Monday, December 28, 2009

Is it Possible to Avoid Wind Turbine Litigation?



One of the top renewable energy legal decisions in 2009 has to be the injunction issued on December 8 by U.S. District Judge Roger Titus in Animal Welfare Institute v. Beech Ridge Energy LLC. The ruling halted the construction of a 122-turbine wind project in West Virginia due to the failure to study adequately the impacts of the turbines on the endangered Indiana bat. The case highlights the importance of heeding the formal advisories of agencies, such as the U.S. Fish and Wildlife Service (USFWS), in the pre-construction evaluation of a project's impacts on local fauna.

Beech Ridge Project

The project obtained its siting certificate in 2006 with the West Virginia Public Service Commission concluding that the evidence before it did not support a conclusion that Indiana bats lived near the project. Following a trial in October 2009, the U.S. District Court in Maryland concluded otherwise and criticized the project's consultant for disregarding the repeated formal advisories of USFWS to conduct multi-year studies using a variety of tools (radar, thermal imaging, acoustical studies, mist-netting and other appropriate sampling techniques) during spring and fall to determine the presence and risks to endangered Indiana bats. The consultants primarily relied on surveys using mist-nets (small-screen fine-mesh nets) conducted during two summer seasons, and only incidental, and apparently unintended, collection of acoustical data.

This did not sit well with the judge, who said that the mist nets, which did not capture any Indiana bats, at best could only establish that the bats were not present in large numbers during the summer, but did not establish absence of the bats at other times of the year.

The acoustic data, which apparently a field technician collected on his own, did not get evaluated until trial and arguably indicated that some Indiana bats might be present. The court relied heavily on this disputed acoustic data to confirm "to a virtual certainty" the presence of Indiana bats and to conclude it is "a virtual certainty that Indiana bats would be harmed, wounded or killed" by the wind project in violation of the Endangered Species Act.

The court reluctantly issued an injunction halting the Beech Ridge project and chided the developer for "disregard[ing] not only repeated advice from the [US]FWS but also fail[ing] to take advantage of a specific mechanism, the [incidental take permit] process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species."

Had the Beech Ridge project followed the USFWS suggestions and combined acoustic data with the mist net surveys the developer might have been in a position to make a case for an incidental take permit under the Endangered Species Act and to have better evidence to oppose a court challenge. The cautionary tale in all this is that the injunction effectively halted the project, which at the time had poured foundations for the initial 67 turbines, taken delivery on turbines and strung transmission lines.

Wind Turbine Guidelines Advisory Committee

In the meantime, the USFWS Wind Turbine Guidelines Advisory Committee (Advisory Committee)is preparing a set of recommended measures to reduce or minimize impacts to wildlife and their habitats related to land-based wind energy facilities. The American Wind Energy Association (AWEA) lists completion of the Advisory Committee work among its wind power trends for 2010, and the Beech Ridge decision suggests that such draft guidelines, if followed, might be helpful to avoid the harsh results of the case.

The sixth draft issued by a workgroup of the Advisory Committee in late October 2009 proposes a five-tiered approach to wildlife assessment and siting decisions that includes pre-construction evaluation of avian and bat impacts.

The draft guidelines specifically recommend against using mist-netting to assess the presence of bats and birds, in part because it is not feasible at the heights of the rotor-swept zone, and captures below that zone may not adequately reflect risk of fatality. If mist-netting is used, the draft guidelines recommend using it in combination with acoustic monitoring.

Litigation Likely

The Beech Ridge court's critique of the methodologies used in that case lends some credence to the Advisory Committee's draft recommendations. Even, however, as that process works toward final guidelines for approval by Interior Secretary Ken Salazar, they may not prove to be a hallmark event in wind power development for 2010 because of the strong likelihood of a court challenge.

Indeed, the attorney who represented the plaintiffs in the Beech Ridge case wrote a letter earlier in 2009 asking Secretary Salazar to disband the Advisory Committee because its draft recommendations "contain little but vague bromides and generic pronouncements" and "read more as an unabashed endorsement of wind power than a rigorous effort to address the harmful — and ever growing — effects of poorly sited and constructed wind power projects on wildlife." While that letter was written well before the current draft guidelines, it indicates that the final recommendations could well face litigation.

In the absence of implimentation of the guidelines, the Beech Ridge case provides a strong signal that it does not pay to ignore or minimize an agency's formal advisories in the pre-construction evaluation of a project.

Sunday, December 13, 2009

Adventures in Houston

Houston may be home to urban sprawl that would make L.A. blush, but amid the giant office towers (even in residential neighborhoods thanks to minimal zoning) you can find a real true diner. Although Avalon Diner happens to be located in a Houston strip mall, its the real deal. Last Friday, my colleague and I were driving down Westheimer Road looking for a place to have lunch before we flew back to Seattle. In the River Oaks area we happened on Avalon Diner and decided to check it out. The diner, which opened in 1938 across from its present location, is not one of those kitschy, after-the-fact recreations. Except for the styrofoam cups that the ice tea comes in you'd think you were back in the Fifties.

We sat at the counter and had the pleasure to meet Velma, whose apron said she had been working at Avalon since 1975. After 34 years on her feet, it's no wonder Velma sat down next to me to take our order, but she apparently is one of the newbies. Her co-workers Cassie and Sarah have worked at the Avalon since 1966 and 1968! The photo at the top is the trio, with Velma in the middle, and the year they started proudly embroidered on their aprons.

I was so intrigued that I wrote down their names and years they started, which Velma noticed and asked what I was doing. I think she might have been worried I was some inspector or something, but I told her I was going to write a blog about Avalon and she graciously agreed to let me take her picture with her co-workers.

We ordered the meatloaf with red sauce, mashed potatoes and warm corn bread muffins. It was fast and it was great. What a wonderful find in a time where "history" seems seems mean what happened ten years ago. Thank you to Velma, Cassie and Sarah for making Avalon a true gem and thanks for your dedication.

Now on an even lighter side, here's a photo I took at the Galleria before we found the Avalon. I couldn't resist the juxtaposition. In fairness, the school buses actually were parked at the Dillards (not pictured, but also nearby), but their proximity to Zone d'Erotica was irresistable and perhaps a lesson in situational awareness. So long Houston!