Off-Shore Wind Energy in the U.S. Cape Wind Project The First Off-shore Wind Project in the U.S. Angeline R. Babel Energy Law Fall 2010 Angeline R. Babel Energy Law Fall 2010

Outline Wind Energy Offshore Wind Energy Challenges for Wind Projects Cape Wind Project Lessons from the Cape Wind Project Conclusions Wind Energy Offshore Wind Energy Challenges for Wind Projects Cape Wind Project Lessons from the Cape Wind Project Conclusions

U.S. Energy Supply (2009) U.S. Energy Information Administration, Form EIA-923, "Power Plant Operations Report.” Wind Power only accounts for about 2% of the electricity generated in the U.S. 0% wind power is from offshore wind farms

U.S. policy is moving towards reducing dependence on fossil fuels and using energy sources that reduce green house gas emissions

20% Wind Energy by President Bush emphasized greater energy efficiency and diversified energy portfolio 2008 Release of “20% Wind Energy Scenario” study by U.S. Department of Energy 2006 President Bush emphasized greater energy efficiency and diversified energy portfolio 2008 Release of “20% Wind Energy Scenario” study by U.S. Department of Energy

Benefits of Wind Energy Inexhaustible supply of wind No green house gas emission Have the technology now Reduces reliance on imported fuels Competitively priced with standard fuel sources Inexhaustible supply of wind No green house gas emission Have the technology now Reduces reliance on imported fuels Competitively priced with standard fuel sources

Harnessing the Wind in the US

Wind Resources in U.S.

Majority of US population on Coasts

Up until now, the U.S. has NO Offshore Wind Energy Farms

Offshore Benefits More power than land based –Steady wind - “sea breeze effect” and less turbulence –Larger turbines Less wear and tear on turbines Peak energy generation occurs during peak demand Energy source close to energy demand More power than land based –Steady wind - “sea breeze effect” and less turbulence –Larger turbines Less wear and tear on turbines Peak energy generation occurs during peak demand Energy source close to energy demand

Offshore Wind Projects have been used for over a decade in other countries Europe generates over 2 GW

Challenges to Wind Power Challenges common to land-based and offshore –Sound/Vibration –“Flickering”- (Light reflecting from Sun) –Aesthetics –Loss of property value –Environmental impact Challenges unique to offshore –Navigation concerns –Fishing/Coastal environment Challenges common to land-based and offshore –Sound/Vibration –“Flickering”- (Light reflecting from Sun) –Aesthetics –Loss of property value –Environmental impact Challenges unique to offshore –Navigation concerns –Fishing/Coastal environment

Nuisance Law D’s conduct must “cause significant harm to the plaintiff’s private use and enjoyment of land, and the conduct must be either intentional and unreasonable or unintentional and negligent, reckless, or abnormally dangerous” –Restatement (Second) of Torts §§§821D, 821F, 822 (1979) Examples include “pollution, noise, odors, vibrations…[and] excessive light” (1) Nuisance must be of an “unreasonable” magnitude D’s conduct must “cause significant harm to the plaintiff’s private use and enjoyment of land, and the conduct must be either intentional and unreasonable or unintentional and negligent, reckless, or abnormally dangerous” –Restatement (Second) of Torts §§§821D, 821F, 822 (1979) Examples include “pollution, noise, odors, vibrations…[and] excessive light” (1) Nuisance must be of an “unreasonable” magnitude

Small-scale Wind (1 turbine) Nuisance suits Noise/Vibration –Must be of “sufficient intensity” to meet the standard of unreasonable interference Small-scale Wind Project Suits –Rose v. Chaikin Enjoined the construction of a wind turbine 10 feet from property line in a NJ residential neighborhood –Rassier v. Houim Dismissed nuisance suit against turbine within 50 ft of neighbors yard, decibels Neighbor moved in with turbine already erected and Defendant tried to teach Plaintiff how to turn it off if it was too loud Noise/Vibration –Must be of “sufficient intensity” to meet the standard of unreasonable interference Small-scale Wind Project Suits –Rose v. Chaikin Enjoined the construction of a wind turbine 10 feet from property line in a NJ residential neighborhood –Rassier v. Houim Dismissed nuisance suit against turbine within 50 ft of neighbors yard, decibels Neighbor moved in with turbine already erected and Defendant tried to teach Plaintiff how to turn it off if it was too loud

