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.

British Columbia's First Wind Project Comes On Line

British Columbia's first wind power project began generating electricity to the grid on July 23, 2009, when the first two turbines of the Bear Mountain Wind Park came on line. The project is located near Dawson Creek, BC, in the Peace Region of the province, a jumping-off point for the Alaska Highway. The 34-turbine, 102-megawatt park is expected to be fully operational by November 2009.

What's remarkable about this project is that its the first utility-scale wind park in a province that has identified as many as 69 projects with an installed capacity of nine GW as "readily available," meaning there are sufficient winds, proximity to existing transmission and appropriate terrain. When it comes to wind, however, B.C. seems to be lagging behind not only its U.S. neighbors to the south (for example, Washington has 1575 MW and Oregon 1406 MW of installed wind generating capacity), but also its fellow provinces.

So what's the deal? First, BC has had an abundant supply of water for hydroelectric generation. Indeed, the Crown-owned utility, BC Hydro, serves approximately 95% of the province's customers by generating all but 10% of its power from hydroelectric sources. Second, BC also has large reserves of natural gas and, being next door to Alberta, another large source of natural gas, makes investing in wind less attractive.

Third, a 2002 provincial Energy Plan barred BC Hydro from developing wind and other new generation. While it created various incentives for private interests to build and operate wind farms and other renewable sources -- giving wind developers a strong incentive to bid on the type of long-term Energy Purchase Agreements that make a project viable -- the provincial utility regulator cast a cloud on the most recent round of bids when it rejected BC Hydro's long-term acquisition plan that called for purchase of up to 3,000 GWh/year from renewable sources. Apparently the utility will go back to the drawing board and re-submit its plan, but that doesn't help wind developers who were waiting for approval of the plan to move forward on contracts. Paradoxically, in the same decision the utilities commissioner approved BC Hydro's plan to spend CDN $140M to upgrade a natural-gas fired plant near Fort Nelson and CDN $1.6M to ensure the reliability of the Burrard Thermal Generation gas-fired plant at Port Moody, near Vancouver, B.C.

Consequently, with such mixed signals, its no wonder that wind power generation hasn't taken hold in B.C. and the forecast looks like continued strong headwinds.

Who Knew Iowa Is #2 in U.S. Wind Power?

After seven days riding into frequent headwinds as part of the 37th edition of the Register's Annual Bike Ride Across Iowa (RAGBRAI) and not seeing any wind turbines, it came as a surprise to see these turbines along I-80 east of Des Moines. All along the 442-mile southern Iowa route for RAGBRAI I had been wondering (among other things) why no wind power out here? There was plenty of corn, making ethanol a huge deal there, but it turns out that Iowa also is a major player in wind generated electricity.

According to the American Wind Energy Association, Iowa actually ranks second in the nation in wind generation capacity, ahead of California, Minnesota, Washington (my home state), Oregon, New York and Colorado. (Texas is first by more than double Iowa's capacity.) Indeed, Iowa leapfrogged from 4th to 2nd in the space of just two years.

The jump in wind generation is partially attributable to a state mandate that the two investor-owned utilities, MidAmerican and Alliant Energy Interstate Power & Light, obtain a combined total of 105 MW of renewable energy. In addition, the governor in 2001 established a secondary voluntary goal of 1000 MW of wind by 2010. Clearly those goals have been exceeded.

Iowa seems ideal for wind power. Not only is there frequent wind (and seemingly constant if you're on a bicycle), but the state also is close to major load centers -- Chicago is 300 miles and St. Louis 270 miles from Des Moines. Apparently some developers are offering higher lease rates for turbine locations, giving landowners a powerful economic incentive to site turbines on their property.

But, of course, wind power isn't without its pitfalls, as this article last year describes. The Adair project had its detractors, but it appears that Iowa already is thinking big when it comes to generating power from the wind.