Climate Law Update: Climate Change & Sustainable Energy News : Thelen Reid Law Firm : Renewable Energy, Construction, Project Finance Lawyers & Attorneys

• There's a "dirty secret" about renewable energy -- generating it has become easier but moving it to where it's needed is not, a discovery recently made by The New York Times (but of course the transmission issue is not new to readers of Climate Law Update).  
• Significant declines in Arctic sea ice have scientists warning that global warming may be happening much more quickly than predicted and that a "tipping point" may be near, reports the Associated Press via Yahoo News.
• A former utility engineer is convicted of intentionally misleading federal regulators about dangers at an Ohio nuclear plant in 2001; activists say the would-be whistle-blower is being scapegoated, the Toledo Blade reports.
• At that big climate meeting in Africa the United Nations has unveiled a report showing that abolishing subsidies on fossil fuels could cut world greenhouse gas emissions by up to 6 percent and also assist in economic growth, according to a Reuters dispatch.
• Fueled only by used cooking fat (for the cars, not the drivers), eight teams have completed a 2,500-mile automobile rally from London to Athens in a bid to promote awareness of biofuels, reports Reuters.
• Lots of fascinating facts and figures about biofuels -- including the fact the United States used nearly seven billion gallons of ethanol in 2007 -- in this latest report from those numbers-crunchers at the federal government, the Energy Information Administration.  
• On a much more serious note, a panel of scientists warns that to keep coral reefs from being eaten away by increasingly acidic oceans, humans need to limit the amount of greenhouse gases in the atmosphere, again from Reuters.
• Geothermal power is coming to New Mexico, with Gov. Bill Richardson and Raser Technologies announcing that construction is beginning on that state's first commercial project, one using a unique "low temperature" technology, reports Clean Edge News. 
• Danish authorities have settled on the site of a new 400 megawatt offshore wind farm where the scores of turbines can be connected almost directly to existing networks, according to Clean Edge, via New Energy Finance.
• Of course, it's auto-mad California, but still, opposition to offshore drilling is weakening in, of all places, Santa Barbara County, site of a massive spill many years ago and long the center of opposition to such development, as related by this story in The New York Times. 
• And in Alabama, another type of offshore energy development, this one involving liquefied natural gas, is also drawing some public interest, as reported by the Press-Register.
• Interest in "green building" is helping produce a boom -- in consulting work, from, again, The New York Times.
• You can almost hear T. Boone Pickens saying, "I told you so," as natural gas as a source of fuel for cars begins to attract renewed interest both among politicians and automakers, as reported by the Washington Post. 
• "Panic" may be setting in over the future of renewable energy tax credits, as Democrats push for a filibuster-proof majority in the Senate that could make the incentives permanent, as this analysis from the Wall Street Journal's Environmental Capital suggests.

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A Texas state appeals court the other day upheld a ruling dismissing a nuisance lawsuit filed by property owners unhappy with a big wind farm, holding that unwelcome "aesthetical impact" doesn't support  such a claim.

The plaintiffs had complained that the Horse Hollow Wind Energy Center reduced both the scenic beauty of their area and their enjoyment of their property. According to the court's 10-page opinion, they had conceded they couldn't base their case simply on disliking the wind farm. They argued, however, that aesthetics could be considered as one of the conditions that creates a nuisance. Jurors, they contended, were entitled to consider the farm's "visual impact" along with descriptions of the towers' blinking lights, their flickering shadows and noise.

But FPL Energy, which owns and operates the 421-turbine farm through a subsidiary, successfully argued that no Texas court had ever recognized a nuisance claim based on aesthetics. Beauty, the company maintained, is "necessarily subjective." It argued that "giving someone an aesthetic veto over a neighbor's use of his land would be a recipe for legal chaos," according to the opinion.

Justice Rick Strange, who wrote the ruling for a unanimous three-judge panel, determined that the plaintiffs' "emotional response" to the loss of their view was at the foundation of their case -- and he concluded that didn't fly legally. However, he seemed to empathize with them:

"Unobstructed sunsets, panoramic landscapes, and starlit skies have inspired countless artists and authors and have brought great pleasure to those fortunate enough to live in scenic rural settings. The loss of this view has undoubtedly impacted plaintiffs".

