DOI and Thirteen East Coast States Create Offshore Wind Energy Consortium

The Department of the Interior has entered into a Memorandum of Understanding ("MOU") with Thirteen Atlantic Coast States to promote the development of offshore wind resources. The full title of the MOU is:

Memorandum of Understanding Between the United States Department of the Interior and The States of Maine, New Hampshire, Massachusetts, Rhode Island, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, Florida To Create An Atlantic Offshore Wind Energy Consortium to Coordinate Issues of Regional Applicability for the Purpose of Promoting the Efficient, Expeditious, Orderly and Responsible Development of the Wind Resources of the Atlantic Outer Continental Shelf

Notably, the MOU highlights findings by the Department of Energy ("DOE") that state that in order to achieve a goal of obtaining 20% of national energy from wind resources, US developers will need to build offshore wind farms generating at least 54 gigawatts of offshore wind energy. The MOU also recognizes the enormous impact that an offshore wind industry could have on the economies of the participating Atlantic States through the creation of hundreds of thousands of jobs.

The participating States and the DOI therefore agree pursuant to the MOU to cooperate with one another to clarify and simplify the regulatory process including smoothing the path to compliance for developers who must comply with multiple state regulatory processes as well as the federal regulations. The parties also agreed to share scientific data and cooperate in the design, method, and performance of scientific studies and data acquisition.

Importantly, the MOU also provides that the parties will address the difficult issue of financing offshore wind farms. This is the first time that any collaboration of state and federal government bodies have joined together to consider and address the question of how to finance offshore wind farms-- which are among the most capital intensive energy projects many of the state participants have ever encountered.

Notably, this MOU is strictly between government entities. No private developers, utilities, or investment entities are parties to the agreement.

Cape Wind Receives Approval from DOI!

Folks, this is a momentous day for offshore renewable energy. After nine long years, countless regulatory hurdles, and more silly squabbles than the stars, Jim Gordon will finally be able to make his Cape Wind Offshore Wind Energy Farm a reality!

Over the next weeks, I will be posting more about the impact this decision may have on other offshore wind projects. For now, take a look at the press release from the DOI website:

Secretary Salazar Announces Approval of Cape Wind Energy Project on Outer Continental Shelf off Massachusetts

04/28/2010

Contact: Kendra Barkoff, DOI (202) 208-6416
Leann Bullin, MMS (703) 787-1755

BOSTON, Mass – Secretary of the Interior Ken Salazar today approved the Cape Wind renewable energy project on federal submerged lands in Nantucket Sound, but will require the developer of the $1 billion wind farm to agree to additional binding measures to minimize the potential adverse impacts of construction and operation of the facility.

“After careful consideration of all the concerns expressed during the lengthy review and consultation process and thorough analyses of the many factors involved, I find that the public benefits weigh in favor of approving the Cape Wind project at the Horseshoe Shoal location,” Salazar said in an announcement at the State House in Boston. “With this decision we are beginning a new direction in our Nation’s energy future, ushering in America’s first offshore wind energy facility and opening a new chapter in the history of this region.”

The Cape Wind project would be the first wind farm on the U.S. Outer Continental Shelf, generating enough power to meet 75 percent of the electricity demand for Cape Cod, Martha's Vineyard and Nantucket Island combined. The project would create several hundred construction jobs and be one of the largest greenhouse gas reduction initiatives in the nation, cutting carbon dioxide emissions from conventional power plants by 700,000 tons annually. That is equivalent to removing 175,000 cars from the road for a year.

A number of similar projects have been proposed for other northeast coastal states, positioning the region to tap 1 million megawatts of offshore Atlantic wind energy potential, which could create thousands of manufacturing, construction and operations jobs and displace older, inefficient fossil-fueled generating plants, helping significantly to combat climate change.

Salazar emphasized that the Department has taken extraordinary steps to fully evaluate Cape Wind’s potential impacts on traditional cultural resources and historic properties, including government-to-government consultations with the Wampanoag Tribe of Gay Head (Aquinnah) and the Mashpee Wampanoag Tribe and that he was “mindful of our unique relationship with the Tribes and carefully considered their views and concerns.”

Because of concerns expressed during the consultations, Interior has required the developer to change the design and configuration of the wind turbine farm to diminish the visual effects of the project and to conduct additional seabed surveys to ensure that any submerged archaeological resources are protected prior to bottom disturbing activities.

