A major obstacle to wind farm development was exposed shortly after the Department of Interior approved the Cape Wind Development in April 2010, when the Alliance to Protect Nantucket Sound and a number of other organizations filed a complaint in U.S. District Court. They alleged that, in approving the 130-turbine wind farm, the Department of Interior, the U.S. Bureau of Ocean Energy Management, and the U.S. Fish and Wildlife Service violated the Endangered Species Act, the Migratory Bird Treaty, the National Environmental Policy Act, and the Administrative Procedure Act, and asked that the approval of the Cape Wind proposal be vacated. The U.S. would be well advised to look to the European Union, the current leader in offshore wind production, to avoid a similar fate in future development projects.
The EU’s guidance document for evaluating sites for potential wind energy development, released this past October, could help to determine what information researchers should collect and what guidelines developers and government agencies should use. It provides guidance on avoiding environmental impacts, especially in areas near protected lands and waters, and complying with regulations. It further provides a list of indicators that are useful in distinguishing significant effects from insignificant effects, a table listing different types of useful study methods and what they can show, a diagram describing the possible hazards to birds, and a step-by-step procedure for assessing proposed wind-farm sites near protected areas. If offshore wind energy development is to continue as projected, guidelines like these tailored to U.S. regulations could promote efficiency, reduce litigation, and minimize impacts to birds and other wildlife, ensuring that wind energy will make a positive contribution to our future.
Although eleven lawsuits involving Cape Wind remain unsettled, the majority of the controversy has been resolved and it appears that the development will continue. On January 6th and 7th, the Army Corps of Engineers and the Environmental Protection Agency granted the final permits required for building the farm. Even though the objections to Cape Wind did not prevent development in this case, concerns about the impacts of wind turbines will likely continue to resurface, especially in light of the Obama Administration’s plans to expand offshore wind energy in the Atlantic. In November, the Administration announced its plan to grant more leases to develop offshore wind farms in 2011, simplify the leasing guidelines to facilitate the process, and begin environmental assessments of high-priority areas.
Submitted by: Kathryn Brausch, GW Law Environmental Law Association