Is Wind Energy Facing Stiff Headwinds?

In the coming years, could wind energy be facing stiff headwinds, solar energy cloudy days, and wave energy turbulent seas?

Wind at Their Backs

Well, not if you listen to government officials and environmentalists. Not only is it hard not to find some official praising renewable energy today on any given day, including the President of the United States, but policy actions are following rhetoric.

Witness Rhode Island, where the state has made a huge bet just on wind energy, spending millions for studies to create a first-in-the-nation zoning of the ocean, enacting a regulatory Ocean Special Area Management Plan designed primarily to “zone”  waters off Rhode Island’s coast to facilitate alternative energy development—wind energy.

And the U.S. Department of the Interior has just given final approval to the Cape Wind offshore windmill farm and also announced a new federal initiative to speed the permitting of offshore wind farms along the east coast.

State and federal regulatory regimes are clearly favoring renewable energy development, primarily wind power but also wave energy, and solar power.

Headwinds

But questions are being raised—by the scientists. And those questions are not only interesting, but for non-scientists may in fact be startling, as they are not positions heard in the general media.

Consider a study by Axel Kleidon, a scientist at the Max Planck Institute for Biogeochemistry in Jena, Germany, as reported in the Offshore Wind blog.

Mr. Kleidon notes that the source of wind and wave energy is the sun’s evaporation of water, which creates turbulence in the atmosphere, and thus, wind and waves. However, he says that only a small part of the sun’s energy is used for this purpose, and if there were a massive shift to wind and wave energy, there would be insufficient solar power to generate sufficient wind and waves to meet the vastly increased demand.

Accordingly to his theory, significantly increased usage of wind and wave energy could impact climate as much as current greenhouse gas emissions.

He also predicts that the more wind energy harvested, the more expected gains from building new large turbines will not be realized. In other words, there will be less wind than required.

According to the report in Offshore Wind, he is actually suggesting that large scale use of wind energy will deplete the reservoir of energy.

Perhaps renewable energy is not in fact renewable!

And while he also says that solar panels are the only viable solution, he acknowledges that they also contribute to continuous warming.

Another study of wind energy at the Massachusetts Institute of Technology has also raised some questions about wind power, finding that large scale use of wind power could increase temperatures on land by one degree Celsius, although reducing temperatures over water by one degree Celsius. The study, also reported in Offshore Wind, further concluded that the variability of wind power could necessitate significant power backup options, such as natural gas-fired power plants, which would of course also be expensive.

Again, these should be considered theories requiring further research and testing, and the MIT study’s authors say it should not be used as an argument against wind power, but rather as a guide to further research.

Fair enough. 

But perhaps this is one the policy makers should get on top of, sooner rather than later. For example, if it is more advantageous to foster offshore wind facilities rather than large land-based wind facilities, given temperature change impacts, or to consider the appropriate density of  wind facilities for the same reason, this would certainly be good to know.

After all, while it may be that it's an ill wind that blows no good, a still wind certainly does no good.

A Comprehensive Conference on Offshore Energy Development: Get Current and Get Connected

 

Those of you now planning your professional development seminars or continuing legal education opportunities for the New Year, consider a comprehensive two day conference to be held in Boston in early March if you have an interest in offshore energy development, coastal regulation, or ocean zoning.

Law Seminars International is sponsoring “A Comprehensive Conference on Offshore Energy Development” to be held at Seaport Boston Hotel on March 3rd and 4th.

Twenty-four speakers are scheduled for the two full day event, including

  •      state and federal officials influential in offshore alternative energy policy and oversight
  • ·    lawyers knowledgeable about the regulatory process, and
  • ·    industry executives taking leading roles in the development of offshore energy projects.

I will be speaking on “Zoning the Oceans”,  and specifically on Rhode Island’s marine spatial planning initiative, which resulted, after two years and over $8 million dollars,  in the Rhode Island Coastal Resources Management Council's (CRMC) recent completion of its Ocean Special Area Management Plan or Ocean SAMP. That plan provides a comprehensive approach to regulation of nearly 1,500 square miles of offshore waters, the most ambitious and comprehensive special area management plan ever produced by the CRMC.

CRMC’s Ocean SAMP has drawn national attention as an innovative approach to zoning extensive ocean areas to foster uses compatible with marine resource protection, and more specifically, to facilitate the development of offshore energy facilities.  While the effectiveness of the Ocean SAMP for the entire area sought to be regulated (i.e. federal waters beyond Rhode Island state waters) is pending federal review and oversight, CRMC’s Ocean SAMP is an extremely important effort which requires detailed examination.

In addition to ocean zoning, some of the other topics include

  • · federal energy policies impacting offshore alternative energy development
  • · federal policy priorities in regulating offshore energy development
  • · federal and state policy coordination
  • · current technological issues in generating offshore electricity
  • · case study of a recently permitted offshore liquefied natural gas project

Given the rapidity with which federal and state regulations, litigation, and policies have been moving in this area, this conference should provide an exceptional opportunity to “get current” and “get connected”.

