Energy Generation – A Classic Love-Hate Paradox of Choice and Conflict

Posted on October 31, 2014 by Sheila Slocum Hollis

“Elmer Gantry,” a noir classic novel by Sinclair Lewis and a 1960 film, features a tortured central character with the word “love” tattooed on the knuckles of  one hand and “hate” on the knuckles of the other hand.  The vision of the hands together intertwined as symbols of the dilemma of the conflicted protagonist’s internal battles is evocative of the disconnect between our deep and undeniable thirst for energy and our disdain for the manner by which it is produced and delivered to us.

A History of Options:

Coal fired power plants are coming under heavy fire as the U.S. seeks to significantly reduce air emissions.  Global climate change, health impacts and a series of other negative effects on the ecosystem are cited as bases for accelerated retirements of these generation stations.  No doubt coal mining is a tough and dirty business; yet for two centuries it has provided the backbone of the development of electric power plants and the extraordinary benefits of electric energy.  How to reconcile this history with the current political climate?  How do we transition from coal as a major US fuel source, one that provides domestic supply and multiple benefits in employment, tax base, and economic activity? 

Likewise, hydroelectric generation is enshrined in the transformation of much of the West in the songs of Woody Guthrie, as a magnificent contribution to our development as a nation.  And, the desirability of hydroelectric generation is magnified when the only “issue on the table” is the greenhouse gas impacts of generation.  Yet, the impacts of hydroelectric development have had deleterious effects on fish, landscapes, and water supply.  And, as drought strangles much of the West, there is a struggle over whether to tear down the much admired, in fact almost “loved,” green dams of the New Deal Era.  The question at issue here is which side is good and which is evil, and the answer is “it all depends.”

Another love-hate relationship lies with the nuclear generation fleet.  From the standpoint of greenhouse gas emissions, the nuclear generation fleet is a winner.  Yet to some anti-nuclear interests, the nuclear stations (for the most part, forty years or older) are the devil incarnate, and subject to exorcism.  Yet, these facilities provide nearly 20 per cent of the electric power of the country.  So again, the desire for a clean electric supply and antipathy to the technology clash.  In this case, dealing with the aftermath of closing a nuclear generation station includes the significant and seemingly intractable problem of nuclear waste storage and disposal, leading to more profoundly difficult questions and concerns.

Another emotional “generation war” is centered on the role of natural gas fired generation.  Once again, there are epic clashes over gas.  Gas is ever more obviously abundant and relatively desirable from an environmental standpoint. However, extreme passions have been aroused by gas production-related issues like hydraulic fracturing, new pipeline capacity and fears about safety, and harmful environmental effects from natural gas drilling, production, transportation and distribution.  Despite the fact that natural gas fueled generation has filled approximately a quarter of the nation’s electric generation demand for many years, and is likely to be a major solution to the shift from coal, nuclear and some hydroelectric plants, the heated anti-fracking debate continues.  Thus, the struggle continues between “good,” (by those who see gas as a solution to the need for reliable generation) and “evil” (by those who oppose the drilling, development and delivery impacts of any form of hydrocarbon-related fuel).  Indeed, the politics, sophistication and interest of high profile opponents has elevated the bitter war of words and politics to a new level.

Finally, the role of renewables as a source of generation to replace nuclear, coal and other forms of generation would, superficially, seem to be uncontroversial.  Yet once the specifics of a project become known, opposition to the project grows.  Like politics, all projects are local.  Wind power towers, with associated land use, avian impacts, noise, reliability and transmission-related needs become the object of ire for interests that may not benefit from the projects.  Likewise, solar projects with land use, impact on wildlife water use and other hot-button issues may precipitate other battles.  The beauty of the project is in the eye of the beholder and beneficiary.

