Wind Energy

Social Distancing and Offshore Wind Approvals - Let's Think About How to Do This, NOW

May 6, 2020 20:08
by J. Wylie Donald
How much we have learned in just a month. Here is a viewpoint from an offshore wind publication on April 1: For many of the other infected nations, the economy will fall sharply in the short term, and then rebound after the epidemic is over. In this regard, COVID-19 is unlikely to have a huge long-term impact and epidemic prevention and control measures from local governments will be a key variable and the most decisive factor. On the premise of effective prevention and control, the whole epidemic is expected to be over in 2-3 months, with societies returning to normal.

Wind Energy | Utilities

Breezing with Terabytes: Offshore Wind and Big Data

September 13, 2019 05:27
by J. Wylie Donald
The Business Network for Offshore Wind threw me a curve yesterday. Big Data, AI & Blockchain was the name of the conference held in Boston. What does that have to do with offshore wind? As it turns out, plenty. (Well, not so much blockchain.)

Wind Energy | Sustainability | Utilities

Offshore Wind = Onshore Jobs

July 25, 2019 23:04
by J. Wylie Donald
Offshore wind. It’s a renewable energy revolution blowing through the Northeast and the Mid-Atlantic states. A facility is operating off Block Island. The first facility in federal waters (a small demonstration project) is scheduled for operation next year off of Virginia. energy/renewable-generation/wind/coastal-virginia-offshore-wind The Business Network for Offshore Wind (BNOW) continued its conference series yesterday in Washington; this time the subject was: Offshore Wind = Onshore Jobs.

Renewable Energy | Wind Energy | Sustainability

A Coal Plant Shutdown and the Undoing of a Wind Energy Bottleneck

July 14, 2016 11:21
by J. Wylie Donald
Everyone knows the transmission bottleneck is the boot on the neck of wind energy. The Plains States have megawatts of wind energy. Getting it to the places with megawatts of demand, like Oregon and Washington, aye, there’s the rub. If only an operating plant would expire and shuffle off its transmission lines to a wind farm.

Renewable Energy | Wind Energy | Utilities

What is President H.R. Clinton’s Energy Policy?

April 7, 2016 23:04
Even as the number of 2016 presidential candidates in both parties has dwindled, the media -- particularly television news -- has yet to focus on an in-depth discussion of the candidates’ policy proposals. While it was difficult to discern the energy policies that a President Trump would implement, candidate Hillary Clinton has made quite clear the energy goals that a President H.R. Clinton would set. Including her “Clean Energy Challenge,” issued last summer, and the proposal to increase energy efficiency standards that she announced in February 2016, Clinton has made very specific and far-reaching plans that would continue and expand on the Obama Administration’s policies. The focus of her energy policy is twofold – address climate change and use the clean energy industry to grow the economy and create jobs. It seems safe to say the phrase “all of the above” will not apply to the Clinton administration energy policy.

Carbon Emissions | Climate Change | Green Buildings | Regulation | Renewable Energy | Wind Energy | Solar Energy

What is President Trump’s Energy Policy?

March 2, 2016 03:29
We all know where the respective party “establishments” in Washington come down on climate change, clean power, and the pace at which the country should move to renewables as the primary source of energy (if at all). President Obama gave us the Paris Climate Agreement and the Clean Power Plan; the Republic Congress is not happy about either. Earlier this year, the Supreme Court effectively shut down the discussion until judicial review of the Clean Power Plan is complete – est. circa 2017 – so, the industry may now be better served by concentrating on the energy policies of the candidates to be our next president, one of whom will soon be setting policy for the next four years.

Climate Change | Climate Change Litigation | Regulation | Renewable Energy | Wind Energy | Solar Energy | Supreme Court

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ORECs or ERCs: How Will New Jersey Pay for Offshore Wind?

October 6, 2015 22:43
On November 9, 2015, the federal Bureau of Ocean Energy Management (“BOEM”) will hold the fifth auction of leases for space on the Outer Continental Shelf in the Atlantic Ocean, this one offshore New Jersey. BOEM will offer 342,833 acres in two lease blocks, enough space to support at least 3,400 megawatts (“MW”) of commercial wind generation, which – according to BOEM -- could power approximately 1.2 million homes.

