Endangered Species Law & Policy

After 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.