Seminar sponsors suggest lawyers, business executives, environmental professionals and government officials should consider attending if they are involved with:

  • shipping
  • aquaculture
  • electric energy generation
  • natural resource extraction
  • other uses of the ocean surface and floor

A current program brochure and registration information may be found at: http://www.lawseminars.com/seminars/11OCEANMA.phb

I hope to see you there!

 

Coastal Permitting and Federal Coastal Zone Management Act Protections for States

 


I recently had the opportunity to address the fall meeting of the American Bar Association’s Section of State and Local Government Law on a coastal permitting topic that even some federal regulators admit generates misunderstanding.

That topic was protections available to states from activities which could impact a state’s coastal zone management program if such activities require a federal permit.

More specifically, the panel which I moderated was asked to address issues involved in the siting of potentially hazardous facilities, with particular reference to the efforts of Weaver’s Cove Energy LLC to site a liquefied natural gas terminal in southern New England.

(By way of disclosure, I represented Weaver's Cove Energy in its filing with the Rhode Island Coastal Resources Management Council under the Coastal  Zone Management Act in regard to activities it proposed to conduct in Rhode Island waters, primarily dredging.)

I don't want to go into that topic in detail, given that I am preparing an article on the federal consistency program under the Coastal Zone Management Act for submission to the Rhode Island Bar Journal. However, I do want to highlight several important considerations, including common misunderstandings, regarding protections that may be afforded states from perceived threats to their coastal zone management program.

Coastal Zone Management Act

Congress enacted the Coastal Zone Management Act in 1972, 16 U.S.C. 1451 et seq., to help facilitate States in protecting their coastal environment, given the increasing pressures for development along the coast. Participation in the program is voluntary, and an important inducement to coastal states to participate is the federal consistency program, pursuant to which states could get something of a veto over the activities of developers and others which require federal permits and which could impact their coastal environment.

That inducement was successful, as today all eligible states participate in the program.

In order to participate in the program, states must develop a detailed regulatory structure to protect and enhance their coastal environment, which program is subject to approval by federal regulators.

Federal Consistency Program

Under the federal consistency program, if an entity is seeking a federal permit for an activity that may affect any land or water use or natural resource of the state's coastal zone, the state has the opportunity to review these activities to determine whether they are consistent with the enforceable policies of the state's coastal  management program.

If a state determines such activity is inconsistent with any such enforceable policies, it may make a determination that the activity is inconsistent, and in many cases that activity is prohibited from going forward under the federal permitting scheme.

This is an effective veto by a state of activity requiring a federal permit and is therefore a very important weapon which a state participating in a coastal zone program has the opportunity to wield. But many areas of misunderstandings or confusion can arise in this regard, given that the federal consistency program is extremely nuanced.

Misunderstandings and Confusion

First, although the federal consistency program applies to federal agencies which may be seeking federal permits, as well as to non-federal entities, states have far less protection when the action is proposed to be undertaken by a federal entity.  

For example, a non-federal permit applicant must be fully consistent with the enforceable policies of a State’s coastal management program, while a federal agency must only be consistent “to the maximum extent practicable”.

Additionally, if a federal entity disagrees with a state’s finding that the proposed activity is inconsistent with the state’s coastal management program, the federal entity may nevertheless proceed with the activity under the federal permit. The state is left with what may be unpalatable options. One is seeking mediation by the Secretary of Commerce, and another is litigation.

Thus, although Federal entities are subject to the federal consistency program, it would be a mistake to assume that they are treated like any other entity seeking a federal permit.

Secondly, even if the state makes a determination that the non-federal actor’s proposed activity is inconsistent with the enforceable policies of the state's coastal  program, the Secretary of Commerce can override this decision by finding that such activities are in fact consistent with the State’s coastal program, or by finding that the activity is necessary in the interests of national security.

Finally, even if the activity is deemed to be inconsistent with the state's coastal zone program, the state may be prohibited under the federal preemption doctrine from preventing the activity, as certain federally-permitted activity is deemed to preamp state laws. For an excellent discussion of preemption under the Natural Gas Act as it pertains to the Weaver's Cove project, see Weaver’s Cove Energy, LLC. v. Rhode Island Coastal Resources Management Council et al., 583 F. Supp. 2d 259 (D.R.I. 2008) and Weaver’s Cove Energy, LLC. v. Rhode Island Coastal Resources Management Council et. al., 2009 U.S. App. Lexis 23491 (1st Cir. Oct. 26, 2009).

Accordingly, when dealing with the federal consistency program under the Coastal Zone Management Act, one should not necessarily expect consistency.

 

Cape Wind and the Indians: When Everyone Has Rights, No One Has Rights

 

The Cape Wind project to construct 130 wind turbines in Nantucket Sound was recently approved by U.S. Secretary of the Interior Salazar over the objections of two Native American Indian tribes, which claimed the project would disrupt spiritual rituals as well as ancestral grounds.

People of the First Light

The Mashpee Wampanoag of Cape Cod and the Wampanoag  of Gay Head (Aquinnah)  explained that “Wampanoag” means “People of the First Light” and the turbines would adversely impact their ability “to continue their ceremonies in a way that ancestors have done for thousands of years”, including their sunrise ceremony.

