Environmental Groups Bring ESA Suit Against First U.S. Offshore Wind Project

Wind farm off the shore of Copenhagen, DenmarkAfter nine years of environmental review and the arduous federal, state, and local permitting process, Cape Wind Associates, LLC (CWA) recently obtained the right to a commercial lease from the Minerals Management Service (recently renamed the Bureau of Ocean Energy Management, Regulation, and Enforcement) to construct and operate an offshore wind facility located in federal waters 4.7 miles offshore Cape Cod, Massachusetts, on Horseshoe Shoal in Nantucket Sound.

But on June 25, 2010 a coalition of environmental groups filed a lawsuit (PDF) in the federal district court for the District of Columbia to block construction of the Cape Wind project.  The coalition alleges that the Minerals Management Service and U.S. Fish and Wildlife Service violated the Endangered Species Act (ESA), National Environmental Policy Act (NEPA), Migratory Bird Treaty Act, and the Administrative Procedure Act (APA).  Specifically, the coalition claims that the biological opinion (PDF) for the project will unlawfully allow the project to "take" Roseate Terns and Piping Plovers without sufficient safeguards based on the best available science and the Service’s own determination of reasonable and prudent measures to minimize take such as shutting down the turbines during peak periods of migration through the Nantucket Sound.

The lawsuit illustrates the hurdles that renewable energy projects often face, even after years of federal, state, and local permitting and environmental review.  Although many environmental groups support the Cape Wind project, e.g., Natural Resources Defense Council, Friends of the Earth, World Wildlife Fund, and Greenpeace USA, every renewable energy project will have some adverse environmental impacts, and is therefore vulnerable to citizen suits, well founded or not, under the panoply of environmental laws that apply to energy projects.

Once completed, Cape Wind will be the first offshore wind energy project in the United States. The project consists of 130 3.6 megawatt turbines arranged in a grid, located in shallow waters near the center of Nantucket Sound. It is expected to produce a maximum of 454 megawatts, whereas the average expected production will be 170 megawatts which is almost 75% of the 230 megawatt average electricity demand for Cape Cod and the Islands of Martha’s Vineyard and Nantucket.

Most modern wind turbines are enormous, and will most likely impact birds no matter where they are located, whether off shore, along ridge lines, or in deserts where winds tend to be the strongest and most regular.  For instance, for the Cape Wind project, the lowest blade tip height will be 75 feet above the surface of the water and the highest blade tip height will be 440 feet above the surface of the water.  Thus, the blades for each turbine sweep through a large area above the water while operating.  As a result, such facilities often require take authority under state and federal endangered species laws as well as the Migratory Bird Treaty Act.

Fish and Wildlife Service Issues Recommendations on Wind Turbines

The Fish and Wildlife Service announced the issuance of a comprehensive set of recommended guidelines (PDF) on how to minimize the impact of land-based wind turbines on wildlife and their habitat.  The Service transmitted these recommendations to Secretary of the Interior, Ken Salazar.  Secretary Salazar will review the recommendations and consider them as he directs the Service to develop guidelines for wind turbines.

The guidelines are founded on a tiered approach for assessing potential impacts to wildlife and their habitats.  There are five tiers, and each tier includes a set of questions to help the developer identify potential problems associated with each phase of a project. The goal of the guidelines is to provide a consistent approach to assessing impacts to wildlife and habitats, while still providing flexibility to deal with the unique circumstances of individual projects. 

Tier 1 - Preliminary evaluation or screening of sites (landscape-level screening of possible sites). During this stage, the developer may be looking at a broad geographic area and the questions in this tier are geared toward identifying areas or specific sites where wind energy development poses substantial risks to species of concern or their habitat and screening certain sites to avoid those with the highest habitat values. Questions in Tier 1 include are species of concern or their habitat present on the site and are there large areas of intact habitat with potential for fragmentation.

Tier 2 - Site characterization. During Tier 2, the developer has likely narrowed consideration down to specific sites. Tier 2 would include a visit to the prospective site to address questions such as: are there plant communities of concern present and are there known critical areas of congregation for species of concern. Based on the answers to the questions in Tier 2, possible outcomes include a decision to proceed to permitting, design, and construction, abandoning the proposed site, or proceeding to Tier 3.

Tier 3 involves quantitative and scientific studies to assess the potential risk of the proposed project. The information gathered during Tier 3 will provide information to design any mitigation measures, further evaluate whether the development should continue or be abandoned, or determine if post-construction studies are necessary. Tier 3 also includes information on best management practices.

The information gathered in Tiers 1-3 will determine whether Tiers 4 and 5 are necessary. The latter two tiers involve post-construction fatality studies and other studies to evaluate the direct and indirect effects on species and habitat.

The guidelines provide specific information for each tier to help evaluate risks of adverse impacts to species, included endangered species.

Endangered Species Act & Renewable Energy Projects

The regulatory requirements of the Endangered Species Act ("ESA") are imposing limitations on the development of renewable energy projects in the California desert. State and federal regulatory agencies are attempting to expedite ESA and other environmental reviews of proposed renewable energy projects. But the jury is out on whether these efforts will succeed. The ability of California to implement its precedent-setting climate change legislation hangs in the balance. As Governor Schwarzenegger stated "If we cannot put solar power in the Mojave Desert, I don't know where the hell we can put them."

Click here for the ESA and Renewable Energy Power Point presentation that was given at the April 8-9 ESA conference

Lawsuit Seeking Listing of Sonoran Desert Tortoise Expands Endangered Species Act-Solar Development Conflict

Environmental groups have sued (PDF) the Fish and Wildlife Service to force the listing of the Sonoran desert tortoise in Arizona as a distinct population segment under the Endangered Species Act.  The lawsuit is the latest legal development that threatens to slow or block the national effort to promote the development of solar energy on federal lands in the Arizona desert.  The listing of a related population of desert tortoise across the border in California has triggered significant limitations on solar projects in the Mojave Desert. 

On August 28, 2009, the Fish and Wildlife Service announced its finding (PDF) that the listing of the Sonoran desert tortoise may be warranted.  According to the lawsuit, the Service received a petition to list the tortoise in October 2008.  Under the ESA, the Service then had until October 2009 to make its 12-month finding that listing the tortoise as endangered or threatened is "warranted," "not warranted" or "warranted but precluded" by other listing actions of higher priority.  If listed, projects that harm the tortoise will be required to obtain incidental take authorization from the Service.  Listing will also trigger the requirement to designate critical habitat which will impose additional restrictions on solar energy development.