Under these revisions, the number of turbines has been reduced from 170 to 130, eliminating turbines to reduce the visual impacts from the Kennedy Compound National Historic Landmark; reconfiguring the array to move it farther away from Nantucket Island; and reducing its breadth to mitigate visibility from the Nantucket Historic District. Regarding possible seabed cultural and historic resources, a Chance Finds Clause in the lease requires the developer to halt operations and notify Interior of any unanticipated archaeological find.

Salazar said he understood and respected the views of the Tribes and the Advisory Council on Historic Preservation, but noted that as Secretary of the Interior, he must balance broad, national public interest priorities in his decisions. “The need to preserve the environmental resources and rich cultural heritage of Nantucket Sound must be weighed in the balance with the importance of developing new renewable energy sources and strengthening our Nation’s energy security while battling climate change and creating jobs,” Salazar said.

“After almost a decade of exhaustive study and analyses, I believe that this undertaking can be developed responsibly and with consideration to the historic and cultural resources in the project area,” Salazar said. “Impacts to the historic properties can and will be minimized and mitigated and we will ensure that cultural resources will not be harmed or destroyed during the construction, maintenance, and decommissioning of the project.”

He pointed out that Nantucket Sound and its environs are a working landscape with many historical and modern uses and changing technologies. These include significant commercial, recreational and other resource-intensive activities, such as fishing, aviation, marine transport and boating, which have daily visual and physical impacts, and have long coexisted with the cultural and historic attributes of the area and its people.

A number of tall structures, including broadcast towers, cellular base station towers, local public safety communications towers and towers for industrial and business uses are located around the area. Three submarine transmission cable systems already traverse the seabed to connect mainland energy sources to Martha’s Vineyard and Nantucket Island. Visual and physical impacts associated with Nantucket Sound and its associated shorelines abound; it is not an untouched landscape.

Salazar disagreed with the Advisory Council’s conclusion that visual impacts from the proposed wind farm, which will be situated between and at substantial distance from Cape Cod, Nantucket Island and Martha’s Vineyard, provide a rationale for rejecting the siting of the project. The viewshed effects are not direct or destructive to onshore traditional cultural properties. In no case does the turbine array dominate the viewshed. The project site is about 5.2 miles from the mainland shoreline, 13.8 miles from Nantucket Island and 9 miles from Martha’s Vineyard.

Nevertheless, Interior has required the developer to reduce the number of turbines and reconfigure the array to diminish its visual effects. Moreover, the developer will be required to paint the turbines off-white to reduce contrast with the sea and sky yet remain visible to birds.

No daytime Federal Aviation Administration lighting will be on the turbines, unless the U.S. Coast Guard requires some “day beacons” to ensure navigation safety. FAA nighttime lighting requirements have been reduced, lessening potential nighttime visual impacts. The upland cable transmission route was located entirely below ground within paved roads and existing utility rights of way to avoid visual impacts and potential impacts to unidentified archeological or historic resources.

These mitigation measures, coupled with the overall distance from which the turbine array will be viewed at any location, will reduce the visual impacts of the project. Lease terms also require the developer to decommission the facility when the project has completed its useful service life, deconstructing the turbines and towers and removing them from the site.

The Secretary also disagreed that it is not possible to mitigate the impacts associated with installation of piers for wind turbines in the seabed, noting that piers for bridges, transmission lines and other purposes are routinely built in relatively shallow waters consistent with those found in Horseshoe Shoals. A number of marine archaeological studies have indicated that there is low probability that the project area contains submerged archaeological resources. Most of the area has been extensively reworked and disturbed by marine activities and geological processes.

Nonetheless, Interior will require additional and detailed marine archaeological surveys and other protective measures in the project area. A full suite of remote sensing tools will be used to ensure seafloor coverage out to 1000 feet beyond the Area of Potential Effect. More predictive modeling and settlement pattern analyses also will be conducted as well as geotechnical coring and analyses to aid in the identification of intact landforms that could contain archaeological materials. Moreover, the Chance Finds Clause in the lease will not only halt operations if cultural resources or indicators suggesting the possibility of cultural habitation are found but also allow the Tribes to participate in reviewing and analyzing such potential finds.

