Federal Court stops WV wind project to protect bats

A Maryland federal district court ordered, reluctantly, that construction halt and operation cease (from April 1 to November 15) at Invenergy’s  Beech Ridge Project in Greenbrier County, West Virginia, until such time that Invenergy obtain an Incidental Take Permit pursuant to the federal Endangered Species Act.

While the opinion’s conclusion is offered below, the whole case is worth reading. Message to developers: carefully dot all “I”s and cross all “T”s in the permitting process.

XV. Conclusion

As noted at the outset, this is a case about bats, wind turbines, and two federal policies, one favoring the protection of endangered species, and the other encouraging development of renewable energy resources. Congress, in enacting the ESA, has unequivocally stated that endangered species must be afforded the highest priority, and the FWS long ago designated the Indiana bat as an endangered species. By the same token, Congress has strongly encouraged the development of clean, renewable energy, including wind energy.[FN: See, e.g., Wind Energy Research and Development Act of 2009, H.R. 3165, 111th Cong. (2009) (“To provide for a program of wind energy research, development, and demonstration, and for other purposes.”); Press Release, U.S. Dep’t of Energy, Secretary Chu Announces $93 Million from Recovery Act to Support Wind Energy Projects (Apr. 29, 2009); President Barack Obama, Remarks at Trinity Structural Towers Manufacturing Plant, Newton, Iowa (Apr. 22, 2009) (announcing that “[m]y budget also invests $15 billion each year for 10 years to develop clean energy”); U.S. Dep’t of Energy, 20% Wind Energy by 2030: Increasing Wind Energy’s Contribution to U.S. Electricity Supply (July 2008).] It is uncontroverted that wind turbines kill or injure bats in large numbers, and the Court has concluded, in this case, that there is a virtual certainty that construction and operation of the Beech Ridge Project will take endangered Indiana
bats in violation of Section 9 of the ESA.

The two vital federal policies at issue in this case are not necessarily in conflict. Indeed, the tragedy of this case is that Defendants disregarded not only repeated advice from the FWS but also failed to take advantage of a specific mechanism, the ITP process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species

Sadly, Defendants’ environmental consultant, Russ Rommé, viewed formal
communications from the FWS through rose-colored glasses and simply disregarded what he was told repeatedly. Indeed, the Court finds Rommé’s testimony to be extremely troubling. If the Court were to accept his testimony, it would have to reach one or both of two equally untenable conclusions.

First, Rommé’s description of his communications with Johnson-Hughes is that she effectively countermanded important advice given to BHE by her supervisor, Chapman. The Court rejects Rommé’s myopic view of the communications that he received from the FWS. Johnson-Hughes did not testify, and there were no written communications from her stating that Rommé could disregard vital portions of the letters received from Chapman. Indeed, in one of Rommé’s numerous “contact reports” he documented a conversation with Johnson-Hughes on April 6, 2006, in which he
acknowledged that the FWS had “focused on the critical nature of early screening of potential wind development sites.” BHE Contact Report, Telephone Call Between Russ Rommé, BHE Envtl., Inc, and Christy Johnson-Hughes, U.S. Fish and Wildlife Serv. (Apr. 6, 2006) (Defs.’ Ex. 82). And, in a tragically prophetic comment, he attributed to the FWS a statement that “[t]here are indications wind developers are still not doing this work, and getting themselves [into] trouble because of it.” Id.

While Rommé professed a belief that he could ignore Chapman’s letters based
upon Johnson-Hughes’ allegedly contrary assurances, the lawyer for Defendants considered the March 7, 2006 letter from the FWS of sufficient importance that he filed a formal response to the letter with the WV PSC. In his response, Defendants’ attorney acknowledged that FWS’s recommendations included three years of seasonal vertical radar surveys, seasonal acoustic surveys, seasonal thermal imaging surveys, and surveys
to detect Indiana bats and Virginia big-eared bats emerging from local caves during spring, as well as an additional two years of mist-netting surveys. Letter from Lee F. Feinberg, Spilman Thomas & Battle, PLLC, to Sandra Squire, Executive Secretary, W. Va. Pub. Serv. Comm’n, at 2 (Apr. 3, 2006) (Defs.’ Ex. 79) (attaching Beech Ridge Energy’s response to the March 7, 2006 letter from the FWS). The principal reason cited by Defendants’ attorney for opposing these recommendations was the financial burden
on Defendants and delaying construction of the project, not a disagreement as to the merits of the recommended actions. Id.

