After extensive discussions with CLF, Deepwater Wind has agreed to voluntarily adjust its planned construction period to minimize potential impacts to migrating North Atlantic Right Whales -- like this breaching beauty here.

Deepwater Wind is taking exciting new steps to build on last month’s historic agreement to protect critically endangered right whales while developing offshore wind projects. The offshore wind developer, expected to begin construction on the proposed Block Island Wind Farm in 2014 or 2015, has announced an agreement to voluntarily adjust its planned construction period to minimize potential impacts to migrating North Atlantic right whales. This announcement follows extensive discussions with CLF, and shows a willingness to go above and beyond to protect North Atlantic right whales in the pursuit of renewable energy.

In order to fasten the five proposed turbine steel foundations into the steel floor, the developer must undergo pile driving, a process of hammering steel pipes up to 250 ft into the ocean floor. This stage of production could potentially harm migrating right whales, which have been documented feeding in Rhode Island Sound throughout the month of April. Deepwater Wind has adjusted its construction schedule accordingly, deciding that no pile driving will occur before May 1 of the project’s construction year.

Deepwater Wind’s decision to alter its construction schedule for the Block Island Wind project follows another agreement to adopt protections for endangered right whales in federal waters. A first-of-its kind coalition of offshore wind developers and environmental organizations agreed to adopt voluntary measures to protect right whales while expediting responsible offshore wind development. This historic agreement sets out measures that developers will voluntarily implement over the next four years in the Mid-Atlantic Wind Energy Areas stretching from New Jersey to Virginia. In it, key ocean stakeholders have shown great leadership in setting a model for future coalitions, and they have demonstrated a commitment to developing clean energy projects while protecting critically endangered species.

On Thursday, January 28, 2013, Maine’s Public Utility Commission (PUC) approved, by a 2-1 vote, the terms of a long-term contract for the first floating turbine offshore windfarm in Maine. After a few months of negotiation, this is good news for the state, and for renewable energy.

This vote clears a major hurdle toward Statoil putting four, three-megawatt wind turbines on floating platforms in deepwater 12 miles off Boothbay, and marks the early days of implementation of Maine’s Ocean Energy Act. Signed into law in 2009, the Act encourages projects like this one, so as to support the development of renewable energy technology that harnesses ocean energy. In this project, energy generated from the project would be transported via underwater cable to a transfer station on land, delivering renewable energy to the mainland.

Approval for this project has been a long time coming. Statoil, which has successfully operated a one-turbine pilot project off the Norwegian coast for the past year, originally sought approval for a version of its project in October of 2012. At the time, CLF submitted comments supporting the project and the long-term contract, but the PUC tabled its deliberations and asked Statoil to come up with terms that would have a lower price for the electricity generated and guarantee more future benefit to Maine. Click here to see PUC Chairman Welch’s notes from deliberations. Since then, the project has only improved.

Working with PUC staff, Statoil revised the terms of its contract to reduce the price of energy to Maine consumers and add more assurances that if its initial small scale windfarm is successful, it will make all efforts to employ Maine companies as it scales up the project. Click here to see Statoil’s Revised Term Sheet.  We liked these additional terms even more than Statoil’s initial proposal. Again we wrote in favor of the project and expressed our increased support. Click here to view our additional comments.

The vote at this past week’s hearing was 2-1, with Commissioner Littell and Chairman Welch voting in favor of the project. Littell has long been a champion of efforts to reduce carbon emissions, whether during his time at the DEP where he championed RGGI or now at the PUC. Welch deserves credit as he was not supportive of the long-term contract in its initial phase, but recognized that Statoil had made efforts to address his concerns and even more so recognized the potential that offshore wind holds for Maine.

On June 26, 2011, Governor Chafee signed into law the “Distributed Generation Standard Contracts Act.”  The bill had passed both houses of the General Assembly unanimously. The “distributed generation” in the title of the law refers to small, local renewable energy projects.

The new law was designed to do three things: (1) increase the number of small renewable energy projects that are built in Rhode Island; by (2) making it easier, quicker, and cheaper for developers of these projects to get contracts to sell their electricity to Rhode Island’s dominant utility, National Grid; and (3) get those renewable energy projects distributed into more of Rhode Island’s cities and towns.