Strange found  that the state's courts have balanced competing interests by limiting nuisance actions based on lawful activity "to instances in which the activity results in some invasion of the plaintiff's property and by not allowing recovery for emotional reaction alone." He continued:

Altering this balance by recognizing a new cause of action for aesthetical impact causing an emotional injury is beyond the purview of an intermediate appellate court. Alternatively, allowing plaintiffs to include aesthetics as a condition in connection with other forms of interference is a distinction without a difference. Aesthetical impact either is or is not a substantial interference with the use and enjoyment of land. If a jury can consider aesthetics as a condition, then it can find nuisance because of aesthetics. Because Texas law does not provide a nuisance action for aesthetical impact, the trial court did not err by granting FPL's motion for partial summary judgment and by instructing the jury to exclude from its consideration the aesthetical impact of the wind farm.
   

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T. Boone Pickens, the Texas oil-man-turned-wind-entrepeneur, visited with lawmakers in Washington Tuesday to urge quick action on subjects such as assuring adequate transmission capabilities to move vast amounts of renewable energy around the landscape.

Even in Texas, where he wants to build the world's largest wind project, Pickens (pictured) said in testimony before the Senate Homeland Security and Governmental Affairs Committee that he doesn't have the luxury of waiting for state officials to finish adopting policies to facilitate the needed lines:

"I am 80 years old, and I don't I don’t have time to wait for the process to be completed, and neither does this country. I am building my own transmission line, which will ultimately travel 250 miles in Texas from the top of the Panhandle to near the Dallas/Fort Worth area, and I will have to pay for this transmission line myself. Not very many wind developers are in a position to do this."

Pickens, the chairman and CEO of BP Capital, has developed what is called the Pickens Plan. It  generally centers on harnessing renewable sources such as wind power to generate electricity, and shifting natural gas -- now used to produce about 22 percent of electrical power -- to use as a transportation fuel. In a statement released in conjunction with his testimony before the Senate panel, Pickens also proposed five "Pickens Principles" to be used in evaluating energy plans:

• The plan has to slash the country's dependence on foreign oil by at least 30 percent in 10 years
• The plan needs to rely on 100 percent American resources
• The plan needs to utilize existing, proven and workable alternatives to foreign oil
• The plan needs to call on private enterprise to execute quickly
• The plan requires the federal government to clear the path for implementation.

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• Environmentalists have won a round in their challenge to the federal government's actions in listing the polar bear as a threatened species because of melting sea ice. A federal judge in Oakland, California, rejected a move by the government to toss out claims by three groups that contend the government is attempting to reduce Endangered Species Act protections for the animal through special provisions that, among other things, ignore consideration of the effect of greenhouse gas emissions on the creatures. Climate Law Update has reported previously on the continuing controversy over the decision.
• New York and New Jersey, which account for nearly half of the carbon emissions in the 10-state Regional Greenhouse Gas Initiative, might not be ready for the auction of carbon allowances scheduled for September, possibly jeopardizing its success, says a report from the UK's Carbon Finance.
• President Bush's advocacy of an end to a moratorium on offshore oil drilling puts him squarely in the middle of the presidential campaign, reports The New York Times. Meanwhile, California's Republican govenor takes a dim view of ending the ban, according to the San Diego Union-Tribune. Ditto both the state's senior senator, Dianne Feinstein and her junior colleague, Barbara Boxer, according to statements the Democrats separately released.  
• T. Boone Pickens, the new guru of renewable energy, tells lawmakers looking at ways to improve the transmission grid that America can become more energy independent by making wind power a bigger part of the electricity mix, reports the Wall Street Journal's Environmental Capital blog.
• Developing biofuels from sources such as algae and switchgrass drew a lot of attention this week at a big biotechnology conference in San Diego, according to this story in the Union-Tribune.
• Insurers are coming up with ways to help commercial customers contend with risks from climate change, according to a panel of experts cited in this Reuters report.
• Climate change-induced damage to the food chain could help wipe out entire species of whales, Australian government researchers warn, according to news.com.au.
• French fries help can save the planet, or at least the grease from their cooking is becoming a popular source of biodiesel, an alternative fuel that doesn't threaten the food supply, suggests this story in the Globe and Mail. 
     

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