Had Rommé listened more carefully to what he was told repeatedly, Defendants would not be in the unfortunate situation in which they now find themselves. It is clear that Rommé adopted a “minimalist” approach to his responsibilities and that he “neither strained very hard nor looked very far” in his effort to find Indiana bats. Montgomery County v. Leizman, 303 A.2d 374, 380 (Md. 1973). Searching for bats near proposed wind turbine locations for one year instead of three,[FN: 54 BHE conducted a mist-net survey near proposed wind turbine locations in July 2005 and a mist-net survey along the transmission line in June 2006.] looking in one season rather than three, and using only one method to detect bats was wholly inadequate to a fair assessment.

Second, acceptance of Rommé’s testimony would lead one to conclude that there are serious personnel management issues within the FWS, including subordinates routinely countermanding instructions given by superiors. The Court is skeptical of his testimony, but to the extent that there is any truth to Rommé’s characterizations of his conversations with Johnson-Hughes, the FWS should carefully review its procedures to be certain that subordinates do not undermine official communications. The only thing
that is clear from the record is that the responses of the FWS to some of the
communications from Defendants were relatively slow. See, e.g., Letter from Thomas R. Chapman, Field Supervisor, U.S. Fish and Wildlife Serv., W. Va. Field Office, to Russ Rommé, Director, BHE Envtl., Inc. (Mar. 7, 2006) (Pls.’ Ex. 97) (stating that the March 7, 2006 letter was in response to a letter from Rommé dated July 7, 2005).

This Court has concluded that the only avenue available to Defendants to resolve the self-imposed plight in which they now find themselves is to do belatedly that which they should have done long ago: apply for an ITP. The Court does express the concern that any extraordinary delays by the FWS in the processing of a permit application would frustrate Congress’ intent to encourage responsible wind turbine development. Assuming that Defendants now proceed to file an application for an ITP, the Court urges the FWS to act with reasonable promptness, but with necessary thoroughness, in acting upon that application.

The development of wind energy can and should be encouraged, but wind
turbines must be good neighbors. Accordingly, the Court will, albeit reluctantly, grant injunctive relief as discussed above.[FN: The Court wishes to express its sincere appreciation to Nicolas Mitchell, his law clerk, for extraordinary and invaluable assistance in reviewing the massive record in this case, conducting extensive research, and initial drafting of this opinion.]

Opinion by Judge Roger W. Titus: Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. RWT 09cv1519.

Order: Animal Welfare Institute v. Beech Ridge Energy LLC, Case No. RWT 09cv1519.

Wind energy developments in NYS and the USA

New York wind developments

Proposed Fresh Kills (Staten Island) wind farm update. Staten Island Advance 3/16

Consolidated Edison and Long Island Power Authority announce plan to take 350-700 MW offshore project planning the next step. LIPA and Con Edison will work with the state, the New York Power Authority, New York City, the Metropolitan Transportation Authority, and the Port Authority to issue a request for expressions of interest (RFEI) for off-shore wind development.  Con-Ed 3/23

NYISO, New York’s electric grid operator, asks Federal Energy Regulatory Commission (FERC) to allow Limited Energy Storage Resources (LESR) – which includes battery and flywheel technologies – to provide the “regulation” service needed to balance electrical supply and demand on the grid. NYISO is requesting FERC to approve changes in the NYISO tariff to permit LESRs to provide regulation service by mid-May 2009. NYISO 3/24

More on Governor Paterson’s apparent interest in scaling back the 10-state Regional Greenhouse Gas Initiative (RGGI) to reduce carbon emissions. Albany Times Union 3/23 More on RGGI here at NYSERDA’s website.

State has mixed success making goal of having renewables (the Renewable Portfolio Standard or RPS) be substantial part of energy consumption mix. Associated Press in Newsday 3/22

Schenectady-based GE shoots for five-fold increase in European turbine sales in 2009. Reuters 3/16

USA wind developments

Acting FERC chair favors enhanced national transmission line system. Wall Street Journal 3/19

With a hyperbolic headline about hypobaric trauma, this article discusses how research from Iberdrola Renewables suggests cutting off turbines at low wind speeds may result in fewer bat deaths. Washington Times 3/23

New report released by the Ernest Orlando Lawrence Berkeley National Laboratory and National Renewable Energy Laboratory for wind developers.

The purpose of this report is to both quantitatively and qualitatively analyze, from the project developer/owner perspective, the choice between the PTC and the ITC (or equivalent cash grant) for a number of different renewable power technologies.