Not every law passed by the General Assembly works out the way it was meant to, but the Distributed Generation Standard Contracts Act has been phenomenally successful in accomplishing each of its three goals.

Previous renewable energy laws in Rhode Island have worked the way they were intended: to get National Grid to buy more and more of its electricity each year from clean, renewable energy sources. But Rhode Island’s previous renewable energy laws also had a significant flaw: they worked very well for big projects, like Deepwater Wind’s proposed offshore wind farm, but they worked less well for small projects (like a town that wants to set up a single wind turbine at its town hall, as Portsmouth did). That is because under the prior laws, developers would have to hire a small army of lawyers to negotiate an excruciatingly long, detailed contract with Grid, setting forth everything from the price of the electricity to delivery schedule. (For example, the contract that Deepwater filed with the Public Utilities Commission on December 10, 2009 ran 62 pages in length!)  Hiring lawyers to negotiate a 62-page contract was just too time-consuming and expensive for a developer who had a small project.

The new law fixed that problem. As the name of the law suggests, it provided for a “standard contract” for developers of small projects. The standard contract was short, written in plain English, and easy to understand. In addition, the law provided for a standard price to be paid, and established a mechanism for setting a fair price for each different type of project – wind, solar, and so forth. These prices were designed to be high enough to get projects actually built, but low enough to protect electricity rate-payers.

And that is exactly how the new law has worked. In the 15 months since the bill was signed into law, National Grid has held three separate sign-up periods. To date, 18 separate projects have been signed up.  Each of these 18 separate projects will be built right here in Rhode Island. Thus, Rhode Islanders will directly enjoy the environmental and economic-development benefits of these projects. The main purpose of the new law, to get more local renewable energy projects built, has been accomplished – in spades.

The developer of each of these 18 projects got a simple, standard contract to sign, and will receive a set price for the electricity produced.  Thus, another one of the law’s purposes has been accomplished.

The projects themselves are located in Providence, East Providence, Portsmouth, Lincoln, Westerly, Bristol, West Greenwich, East Greenwich, Hopkinton, Middletown, Cumberland, North Kingstown, North Smithfield, and West Warwick.  This geographical distribution of new renewable energy projects was a third purpose of the law.

Rhode Island’s new Distributed Generation Standard Contracts Act has been so successful that it is becoming a model for the rest of the country. Renewable energy advocates in New York and Iowa are hoping to replicate the Rhode Island law in their states. The California Public Utilities Commission has circulated the Rhode Island law to its in-house legal staff. A group of Oregon legislators is poised to introduce a bill in the coming legislative session modeled after the successful Rhode Island law.

The Distributed Generation Standard Contracts Act is a classic win-win. It addresses the problem of climate change by reducing the carbon emissions that cause climate change. And it helps the Rhode Island economy by facilitating local development of renewable energy projects.

This is a law that Rhode Islanders can be proud of. Its enactment reflects well on our legislators (who passed it unanimously) and on Governor Chafee (who signed it into law). The law has been administered carefully and diligently by our Office of Energy Resources. And National Grid, which receives an economic incentive when projects start producing power, has worked conscientiously with developers to help developers succeed.

Yesterday, the North Atlantic right whale was only an historical symbol of one consequence associated with the relentless and unsustainable pursuit of energy.  Today, it is also a new symbol of renewable energy done the right way.  The agreement CLF is announcing today reflects support for the pursuit of renewable energy and also demonstrates that real leadership to change how we pursue energy can come from industry itself.

The pursuit of cheap energy from the 17th century forward hasn’t exactly been what one would call sustainable. From the time the first right whale was killed for its oil to today’s efforts to take and refine oil from the Canadian tar sands, our industries have drawn down limited resources with little regard for the environmental consequences. In fact, the right whale stands as a particularly distressing symbol of our history of exploitation.

The North Atlantic right whale was so-named because it was considered by whalers to be the “right” whale to kill. It was slow, swam close to shore, and was easy to harvest – accommodatingly floating to the surface with a head full of oil after it has been killed. Between the 17th and 19th centuries, the North Atlantic right whale, an animal that according to Herman Melville’s 1851 reflections in Moby Dick “would yield you some 500 gallons of oil or more” in just its lip and tongue, was hunted to the brink of extinction. The relentless pursuit of this limited resource in such an unsustainable way is the reason that today the North Atlantic right whale is considered critically endangered, with fewer than 500 animals remaining.

