Court Rules That Corps Has Jurisdiction to Issue Permit for Cape Wind Tower

The Boston Herald reports here on federal district judge Tauro's ruling that the Corps of Engineers has jurisdiction under Section 10 of the Rivers and Harbors Act (as extended beyond three miles offshore by Section 4(f) of the OCS Lands Act, U.S.C. sec. 1333) to issue a permit for the Cape Wind tower. You can view the decision here at the LOCE Ocean Energy Resources Website (as far as we know, it's not otherwise available on the web). Tauro's ruling rejected the position taken by the Alliance to Save the Sound that the Corps' authority over the Outer Continental Shelf (OCS) was limited to issuing permits only for those structures that might be erected for exploration and harvesting of oil and other OCS resources. Instead, the court concluded that Congress' grant of authority to the Corps of Engineers over the OCS was broader and empowered the Corps to issue permits for any structure or artificial island located thereon, irrespective of its purpose. The court further noted that as a matter of practice, the Corps had used the full extent of its powers under the OCS in the past to regulate all sorts of structures on the OCS, ranging from artificial islands to a gambling casino. Finally, as a default position, the court concluded that to the extent that the statute contained some ambiguity, the Corps' interpretation of the scope of its jurisdiction was entitled to deference under the Chevron doctrine.

The second portion of the court's decision dealt with - or perhaps, did not deal with, the Alliance's argument that Cape Wind failed to satisfy the Corps' requirement that it obtain and hold an adequate property interest in the project site in order to obtain a Section 10 permit. The Alliance argued that the Corps lacked a property interest in the OCS, which are public trust lands, and thus, could not qualify for a permit under the Corps' own regulations. The court found that the "property interest" requirement was not a condition precedent, so to speak, of obtaining a permit, the absence of which would preclude its issuance. Instead, the court accepted the Corps' interpretationof its regulations - i.e., that it could issue a permit after which the applicant would continue to bear responsibility for attaining adequate property interests to construct the project.

So while the decision is undeniably a huge victory for Cape Wind, ultimately, it seems to me that at some point, the "property interest" issue needs to be resolved. The Corps permit does not confer a property interest on Cape Wind, so what's to stop another developer from putting up a competing use right along side the Cape Wind project? If I were a developer or investor, I'd want to see this issue resolved sooner rather than later.

Coast Guard Stays Neutral

In this prior post , we linked to a report that the Coast Guard had determined that Cape Wind posed a "manageable risk" for navigation and thus, supported the project. Turns out, we - and more accurately, the article to which we linked - spoke too soon: as reported in
Another Flap Over Cape Wind: Coast Guard Remains Neutral , Alexis Tonti, Martha's Vineyard Gazette (9/19/03), Coast Guard officials reiterate that they have taken no official position on the project, and are only beginning to review its potential impacts. In act, contrary to articles that the Coast Guard submitted reports to the Corps, the only study submitted was one prepared by Cape Wind's consultatnt and reviewed by the Coast Guard - which offered concerns and suggestions for future study.

Super Turbines

This article, Dawn of the Super Turbines , The Scotsman, (9/19/03) reports on the increasing size and capacity of offshore wind farms. For example, consider the dimensions of this Danish project:

Denmark, wind farms are a ubiquitous feature of any journey through the countryside. It has recently completed and is now producing power from the world’s biggest offshore wind farm - Horns Reef. Sited ten miles off the south-west coast of the country, its 80 turbines cover 20 square kilometres, and it provides a perfect model to indicate the direction of Scotland’s future renewable energy projects - if ambitious Westminster government and Scottish Executive targets are to be met [...] The units at Horns Reef, built by Vestas, the world’s leading manufacturer of wind turbines, each have a two megawatt (MW) generating capacity, with a total combined output of 160MW. This is far in excess of the majority of the country’s turbines which have been erected over the past 20 years. When the Danes first began to put up turbines, they were not a tried and tested method of generating energy and, compared with today’s units, often woefully inefficient. Consequently, although Denmark generates 18 per cent of its electricity from wind - the largest percentage of the complete electricity generation of any country in the world - a large proportion of the turbines have a minuscule generating capacity compared to the turbines now being designed and tested at cutting-edge projects like Horns Reef.

But as the article points out, while large projects such as can offer a viable substitute to other energy sources such as nuclear, at the same time, when developers go offshore, there are additional costs associated with increased installation, service and maintenance. Companies are hoping that through new technologies, generating costs for offshore wind can be reduced by 10 per cent.

Environmental Issues Impact European Projects Too

It's not just U.S. projects like Cape Wind facing opposition on the environmental front. This piece,
Wind Farm Stalled by Study for the Birds , Edward Young (Solar Access, (9/18/03) reports that a formal complaint by an environmentalist organization has delayed plans for the construction of Germany's first offshore wind farm. The project will be stalled to allow for the investigation of possible infringement of European environmental laws, including a threat to a potentially endangered species of bird. Not surprisingly, the developer claims that the project presents no significant threat to area wildlife species -- and in fact will help to protect animal species by generating power through clean alternative means.

