A Rising Tide Raises More Than Boats

The Washington Department of Ecology has released photographs depicting what a rising sea level might mean for waterfront properties in the future. The photos taken in early and mid-January 2010 during extreme high tides are a preview of what's to come even with a medium sea level rise of six inches by 2050. Seattle P-I.com also published photographs of some of the high tides at Bainbridge Island. A six inch rise in sea level would mean these extreme high tides might occur as many as 10 times a year instead of one or two times now. In addition, the higher sea level and higher extreme high tides would also make properties more susceptible to storm damage, such as what happened to some Camano Island property owners when strong winds accompanied the January high tides.

The next series of extreme high tides in Washington are February 1 through 3, and Ecology is requesting more photographs.

Another Conflict Brews Over Renewable Energy Versus Endangered Species

The desert tortoise is this week's poster critter as the California Energy Commission holds evidentiary hearings on the proposed Bright Source Energy Ivanpah Solar Power Complex, which will occupy 6.2 square miles of public land near I-15 and the California-Nevada border. At issue is the desert tortoise, 25 of whom live in Ivanpah Valley. Project backers have set aside three times as much land in the valley as the project will displace for a new home to the tortoises, but environmentalists say the tortoises may not be able to survive such a move.

The Energy Commission hearings will attempt to balance protection of an endangered species with the state mandate to increase dramatically California's renewable energy. As was seen, however, in the recent Maryland court decision effectively stopping a West Virginia wind project due to an endangered bat, this won't be easy. Its difficult to say how this one will turn out, particularly in light of the Maryland bat case, but it definitely will not be the last project to face this dilemma.

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.

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!

Climate Change Regulation Before Legislation in U.S.

Sen. John Kerry's announcement on Nov. 16 that the Senate's version of climate change legislation, the Clean Energy & American Power Act (S. 1733), probably won't be considered until "early spring" 2010 now makes it more likely that the first move by the U.S. will come from the Environmental Protection Agency rather than Congress.

Sen. Kerry made the announcement after meeting with Senate Majority Leader Harry Reid and committee chairs. Its no secret that rounding up 60 votes to beat an expected filibuster is going to be difficult. Coal-state senators are wanting to make sure their constituencies aren't hurt by the bill. Sen. James Webb (D-VA) signaled his opposition to cap and trade, calling it "enormously complex," and joined with Sen. Lamar Alexander (D-TN) to propose a bill that would provide $20-billion to expand nuclear energy and fund alternative energy sources. Sen. Webb says his proposal addresses areas that are "achievable."

That leaves pretty much an open field for the EPA to issue its long-awaited endangerment finding, which the agency sent to the White House Office of Management and Budget on Nov. 9. OMB has up to 90 days to consider it, but the EPA is hoping for a shorter review. The endangerment finding, together with EPA's mandatory carbon reporting rules, means that, for now, the climate action is on the regulatory side rather than legislative.

Court Greenlights GHG Nuisance Claims Against Power Companies

The U.S. Second Circuit Court of Appeals handed down a ruling on Monday in Connecticut v. American Electric Power Co. resurrecting lawsuits brought by eight states, New York City and three land trusts against several power companies over carbon dioxide emissions. In doing so, the court took a big step towards opening the courthouse doors to lawsuits over climate change.

The district court originally had dismissed the cases on the grounds that there was no recognized federal common law basis for abating greenhouse gas (GHG) emissions that allegedly contribute to global warming, separation of powers precluded the court from adjudicating the issues, and Congress had displaced any federal common law to address global warming issues. According to the district court, the elected branches of government must make an initial policy determine regarding global warming before the courts could adjudicate a nuisance claim over global warming. In addition, the district court had ruled that the plaintiff states, city and trusts did not have standing to sue on account of global warming and the absence of a justiciable claim deprived the court of jurisdiction.

The Second Circuit's 139-page decision overruled the district court on each of these grounds, but the significant portion concerns the "political question" basis for the dismissal. The political question doctrine has been used by other district courts to dismiss climate change litigation in Comer v. Murphy Oil Co. and California v. General Motors.

Under long-standing Supreme Court case law, separation of powers is intended to restrain the judiciary from inappropriate inteference in the business of the other branches of government. Thus, in the words of Chief Justice John Marshall in the 1803 Marbury v. Madison case: "Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." The Supreme Court in other cases has outlined a number of attributes of a "political question," but three are primary: (1) whether there is a textually demonstrable Constitutional committment of the issue to a coordinate political department; (2) whether there is a lack of judicially-discoverable and manageable standards for resolving the case; and (3) whether it is impossible to decide the case without an initial policy determination of a kind clearly for nonjudicial discretion.

The court in Connecticut v. AEP said that there was no provision in the Constitution that granted the legislative or executive branches responsibility for resolving issues concerning carbon dioxide emissions or other forms of alleged nuisance. Indeed, the court said if any branch had been conferred with the responsibility it is the judiciary. Furthermore, the court said that federal courts have successfully adjudicated complex common law public nuisance claims for more than a century, including cases involving air pollution.

