Blog Posts: Environmental and Energy Law Update
Visit the Full BlogThe Environmental and Energy Law Update blog provides an analysis and discussion of the most critical and timely legal issues and announcements environmental, natural resource, and energy sectors.
Intertidal Court Victory for Property Rights, Marine Conservation, and Public Participation
The Maine Superior Court has dismissed all claims against five intertidal landowners represented by Verrill in Masucci v. Judy’s Moody, LLC . The landowners had been sued because they contacted Maine Marine Patrol to report the illegal removal of rockweed from their intertidal land and because they advocated for...
NextEra Subsidiary Fined $8 Million under MBTA for Eagle Deaths at Wind Power Projects in Western U.S.
The U.S. Department of Justice announced that ESI Energy LLC (ESI), a wholly owned subsidiary of Nextera Energy Resources LLC, pleaded guilty to violating the Migratory Bird Treaty Act (MBTA) and acknowledged at least 150 deaths of bald and golden eagles at 50 of ESI’s 154 wind power facilities...
Incidental Take of Migratory Birds Prohibited Once Again as New MBTA Rule Becomes Effective
A U.S. Fish and Wildlife Service (“FWS”) final rule that presumptively reinstates liability for incidental take under the Migratory Bird Treaty Act (“MBTA”) becomes effective on December 3. The new rule revokes a Trump-era regulation that had limited the scope of the MBTA to intentional take, such as hunting...
Verrill Attorney Gordon Smith Comments on Lawsuit Claiming Ownership of Maine Coastal Property
A group of beachgoers and seaweed harvesters have filed a new lawsuit against several Maine coastal property owners, attempting to overturn centuries of private ownership of intertidal land. The plaintiffs in the lawsuit are pitching the unsupported idea that there is a legitimate debate about the legal framework for...
Verrill Helps State’s Largest Solar Project Obtain Principal Environmental Permit
The 100-megawatt Three Rivers Solar Project in Hancock County, Maine has obtained its combined Site Law and Natural Resources Protection Act permit from the Maine Department of Environmental Protection. Three Rivers Solar will become the largest solar project in the state, twice the size of the next largest facility...
Maine Supreme Court Decides Seaweed Is a Plant, Not a Fish
After deliberating for a year and a half in Ross v. Acadian Seaplants , the Maine Supreme Judicial Court has unanimously held that rockweed, a type of seaweed that grows on rocks in the intertidal area all over the North Atlantic, is owned by the intertidal property owner, not...
D.C. Circuit Flips USFWS for Issuing ITP to Ohio Wind Power Project with 6 M/S Cut-in Speed
The U.S. Court of Appeals for the D.C. Circuit has invalidated the issuance by the U.S. Fish and Wildlife Service (USFWS) of an incidental take permit (ITP) under Section 10 of the Endangered Species Act for take of Indiana bats by the 100-turbine Buckeye Wind project in Ohio. The...
D.C. Circuit Remands BOEM Cape Wind Lease under NEPA and ESA, Punts on MBTA Challenge
The U.S. Court of Appeals for the D.C. Circuit has dealt another setback to the Cape Wind offshore wind power project by holding yesterday in Public Employees for Environmental Responsibilities v. Hopper that the Bureau of Ocean Energy Management (BOEM) and the U.S. Fish and Wildlife Service (USFWS) violated...
USFWS Issues Expansive Final 4(d) Rule for Northern Long-Eared Bat
U.S. Fish & Wildlife Service (USFWS) issued its final rule under section 4(d) of the Endangered Species Act regarding conservation measures for the northern long-eared bat (the “Final 4(d) Rule”). The Final 4(d) Rule replaces the interim 4(d) rule issued in April, 2015 . The Final 4(d) Rule prohibits...
WOTUS Rule Saga Gets Weirder with EPA "Covert Propaganda"
The EPA rule attempting to clarify the scope of Clean Water Act jurisdiction took another gut punch when the Government Accountability Office found that the EPA's use of social media in connection with its rulemaking violated anti-lobbying laws . The rule in question attempts to define the term "waters...
EPA and States Locked in Funhouse Litigation over WOTUS Rule
Eighteen states that are suing the EPA and the Army Corps of Engineers to block the regulation attempting to identify jurisdictional waters of the United States under the Clean Water Act have filed a motion for a preliminary injunction with the U.S. Court of Appeals for the Sixth Circuit...
EPA WOTUS Rule Takes Effect in Most States - Or Does It?
The rule enacted by the EPA and the Army Corps of Engineers intended to clarify the scope of jurisdictional waters of the United States (often referred to as the WOTUS Rule or Clean Water Rule) was set to take effect on August 28. One day prior to that, a...
30-Year BGEPA Take Permit Invalidated by Federal District Court
The U.S. District Court for the Northern District of California on Tuesday struck down a U.S. Fish and Wildlife Service regulation allowing issuance of 30-year take permits under the Bald and Golden Eagle Protection Act. The court's holding is a blow, albeit likely temporary, to wind power developers seeking...
USFWS Explores MBTA Incidental Take Permit
The U.S. Fish and Wildlife Service has announced that it is looking into the creation of an incidental take permitting program under the Migratory Bird Treaty Act. Currently the regulations under the MBTA only authorize incidental take for hunting ; military readiness ; scientific collection, falconry and other special...