Offshore Wind For Scotland

Plans for an ambitious £40 million scheme to create 20 wind turbines in the sea off the coast of Aberdeen were unveiled on September 15, 2003 - as reported in Oil City Hopes to Harness the Winds , John Innes (9/16/03). The wind farm, which will be half a mile from land, will also be linked to a flagship Energy Futures Centre in the city. The plan was revealed by Kate Dean, the leader of Aberdeen City Council, yesterday, but she stressed the "jury was still out" on the proposal, put forward by the Aberdeen Renewable Energy Group (AREG). Link to the story for more news about the project.

Whoops - Three Tidal Projects Overseas

We just said here that there's been news of two tidal projects in the past few weeks. Make that three. Here's a story,
Generating Current From Current (9/18/03) on a tidal project recently installed in the Kval Sound outside Hammerfest in northern Norway which will start generating electricity this week. Installed on 17 September, the prototype will supply 700,000 kilowatt-hours per year - corresponding to electricity consumption by 35 Norwegian homes. The prototype has been developed by Hammerfest Strøm in collaboration with ABB, Rolls Royce and Sintef as well as Statoil.

Another Tidal Project Moves Forward

From Solar Access , there's word of a tidal power project that has secured additional funding (9/15/03). The article reports:

A new company has been formed to allow the further development of pioneering technology to exploit the power of the sea. Northumberland-based Engineering Business (EB) has joined with the New and Renewable Energy Center (NaREC) in Blyth to create Tidal Energy Business (TEB). The technological expertise of EB coupled with a ?1m (US$1.6 million) investment from NaREC in the new company, will allow vital development work on the Stingray ocean energy demonstrator - currently sited on the seabed in 30 meters of water off the Shetland Islands - to continue. Stingray was designed by EB to exploit energy in moving water, driving a generator through hydraulic cylinders and a motor. EB said initial tests have proved positive and on the back of the establishment of the new company, EB and NaREC expect to attract more funding to build a demonstration Stingray power station [...] The Stingray 150kW demonstrator was first installed in Shetland last year, the first large scale tidal stream generator ever to be installed in an exposed ocean environment. Stingray is currently on the seabed in 30m of water in Yell Sound undergoing intensive development and is yielding rapidly increasing power output and energy capture.

So, that makes another ocean project from across the Atlantic that we've reported on today (see here for information on the other project.)

Proposed Offshore Wind for UK

The Associated Press reported here (9/12/03) on plans by British energy group Centrica to build a wind farm in the Irish Sea for about $160 million in collaboration with two Scandinavian power companies. According to the article, up to 30 turbines (90 MW capacity) will be erected 5 miles off the northwest coast near the town of Barrow. Centrica said it has gone into partnership with Danish energy group DONG and the Norwegian power company Statkraft for the project. The three companies have jointly bought Barrow Offshore Wind, the company which owns the rights to develop the site.

Will Offshore Wind Come to Wisconsin?

We don't often think of Wisconsin as a coastal state, yet by dint of its border with Lake Michigan, it may, like Massachusetts and New York, soon find itself home to an offshore wind project. This piece,
Local Awarded Grants for Renewable Energy Capital Times , Madison.com, (9/10/03) reports that a Wisconsin renewable energy program awarded a $29,200 grant to Superior Safety and Environmental Services to research offshore wind resources in five Wisconsin counties bordering Lake Michigan.

Will Florida Consider Wave Energy As Part of Its Energy Policy Plan ?

The article
Public Gives Input on State Energy Policy , Tom Palmer (9/11/03) reports on Florida's efforts to rewrite state energy policy to consider alternatives to meet existing energy needs such as development of renewables or fostering conservation. At least one plug for wave energy came from Marshall Gilmore, president of the Hydrogen Business Council, who said there should be a high-profile hydrogen demonstration project as well as more work on biomass, solar and wave energy as sources of electric power. We'll let you know if the final plan reflects these suggestions.

Cape Wind Promises Benefits to the Community With Long Term Power Contract

This piece by Glenn Ritt of TownOnline.com (9/10/03) reports on a recent announcement by Cape Wind head Jim Gordon to sign contracts guaranteeing that the power generated by the proposed wind farm on Horseshoe Shoal would benefit Cape customers. Apparently, many project opponents have been concerned that power would be sold to the spot market at premium prices and benefit other consumers and the developers rather than Cape customers who bear the burdens associated with project siting. According to the article, Gordon's comments alleviate some of those concerns.

UK Begins Ocean Energy Testing

Via Solar Access.com comes this report, UK Ocean Energy Testing Begins (9/8/03)
on the commencement of testing on a prototype tidal energy turbine, the EXIM Tidal turbine in the Bluemull Sound, between the islands of Yell and Unst. Swedish-owned Seapower Scotland and Lerwick company Delta Marine are conducting the tests which will be used to further refine the prototype with a view towards full scale manufacturing and commercialization. According to the report, the project has attracted ý13,000 (US$20,600) each from Shetland Enterprise and Shetland Islands Council.