Off-Shore Wind Energy in the U.S. Cape Wind Project Angeline R. Babel

Off-Shore Wind Energy in the
Cape Wind Project
The First Off-shore Wind Project in the U.S.
Angeline R. Babel
[email protected]
Energy Law Fall 2010
Wind Energy
Offshore Wind Energy
Challenges for Wind Projects
Cape Wind Project
Lessons from the Cape Wind Project
U.S. Energy Supply (2009)
•Wind Power only
accounts for
about 2% of the
generated in the
•0% wind power
is from offshore
wind farms
U.S. Energy Information Administration, Form EIA-923, "Power Plant Operations Report.”
U.S. policy is moving towards
reducing dependence on fossil
fuels and using energy sources
that reduce green house gas
20% Wind Energy by 2030
• 2006 President Bush emphasized greater
energy efficiency and diversified energy
• 2008 Release of “20% Wind Energy
Scenario” study by U.S. Department of
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
Harnessing the Wind in the US
Wind Resources in U.S.
Majority of US population on
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
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
“Flickering”- (Light reflecting from Sun)
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”
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
Large Scale Wind Farm Nuisance
• Burch v. NedPower Mount Storm, LLC (2007)
– Claim of noise, unsightliness and reduced property
– 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
Large Scale Wind Farm Nuisance
Rankin v. FPL Energy, LLC (Texas App.
• Alleged aesthetics and emotional impact of
• Court acknowledged Texas case law does not
provide authority for aesthetic nuisance claims
1st 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
Regulations and Litigation
have bogged down the Cape
Wind Project for the last 9
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)
Walter Cronkite
Former Governor Mitt Romney
Alliance to Protect Nantucket Sound
Public Employees for Environmental
Californians for Renewable Energy Inc.!!!
Challenges as applied to Cape
Wind project
• Noise
• Aesthetics
• Environmental Impact
Sound/Vibration not applicable
• 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
– 58 AM. JUR. 2D Nuisances §85 (2009)
Aesthetics of Cape Wind Project
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)
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)
• 2004- Draft Reports stated a compelling
public benefit, positive environmental and
economic impacts
Environment Impact: Birds
Erickson et al. (2002)
Denmark’s Study on Offshore
Wind Farms
study of pre
and post
turbine data
Denmark’s Study of Offshore
Wind Farms
• The Thermal Animal Detection System
(TADS) for monitoring birds
•Birds alter migratory
pattern to avoid turbines
•Re-align flight patterns
to fly between 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
• 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
– Citizen groups have opportunity to challenge
the issuance of each individual permit
• 2 cases have reached the First Circuit Court
Cape Wind 1st Circuit Court
• Alliance to Protect Nantucket Sound,
Inc.,v. U.S. Dep’t 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
So Far, Cape Wind has cleared
17 of the regulatory hurdles
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
• June 2010
– Federal District Court
– Six groups and three individuals
– Alleged environmental harm on federally
protected migratory birds and possibly
• 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
Lessons to Be Learned
• A streamlined process for federal, state
and local regulation and zoning needs to
• Guidelines for studying environmental
impact should be established
• System to comprehensively address local
concerns needs to be established
• Significant social, economic and
environmental benefits are obtainable with
offshore wind energy
• Significant regulatory hurdles are required
to development of offshore wind
• Comprehensive federal policy is needed
to foster the development of offshore wind