Carbon Emissions | Climate Change | Legislation | Regulation | Renewable Energy | Wind Energy

A Provisional Winner of an Offshore Wind Lease is Announced and that Means the Goal Line is Still Far Off

August 24, 2014 20:23
by J. Wylie Donald
Offshore wind took another small step forward last week when US Wind was announced as the provisional winner of the US Bureau of Ocean Energy Management's August 19 auction of development rights to nearly 80,000 acres off of Maryland.  The price?  $8.7 million. According to the BOEM press release, and other reports the few million to be ponied up by US Wind (or by its Italian parents, Renexia and Toto S.p.A.) is more than was bid for offshore leases in Virginia and Massachusetts and apparently is justified by the substantial financial carrot established by the O'Malley administration: $1.7 billion in construction subsidies. So what does it mean to be a provisional winner? It means the Attorney General and the FTC have 30 days to complete an antitrust review, following which US Wind can sign the lease, file the required financial assurance and pay the balance of the lease bid.  And then it's all downhill, right?  Well, not so fast.  First, a lot has been done to get to this point: November 2010 – BOEM issued Request for Interest to gauge industry’s interest in obtaining offshore Maryland commercial wind leases.  Commercial interests, for example, showed no interest in offshore Maine.  February 2012 - BOEM published a Call for Information and Nominations to solicit lease nominations and request public comments.February 3, 2012 - BOEM published in the Federal Register a Notice of Availability of an Environmental Assessment, and a Finding of No Significant Impact (FONSI) for “commercial wind lease issuance and site assessment activities on the Atlantic OCS offshore New Jersey, Delaware, Maryland, and Virginia.” June 2012 - BOEM published a Finding of No Historic Properties Affected.December 18, 2013 - BOEM published a Proposed Sale Notice and took comments.July 3, 2014 –BOEM  published a Final Sale Notice scheduling the August 19, 2014 sale.  These steps have completed the first two phases of BOEM’s program for outer continental shelf leasing:  (1) planning and analysis, (2) lease issuance.  So in a little over 3 and a half years an entity interested in pursuing an offshore wind project, is poised, but poised for what?  It is poised for phases 3 and 4, site assessment, and construction and operations, as BOEM further explains in its fact sheet.  There is an ominous word in the fact sheet, however:  “BOEM conducts environmental and technical reviews of SAP [Site Assessment Plan], eventually deciding to approve, approve with modification, or disapprove” (emphasis added).  A Site Assessment Plan “describes the activities (installation of meteorological towers and buoys) a lessee plans to perform for the assessment of the wind resources and ocean conditions of its commercial lease area.”  That BOEM will eventually complete its review, does not suggest alacrity, or even timeliness.  Once the SAP is approved, another plan must be submitted, the COP, the construction and operations plan. The same ominous term, "eventually," shows up as well in the description of the approval process of the COP. And then, only after the COP is approved, can construction begin. What struck us as we reviewed all of this is that at least four sessions of Congress will have passed from when BOEM’s 2010 Request for Interest emerged before a single joule of energy will make its way from some mid-Atlantic zephyr into a Maryland household.  And it would not surprise us if it were six or eight sessions.  In other words, success in offshore wind may depend nearly as much on the political winds, as the meteorological ones. 

Regulation | Renewable Energy | Wind Energy

Contrary Legal Winds at Cape Wind - Opponents of Offshore Wind Sue Asserting Preemption

February 9, 2014 19:34
by J. Wylie Donald
Would you care to hazard a guess at how long it takes to bring online an offshore wind farm in the United States?  At the moment, it is 12+ years and counting.  A recent court filing arguing constitutional questions is certain to slow it down some more. In 2001 Cape Wind Associates, LLC, submitted an application to the United States Army Corps of Engineers for a permit to construct an offshore wind power facility in Nantucket Sound.  About 9 years later Cape Wind finally procured the approval to move forward from the Department of the Interior.  Cape Wind then got down to work and by November 2012 had signed the first U.S. commercial offshore wind lease and long-term power purchase agreements with National Grid and NSTAR Electric Co.  Cape Wnd's Construction and Operations Plan was approved by the Bureau of Ocean Energy Management.  According to Cape Wind it is now seeking out its project financing. But a new hurdle has surfaced.  At the end of January, various plaintiffs - the Town of Barnstable, businesses, a non-profit environmentalorganization, and individuals - all users within NSTAR's electric service area, sued various Massachusetts governmental entities, as well as NSTAR and Cape Wind (see Complaint attached).  Their goal is "a declaration that the Commonwealth of Massachusetts violated both the dormant Commerce Clause and the Supremacy Clause when it used its influence over NSTAR's merger request to bring about NSTAR's entry into an above-market wholesale electricity contract with Cape Wind, a politically favored renewable energy project in Massachusetts, to buy electricity at a particular price." The plaintiffs also seek injunctive relief to invalidate the power purchase agreement between NSTAR and Cape Wind. Plaintiffs' theories are based on the following premise:  "Massachusetts regulators used their influence over a merger request by NSTAR ..., to bring about NSTAR's purchase of electricity from Cape Wind ..., an in-state renewable energy project, on particular terms." The legal theories are two-fold. First, the Federal Power Act gives the Federal Energy Regulatory Commission exclusive jurisdiction over wholesale electricity rates, charges and terms.  Thus, plaintiffs assert, Massachusetts' acts dictating favorable terms for wholesale electricity sales by Cape Wind to NSTAR are preempted by the Federal Power Act.  Second, because Massachusetts' acts in effect favor an in-state electricity provider over out-of-state providers, Massachusetts is unlawfully discriminating in violation of the "dormant" Commerce Clause of the Constitution.  These theories recently are exceedingly popular in the energy space.  Although the dormant Commerce Clause has not persuaded a federal judge, in 2013 preemption was used successfully to challenge state requirements for gas-fired generation in Maryland (PPL Energy Plus LLC v. Nazarian) and New Jersey (PPL Energyplus v. Hanna).  Although both decisions are on appeal, if affirmed, they have significant implications for the viability of state renewable portfolio standards. Notwithstanding that dozens of states have RPSs, the argument will be that RPSs regulate rates, charges and terms by implication, even if the legislative, regulatory and contract drafters assiduously leave rates, charges and terms out of their writings. One commentator, however, points out that "the FERC has never indicated that a state's RPS program that includes a directive to utilities to acquire wholesale renewable energy under long-term contracts to be a violation of the FERC's exclusive jurisdiction under the Federal Power Act."  So this may be much ado about nothing; time will tell.  In the meantime, Cape Wind continues to be delayed.   20140121 Cape Wind Complaint.pdf (253.06 kb)

