After more than a year of pre-rulemaking process including the issuance of two drafts, the Maine DEP has commenced formal rulemaking and today issued draft rules for wind energy developments in Maine. The formal draft largely tracks the most recent pre-rulemaking version issued in January 2017. The draft rules include standards for evaluating scenic impacts, limits on shadow flicker, provisions related to public safety, and requirements for demonstrating significant tangible benefits.
In a lapse of fact checking and logic, the normally rigorous New Yorker magazine published a lengthy essay by noted novelist and bird watcher Jonathan Franzen that, among other things, called wind and solar power “blights on the landscape” that should be abandoned in favor of bird sanctuaries because “drastic planetary overheating is a done deal.”
The crux of Franzen’s argument is summed up about halfway through his piece: “The Earth as we now know it resembles a patient whose terminal cancer we can choose to treat either with disfiguring aggression or with palliation and sympathy. We can dam every river and blight every landscape with biofuel agriculture, solar farms, and wind turbines, to buy some extra years of moderated warming. Or we can settle for a shorter life of higher quality, protecting the areas where wild animals and plants are hanging on, at the cost of slightly hastening the human catastrophe.”
The U.S. Fish and Wildlife Service is reportedly planning to issue a notice of intent to create an incidental take permitting regime under the Migratory Bird Treaty Act. The permitting scheme would theoretically allow otherwise lawful activities to go forward with greater regulatory certainty, while allowing USFWS to require conservation measures to protect migratory birds. USFWS has not publicly announced its plans to initiate an incidental take rulemaking process under the MBTA.
U.S. District Court Grants Summary Judgment to SunEdison's Oakfield Wind Power Project on All Counts
In an order issued Friday in Protect Our Lakes v. U.S. Army Corps of Engineers, No. 1:13-cv-402 (D. Me. Feb. 20, 2015), U.S. District Court Judge Jon Levy rejected claims that the U.S. Army Corps of Engineers’ issuance of a Clean Water Act Section 404 wetlands permit to the Oakfield wind power project in Aroostook County, Maine violated the Endangered Species Act, the Bald and Golden Eagle Act and other environmental laws.
This is the second case in Maine, following Friends of the Boundary Mountains v. U.S. Army Corps of Engineers, 24 F. Supp. 3d 105 (D. Me. 2014), which we blogged about in June, in which the court denied wind power opponents’ attempts to invalidate an Army Corps permit based on alleged violation of BGEPA and the Migratory Bird Treaty Act. These two Maine cases join a handful of recent opinions in which federal courts have rejected similar challenges to federal approvals issued to wind power projects.
Gordy Smith wrote an article for Bloomberg BNA's Daily Environment Report examining the trend in U.S. courts toward rejecting claims that federal regulatory agencies permitting wind power projects are required to obtain permits under the Migratory Bird Treaty Act (MBTA), or the Bald and Golden Eagle Protection Act (BGEPA). The article also argues, however, that wind power projects that are already operational risk enforcement action if they do not adhere to the MBTA and BGEPA. Read "The Application of Migratory Bird Protection Statutes to Wind Power Projects" from Bloomberg BNA's Daily Environment Report.