The Advisory Council’s regulations provide that the Interior Department must take into account the Council’s comments on particular projects. The Department, as the decision-making authority, is required to consider the Council’s comments but is not legally bound to follow its recommendations or conclusions.

The Cape Wind Associates, LLC facility would occupy a 25-square-mile section of Nantucket Sound and generate a maximum electric output of 468 megawatts with an average anticipated output of 182 megawatts. At average expected production, Cape Wind could produce enough energy to power more than 200,000 homes in Massachusetts. Horseshoe Shoals lies outside shipping channels, ferry routes and flight paths but is adjacent to power-consuming coastal communities. One-fifth of the offshore wind energy potential of the East Coast is located off the New England coast and Nantucket Sound receives strong, steady Atlantic winds year round. The project includes a 66.5-mile buried submarine transmission cable system, an electric service platform and two 115-kilovolt lines connecting to the mainland power grid.

The Cape Wind Fact Sheet, Project Site Map and the Secretary’s Response to the Advisory Council on Historic Preservation are available at
http://www.DOI.gov/news/doinews/Secretary-Salazar-Announces-Approval-of-Cape-Wind-Energy-Project-on-Outer-Continental-Shelf-off-Massachusetts.cfm or at http://go.usa.gov/iE2. More information on the project can be found at http://www.mms.gov.

Transmission: Why East Coast Offshore Renewable Energy Will Provide More Renewable Energy Than Onshore Wind Imported from the Midwest

It`s no secret that the costs of transmission associated with offshore renewable energy generation are greater than the costs associated with onshore renewable energy generation. You don`t need an expert to explain why laying cable along the ocean floor might be more expensive than traditional above-ground power lines. Thus, it is not surprising that proponents of midwest onshore wind farms have latched onto this simple economic argument to support a plan wherein east coast electricity would be imported across thousands of miles from midwest wind farms in places like the Dakotas.

However, the hidden costs of importing midwestern wind are more than just financial. Importing wind energy from the midwest would require construction of thousands of miles of cross-country transmission lines and associated relay stations. The new transmission lines would potentially pass through a number of states such as Kentucky, Illinois, West Virginia, Indiana and Pennsylvania that host some of the most productive coal mines and some of the dirtiest coal fired power plants in the nation; and, there is no legal basis by which anyone could prevent those coal fired power plants from tapping into the new electricity superhighway. In short, a cross country transmission line would provide greater opportunity for the distribution of dirty electricity, thus defeating the entire purpose of importing clean, wind energy all that way.

So what`s the alternative? The alternative is to build offshore renewable energy off of the Atlantic Seaboard.

Those who support importing midwestern wind energy may argue that while traditional power plants ability to tap into transcontinental transmission lines may tarnish some of the environmental benefit, there are also advantages to be had-- most especially with regard to the intermittency issue.

As I have mentioned here before, one of the big concerns with all true renewable energy resources is intermittency-- i.e., the wind doesn`t blow all the time and the sun only shines for abut half of any given 24 hour period. However, if traditional power plants could take over at night and when the wind is calm, wouldn`t that split the baby and solve the problem? Well, yeah, but that means we still have to keep those stinky old power plants online, right?

There may be a better solution.

A recent study, published on April 5 in the Proceedings of the National Academy of Sciences and spearheaded by marine-policy expert Willett Kempton of the University of Delaware in Newark, proposes a 1,550-mile-long network of offshore wind stations that could provide power from Massachusetts to North Carolina with minimal threat of outages.

Kempton's study directly addresses the intermittency problem by addressing the issue from a meteorological standpoint. Basically, the study shows that at any given time, the wind is gusting strongly enough to provide a significant amount of energy somewhere, but probably not everywhere, along the eastern seaboard of the United States. To combat intermittency, we therefore need to build a series of wind farms strategically along the coastline from Maine to North Carolina, and connect them through a single network.

Kempton's study used data from 11 meteorological stations located off of the eastern seaboard-- from Maine to Florida-- with data tracked over five years. The study also employed a simulated underwater transmission cable to predict the effect of interconnecting power theoretically derived from the 11 stations. Although each site's data showed a predictably erratic capacity for electricity production, the energy production of all of the sites in aggregate did not dramatically fluctuate.

