Friday, November 04, 2011

 

Two Major Wind Updates




There are two interesting wind energy updates. First, State Legislators went to Molokai and found uniform opposition to Big Wind. Second, a federal appeals court ruled against Cape Wind.

Three members of the Hawaii Senate Committee on Energy and Environment visited Molokai yesterday to listen to the voices of the people on this controversial issue. Chairman of the committee, Sen. Mike Gabbard, along with committee members Sen. J. Kalani English and Rep. Denny Coffman spent time in Maunaloa, Kualapuu and Kaunakakai and heard a unanimous voice of opposition to both the undersea transmission cable project and the Pattern Energy windmill proposal. ...

We have not found anyone in favor of the project,” admitted Gabbard, “but there are people who want more information.”  ... Approximately 150 people in total attended. ...Before the public meeting dispersed, one audience member asked for a show of hands from those who oppose this project. Every hand in the Mitchell Pau’ole Center was raised.


US Court of Appeals for the District of Columbia Circuit (October 28, 2011) ruled in favor of a town fighting a legal battle against the FAA.


Potentially undermining petitioners’ showing of causation and redressability is the  fact that the FAA’s hazard determinations, by themselves,  have “no enforceable legal effect.”  ...

Interior repeatedly assigned the FAA a significant role in its decision-making process, mandating that Cape Wind “could not begin construction until [its] receipt of the FAA’s final determination on whether a hazard exists and [Cape Wind’s] compliance with any resulting mitigation measures.” ...

In a curious display of agency modesty, the FAA dismisses its influence with Interior. ...

But in fact the evidence seems to us to show that Interior would take an FAA finding of  hazard very, very seriously. ...

And the record contains numerous contentions indicating that the wind farm might pose just such a safety risk.  For example, petitioners cite evidence that the many pilots who regularly operate under visual flight rules (“VFR”) near the proposed wind farm would have a difficult time staying beneath the foggy and otherwise inclement weather that often plagues Nantucket Sound, while at the same time maintaining a safe distance from the wind turbines.  During such times, there would be a “clear risk of collision with the wind turbine generators.”  ...
  
Petitioners also submitted evidence that attempts to circumvent the turbines would not solve the problem. ...

The facts here are rather similar to those underlying our decision in  National Parks Conservation Ass’n v. Manson, 414 F.3d 1 (D.C. Cir. 2005), where we found that petitioners had standing to challenge a non-binding Department of Interior opinion on the visibility impact of a project over which the State of Montana had sole and final authority.  ...

After acknowledging that a regularly used VFR route would be affected, and correctly reciting § 6-3-8(c)1, the FAA leapt to the conclusion that the turbines would not have an adverse effect because they would not exceed the 500-foot threshold.  ...But under any reasonable reading of the handbook, § 6-3-8(c)1 simply identifies one circumstance in which a structure could have an adverse effect, potentially one among many.

A different part of the handbook ...introduces the concept of “adverse effect” ...A proposed or existing structure, if not amended, altered, or removed, has an adverse effect if it would ...Require a VFR operation, to change its regular flight course or altitude.

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