The already-complicated relationship between wind energy and eagles has taken center stage recently. The U.S. Fish and Wildlife Service (USFWS) is ramping up its efforts to protect bald and golden eagles at development projects across the country, with a massive settlement and plans to revamp the eagle take permitting process by the end of this year.

Both bald and golden eagles are protected by the Bald and Golden Eagle Protection Act (Eagle Act) and by the Migratory Bird Treaty Act (MBTA). The Eagle Act and MBTA prohibit anyone from “taking” bald or golden eagles without a permit from USFWS.  To “take” means “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” A taking includes both intentional actions and incidental takings – “incidental” meaning resulting from activities that are otherwise lawful. USFWS has left it largely up to wind developers to determine whether their wind projects – specifically, collisions with the projects’ turbine blades – are likely to result in the incidental take of bald or golden eagles, with guidance suggesting that even a few minutes of eagles observed on the project site during preconstruction surveys necessitates obtaining an eagle take permit due to the project’s risk to eagles. In practice, though, this has not proven to be possible. Although countless wind energy developers have submitted applications for eagle take permits over the years, only a handful of eagle permits have ever been issued in the last thirteen years since USFWS first authorized incidental take in 2009.

Continue Reading U.S. Fish and Wildlife Service Makes Clear Its Commitment to Eagle Protection with a $35 Million Eagle Death Settlement and Upcoming Changes to Eagle Take Permitting Program

The Bureau of Ocean and Energy Management (BOEM) revealed its intention to request Calls for Information and Nominations for a variety of Call Areas along the Central Atlantic and Oregon coasts on April 27. The Calls for Information and Nominations evidence BOEM’s continued push to advance the development of offshore wind resources. BOEM intends to officially publish the Call Areas—those portions of the Outer Continental Shelf (OCS) preliminarily identified as suitable for development—for public comment on April 29, 2022.

Continue Reading BOEM Readies Itself for Further Offshore Wind Development Along the Central Atlantic and Oregon Coasts

The Bureau of Ocean Energy Management (BOEM) announced this morning that it will offer 110,091 acres of the Outer Continental Shelf (ICS) in the Carolina Bay Area for lease this coming May.  The Carolina Bay Area lease sale follows the recent lease sale in the New York Bight and demonstrates the Bind Administration’s commitment to establishing 30 gigawatts of offshore wind production by 2030.  BOEM’s Federal Register notice may be found here.
Continue Reading BOEM Presses Forward with Offshore Wind Development in the Carolina Bay

Last week’s blog post on NEPA and renewable energy development discussed how NEPA intersects with legal challenges brought against wind and solar projects.  On March 9, 2022, concerned residents from the Town of East Hampton, New York filed suit to overturn the Bureau of Ocean Energy Management’s (BOEM) and Army Corps of Engineers’ (Corps) approval of the South Fork Wind Farm Project (South Fork Project).  In Mahoney v. Dept. of Interior, No. 2:22-cv-1305, plaintiffs allege violations of the National Environmental Policy Act, Clean Water Act, and Outer Continental Shelf Leasing Act by BOEM and the Corps.
Continue Reading Property Owners Lodge a NEPA Challenge to the South Fork Offshore Wind Farm Project

Under current law, there are significant tax benefits for renewable energy projects in the United States.  These benefits include nonrefundable ITC and PTC tax credits and depreciation deductions.  From the perspective of a renewable energy developer, however, such tax benefits may be difficult to use effectively.  Currently, ITC and PTC tax credits are nonrefundable, meaning that developers with tax liability lower such credit will face difficulties effectively utilizing such excess credit.  Developers face a similar problem with depreciation deductions, as these will only operate to reduce taxable income.  If a developer does not have enough taxable income to utilize these depreciation deductions, it will be difficult to effectively utilize such excess.
Continue Reading Direct Pay Proposals in the Build Back Better Act and Observations from Industry Insiders

2021 witnessed a new but familiar competition among stakeholders for the use and enjoyment of the Outer Continental Shelf.  Last year, interested parties initiated five lawsuits against the first federally approved offshore wind farm, Vineyard Wind I (located off the coast of Nantucket).  And 2022 has so far continued the trend with a new challenge to the Bureau of Ocean Energy Management’s (BOEM) designation of Wind Energy Areas in the New York Bight in late January.  These legal challenges echo the arguments marshaled in numerous lawsuits across the Nation to delay or prevent oil and gas development on public lands.  Developers seeking to participate in the energy transition can learn from the experience of oil and gas development on federal lands.
Continue Reading Legal Challenges to Renewable Energy Development, and How NEPA Can Help

Last week, the Bureau of Ocean and Energy Management (BOEM) held its second of two intergovernmental stakeholder meetings to discuss offshore wind in the Gulf of Mexico.  The February 2, 2022, meeting follows BOEM’s receipt of a second round of scoping comments for a proposed environmental assessment (EA) of the Outer Continental Shelf (OCS) for offshore wind leasing.
Continue Reading BOEM Takes Another Step Toward Leasing the Outer Continental Shelf for Offshore Wind

Tax considerations are one of the main drivers for renewable energy projects. This fall, Husch Blackwell’s Energy and Natural Resources team hosted a webinar that explored the available federal and state credits, abatements, incentives, and in some cases, specialty taxes that affect the profitability of renewable energy projects. During the program, we received a number of questions worth sharing with our blog subscribers that are navigating tax issues on their renewable energy projects. This article addresses those questions.
Continue Reading Digging Deeper: Tax Considerations for Renewable Energy Projects

The momentum behind offshore wind has continued to grow since our February 2021 post on the topic. Last week, the U.S. Department of the Interior announced plans to open seven more offshore wind leases by 2025 off both coasts of the U.S. These potential leases will cover projects in federal waters in the Gulf of Mexico, Gulf of Maine, and off the Mid-Atlantic, the Carolinas, California, and Oregon. The agency’s announcement follows a March 2021 commitment by the Biden Administration to deploy 30 gigawatts (30,000 megawatts) of offshore wind by 2030. The agency’s announcement also came on the same day the Department of Energy set aside $13.5 million to support continued research on the impact of offshore wind on birds, bats, and marine mammals.
Continue Reading From Sea to Shining Sea, U.S. Continues Renewable Energy Push with Biden Administration’s Latest Commitment to Offshore Wind

Farm leases are a common occurrence on land being developed for solar and wind energy projects, due to the size and rural nature of land sought for development. While title searches will discover written leases that are made of record with the county clerk, farm leases are often verbal “handshake” agreements, meaning they go undetected during a standard title search. It is always recommended to conduct a site visit and inquire as to the existence of any grazing or crop operations when entering into a real estate contract for land intended for development. If a farm tenant is leasing a portion of the project property, such lease may need to be terminated, particularly in the context of a solar energy project that will require more surface use of the land.
Continue Reading Terminating Oral Farm Leases