While wind and other renewable energy technologies are in many ways gentler on the environment than thermal energy production technologies, none are totally impact-free. Neither are they free of environmental challenges. Here are links to three excellent articles from Marten Law on some of those challenges. (By the way, they routinely put out very good analyses of recent cases involving environmental issues.)

Recent Court Decisions Raise Important Considerations for Renewable Energy Projects, Thomas Perry
Wind Energy: USFWS Issues Draft Revisions to Eagle Incidental Take Rule, Andrew Bell
It’s Déjà Vu All Over Again: Federal District Court in Oregon Rejects 2014 Columbia River Biological Opinion, Douglas MacDougal

Also, here’s an outline of notes on another recent court case regarding a wind energy project:

Case No. 15-5147, D.C. Court of Appeals, decided 8/5/16
Project: up to 100 turbines, each between 1.6 and 2.5 MW
Appellant: Union Neighbors United, Inc.
Appellees: Sally Jewell, USDoI
Intervenor-appellee: Buckeye Wind LLC

Appellant claimed USFWS erred on two counts when they issued an incidental take permit for Indiana bats, an ESA listed species:

  • ESA: USFWS applied the incorrect standard in finding that Buckeye “to the maximum extent practicable, minimize
    [d] and mitigate[d] the impacts of such taking.” 16 U.S.C. § 1539(a)(2)(B)(ii)
    • Court disagreed with appellant (agreed with district court). Agency’s ESA interpretation entitled to deference.
  • NEPA: USFWS failed to consider a reasonable range of alternatives
    • Court agreed with appellant that USFWS “failed to consider an economically feasible alternative that would take fewer bats than Buckeye’s proposal”
    • Discussion of plans begins Pg. 9
    • Complaint centers on “cut-in speed”: “the wind speed at which rotors begin rotating and producing power.”
    • Buckeye proposed a cut-in speed up to 6.0 meters/second
      • Would result in:
        • 5.2 bat takes per year for life of ITP
        • 2.5% reduction in clean energy production
        • $24.5 M lost revenue over ITP life
    • Service “Max Alternative”
      • Don’t operate sunrise to sunset
        • No takes
        • 22% reduction in clean energy production
        • $216.5 M lost revenue over ITP life
    • Service “Minimal Alternative”
      • Cut-in speed up to 5.0 m/s
        • 12 bat takes per year for life of ITP
        • 0.7% reduction in clean energy production
        • $0.2 M lost revenue over ITP life
    • Union Neighbors commented that the Service should consider a 6.5 m/s cut-in speed
      • Service responded:
        • They couldn’t practically consider the infinite range of cut-in speeds
        • Their Max Alternative was a reasonable proxy for higher cut-in speeds
        • Difference between Buckeye proposal (including 6.0 m/s cut-in speed) and the Service’s Max Alternative was “not significant”
    • Court decided that the Service should have considered an alternative that would take fewer bats (< 5.2/yr) but that would be economically feasible (unlike the Max Alternative, which was deemed economically infeasible)
    • Interesting citation: “where a federal agency is not the sponsor of a project, ‘the Federal government’s consideration of alternatives may accord substantial weight to the preferences of the applicant and/or sponsor in the siting and design of the project.’” City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1506 (D.C. Cir. 1994) (quoting Citizens Against Burlington, 938 F.2d at 197)).