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Off-Shore Wind Energy in the U.S. Cape Wind Project The First Off-shore Wind Project in the U.S.

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Off-Shore Wind Energy in the U.S. Cape Wind Project The First Off-shore Wind Project in the U.S. Angeline R. Babel angeline.babel_at_gmail.com Energy Law Fall 2010 – PowerPoint PPT presentation

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Title: Off-Shore Wind Energy in the U.S. Cape Wind Project The First Off-shore Wind Project in the U.S.


1
Off-Shore Wind Energy in the U.S. Cape Wind
ProjectThe First Off-shore Wind Project in the
U.S.
  • Angeline R. Babel
  • angeline.babel_at_gmail.com
  • Energy Law Fall 2010

2
Outline
  • Wind Energy
  • Offshore Wind Energy
  • Challenges for Wind Projects
  • Cape Wind Project
  • Lessons from the Cape Wind Project
  • Conclusions

3
U.S. Energy Supply (2009)
  • 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. Energy Information Administration, Form EIA-923, "Power Plant Operations Report.
4
U.S. policy is moving towards reducing dependence
on fossil fuels and using energy sources that
reduce green house gas emissions
5
20 Wind Energy by 2030
  • 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

6
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

7
Harnessing the Wind in the US
8
Wind Resources in U.S.
9
Majority of US population on Coasts
10
Up until now, the U.S. has NO Offshore Wind
Energy Farms
11
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

12
Offshore Wind Projects have been used for over a
decade in other countries
  • Europe generates over 2 GW

13
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

14
Nuisance Law
  • Ds conduct must cause significant harm to the
    plaintiffs 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,
    vibrationsand excessive light (1)
  • Nuisance must be of an unreasonable magnitude

15
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, 50-60 decibels
  • Neighbor moved in with turbine already erected
    and Defendant tried to teach Plaintiff how to
    turn it off if it was too loud

16
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

17
Large Scale Wind Farm 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

18
1st U.S. Offshore Wind Project Cape Wind Project
19
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

20
Regulations and Litigation have bogged down the
Cape Wind Project for the last 9 years
21
Cape Wind Project Location
22
Although wind energy has general support, local
groups have stalled development
23
Opposition to Cape Wind Project
  • Residents of Nantucket
  • The Kennedys
  • 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)

24
Challenges as applied to Cape Wind project
  • Noise
  • Aesthetics
  • Environmental Impact

25
Sound/Vibration not applicable
26
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)

27
Aesthetics of Cape Wind Project
Proposed view from Conduit (5.6 miles)
28
Aesthetics of Cape Wind Project
Proposed view from Edgartown (9 miles)
29
Aesthetics of Cape Wind Project
Proposed view from Nantucket Island (13.8 miles)
30
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)

31
Environmental Impact of Cape Wind Project
  • Federal review- NEPA
  • Environmental Impact Statement (EIS)
  • State review- MEPA
  • Environmental Impact Review (EIR)
  • Cape Cod Commissions Development of Regional
    Impact (DRI)
  • 2004- Draft Reports stated a compelling public
    benefit, positive environmental and economic
    impacts

32
Environment Impact Birds
Erickson et al. (2002)
33
Denmarks Study on Offshore Wind Farms
Comparative study of pre and post turbine data
34
Denmarks 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
35
Denmarks 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

36
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

37
Cape Wind 1st Circuit Court Cases
  • Alliance to Protect Nantucket Sound, Inc.,v. U.S.
    Dept of Army, 398 F.3d 105, 107 (1st 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 (1st Cir. 2004)
  • Alleged MA state court had jurisdiction over the
    project and CWA failed to get necessary permits
    under state law

38
So Far, Cape Wind has cleared 17 of the
regulatory hurdles
39
Cape Wind Project close to end of regulatory
hurdles
  • 2004- DEIS from Army Corp of Engineers
  • 2009- State and Local Approval
  • April 2010- U.S. Dept of Interior Approval
  • May 2010- FAA approves project
  • October 2010- U.S. leases federal lands
  • November 2010- Mass. Dept of Public Utilities
    approves purchase of wind power for a 15-year
    contract

40
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  

41
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 

42
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

43
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

44
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