AS IT TURNS OUT, NEW SOURCES OF ENERGY ARE BLOWING IN THE WIND

Posted on November 13, 2017 by Gregory H. Smith

There is growing recognition that New England’s energy costs are much higher than neighboring parts of the country.  To a large extent, these high costs are due to the combination of transmission congestion, an ever-increasing reliance on natural gas and a shortage of natural gas supply in the New England market.  As a result, new participants are seeking entry into the market, including several seeking to expand the diversity of generation sources.

Antrim Wind Energy, LLC is an example of new participants seeking entry into the market.  In 2015, Antrim filed an Application for Certificate of Site and Facility with the New Hampshire Site Evaluation Committee (“SEC”) to develop a wind farm.  The Application was Antrim’s second attempt to gain SEC approval.  As noted in this space, an earlier Antrim project was denied in 2013 based primarily on its “aesthetic” effect on the region.    Several key factors led to a different outcome in the second proceeding.

Since 2013, the New Hampshire SEC has substantially revised its siting rules. Particularly pertinent to the Antrim Wind Project are new, more specific rules for aesthetic assessments.  Although review of aesthetic effects are, by their nature, somewhat subjective, the rules provide objective standards for visual impact assessments to provide greater predictability of outcomes.  The SEC rules require the Committee to consider seven different, specific criteria in making a determination as to whether a proposed project will have an unreasonable adverse effect on aesthetics. 

In reviewing the second Antrim proposal, the SEC placed particular emphasis on criterion six (6), whether the project would be a dominant or prominent feature in the landscape. 

In its second proposal, Antrim made several significant modifications to its earlier application case, that, coupled with the changes in the governing law, produced the favorable outcome.  Most important, the number of wind turbines, and their size and scale were reduced.  This modification doubtless affected the Committee’s analysis of whether the project “would be a dominant and prominent feature” in the landscape.

The SEC also adopted a public interest test as part of the new rules, which made a significant difference in review of the 2015 application.  No clear definition is provided in the rules as to how an applicant can demonstrate that a project is in the public interest.  A focus on project benefits seems to be a key factor.  In the Antrim case, beyond the obvious benefits of diversifying energy generation to include clean, renewable wind energy with the corresponding beneficial effect on climate change, there were recognized benefits to the community similar to those in the land use approval process.  These included stabilizing tax payments through a municipal agreement, investments in community infrastructure, and permanent preservation of 908 acres of land as a form of mitigation. 

The Antrim Wind project now stands alone in New Hampshire as the only sizable energy project to first have been rejected by the SEC, and subsequently reheard and approved.  The protracted Antrim case demonstrates that the somewhat complicated siting rules are capable of reasoned and predictable application.  It is also clear that this case provides useful instruction for what will likely be required for approval in the subsequent applications.

FINDING LEGAL PATHWAYS TO DEEP DECARBONIZATION IN THE UNITED STATES

Posted on July 21, 2016 by John Dernbach

On December 12, 2015, in Paris, France, the parties to the U.N. Framework Convention on Climate Change—a total of 196 countries—unanimously agreed to a goal of net zero greenhouse gas emissions by the second half of this century.  For the United States, the technical and logistical challenge of achieving the goal of the Paris Agreement (as it is called) is enormous, but so is the legal challenge.

The U.S. short-term emissions reduction objective, stated in a submission made in the run-up to the Paris conference, is “to achieve an economy-wide target of reducing its greenhouse gas emissions by 26%–28% below its 2005 level in 2025.”  This objective, the U.S. says, “is consistent with a straight line emission reduction pathway from 2020 to deep, economy-wide emission reductions of 80% or more by 2050.”   Achieving the short-term goal depends on the outcome of the presidential election as well as litigation involving the Clean Power Plan.  And there was, until recently, no roadmap for deep U.S. reductions by 2050. 

The absence of long-term analysis, in the U.S. and other countries, is being filled by the Deep Decarbonization Pathways Project, which is led by the Sustainable Development Solutions Network and the Institute for Sustainable Development and International Relations.  It is based on the work of research teams in 16 countries that are responsible for 74 percent of the world’s greenhouse gas emissions--Australia, Brazil, Canada, China, France, Germany India, Indonesia, Italy, Japan, Mexico, Russia, South Africa, South Korea, the United Kingdom, and the United States.  DDPP says in a report synthesizing the findings of the project to date that most of these countries “had never developed pathways consistent with a global 2°C limit, nor were they actively considering this question.”   (The purpose of the Climate Change Convention is to keep the increase in global temperatures from human-caused greenhouse gas emissions below a “dangerous” level.  That level is widely regarded as 2°C, or 3.6 °F, above pre-industrial levels, although the Paris Agreement seeks to keep the increase “well below” that level.  The temperature increase to date is already about 0.9 °C above 1880 levels, when temperatures were first recorded.)

DDPP has conducted a technical analysis and policy analysis of pathways to deep decarbonization for the United States.  These reports, prepared by E3 (an energy consulting firm), the Lawrence Berkeley National Laboratory, and the Pacific Northwest National Laboratory, appear to be the most detailed studies of how to achieve deep reductions in U.S. greenhouse gas emissions by 2050.  

Perhaps the DDPP’s most important finding “is that it is technically feasible for the U.S. to reduce [carbon dioxide] emissions from fossil fuel combustion” by 85% from 1990 levels by 2050, which is “an order of magnitude decrease in per capita emissions compared to 2010.”  If the U.S. did that, it could reduce its overall greenhouse gas emissions by 80% below 1990 levels by 2050.  