Moreover, there are no fossil fuel burning power plants between eastern coastal waters and land. So, there you have it-- a solution to intermittency that does not require default reliance on traditional power plants.

Is the President's New Oil and Gas Drilling Plan a Death Knell for Offshore Renewable Energy? Think Again.

Yesterday, President Obama announced a plan to expand oil and gas drilling on the continental shelf. The plan was designed with close assistance from the Department of the Interior-- the same Department that oversees offshore renewable energy development and leasing. President Obama's plan authorizes drilling in areas of the Atlantic Seaboard, the Gulf of Mexico, and Alaska. No drilling is authorized for the west coast or for areas on the Atlantic seaboard north of Delaware. Certain carve-outs have also been implemented to preclude drilling off of Florida's Gulf Coast and part of its eastern shorelines.

Here are two maps from the DOI website showing where the new plan authorizes drilling:





It is not surprising that environmentalists have already roundly condemned Obama's new plan. See, e.g. Oceana, Southern Env't, and Greenpeace. Moreover, although President Obama said that what he wanted to emphasize is that "this announcement is part of a broader strategy that will move us from an economy that runs on fossil fuels and foreign oil to one that relies more on homegrown fuels and clean energy", it is not at all clear that the plan will truly benefit the oil and gas industry or decrease reliance on foreign oil. See, e.g, NY Times 4/1/10.

So what gives? Two thoughts come to mind.

First, the timing of this announcement-- so soon after the health care bill passed-- is suspicious. Drafting legislation authorizing offshore drilling for oil and gas has long been a key piece of the Republican energy agenda. This new plan may be a bone to appease republican frustrations.

Second, and perhaps more intriguing, is how this new plan might affect the development of proposed offshore renewable projects. One of the most commonly made arguments against developing offshore windfarms has been that these developments will compromise the environment and/or stain an otherwise pristine seascape. Moreover, these arguments-- which one might assume would be coming from the liberal environmentalists--have often been propounded by otherwise conservative organizations whose real motivation has been to prevent allocations of state and federal funding to non-traditional energy projects.

However, those who have been arguing against offshore renewables on the basis of aesthetics or environmental concern will have a pretty hard time towing that line if they are in favor of the offshore drilling projects. Additionally, since at least some of the proposed offshore renewables projects (including proposed offshore windfarms in the coastal waters adjacent to Delaware, Maryland, Virginia and North Carolina) are in areas that have been opened up for oil and gas drilling, opposition parties will find that they will have no choice but to oppose both oil and gas AND the offshore wind facilities if they have any hope of appearing sincere.

Personally, I am not a fan of offshore drilling. I tend to agree with the NGO Oceana. I believe that the potential for damage arising from spills and other catastrophes far outweighs the benefit of obtaining access to what are relatively minor oil and gas resources. Nevertheless, I think Obama's new plan may actually help the offshore renewable industry move forward.

What do you think?

Upcoming ABA Quick Teleconference!

American Bar Association | Section of Environment, Energy, and Resources

Offshore Renewable Energy Generation: State and Federal Regulation and the Development Process Quick Teleconference

Moderator:
Jennifer Simon Lento, Obermayer Rebmann Maxwell & Hippell, LLP, Philadelphia, PA

Panelists:
Maureen Bornholdt, Mineral Management Services, Herndon, VA
Fara Courtney, Good Harbor Consulting/US Offshore Wind Collaborative, Gloucester, MA
Megan Higgins, Ecology & Environment, Providence, RI
Markian Melnyk, Dewey & LeBoeuf LLP, Washington, DC

Click Here to Register: ABA QT Registration

If you are in the Philadelphia area, you can participate in the QT free of charge by attending this event at my office. Please email me at jennifer.simon@obermayer.com for more information!!

Organized by Jennifer E. Simon, Programs Vice-Chair for the Environmental Litigation and Toxic Torts Committee

Tuesday, March 30, 2010
3:00 p.m. – 4:30 p.m. Eastern
2:00 p.m. – 3:30 p.m. Central
1:00 p.m. – 2:30 p.m. Mountain
12:00 p.m. – 1:30 p.m. Pacific
(Special Start Time)

For coastal areas of the United States, offshore renewable energy projects including wind, wave and hydro may provide the best opportunity for renewable energy generation. In May 2009, Mineral Management Services issued a new rule governing site leasing for offshore renewable energy projects proposed in federal waters. Because offshore projects typically impact both federal and state waters, states are slowly coming to the table with their own regulatory programs. However, it remains to be seen whether the state and federal regulatory programs will come together cohesively.