LBNL and NREL (by Mark Bolinger, Ryan Wiser, Karlynn Cory and Ted James), March 2009

New York wind energy developments

From news and web sources:

Regarding the Noble Power Altona wind farm turbine collapse:

  • [update] NYS PSC concludes in October 2010 that “the Noble facilities have been inspected and maintained in accordance with the manufacturer’s recommendations. Moreover, the Commission concluded that Noble has demonstrated that it is in compliance with appropriate specifications and procedures for inspection, maintenance, public safety and site security as required.”
  • Public Service Commission to investigate. Albany Times Union, 3/12
  • Noble indicates wiring anamoly as source of problem for two turbines, including one that collapsed, indicates all debris within setback. Noble Environmental Power, 3/13

Adirondack Park Agency (APA) staff propose new rules for wind energy facility development, including streamlined permits for turbines up to 125 feet (to blade tip). Associated Press in Newsday, 3/12.  See staff-created draft permit here.

Beekmantown wind project rejected. WCAX, 3/17; Press Republican 3/17

Town of Clayton wind committee makes recommendations. Watertown Daily Times, 3/15

Department of Environmental Conservation (NYSDEC) issues wildlife advisories on multiple wind projects. Watertown Daily Times, 3/10

Town of Hammond residents drop lawsuit challenging rescinded wind law. Watertown Daily Times, 3/15

Village of Hilton explores community wind approach. Rochester City Newspaper, 3/11

Town of Lyme considers extending wind moratorium, easement over town property for transmission. Watertown Daily Times, 3/13

Town of Machias considers wind ordinance. Arcade Herald, 3/15

Ending years of bureaucratic squabbling, Federal Energy Regulatory Commission (FERC) and Department of Interior (through the U.S. Minerals Management Service or MMS)  reach agreement to work together on the regulation of offshore renewable energy development. Memorandum of Understanding (MOU) to follow. FERC/Interior press release, 3/17. Background on the dispute here, by the Ocean Renewable Energy Coalition.

EcoGen project in towns of Prattsburgh, Italy, advances. Corning Leader, 3/15

A profile piece on New York City’s first stand-alone wind turbine, on Staten Island. New York Times, 3/13

Oswego County onion farmer considers harvesting the wind. Post-Standard, 3/9

Governor Paterson feels the heat for suggesting a relaxation of carbon emissions rules, undercutting the Regional Greenhouse Gas Initiative or RGGI. New York Times, 3/5

Albany Business Review piece, 3/6-12, on impacts of federal stimulus package on local renewable energy sector (quoting this blogger). (subscription required).

NYS DEC Issues Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy Projects

The New York State Department of Environmental Conservation issued on Friday final guidelines for conducting bird and bat studies.

DEC Issues Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy Projects

New York State Department of Environmental Conservation (DEC) Commissioner Pete Grannis today announced that the agency has issued guidelines for evaluating the potential impacts of commercial wind energy projects on birds and bats in New York State.

“While wind energy has significant environmental benefits when compared to energy produced from fossil fuel, DEC must consider any potential negative environmental impacts of wind energy production when evaluating proposed projects,” said Commissioner Grannis.

In his State of the State address, Governor Patterson announced his goal that, by the year 2015, New York will meet 45 percent of its electricity needs through improved energy efficiency and clean renewable energy. The Governor also proposed to increase the Renewable Portfolio Standard to 30 percent from the current 25 percent.

While most of New York’s renewable energy currently comes from hydropower, the amount of wind energy produced has been increasing and New York now has more than 1000 Megawatts of windpower on line. In 2007, DEC announced its draft Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy Projects for public review and comment.

“These guidelines set forth DEC’s recommendations to commercial wind energy developers on how to characterize bird and bat resources at on-shore wind energy sites and how to estimate and document impacts resulting from the construction and operation of these projects,” added Grannis.

The protocols in the guidelines are intended to provide comparability of data collection among sites and between years so that the information from each site contributes to a statewide understanding of the ecological effects of wind energy generation. The Guidelines have been revised to incorporate comments received during the public comment period and are available on the DEC website.

via DEC Issues Guidelines for Conducting Bird and Bat Studies at Commercial Wind Energy Projects – NYS Dept. of Environmental Conservation.

The Guidelines themselves are here.

U.S. Fish and Wildlife Service Wind Turbine Guidelines Advisory Committee meeting January 27-29

From the U.S. Fish & Wildlife Service:

The U.S. Fish and Wildlife Service will be hosting the sixth meeting of the Wind Turbine Guidelines Advisory Committee on January 27-29, 2009, in Washington, DC. Public participation at all of the Committee meetings is welcome and encouraged; if you would like to attend the upcoming meeting, please visit our website (link below) for more information and to register to attend. There will be opportunity for public comment each day of the meeting. There is no registration fee.

