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Volume X, Number 338

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US Trends and Developments in Alternative Energy

Climate Conundrum

“Everybody talks about the weather, but nobody ever does anything about it.” (Generally attributed to Mark Twain, 1905.) Well, people have definitely talked about the weather in recent decades. A coming “ice age,” “global warming,” and “climate change” have been greatly debated. Of course, the latter term (change) refers to differing climate patterns from average global warming, and the prior term (warming) refers to the trend of rising temperatures.

Global temperature change is due to many possible factors — volcanoes, extreme storms, wild fires, solar activity, deforestation, fossil fuels, travel, Earth’s tectonic plate shifts, global tilt, gadgets, and so forth. (Zeke Hausfather, “Analysis: Why Scientists Think 100% of Global Warming Is Due to Humans,” carbonbrief.org, 2017.) Individuals can change some of the smaller factors by minimizing gadget use, travel, meat consumption, and general energy usage, but bigger political and technological limits mean some causes, like volcanoes, storms, wild fires and deforestation, really are immutable. Of all the causes, however, human fossil fuel usage is one thing that can be controlled, even though it may or may not represent a large percentage of climate’s problems. (Dr. Bob Thomas, Environmental Communication Seminar, Loyola University, 2010.)

Although anthropogenic activity is not the only factor in climate change, it’s considered 99% certain to be a major cause. (Doyle Rice, “99.9999 Percent Chance We’re the Cause of Global Warming, Study Says,” USA Today, 2019.) No matter whether it is a sole or major cause, human activity is the one factor that can be controlled, and therefore it represents a “tipping point” for the planet’s future. (Thomas, supra.)

In other words, as long as measured greenhouse gases continue to rise in the atmosphere, humans should control what they can control. Most mitigated or curative projections — for example, geoengineering (e.g., solar radiation modification, stratospheric aerosol injection, CCS/carbon capture and storage); the United Nations’ 2018 Intergovernmental Panel on Climate Change; and the push for renewables, green buildings, and electric vehicles — are technology forcing. Cultural shifts are coming.

Some states are moving ahead with renewable portfolio standards (RPS), also known as renewable electricity standards. Although there is no RPS programs at the national level, some 29 states and D.C. have such policies in effect. These policies are updated and require or encourage electric producers to supply a minimum share of electricity from renewable resources. (“Most States Have Renewable Portfolio Standards,” US Energy Information Administration, 2012; Updated EIA Renewable Portfolios, February 27 and June 2, 2019.)

Wind, solar, geothermal, biomass, hydroelectricity, landfill gas, municipal solid waste, and tidal energy are among the resources to be utilized. Between mandated standards and voluntary goals, the state programs have variable structures, CO2 trading systems, rules and enforcement, sizes, and interim target percentages. They include minimum targets for particular renewables that are locally preferred, along with “escape clauses” if renewal costs of generators are too high. Meanwhile, some people argue that embedded material and energy costs negate anything being 100% renewable.

National Offshore Information

There are approximately one operating (Block Island in Rhode Island) and 30 planned offshore wind farms in the United States. (US Department of Energy, August 2017.) State or local siting is required onshore (or by Bureau of Land Management, US Fish and Wildlife Service, Bonneville Power Administration, etc. on federal lands) and in state territorial waters. In some states, such as Louisiana, no single agency grants these permits. US Army Corps of Engineers permits or US Coast Guard certificates may also be needed for floating farms. Offshore leasing on the Outer Continental Shelf (OCS) is within the purview of the Bureau of Ocean Energy Management (BOEM), which grants competitive and noncompetitive commercial leases, rights of way, and easements for renewal energy projects under the Energy Policy Act of 2005 (P.L. 109-58), including alternate uses of platforms. (Bloomberg Businessweek, October 1, 2019.) Turbines can float or be anchored in continental shelves or the ocean floor, e.g., Excibuoy capture devices. (ASME, May 24, 2019.) BOEM requires National Environmental Policy Act (NEPA) environmental assessments and financial assurances for energy projects. See 30 CFR § 581, et seq. and www.boem.gov/standards-regulations/.