This QT invites interested attorneys to peek into the future of offshore renewable energy in the United States. The panel members will discuss the US Offshore Renewable Industry generally, as well as address specific projects, and will identify obstacles to development including regulatory uncertainly and state and federal inconsistencies, as well as transmission and grid issues.


Cosponsored by Energy Infrastructure and Siting and
Renewable and Distributed Energy Resources Committees

This program will not offer CLE credit.

Obama and Climate Change Legislation: Call and Response

Yesterday, my colleague Shari Shapiro, posted a blog piece entitled "Getting to Yes". She argued that the current energy/climate change legislation being backed by the Obama administration should be scrapped because it is both weak and toothless. I agree that the proposed bill does not offer anything resembling a comprehensive approach to climate change mitigation. Nevertheless, I believe that congressional dithering has gone on long enough and we must get something-- even a paper tiger-- on the books ASAP.

Check out Shari's position here.

And then see my response.

What do you think?

Nuclear Power and Wind Energy: Why Choose?

Lately, there have been a lot of white papers, scientific papers, and industry documents that argue (exclusively) in favor of either nuclear power or some renewable energy source (wind, solar, biomass). Typically, these articles paint the preferred energy resource as a panacea to all the world’s energy problems while decrying the imminent devastation that will result if another resource is selected.

The pro-nuclear power articles assert that nuclear is the only possible solution because nuclear is the only option for reliable, non-carbon emitting base load power generation. The pro-nuclear folks then denounce renewable generation from wind and solar as too “intermittent” to provide a viable alternative. Likewise, renewable resource advocates disparage nuclear power plants for environmental, political, economic and social reasons including allegations that nuclear power still causes substantial environmental harm as a result of uranium mining, transport and storage. The renewable advocates then gloss over intermittency issues with vague references to (as yet un-built) smart grids and (as of yet undeveloped) energy storage solutions.

See, e.g. Travis Madsen and Tony Dutzik, et al., Generating Failure: How Building Nuclear Power Plants Would Set America Back in the Race Against Global Warming (Env’t New Jersey Research and Policy Center, Nov. 2009) (available here: http://bit.ly/cirRIR); see also, The Future of Nuclear Energy to 2030 and It’s Implications for Safety, Security and Nonproliferation (Centre for International Governance Innovation, 2010) (available here: http://bit.ly/aPAmcb).

The truth is that both the nuclear folks and the renewable energy people are correct. Nuclear power does not emit carbon or other greenhouse gases or dangerous particulates into the atmosphere at the plant. But there is no question that uranium mining presents problems—including (but not limited to) the standard environmental consequences of most mining operations as well as the fact that most uranium reserves are not located on domestic lands. And, it is also true that wind and solar generation is intermittent—the sun does not always shine, and the wind does not always blow (although offshore wind farms suffer less intermittency issues than onshore wind farms)—and we don`t yet have a smart grid or the technological ability to store vast quantities of electricity for use during non-sunny, non-windy times.

Nuclear power is ideal for providing base load energy needs. Remember, base load represents the floor of our energy requirements—basically, what the demand centers require in the middle of the night when the weather does not require lots of people to run air conditioners or heating units at full tilt. Nuclear power plants provide constant, uniform wattage. They cannot easily be powered down or powered up, which means nuclear power plants need to be run more or less constantly—perfect for base load. Alternatively, renewable energy generation is often at its best during the types of weather events that place higher-than-base-load demands on electricity producers. People use more energy during daylight hours (solar!) and during stormy weather (wind!).

So what about having a mixture of both types of energy generation? Both nuclear power and renewable energy generation projects are capital intensive, so the project advocates must compete for funding. Could it be that the advocates, in decrying their alternatives, have simply created a Mexican showdown preventing either type of project from going forward? As I have complained in this blog before, no offshore wind farms have yet been built. Moreover, the ambitious 2002 U.S. Nuclear Power 2010 program has resulted in the start of not a single construction project.

So maybe the renewable energy people and the nuclear people should stop fighting and start talking about how these resources can compliment each other. Or am I totally off the grid here?