Finally, the court that the absence of legislative or executive action on global warming, if anything, highlighted the need for the courts to act. For example, if existing statutes governing water pollution do not cover a plaintiff's claims and provide a remedy, a plaintiff still is free to bring a claim under the federal common law of nuisance and is not required to await a comprehensive legislative approach to domestic water pollution.

The decision covers several other issues, but the political question portion of the decision may have the widest repercussions. The two other lawsuits also dismissed on political question grounds are on appeal as well -- Comer v. Murphy Oil Co., in the 5th Circuit, is a class action alleging that various oil, chemical and power companies' GHG emissions contributed to climate change and worsened the effects of severe storms, such as Hurricaine Katrina; and California v. General Motors, in the 9th Circuit where the automakers are being sued for creating and contributing to a public nuisance, i.e. climate change. No doubt both courts will look at the Connecticut decision very carefully and weigh its rationale in their own cases.

Another significant aspect of this decision is the fact that the court took the political question issue head on. The court in the Connecticut case could have easily affirmed the dismissal on the political question basis in recognition of the EPA's much-anticipated endangerment finding and Congress' on-going efforts to craft climate change legislation. When a court as influential as the Second Circuit takes on an issue such as this, it sends a very strong signal that the judiciary will play a significant role in the climate change debate in the months to come.

California Renewable Energy Goals -- Real or Moving Goalposts?

California's legislative Assembly is supposed to vote this week on a measure to increase the state's renewable energy target to 33% by 2020, a goal the utilities commission calls "highly ambitious." Two bills, SB 14 and AB 64, would raise the existing target of 20% by 2010. Backers say that passage of the measures will demonstrate that California is serious about reducing greenhouse gases. Indeed, it would have to be since the projected cost is upwards of $115 billion.

While the basic goal has widespread support, its the details that are causing the most heartburn. One issue is that the three investor-owned utilities (IOUs), Southern California Edison, Pacific Gas & Electric and San Diego Gas & Electric, aren't likely to meet the current 20% by 2010 goal. The last quarterly status report indicated that renewables accounted for 13% of all IOU electric retail sales in 2008 and probably won't reach the 20% goal until 2013 or 2014. Moving the goalposts out to 33% by 2020 would require nearly tripling the amount of renewable energy sources from what existed at the end of 2007, and its hard to imagine the IOUs being able to meet that target as well. The bills propose building in some pad for missing the 2020 deadline, but even that may not be enough.

Other problems include all the new transmission lines needed to carry the additional power, how much of the renewable power will be generated in state, and what to do about other sources that might not be considered "renewable" and yet are highly efficient.

A draft implementation analysis by the California Public Utilities Commission (CPUC) said that achieving the 33% target by the year 2020 "is highly ambitious, given the magnitude of the infrastructure buildout required." As it is, meeting the 20% by 2010 target will require four major new transmission lines costing $4 billion total, although three of those lines already are underway. But reaching the higher goal by 2020 will require seven additional lines at a total cost of $12 billion. SB 14 and AB 64 both have mechanisms for speeding up approval of new transmission lines, but are not expected to substantially shorten the current 18-month average because of built in delays, such as requiring data for all four seasons necessary for project review under the California Enviromental Quality Act.

Certainly the 33% mandate could be a boon for California job creation, but California alone probably can't build enough wind, solar, geothermal or biomass projects to meet the target, so it will have to turn to outside sources. At issue in the two measures is whether there should be limits on how much renewable energy IOUs can buy out of state, or even out of the country. States like Oregon and Washington have been building wind farms in anticipation that some of the generation will go to help California IOUs meet the renewable goals, and British Columbia is hoping to sell some of its hydro power. However, Oregon and Washington have their own renewable energy targets and will want assurances that projects built in their state primarily benefit their states' consumers. SB 14 and AB 64 also would require that out-of-state projects meet California environmental management standards, and there is some question whether, for example, a hydro project in Canada would qualify.

Finally, and this is something that doesn't get a lot of attention in the popular press, is whether the emphasis should be on a "renewable" portfolio or broadened to energy efficiency resource standards so that technologies such as combined heat and power (CHP) could be included. CHP, which also is known as co-generation, takes a single fuel source and simultaneously produces electricity and heat, resulting in much higher efficiencies than do separate heat and light systems. Right now California doesn't include CHP, even a biomass fuel source CHP, in the mix of eligible renewable energy sources. While the IOUs in California have never been big fans of CHP (having had CHP power forced on them by the federal Public Utility Regulatory Policies Act of 1978), inclusion of CHP might actually help the IOUs meet the 33% target. Exclusion of CHP, however, would increase regulatory barriers to the detriment of an existing technology that reduces air pollutants, including greenhouse gases, has lower operating costs and high reliability.

Consequently, it may be one thing to change the goals, but an entirely different matter of making the goals happen. How California deals with all this is sure to have impacts not just within the state, but throughout the West.