It was reported that the historic preservation officer for the Aquinnah Wampanoag of Martha’s Vineyard said in a letter to federal officials that the view of the project site in Nantucket Sound “is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the seasons”. (See news report)

The tribes have also expressed strong concern that the area of Nantucket Sound where the project will be located, known as Horseshoe Shoal, may contain ancestral artifacts and remains that will be disturbed or destroyed by the construction of the project.

A Question of View

One may be forgiven, however, for wondering whether this is perhaps more about political expediency than religious and cultural rituals.

For example, supporters of Cape Wind have noted that the land of the Aquinnah Wampanoag is on the western part of Martha’s Vineyard in the area known as Gay Head (pictured above), and does not have direct views of Nantucket Sound.

Also, an attorney who was a former member of the Tribal Council of the Aquinnah Tribe, and whose father and grandfather were life-long tribal medicine men, sent a letter to Secretary Salazar, stating:

“I am stating to you with complete honesty and knowledge that I never participated in, witnessed, or even heard of a sacred spot on the horizon that is relevant to any Aquinnah Wampanoag culture, history or ceremony. Nor did I see, or hear, either my father or grandfather conduct such ceremony. I do know that offerings to the Creator are made at ‘first light’, but first light is a period of time not a place. The notion that locating wind turbines in Nantucket Sound will impose on, impact or harm any cultural tradition is just plain false.”

The writer acknowledged in his letter that he worked for a law firm that represented the developer of Cape Wind but said that “my employer has not influenced my decision to write this letter in any manner whatsoever”.

The letter included a petition reported to dispute the claimed cultural value of the Cape Wind site to the Aquinnah tribe, which was signed by eight members of the tribe, including a former chairman of the tribe who originally opposed the project but now supports it. (See Letter) (See News Report)

Protecting Artifacts and Remains

As for the claims that construction of the project will disturb ancestral artifacts and remains, Department of Interior approval came only after detailed studies finding that such disturbance was unlikely, and the approval carries significant restrictions to guard against this. These measures include

  • requiring a “Chance Finds Clause” in the federal lease to the developer, halting operations in the event of an unanticipated archeological find and allowing the tribes to participate in analyzing the finds
  • requiring additional and detailed marine archaeological surveys and other protective measures in the project area
  • requiring geotechnical coring and analyses to aid in the identification of intact landforms that might contain archaeological materials

My Way or the Highway

The tribes have refused millions of dollars offered to mitigate any impact the project may have on the tribes, and are continuing their opposition.

According to Secretary Salazar, from the tribes’ perspective, “there are no acceptable mitigation measures for the impacts to their traditional cultural properties”. In other words, build it somewhere else.

When Everyone Has Rights

In land use and environmental permitting, when everyone has rights, no one has rights. 

The Department of the Interior’s decision effectively recognizes this.

 

Cape Wind--Surviving a Dysfunctional Environmental Permitting Process

 

                           

Whether or not one agrees with Interior Secretary Salazar’s decision this week to remove the last federal regulatory barrier to the permitting of the Cape Wind Project, there should be far less disagreement on the Secretary’s view of the permitting process, which has taken nearly a decade.

“The time has come to bring the reviews and analysis of the Cape Wind Project to a conclusion…..The parties, the public, and the permit applicants deserve resolution and certainty,” the Secretary said in a March 1, 2020 statement. (See Secretary's Statement.)

A More Rational Permitting Process Needed

At his news conference announcing his approval of the offshore wind farm to be located in approximately 25 square miles of Nantucket Sound,  the Interior Secretary was far blunter in commenting on the protracted permitting process.

According to news reports, the Secretary said there was no reason “why an offshore wind permit should take a decade to review and approve”, and he promised a “more rational and orderly” process for subsequent offshore projects.

Secretary Salazar hit the bulls eye on that one.

A Nimbler European Regulatory Bureaucracy!?!

When the Europeans, not known for nimble and responsive governmental bureaucracies, are permitting offshore wind farms literally in months, it is clear that our permitting process is dysfunctional.

A recent report by the European Wind Energy Association finds that the average permitting time in Europe for offshore wind projects is 18 months. That is less than one sixth of the time for the permitting of the Cape Wind Project. (See press release on the EWEA website.)

The study also finds that while the permitting for European onshore wind farms takes about twice as long as the permitting of European offshore wind projects, the average of 42 months for the onshore projects is still about one-third of the time to permit the Cape Wind Project.

A Process That Discourages Investment

The permitting marathon is not over for the developer’s of the Cape Wind Project, who have already spent $45 million trying to get governmental approvals.   Lawsuits are pending, and more are threatened.

The environmental permitting process should not be the bureaucratic equivalent of the neutron bomb, leaving the infrastructure intact but wiping out the developers.

One wonders how many potential developers of alternative energy projects simply never enter the permitting process because of the extraordinary costs and time delays to get approvals, given that such capital can be deployed in less controversial projects for more secure returns.

I don’t know the answer to that—perhaps it is blowing in the wind!