Offshore Laws

Various environmental laws enacted by Congress and coastal states affect offshore or land wind power projects, including the Coastal Zone Management Act (CZMA), the Marine Mammal Protection Act (MMPA), the Migratory Bird Treaty Act (MBTA), the National Marine Sanctuaries Act (NMSA), the Endangered Species Act (ESA), and NEPA. Protected fish and marine mammals such as whales and dolphins, as well as migratory birds and other wildlife, are affected by wind farm construction, noise, and blade injury, especially at night. BOEM has recently reevaluated wind farms offshore (including Vineyard Wind off Massachusetts) for impacts to fisheries, for Department of Defense training needs, in response to environmental groups.

The CZMA and similar laws in various states affect wind projects along the coastline. These laws may not always have a significant impact, but the concurrence of coastal agencies may still be needed. Coastal states also control the seas on the OCS out to three nautical miles offshore (nine nautical miles in Texas and Florida) and have authority to regulate wind farms there. Only a few states are active in this realm.

The MMPA is concerned with injuries to or “takes” to protected mammals habitat. Both general noise and infrasound affect marine mammals’ ability to survival. Some wind companies (e.g., Orsted Wind Power) have been issued incidental take permits by the National Oceanic and Atmospheric Administration (NOAA) off the northeastern coast, allowing them to take a small number of marine mammals to enable their use of high-resolution geophysical surveys. Some marine mammals, such as the sperm whale, are also protected by the ESA, and coordination with the National Marine Fisheries Services and incidental take permitting or extra protection measures may be needed.

Wind farms may soon be getting a break on the MBTA, as the solicitor general of the US Department of the Interior interpreted the act in a 2017 memorandum to prohibit only the intentional taking (e.g., hunting) of migratory birds and not incidental taking. Although that interpretation was set aside by a court, there is now a substantially identical proposed rule-making to that same effect for 50 CFR Part 10. (Proposed Rule, 85 Federal Register 5915, February 3, 2020.)

The NMSA allows US presidents to establish national marine sanctuaries on submerged lands. These designations, which protect deep marine ecosystems, corals, whales, sea turtles, etc., and basically prohibit fishing for a long period of time, are managed by NOAA. Wind farms may act like artificial reefs, creating sanctuaries for marine life, but construction must be timed right in order to avoid displacing fish and mammals (e.g., dolphins) due to noise. Electricity linking from offshore wind farms may also interfere with species such as sharks and rays that use electromagnetic fields for hunting.

NEPA, the broadest statute, requires all federal agencies to examine the environmental impacts of their actions or permits. Alternatives, consequences, and cumulative impacts must be considered, although NEPA is not a “go or no-go” statute like the ESA often is. Cumulative impacts of wind farming, fishing, dredging, and energy exploration and development on sea life may be an issue for BOEM. Another “break” here is that the Council on Environmental Quality has promulgated NEPA final rulemaking that narrows environmental consequences to only those that are foreseeable and causally related to the project rather than broader cumulative impacts such as climate. (40 CFR 1500 et seq.)

Conclusion

Although expensive, offshore wind projects appear to be economically viable and represent a new frontier in alternative energy. The regulatory environment for any particular project must be carefully assessed and screened based on advanced legal planning and compliance with the laws noted in this article. Welcome to the new frontier.

© 2020 Jones Walker LLPNational Law Review, Volume X, Number 294
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About this Author

Stanley Millan, Litigation Attorney, Jones Walker Law Firm
Special Counsel

Stan Millan is a member of the firm's Business & Commercial Litigation Practice Group, and he divides his practice between transactional and litigation work. His practice consists of environmental law, administrative law, green and government contracts law. He is LEED® AP-certified by the U.S. Green Building Council. Mr. Millan's practice extends to the entire panoply of air, water, and waste regulation, including compliance counseling and defense before the U.S. Environmental Protection Agency (EPA), the Louisiana Department of Environmental Quality (LDEQ), and...

504-582-8328
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