Just two weeks after overcoming a major state regulatory hurdle, a federal judge in the District of Columbia levied yet another setback for a plan by the Lake Erie Energy Development Corp. (LEEDCo) to build the region's first offshore wind farm on Lake Erie.
A U.S. District Judge on Tuesday, Oct. 20, ruled in favor of opponents of LEEDCo's Icebreaker project, granting a stay that prohibits the U.S. Department of Energy from dispersing more than $40 million for the construction of six turbines about 8 miles off the coastline of downtown Cleveland.
The ruling by Judge Timothy Kelly, who was appointed by President Donald Trump, stems from two bird conservancy organizations claiming "alleged harms from the presence and operation of the wind turbines," which, according to the court filings, "could harm birds, which, in turn, will allegedly impact the recreational interests of Plaintiffs' members."
American Bird Conservancy (ABC) and Black Swamp Bird Observatory (BSBO) filed suit last year in federal court against the DOE, not LEEDCo, arguing the government has not properly regulated the environmental impacts associated with what the groups said is "a precedent-setting wind energy facility."
The Icebreaker project, the court documents claim, needs more stringent environmental assessment because it's the first project of its kind and will set the standard for wind energy development in the Great Lakes.
The $126 million project, proposed in 2009 as the first offshore wind facility in the Great Lakes and the first freshwater wind farm in North America, already has undergone a nearly three-year process of environmental assessment by the U.S. Environmental Protection Agency, according to David Karpinski, vice president of operations for LEEDCo.
"We have a vision, but we do not have any other projects planned right now," Karpinski said.
Last week's ruling, which holds up federal funds at least until Jan. 13, 2021, does not have an immediate impact on the project but is part of a pattern of delays that have stretched out the original timeline, he said.
"It is an issue that has to be resolved. The challenge process has to play out," Karpinski said.
The Oct. 20 ruling comes on the heels of a dispute that began in May between LEEDCo and the Ohio Power Siting Board (OPSB) over a proposed "feathering condition" that would only allow regulatory permitting if the project's turbines were shut down from sunset to sunrise, in a period from March 1 to Nov. 1, to protect migratory birds and bats.
OPSB's initial feathering decision, Karpinski said, was a huge blow to the project momentum and is one of the latest in series of "regulatory" setbacks that supporters say is designed to delay and ultimately halt the project altogether.
"This has to be the most contested generation project I have ever seen," state Sen. Sandra Williams, D-Cleveland, said of the project, which OPSB has been reviewing over the past five years. "In all my time working with this board, there has never been this much controversy over a generation project."
Williams is a nonvoting member of the 11-person board charged with regulating major utility facilities in the state.
After the feathering amendment was added to the Icebreaker project agreement, Williams and 31 other state and local politicians wrote a letter to OPSB chairman Sam Randazzo, who also chairs the Public Utilities Commission of Ohio (PUCO), pushing back on "the poison pill" regulation.
In the letter, Williams claims Randazzo, an attorney who has litigated against renewable energy standards, "knew full well that keeping Project Icebreaker's turbines motionless for a third of each year would rob it of revenue to repay its construction loan and render it financially unfeasible. From where I sit, the inclusion of this shutdown order had less to do with killing birds and more to do with killing this project."
After intense pressure from wind farm supporters, the OPSB on Oct. 8 voted to accept a motion by board member and Ohio Department of Natural Resources (ODNR) director Mary Mertz to eliminate the feathering provision.
The move allows the project to go forward, pending an appeal by local opponents, but the delay and continued uncertainty is consequential, Karpinski said.
"You do not just flip the switch and get it back up and running," he said of the project.
In addition to the ongoing federal court matter, opponents, including two Bratenahl residents who had been represented by attorneys bankrolled by Ohio coal producer Murray Energy Corp., have until the beginning of November to appeal the OPSB ruling. Then, depending on that outcome, those same opponents would have a right to take up the issue directly with the Ohio Supreme Court within 60 days.
Even if everything goes LEEDCo's way, that translates into a delay of 12 to 18 months before a case would be heard, Karpinski said.
John F. Stock, an attorney who represented the Bratenahl residents and other anti-wind groups, did not respond to questions from Crain's regarding a possible appeal to the OPSB decision.
"Until we know, we are in a holding pattern," Karpinski said.
David Wondolowski, executive secretary of the Cleveland Building and Construction Trade Council, which is supporting the project and plans to be part of the eventual construction, is concerned the constant pushback of the project's timeline and intense regulation could have a chilling effect on putting together the financing the project needs.
"It makes investors leery about their return on investment," Wondolowski said.
Even as Icebreaker has high-level support (and funding) from backers that include the city of Cleveland, Cuyahoga County, all the regional port authorities, trade unions, the Cleveland Foundation and Case Western Reserve University, the OPSB supersedes local rule.
"One of the questions is how do you build with a shutdown option possibly pending?" Wondolowski said.
The project, if it moves forward, is estimated to produce 20 megawatts of clean power, create more than 500 jobs and provide $250 million in economic benefits for the region. Supporters including William Friedman, Port of Cleveland president and CEO and a LEEDCo board member are concerned about losing the advantage of being the first project of this type in the region.
"It is a very, very long process," Friedman said, referring to the regulatory procedure. "What I do worry about is that the market landscape is changing, and the lead we had will start to erode as other states are moving ahead with renewable energy."
Williams echoed those concerns: "These investors are not going to continue to throw money at this project. They might cut their losses."
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