Three Bat Species Listed Under Maine Endangered Species Act
Upon recommendation from the Maine Department of Inland Fisheries and Wildlife, Governor Paul LePage signed a bill into law today listing three bat species under the Maine Endangered Species Act. The little brown bat and northern long-eared bat were listed as endangered, and the eastern small-footed bat was listed...
EPA and Corps Release Clean Water Rule in Attempt to Clarify Jurisdictional Waters for 404 Permits
The EPA and the U.S. Army Corps of Engineers today released a new rule attempting to clarify the scope of jurisdictional "waters of the United States" under the Clean Water Act. Work that takes place in waters of the United States can require a dredge and fill permit under...
News Flash: Wind Power Reduces Carbon, Other Harmful Emissions
A report released this week finds that wind power plays a significant role in reducing carbon and other harmful emissions in the state of Maine by displacing energy generation from traditional power plants. The study, conducted by Massachusetts-based consulting firm Sustainable Energy Advantage , examined the environmental impacts of...
Energy Infrastructure Gets Regional, National and Global Attention
Energy infrastructure is all the rage these days. Earlier this week the White House released its inaugural Quadrennial Energy Review , which "examines how to modernize our nation's energy infrastructure to promote economic competitiveness, energy security and environmental responsibility." Not surprisingly, the report calls for major investments to upgrade...
Halleluja: The Clean, Green Renewable Future Is Upon Us!!!
The American Wind Energy Association released its annual market report for 2014 today. As expected, most of the report's findings are quite positive, with "more wind power capacity under construction at the end of 2014 than at the end of any other year." Over 100 U.S. wind power projects...
New Misguided Opponent of Renewables: Famous Novelist Jonathan Franzen
Author Jonathan Franzen In a lapse of fact checking and logic, the normally rigorous New Yorker magazine published a lengthy essay by noted novelist and bird watcher Jonathan Franzen that, among other things, called wind and solar power “blights on the landscape” that should be abandoned in favor of...
New Misguided Opponent of Renewables: Famous Novelist Jonathan Franzen
In a lapse of fact checking and logic, the normally rigorous New Yorker magazine published a lengthy essay by noted novelist and bird watcher Jonathan Franzen that, among other things, called wind and solar power "blights on the landscape" that should be abandoned in favor of bird sanctuaries because...
USFWS Lists Northern Long Eared Bat as Threatened Species
The U.S. Fish and Wildlife Service announced that it will publish a final rule in today's Federal Register designating the northern long eared bat as threatened under the Endangered Species Act. The listing will become effective May 4, 2015, at which time an interim 4(d) incidental take rule will...
USFWS Lists Northern Long Eared Bat as Threatened Species
The U.S. Fish and Wildlife Service announced today that it will publish a final rule in the April 2, 2015 Federal Register designating the northern long eared bat as threatened under the Endangered Species Act. The listing will become effective May 4, 2015, at which time an interim 4(d...
Maine High Court to Litigious Saco RV Park Owner: Let There Be Frisbee Golf
To the delight of Frisbee golfers across southern Maine, the Maine Supreme Court has affirmed the Saco Planning Board’s approval of a Frisbee golf course in Fitanides v. City of Saco Fred Fitanides, who owns an RV park that abuts the Frisbee golf course, opposed the development and claimed...
BOEM Reviews Lease Request for Floating Wind Turbines off Hawaii
The U.S. Bureau of Ocean Energy Management is in the process of reviewing a lease request submitted by AW Hawaii Wind, LLC for two proposed 408 MW offshore wind power facilities, each consisting of 51 floating 8 MW turbines. AW Hawaii Wind is a subsidiary of Denmark-based Alpha Wind...
D.C. District Court Sides with USFWS on Indiana Bat ITP Issued to Ohio Everpower Project
The U.S. District Court in Washington, D.C. granted summary judgment on Wednesday to the U.S. Fish and Wildlife Service in a suit challenging the issuance of an incidental take permit to an Ohio wind power project for impacts to the endangered Indiana bat. USFWS had issued the ITP to...
USFWS, Congress Explore Incidental Take Exemption Under MBTA
The U.S. Fish and Wildlife Service is reportedly planning to issue a notice of intent to create an incidental take permitting regime under the Migratory Bird Treaty Act. The permitting scheme would theoretically allow otherwise lawful activities to go forward with greater regulatory certainty, while allowing USFWS to require...
DOE Says 35% of U.S. Electricity Can Be Generated by Wind Power by 2050
The U.S. Department of Energy released an in-depth analysis today entitled Wind Vision: A New Era for Wind Power in the United States . The report models various scenarios of wind power penetration into the U.S. energy market and concludes that under "an ambitious but credible scenario" 35 percent...
USFWS, Congress Explore Incidental Take Exemption Under MBTA
The U.S. Fish and Wildlife Service is reportedly planning to issue a notice of intent to create an incidental take permitting regime under the Migratory Bird Treaty Act. The permitting scheme would theoretically allow otherwise lawful activities to go forward with greater regulatory certainty, while allowing USFWS to require...
First U.S. Offshore Wind Power Project Will Likely Be Deepwater Wind's Block Island Facility
Providence, Rhode Island-based Deepwater Wind announced this week that it has secured $290 million in financing needed to construct its five-turbine, 30-megawatt Block Island Wind Farm. Deepwater expects to begin placing turbines in the water this summer with commercial operations projected to start at the end of 2016. The...
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