The Committee will hear reports from several subcommittees at this meeting, including the Incentives, Legal, Scientific Tools & Procedures, and Synthesis subcommittees. A draft outline of recommendations will be presented by the Synthesis subcommittee and discussed by the Committee during this two-and-a-half day meeting. An agenda will be available on the website as soon as it is available.

If you have any questions related to the Committee or the upcoming meeting, please contact Rachel London at Rachel_London [at] fws.gov, or at 703-358-2491.

FWS Wind Turbine Guidelines Advisory Committee website

Iberdrola Renewables Avian and Bat Protection Plan

One central environmental concern to wind farm development is the impact on birds and bats. The commercial wind industry has been saddled with the image of the thousands of raptors and other birds killed by expansive and arguably poorly placed facilities in Altamont Pass, California.

It seems unlikely that a site such as Altamont Pass would be contemplated to be constructed now, as the industry is doing more to avoid migratory paths and no longer favors the older, shorter turbines with their shorter, faster-spinning blades). Nevertheless, the subject is still a sore one and industry actors, rightfully, are taking steps to mitigate environmental harm, including avian and bat mortality.

In this vein, Iberdrola Renewables (a subsidiary of Iberdrola, which recently successfully obtained New York Public Service Commission approval for its acquisition of Energy East) recently released its corporate “Avian and Bat Protection Plan” or ABPP. It states as corporate policy:

Iberdrola policy is that wind projects shall be sited, designed, constructed, and operated in an environmentally sustainable manner to avoid or minimize adverse environmental impacts. Wind projects that comply with this principle will minimize potential impacts to birds, bats, and other wildlife and their habitats. However, it is recognized that wind turbines and associated overhead transmission and collector lines may cause injuries and deaths to birds and bats in spite of best efforts, including birds and bats protected by Federal and state laws and regulations. This ABPP is intended to support Iberdrola’s compliance with key wildlife laws, by instituting clear and consistent procedures to minimize impacts to birds and bats and their habitats and to address impacts where they are identified.

To fulfill this commitment, Iberdrola will do the following:

  • Implement and comply with its own comprehensive ABPP.
  • Ensure its actions comply with all applicable state and Federal laws, regulations, permits, and ABPP procedures.
  • Follow procedures described in this ABPP during the development of all new wind projects in order to understand avian and bat risk at each site and to incorporate features to avoid or minimize impacts to these species.
  • For development or operational projects acquired from third parties in merger or acquisition transactions, ensure through the due diligence and acquisition process that preproject or operational practices employed by third parties prior to Iberdrola ownership are consistent with the ABPP, or if not consistent, document inconsistencies, develop a strategy for implementing ABPP practices, and implement ABPP practices as soon as practical.
  • Document bird and bat mortalities and injuries at projects and/or structures in order to implement adaptive management actions as necessary.
  • Provide information, training, and resources to improve staff knowledge and awareness of the requirements of the ABPP in order to support the ABPP’s successful implementation at both the company level and as applied at specific projects.
  • Participate with public and private organizations in programs and scientific research to identify causes and effective controls of detrimental effects of bird and bat interactions with wind projects.
  • Continue to enhance the ABPP by applying lessons learned, research results, new technologies, and latest regulations and guidelines.

Through the proactive and innovative resolution of bird and bat interactions with our wind projects, this ABPP will support Iberdrola’s regulatory compliance and leadership position in the wind industry, reduce risk to birds and bats and their habitats, enhance stakeholder acceptance of our wind projects, and support the responsible growth of the wind industry.

The plan was put together in consultation with the federal government’s U.S. Fish and Wildlife Service. The full Iberdrola Renewables “Avian and Bat Protection Plan” is available here. See related blog item at CleanTechnica.

Environmental groups and wind developers launch joint initiative

North American Windpower reported on the launch of a major environmental initiative by mainstream environmental groups and leading wind developers.

Per the wind industry magazine, the American Wind Wildlife Institute (whose website is set to launch 11/20)

will begin with an operating budget of $3 million for its first two years. To carry out its mission, AWWI will focus on conducting research, promoting sustainable development, funding biodiversity protection and educating the public about the interplay between wildlife and wind turbines.

AWWI members include:

Wind developers
AES Wind Energy
Babcock & Brown
BP Alternative Energy
Clipper Windpower
E.on
enXco
GE Wind Energy
Horizon Wind Energy
Iberdrola Renewables
Nordic Windpower
NRG Systems
Renewable Energy Systems Americas
Vestas Americas

as well as the following environmental groups:
Association of Fish & Wildlife Agencies
Environmental Defense Fund
National Audubon Society
Natural Resources Defense Council
The Nature Conservancy
The Sierra Club
Union of Concerned Scientists