Large Scale Wind Farm Nuisance Suits Burch v. NedPower Mount Storm, LLC (2007) –Claim of noise, unsightliness and reduced property value –Unsightliness alone does not justify injunction but may be if accompanied by other nuisances –Court found that injunctive relief, not just damage liabilty, could have been proper form of relief Case leaves the door open for more nuisance suits Burch v. NedPower Mount Storm, LLC (2007) –Claim of noise, unsightliness and reduced property value –Unsightliness alone does not justify injunction but may be if accompanied by other nuisances –Court found that injunctive relief, not just damage liabilty, could have been proper form of relief Case leaves the door open for more nuisance suits

Rankin v. FPL Energy, LLC (Texas App. 2008) Alleged aesthetics and emotional impact of aesthetics Court acknowledged Texas case law does not provide authority for aesthetic nuisance claims Rankin v. FPL Energy, LLC (Texas App. 2008) Alleged aesthetics and emotional impact of aesthetics Court acknowledged Texas case law does not provide authority for aesthetic nuisance claims Large Scale Wind Farm Nuisance Suits

1 st U.S. Offshore Wind Project: Cape Wind Project

Cape Wind Project Proposed by Cape Wind Associates (CWA) 24 square Miles 130 wind turbines At least 5 miles offshore –13.8 miles from Nantucket Island To provide at least 3/4 electricity used on Cape Cod and the Islands Proposed by Cape Wind Associates (CWA) 24 square Miles 130 wind turbines At least 5 miles offshore –13.8 miles from Nantucket Island To provide at least 3/4 electricity used on Cape Cod and the Islands

Regulations and Litigation have bogged down the Cape Wind Project for the last 9 years

Cape Wind Project Location

Although wind energy has general support, local groups have stalled development

Opposition to Cape Wind Project Residents of Nantucket –The Kennedy’s –Bunny Mellon (heiress to Listerine fortune) –DuPont –Walter Cronkite Former Governor Mitt Romney Alliance to Protect Nantucket Sound WalMart Public Employees for Environmental Responsibility Californians for Renewable Energy Inc.!!! (“CARE”) Residents of Nantucket –The Kennedy’s –Bunny Mellon (heiress to Listerine fortune) –DuPont –Walter Cronkite Former Governor Mitt Romney Alliance to Protect Nantucket Sound WalMart Public Employees for Environmental Responsibility Californians for Renewable Energy Inc.!!! (“CARE”)

Challenges as applied to Cape Wind project Noise Aesthetics Environmental Impact Noise Aesthetics Environmental Impact

Sound/Vibration not applicable

Aesthetics General Principle: “a thing is not a nuisance merely because it is unsightly, offends the aesthetic sense, makes the vicinity less attractive, or creates mental discomfort” –58 AM. JUR. 2D Nuisances §85 (2009) General Principle: “a thing is not a nuisance merely because it is unsightly, offends the aesthetic sense, makes the vicinity less attractive, or creates mental discomfort” –58 AM. JUR. 2D Nuisances §85 (2009)

Proposed view from Conduit (5.6 miles) Aesthetics of Cape Wind Project

Proposed view from Edgartown (9 miles) Aesthetics of Cape Wind Project

Proposed view from Nantucket Island (13.8 miles)

Aesthetics of Cape Wind Project FAA requires lights to be placed on turbines for aviation safety FAA reduced the number of lights needed from 260 to 57 (spans 24 square miles) FAA requires lights to be placed on turbines for aviation safety FAA reduced the number of lights needed from 260 to 57 (spans 24 square miles)

Environmental Impact of Cape Wind Project Federal review- NEPA –Environmental Impact Statement (EIS) State review- MEPA –Environmental Impact Review (EIR) –Cape Cod Commission’s Development of Regional Impact (DRI) Draft Reports stated a compelling public benefit, positive environmental and economic impacts Federal review- NEPA –Environmental Impact Statement (EIS) State review- MEPA –Environmental Impact Review (EIR) –Cape Cod Commission’s Development of Regional Impact (DRI) Draft Reports stated a compelling public benefit, positive environmental and economic impacts