Despite the right whale’s lesson, our reliance on oil continues. According to the United States Energy Information Administration, the United States consumed a total of 6.87 billion barrels (18.83 million barrels per day) in 2011. Our reliance on exhaustible, limited fossil-fuel resources is causing climate change and setting into motion a series of unavoidable consequences, but still we drill for oil – albeit no longer in the head of a whale.

So while today’s landmark North Atlantic right whale agreement is a collection of voluntary measures designed to provide further protections for the North Atlantic right whale, primarily by reducing or avoiding sound impacts from exploratory activities that developers use to determine where to build wind farms, it is also so much more than that.

The offshore wind developers party to this agreement – Deepwater Wind, NRG Bluewater, and Energy Management, Inc. (owner of Cape Wind) – are willing to go above and beyond because they recognized that more could be done to protect North Atlantic right whales in the pursuit of energy. These developers’ willingness, and indeed enthusiasm, for protecting the whales reflects a new way of thinking – a 180-degree turnaround from the way other companies viewed energy generation over the last century and a half.  Instead of treating the natural world as an adversary to be exploited and consumed, these companies recognize that we can accommodate natural systems (like the whales’ migratory patterns and feeding grounds), that we can avoid extracting limited resources, that we don’t have to burn fuels that exacerbate climate change, and that we can still produce the energy to fuel modern society. Now that’s the right way.

In response to a February 21 order by the Rhode Island Supreme Court, the Conservation Law Foundation (CLF) today filed a brief defending its legal standing in the Deepwater Wind case and issued the following statement:

Jerry Elmer, staff attorney at CLF Rhode Island, said, “If CLF and others are denied standing in this case, it will have the effect of shutting down the process for reviewing and appealing the PUC’s decisions on renewable energy contracts, not just in this case, but potentially on all future contracts as well.”

Tricia K. Jedele, director of CLF Rhode Island, said, “The need for a fair and open process to ensure that renewable energy development is done right in Rhode Island is at the heart of CLF’s case. That fair and open process begins with a finding by the Court that CLF has standing to pursue this appeal on behalf of its members and in the interest of Rhode Island’s clean energy future, which is in the public interest.”

Earlier today in Rhode Island, the Public Utilities Commission (PUC) approved the Deepwater Wind/National Grid Power Purchase Agreement (PPA) for the construction of an eight-turbine wind farm in Block Island Sound, denying CLF’s Motion to Dismiss.

Here’s what CLF’s Rhode Island Advocacy Center Director Tricia Jedele had to say about the decision:

Today’s ruling was inevitable, a result dictated by the legislature in a law defined so narrowly that it could have only one outcome. Unchallenged, this law and the accompanying PUC decision set precedent that will only undermine the efforts to build a future for renewable energy in Rhode Island. The failure to allow the PUC any discretion in its decision-making is the very basis of CLF’s Separation of Powers argument, which we are likely to appeal to the Supreme Court.

The Deepwater Wind project in Block Island Sound first met with problems in April 2010 when its Power Purchase Agreement (PPA) with National Grid was rejected by the PUC on the grounds that it was not commercially reasonable. Rather than appeal the decision, Deepwater, with the support of the Governor and the legislature, sought to do an end run around the review process and rewrite the rules to produce a different outcome the second time around. CLF, a longtime champion of renewable energy done right, was one of the first to challenge the moves as unlawful, unfair and a terrible precedent. CLF contended that the amended law was designed to favor one project and one developer, creating an unlevel playing field that would make it impossible for developers to compete successfully for future projects.

“Renewable energy is too important to this state to do it in a way that could threaten its chances for success,” Jedele said at the time.

In July, in advance of a second review of the PPA required under the amended law, CLF filed a Motion to Dismiss, arguing that the PUC should not review the amended Power Purchase Agreement because the law violates the Constitutional doctrine of separation of powers, and the provision which requires that “all laws be made for the good of the whole.” CLF also argued that even if the PUC were to proceed, it could not review the PPA because the doctrine of res judicata bars litigation of a claim that has already been litigated between the same parties.