three miles off the coast of Atlantic City, New Jersey. The project would be built in relatively shallow waters, with the foundations installed into the seabed, similar to the proposed Cape Wind (Massachusetts) and Deepwater (Rhode Island) projects.

·  Principle Power will install five 6-megawatt direct-drive wind turbines approximately 18 miles off the coast of Coos Bay, Oregon, using a semi-submersible floating foundation to be installed in water more than 1,000 feet deep.  More than 60 percent of U.S. offshore wind resources are found in deep waters, including the entirety of the West Coast and much of the East Coast, especially New England.

·  Dominion Virginia Power will install two 6-megawatt direct-drive wind turbines 26 miles off the coast of Virginia Beach, using a foundation to be installed  in relatively shallow waters into the seabed, like Fishermen’s.

The DOE also announced that the proposals from the University of Maine and from the Lake Erie Energy Development Corporation “offered additional innovative approaches that, with additional engineering and design, will further enhance the properties of American offshore wind technology options. This includes concrete semi-submersible foundations as well as monopile foundations designed to reduce ice loading.” The Department has indicated that these two projects were selected to be alternates, and each will receive $3 million over the next year to, as with the three selected projects, bring their engineering and design work from the current 50% level to 100% completion. You can learn more at the Wind Program’s Offshore Wind Web page.

Coming Attractions: Sea-Level Rise, New IPCC Reports, and Floating Wind Power Projects

Posted on September 4, 2013 by Jeff Thaler

There has been a flood (no pun of course) of new stories this month about rising sea levels, acidifying oceans, drought-driven wildfires, and extreme weather events in the U.S. and globally. At the same time, with the official release of the eagerly-awaited Fifth Assessment Report of the Intergovernmental Panel on Climate Change due in several weeks, leaks of a draft portion of the Report are coming out in the media, indicating increasing confidence in the underlying science and in a substantial human role in warming, primarily as a result of burning fossil fuels. Additionally, as reported in the N.Y. Times, it appears that the draft projects that sea level could rise by only about 10 inches by 2100 under the “most “optimistic” scenario. But “at the other extreme,” with emissions continuing to swiftly increase, “sea-level rise could be expected to rise at least 21 inches and might increase a bit more than three feet” by the end of this century—which “would endanger many of the world’s great cities — among them New York, London, Shanghai, Venice, Sydney, Australia, Miami, and New Orleans.” Some believe that the FAR will still understate the likely forthcoming climate disruptions.

Coincidentally (or not?), those of you who still subscribe to the National Geographic Magazine would have seen in August a cover story entitled “Rising Seas”, which leads off with questions a panel of ACOEL members will (coincidentally?) in part be addressing at our Annual Meeting in Boston: “As the planet warms, the sea rises. Coastlines flood. What will we protect? What will we abandon? How will we face the danger of rising seas?” . And rising sea levels are especially of relevance to any ACOEL member living in a state on the Atlantic coast, because sea levels have been rising three to four times more rapidly off the Atlantic Coast than the global average, according to a recent study. For those of you living between the coasts, the San Francisco water supply and Yosemite National Park are both threatened by an out-of-control wildfire, while the western United States are experiencing significant drought.

And while forests burn and seas warm, acidify, and rise, one good news story was the recent launching in Maine of the first grid-connected floating wind turbine outside of Europe.

It also is the first concrete-composite floating wind turbine in the world, using advanced material systems with a unique floating hull and tower design.  The 65 ft tall turbine prototype is a one-eight-scale version of a 6 MW, 423 ft rotor diameter design.  Currently being developed by the University of Maine and beginning preliminary environmental and permitting work, Maine Aqua Ventus I had been selected by the Department of Energy early this year out of 70 competing proposals as one of 7 winners of $4 million in initial funding.  The project is now a finalist for an additional $46.6 million in funding. This project is critical, because floating offshore wind energy projects have the potential to generate large quantities of pollutant-free electricity near many of the world’s major population centers (but far enough away, in water depths up to 400’, to not be visible from shore), and thus to help reduce the ongoing and projected economic, health, and environmental damages from climate change. Wind speeds over water also are stronger and more consistent than over land, and have a gross potential generating capacity four times greater than the nation’s present electric capacity.

(Full disclosure:  I am legal counsel for the project)

Getting serious on climate change and reforming regulatory review of clean energy projects

Posted on December 19, 2012 by Jeff Thaler

The attached article will be published in the upcoming issue of the Lewis & Clark Law School Environmental Law Review.  The article is among the first to integrate current climate change science, particularly ongoing impacts and predicted impacts, with a detailed roadmap for substantial reform of our environmental processes for reviewing proposed renewable energy projects.
 
Most existing articles either focus only on climate science or on minor modifications to the regulatory system. Using offshore wind power as a case study, this article demonstrates how, in an increasingly carbon-constrained world, our existing environmental laws and regulatory process no longer achieve their underlying goals of long-term ecosystem conservation. To the contrary, these laws and regulations are supporting a system with increasing greenhouse gas emissions that is annually costing trillions of dollars.

We have little time left to create a practical path to achieving an 80% reduction in greenhouse gases by 2050—with failure resulting in average global temperatures rising more than the internationally-agreed targeted ceiling of 2°C. After examining the obstacles confronting a potential developer of offshore wind, this article clearly lays out why and how the existing regulatory process should be quickly reformed so that offshore wind and other clean renewable energy sources can help us escape the escalating consequences of our carbon-intensive economic system.

Energy Department Announces New Investments in Pioneering U.S. Offshore Wind Projects

Posted on December 14, 2012 by Jeff Thaler

On December 12, 2012 U.S. Energy Secretary Steven Chu announced competitive awards of $4 million each for 7 offshore wind projects from Maine to Oregon, in 6 different states. I am the lawyer for the University of Maine's project, which involves plans to install a pilot floating offshore wind farm with two, six-megawatt direct-drive turbines on concrete, semi-submersible foundations. I am also working on permitting a smaller-scale pilot project for UMaine that would be deployed in early to mid-2013 as the first floating offshore wind project in North America.

The Department of Energy Department made the awards with the goal of beginning to speed the deployment of stronger, more efficient offshore wind power technologies and showcase innovative technologies -- helping to further lower costs and drive performance improvements.

In year 1, each project will receive up to $4 million to complete 50% of the design process, and to begin outreach, environmental studies and permitting work. DOE will in early 2014 select up to three of the projects for follow-on phases that focus on siting, construction and installation,  and aim to achieve commercial operation by 2017.The final projects will receive up to $47 million each over four years, subject to congressional appropriations.

Click HERE to read the full article from the U.S. Department of Energy.