            The Paradox Ahead

Overarching all these projects are difficult issues associated with transmission capacity and cost, reliability, taxation, employment and overall local economic dependency.  And uncertainty about the need for new generation makes things worse:  why tolerate potentially disruptive technologies if efficiency increases and other factors means that new generation isn’t needed?  In light of the volatile, complicated, politically charged environment, the struggle for answers and stability will continue.  As long as our society remains conflicted, these issues will continue unabated to be “front page,” and lawyer and politician intensive.  The search for rational solutions to meet the needs of the country for reliable, safe, environmentally acceptable electric generation must continue for the nation to survive and thrive, despite the pain, cost and compromise necessary.  And like the soul of “Elmer Gantry,” we must ultimately cease to be at war with ourselves to survive.  

Adjusting for Wind: USFW Extends Term for Eagle Take Permits

Posted on August 7, 2014 by LeAnne Burnett

Developing wind energy is a good thing, right?  Protecting eagles is too, isn’t it?  Both may not  be true given recent developments that highlight the tension between wind projects and the Bald and Golden Eagle Protection Act. 

First, it is official.  The U.S. Fish and Wildlife Service (“FWS”) issued a final rule to extend the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act (“Eagle Act”) from five to thirty years.  [50 C.F.R. § 22.26.The rule took effect on January 8, 2014.  

With the removal in 2007 of the bald eagle from the list of species protected under the Endangered Species Act, the FWS issued new regulations to authorize the limited take of bald eagles and golden eagles under the Eagle Act.  In 2009 the FWS provided for eagle take permits for a maximum of five years.  [50 C.F.R. 22.26 and 22.27.]  The rule change to allow a 30-year permit is designed to facilitate development of renewable energy projects planned to operate for decades.  Generally the life of a project will coincide with the life of a 30-year permit, satisfying risk-averse financiers that their collateral is protected, at least with regard to eagle takes. 

The FWS committed to 5-year reviews of the 30-year permit, hoping to satisfy those concerned with eagle conservation. In addition, a permit applicant must implement measures to avoid, minimize, and mitigate threats to eagles over the life of the project. Compensatory mitigation that offsets eagle mortality may also be required. Under programmatic eagle take permits, permittees are required to implement advanced conservation practices -- scientifically supportable measures that represent the best available techniques to reduce eagle disturbance and ongoing mortalities. 

There is no legal requirement for project developers or operators to obtain a programmatic eagle take permit under the Eagle Act.  However, the risk of proceeding without such a permit can be significant given the civil and criminal penalties that include fines and incarceration for an unpermitted take.  [16 U.S.C. § 668(a).] 

Second, it is official.  The American Bird Conservancy made good on its threat [April 30, 2014 Letter] to litigate the issue of the 30-year rule with the FWS [June 19, 2014 Complaint].  The claims are procedural -- that the FWS deemed the rule to be excluded from any National Environmental Policy Act review, and that the FWS privileged the interests of wind developers over protection of eagles, thereby violating the Eagle Act.  The FWS has strong defenses, including its conclusion in 2009 that the eagle take permitting rule as a whole would not have any impact on endangered species.  That conclusion will likely be approved under the deferential standard of review applicable in this type of lawsuit.

Third, it is official.  The FWS issued its first golden eagle take permit to a wind developer, EDF Renewable Energy for the 102.5MW Shiloh 4 wind farm in Montezuma Hills Wind Resource Area within Solano County, California. The EDF eagle take permit is the first of its kind, allows for the take of up to five golden eagles over five years, and requires the company to implement conservation measures to reduce impacts to eagles.  EDF’s application process for its eagle take permit began in 2011, when the five-year permit was the only available option.  The application included an Eagle Conservation Plan, as well as a Bird and Bat Conservation Strategy, both of which describe current and proposed future actions to avoid, minimize, and mitigate adverse effects on eagles, birds, and bats.  The wind farm repowered at the end of 2012, and was able to incorporate some of those strategies, including compensatory retrofitting of 133 power poles in southern Monterey County formerly considered high risk to both bald and golden eagles. 

The first-issued five-year permit notwithstanding, a longer permit timeframe for wind developers may be important to long-term success, providing certainty as to regulations and permit requirements.  And take permits that call for affirmative conservation practices allow the FWS to ensure adequate species protection over the lifetime of the permit.  It’s a good thing, right?