Enormous changes would be required in the U.S. energy system to make those reductions happen.  Because it is difficult to decarbonize gasoline and liquid fuels, the researchers said, meeting the 2050 objective would require almost complete decarbonization of electricity and, among other things, switching a “large share” of end uses that require gasoline and liquid fuels over to electricity (such as electric cars).  It would also be necessary to produce fuel from electricity itself, they said, citing the production of hydrogen from hydrolysis as an example. 

Decarbonizing electricity and producing fuel from electricity itself would double electricity generation but reduce its carbon intensity to 3% to 10% of current levels, requiring a vast increase in either renewable energy (as much as “2,500 gigawatts (GW) of wind and solar generation (30 times present capacity))” or carbon capture and sequestration.  The average fuel economy for light duty vehicles such as cars would need to be over 100 miles per gallon, and these vehicles would need to be fueled almost entirely by electricity and hydrogen.  

The challenge of translating these technical and policy pathways into a workable legal framework is considerable.  Assuming, for example, that the U.S. can achieve 54.5 miles per gallon as a fleet-wide average for new vehicles by 2025, as the current Corporate Average Fuel Economy standard requires, how does the U.S. achieve a fleet-wide average of more than 100 miles per gallon for all vehicles by 2050? As DDPP explains, “[t]his would require the deployment of roughly 300 million alternative fuel vehicles by 2050.”  A similar conundrum exists in reliance on renewable energy sources: what legal changes are needed to guide the development of the grid so that it can continue to be reliable while it accommodates a vast increase in intermittent electricity sources such as solar and wind energy?

Michael Gerrard, who directs the Sabin Center for Climate Change Law at Columbia Law School, and I have begun work on an edited volume that will identify and analyze a wide variety of legal pathways to decarbonization in the United States, based on these reports.  We have assembled an excellent team of legal scholars and practitioners and are aiming for publication in 2017.  We hope to inspire similar efforts in other countries.  

An essential part of the decarbonization challenge is proposing, analyzing, and comparing various legal decarbonization pathways in each individual country, including the U.S.  In the face of a daunting challenge, there exists a real possibility that lawyers can help improve human quality of life throughout the world by facilitating the creation of a legal framework that accommodates zero-carbon development.

What Direction Is The Wind Blowing?

Posted on August 16, 2013 by Gregory H. Smith

Ever since the shock of the oil embargo in 1973 we have been a nation in search of a comprehensive, sound energy policy. It was only a year later, in response to the proposal by Aristotle Onassis to locate an oil refinery on the coast of New Hampshire, that the New Hampshire Legislature adopted the first version of the State’s energy facility siting law.

Today, New Hampshire’s siting law, representing a balance of the need to develop new energy facilities with appropriate protection of the environment, preempts local authority and requires each project to undergo a rigorous comprehensive, consolidated evaluation before a  panel of high-ranking State officials from the several different departments having jurisdiction over all the relevant permits. To obtain all State permits and a Certificate from the siting committee, the applicant must be prepared to present the project in a consolidated process, subject to formal discovery, at an adjudicative hearing before the committee. Interested parties and municipalities may intervene and the Attorney General appoints Public Counsel for the case to represent the broad public interest. To take positions in the broad public interest, Public Counsel is charged with the responsibility to represent the interests of the public as a whole, and not simply the narrower positions adopted by intervening parties. To discharge this responsibility, which derives directly from that of the Attorney General in all other cases, the Public Counsel must take positions that balance the public interest in developing new, diversified energy facilities and the need to take into account environmental regulation.

This highly structured, energy facility permitting process is significant regionally and nationally because its standards tend to drive the design of interstate facilities. Current energy policy and its direction may be discerned from trends reflected in the written decisions of the siting committee over time.  Other states may be developing approaches to these issues.

Beginning in the late 1990s, a steady stream of energy projects have been presented to the committee. Until the mid-2000s, the majority of those projects involved fossil fuel generation, and in particular natural gas generating stations and transmission lines. As public policy, driven by concerns for global warming, has put increasing emphasis on renewable energy sources, there has been a significant increase in proposals to construct wind energy facilities. What is most striking from this perspective is that no energy project was rejected until 2013, although some facilities were subject to hundreds of conditions in their certificate.

This year, a proposed 30 megawatt wind farm in Antrim was rejected on its “aesthetics”, an indisputably highly subjective standard in search of criteria that will avoid arbitrary and capricious adjudications. Three previous wind power projects have all been approved with essentially the same characteristics, but for the first time the committee, at the urging of public counsel, has declined to approve the project rather than setting forth criteria and conditions that would bring essential predictability to this important technological advance in energy production.

The region and the nation will be well served by a steady expansion in the number of renewable energy projects, and this opportunity has the attention of large, even international, experienced and capable developers. Does the rejection of the Antrim project, despite public support, on the basis of the objections of special interests actively supported by public counsel risk a slowing down or abandonment by developers to the detriment of the region’s public interest in a diversified energy portfolio? Is it coincidence that a wind energy project was rejected recently in Maine, also on highly subjective grounds of aesthetics, a case that was referenced in the New Hampshire proceedings? And shouldn’t we ask whether advancing wind turbine technology is something we find in most places attractive, when it represents a great benefit to the environment and the public interest?

These cases bear watching. The New Hampshire case appears to be headed to the State Supreme Court. Will it turn out that these developments represent a turning away from favorable conditions promoting wind energy, so that wind energy development will decline in the years ahead? For environmentally sound economic development in this region and elsewhere we should hope not.