By Rikki Stancich in Paris

Last month, a coalition of groups including the US environmental pressure group Public Employees for Environmental Responsibility (PEER), filed a lawsuit against federal agencies responsible for approving the proposed Cape Wind offshore turbine farm.

The coalition filed the suit on the grounds that federal agencies including the U.S. Department of the Interior's Bureau of Ocean Energy Management, Regulation and Enforcement (until recently, known as the Minerals Management Service) and the Fish and Wildlife Service allegedly failed to acknowledge that required scientific studies were not carried out as part of the EIS and that mandated protective measures were ignored in approving the controversial 130-turbine project slated for Nantucket Sound.

The lawsuit alleges that by green-lighting the Cape Wind offshore wind farm, which is situated in a principal bird migration corridor off the Massachusetts coast, these agencies violated the Endangered Species Act, Migratory Bird Treat Act, and the National Environmental Policy Act

WindEnergyUpdate speaks to PEER’s New England Director Kyla Bennett, a biologist and lawyer formerly with the U.S. Environmental Protection Agency, about where Cape Wind’s project developers went wrong and how future wind projects could avoid potential lawsuits and resulting project delays. 

Wind Energy Update: How important is this case in setting precedent for future wind farms environmental impact studies (EIS) and project approvals?

Kyla Bennett: We feel that the work carried out on the EIS was shoddy – not enough data was collected, the applicant refused to carry out additional studies and to implement the mitigation measures – all of which add up to a violation of environmental laws such as the Endangered Species Act, the Migratory Bird Treaty Act and the National Environmental Policy Act.

I think this would set precedent – we asked the applicants and the MMS to carry out the studies and had they done so, we would not be in this situation. Instead, for nine years, the applicants refused to carry out the studies.

The fact is that we can’t rely on fossil fuels; we do need renewable energy. But just because it is green does not mean it is without any downsides. You can’t just pave over square miles of the desert with solar panels and destroy habitats, or mount wind turbines in key migratory routes. Even the green energy has to be done in compliance with federal laws.

Unfortunately, some of the windiest places also happen to be key migratory routes and the Atlantic is a flyway for a variety of endangered bird species. The options on the table are either to relocate the wind project or shut down the turbines during peak migratory periods.

We understand the ramification of fossil fuels, but at the same time, we don’t want to throw ourselves into renewables without first checking whether there will be any consequences.

Wind Energy Update: What does this coalition hope will be the outcome of this lawsuit?

Kyla Bennett: The FWS did have guidance on how to site large wind projects, but it did not to follow the guidance.

The main question is: Where can we build these things? A balance needs to found – that there will be some mortality is inevitable, but we need to try and minimise that mortality.

So the outcome we are looking for is that all future projects would seriously consider the impact on wildlife during the site selection process. 

Wind Energy Update: Is this lawsuit indicative that the quality of envirnmental impact studies currently being carried out for offshore wind farms is sub-standard?  

Kyla Bennett: When the MMS was in existence, MMS employees were getting bonuses for getting leases to move quickly. In the dual mission to oversee permitting and to get leases signed off, science was abandoned and the environmental part fell by the wayside. In this particular case, the applicant clearly felt that the MMS was on their side – and it was.

But science and law need to come before politics. It is election year here in America. On paper, wind projects look good. But when you look more closely – even at the comments from the MMS – this particular project is not a benign project.

That is not to say that its impact could not be minimized, but the problem is that for nine years, the applicant refused to do the studies, rather than simply carrying them out. There is even an email from an MMS employee saying, “Why don’t we just do the studies – we’re going to get sued over this!”

Wind Energy Update: Does a more rigorous approach need to be taken by both developers and regulators to ensure lowest impact siting and design of wind farms?

Kyla Bennett: We have to listen to the experts and try first to understand the impact on marine animals. The fact is, we simply don’t know what the impact will be, and this is not a small project  - we are talking about 25 square miles of ocean.

By not carrying out the requisite studies, the developers seem to be taking a ‘wait and see’ approach. First of all, how do you monitor the impact? The regulatory cost of that would be enormous.

And in the event that the wind farm does kill a significant number of species, then what? Shut down the wind farm? Would the developer really shut it down after all that investment?

At the end of the day, there are so many alternative ways to reduce our fossil fuel dependency immediately without endangering species. Energy conservation is chief among these.

Wind Energy Update: Is this lawsuit likely to have implications for other proposed offshore wind farms in Delaware and Maine?

Kyla Bennett: Hopefully these projects will see what is happening here and will avoid these delays by carrying out the relevant studies.

Quick facts:

Plaintiffs include Public Employees for Environmental Responsibility (PEER), Cetacean Society International, Lower Laguna Madre Foundation, Californians for Renewable Energy (CARE), Three Bays Preservation and the Alliance to Protect Nantucket Sound, as well as Cindy Lowry, Barbara Durkin, and Martha Powers.  They are represented by the Washington, D.C. public interest law firm Meyer Glitzenstein & Crystal.

Among the issues raised by the suit are the -

• Refusal to adopt recommended protective measures for the endangered Roseate Tern and the threatened Piping Plover, such as shutting turbines down during peak migration periods;
• Refusal to collect or submit acoustic, radar, infrared, or observational data on bird migration; and
• Failure to prepare a supplemental environmental impact statement when new information came to light that a large aggregation of the highly imperiled North Atlantic Right Whale was present in the project area.  

To respond to this article, please write to the editor:

Rikki Stancich: rstancich@gmail.com