Wind Energy | Utilities

Wind Project "Take" Permits Extended to 30 Years - Eagles Nonplussed

January 7, 2014 07:52
by J. Wylie Donald
Tomorrow bald and golden eagles will sleep less soundly.  On January 8 the Fish and Wildlife Service’s new rule revising the regulations for permits for the taking of golden eagles and bald eagles goes into effect.  According to the FWS, “This change will facilitate the responsible development of renewable energy and other projects designed to operate for decades, while continuing to protect eagles consistent with our statutory mandates.” Eagles and other migratory birds are a substantial threat to wind projects and not because they will cause turbine blades to fail.  Rather, turbine blades (and to a lesser extent, towers, guy wires, transmission lines and other constructions in the air space) can be lethal to birds.  This poses a serious problem for wind energy companies as birds are legally protected by the Migratory Bird Treaty Act (16 U.S.C. §§ 703-712) and eagles further protected by the Bald and Golden Eagle Protection Act (16 USC §§ 668-668d).  Duke Energy Renewables, Inc. recently ran afoul of these requirements at its 176 turbine Campbell Hill and Top of the World wind projects in Wyoming, where at least 14 golden eagles died between 2009 and 2013.   In November Duke accepted a plea agreement in “the first ever criminal enforcement of the Migratory Bird Treaty Act for unpermitted avian takings at wind projects.”  It included: • Fines - $400,000  • Restitution - $100,000 to the State of Wyoming• Community Service - $160,000 payment to the National Fish and Wildlife Foundation for eagle preservation projects• Conservation funding - $340,000 to a conservation fund for the purchase of land or conservation easements • Probation – five years• Compliance Plan – implementation of a plan at a cost of $600,000 per year with “specific measures to avoid and minimize golden eagle and other avian wildlife mortalities at company’s four commercial wind projects in Wyoming.”• Permit – required application for a Programmatic Eagle Take Permit. The last is directly tied to tomorrow’s rule.  “Take” is defined in the regulations as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb.” 50 CFR § 22.3.  “Programmatic take” is “take that is recurring, is not caused solely by indirect effects, and that occurs over the long term or in a location or locations that cannot be specifically identified.”  Id.  The regulations at 50 CFR § 22.26 provide for permits to take bald eagles and golden eagles when the taking is associated with, but not the purpose of, an otherwise lawful activity.  Programmatic permits authorize take that “is unavoidable even though advanced conservation practices are being implemented.”  The new rule commentary notes that permits may authorize “lethal take … such as mortalities caused by collisions with wind turbines, powerline electrocutions, and other potential sources of incidental take.” Under the current rule, a take permit was good for only 5 years, which inserted much uncertainty into wind farm projects.  The new rule permits wind energy developers to obtain a take permit that runs for 30 years, 50 CFR § 22.26(i), which “better correspond[s] to the operational timeframe of renewable energy projects.”  The risk that a wind project will cause unforeseen harm to eagles during this much longer period is mitigated by a new requirement for 5 year reviews, in which the FWS “will determine if trigger points specified in the permit have been reached that would indicate that additional conservation measures ... should be implemented to potentially reduce eagle mortalities, or if additional mitigation measures are needed.”  Id. at § 22.26(h).  Additional actions that might be taken as the result of the review could be permit changes, including implementation of additional conservation measures and updating of monitoring requirements.  Id.  Even suspension or revocation of the permit is possible.  Id. That the FWS is serious about protecting eagles is demonstrated by the enforcement action against Duke.  But the FWS also recognizes that development is necessary.  The 30 year permit period appears to be a reasonable compromise (unless one is an eagle).

Regulation | Wind Energy | Utilities

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