Erickson et al. (2002) Environment Impact: Birds

Denmark’s Study on Offshore Wind Farms Comparative study of pre and post turbine data

Denmark’s Study of Offshore Wind Farms The Thermal Animal Detection System (TADS) for monitoring birds Re-align flight patterns to fly between turbines Birds alter migratory pattern to avoid turbines Desholm and Kahler 2005

Denmark’s Study Effect on Other Animals No significant effect on fish –Some fish avoided/were attracted to underwater cable Seals did not change behavior due to wind farms Slight decrease in porpoise avoidance was found at one Danish wind farm even after construction finished No significant effect on fish –Some fish avoided/were attracted to underwater cable Seals did not change behavior due to wind farms Slight decrease in porpoise avoidance was found at one Danish wind farm even after construction finished

Challenges as Applied to Cape Wind Project Cape Wind has been held up in courts through many of the federal, state and local requirements –Citizen groups have opportunity to challenge the issuance of each individual permit 2 cases have reached the First Circuit Court Cape Wind has been held up in courts through many of the federal, state and local requirements –Citizen groups have opportunity to challenge the issuance of each individual permit 2 cases have reached the First Circuit Court

Cape Wind 1 st Circuit Court Cases Alliance to Protect Nantucket Sound, Inc.,v. U.S. Dep’t of Army, 398 F.3d 105, 107 (1 st Cir. 2005) –Contested Army Corps approval of offshore data collection tower in Horseshoe Shoal –Denied Ten Taxpayer Citizens Group v. Cape Wind Assocs., 373 F.3d 184 (1 st Cir. 2004) –Alleged MA state court had jurisdiction over the project and CWA failed to get necessary permits under state law Alliance to Protect Nantucket Sound, Inc.,v. U.S. Dep’t of Army, 398 F.3d 105, 107 (1 st Cir. 2005) –Contested Army Corps approval of offshore data collection tower in Horseshoe Shoal –Denied Ten Taxpayer Citizens Group v. Cape Wind Assocs., 373 F.3d 184 (1 st Cir. 2004) –Alleged MA state court had jurisdiction over the project and CWA failed to get necessary permits under state law

So Far, Cape Wind has cleared 17 of the regulatory hurdles

Cape Wind Project close to end of regulatory hurdles DEIS from Army Corp of Engineers State and Local Approval April U.S. Dept of Interior Approval May FAA approves project October U.S. leases federal lands November Mass. Dept of Public Utilities approves purchase of wind power for a 15-year contract DEIS from Army Corp of Engineers State and Local Approval April U.S. Dept of Interior Approval May FAA approves project October U.S. leases federal lands November Mass. Dept of Public Utilities approves purchase of wind power for a 15-year contract

BUT MANY CASES STILL IN THE COURTS June 2010 –Federal District Court –Six groups and three individuals –Alleged environmental harm on federally protected migratory birds and possibly whales June 2010 –Federal District Court –Six groups and three individuals –Alleged environmental harm on federally protected migratory birds and possibly whales

BUT MANY CASES STILL IN THE COURTS December 2010 –(CARE) – Californians for Renewable Energy –complaint with the Federal Energy Regulatory Commission (FERC) –against National Grid, Cape Wind and the Massachusetts Department of Public Utilities for approval of Cape Wind's power purchase agreement December 2010 –(CARE) – Californians for Renewable Energy –complaint with the Federal Energy Regulatory Commission (FERC) –against National Grid, Cape Wind and the Massachusetts Department of Public Utilities for approval of Cape Wind's power purchase agreement

Lessons to Be Learned A streamlined process for federal, state and local regulation and zoning needs to developed Guidelines for studying environmental impact should be established System to comprehensively address local concerns needs to be established A streamlined process for federal, state and local regulation and zoning needs to developed Guidelines for studying environmental impact should be established System to comprehensively address local concerns needs to be established

Conclusion Significant social, economic and environmental benefits are obtainable with offshore wind energy Significant regulatory hurdles are required to development of offshore wind technologies Comprehensive federal policy is needed to foster the development of offshore wind farms Significant social, economic and environmental benefits are obtainable with offshore wind energy Significant regulatory hurdles are required to development of offshore wind technologies Comprehensive federal policy is needed to foster the development of offshore wind farms

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