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WV Wind Facility Combines Energy Generation and Storage: AES Laurel Mountain Facility Largest of its Kind

AES Wind Generation and AES Energy Storage recently announced the commercial operation of AES Laurel Mountain, a wind generation plant comprised of 98 MW of wind generation and 32 MW of integrated battery-based energy storage. The facility is located near Elkins, West Virginia. The project is supplying emissions-free renewable energy and clean, flexible, operating reserve capacity to the PJM Interconnection, the largest power market in the world. 

“Energy storage technology is the silver bullet that helps resolve the variability in power demand,” said Terry Boston, PJM president and CEO. “Combining wind and solar with storage provides the greatest benefit to grid operations and has the potential to achieve the greatest economic value.” 

The 32 MW advanced storage project is the largest of its kind. Leveraging advanced battery technology, the storage service provided by AES Energy Storage will help optimize the renewable energy generated. The project provides PJM with regulation service, delivering instantaneous response to grid operator requests for power, helping to match generation and demand. The storage also allows the wind facility to control the ramp rate of its generation, smoothing out fluctuations in minute to minute output. AES Laurel Mountain is among the first wind generators to supply critical operating reserve capacity to help maintain the reliability of the power grid. 

“The Laurel Mountain project is a unique application of wind and battery storage technology combining clean energy production with state of the art grid support services,” said Phil Herrington, President of Global Wind Generation for AES. “We are very excited to be a part of this project, and couldn’t have completed this milestone without the overwhelming public support from the local community.” 

AES Laurel Mountain consists of 61 GE 1.6 MW wind turbine generators capable of a combined power generation of 97.6 MW and 32 MW of A123 Systems energy storage devices. The 61 wind turbines are mounted on 80-meter towers deployed along a 13-mile stretch of Laurel Mountain located in Randolph and Barbour counties near Elkins, West Virginia. The facility will supply more than 260,000 MWh of emissions-free, renewable energy each year to the PJM Interconnection. 

“We delivered this solution with our wind generation business to serve the reliability needs of the PJM power market and its utility members,” said Chris Shelton, President of AES Energy Storage. “The Laurel Mountain storage facility is more than double the size of our previous projects, demonstrating our ability to scale up this advanced power resource. We look forward to serving PJM and to bringing similar emissions free capacity services directly to utility companies seeking clean capacity resources – with no direct emissions and no water usage requirements.” 

AES Wind Generation is a wholly owned subsidiary of the AES Corporation. Formed in 2005, AES Wind Generation has 1,900 MW in operation globally, of which nearly 1,400 MW are located throughout the U.S. The Laurel Mountain project is AES Wind Generation’s second wind facility serving the PJM market, following the successful completion of AES Armenia Mountain located in Pennsylvania. 

AES Energy Storage, a subsidiary of the AES Corporation, is the owner-operator of advanced storage projects that provide emissions-free capacity to improve the performance and reliability of today’s power grid. Emissions-free capacity is a fast and flexible power system resource, combining patented software, dynamic power control and storage technology. 

The AES Corporation is a Fortune 200 global power company, providing energy to 28 countries through a diverse portfolio of distribution businesses as well as thermal and renewable generation facilities. 

For further details onAES and its Laurel Mountain wind power generation and storage facility, see the following: 

http://www.businesswire.com/news/home/20111027006259/en/AES-Wind-Generation-AES-Energy-Storage-Announce 

http://www.scientificamerican.com/article.cfm?id=worlds-largest-wind-power-storage-system-charges-ahead 

http://www.forbes.com/sites/uciliawang/2011/10/27/worlds-largest-lithium-ion-battery-farm/ 

http://www.aes.com/ 

http://www.aesenergystorage.com/ 

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers.  For more information on the author see here.

SEAB Shale Gas Production Subcommittee Reports

Following President Barack Obama’s declaration that “recent innovations have given us the opportunity to tap large reserves – perhaps a century’s worth” of shale gas on March 31, 2011, he instructed Secretary of Energy, Steven Chu, to form a subcommittee of the Secretary of Energy Advisor Board (SEAB) “to make recommendations to address the safety and environmental performance of shale gas production.”  SEAB Shale Gas Production Subcommittee – 90 Day Report (August 18, 2011).  In response to that charge, the SEAB Shale Gas Production Subcommittee has produced two 90 Day Reports, on August 18, 2011 and November 18, 2011.  These reports are available at http://www.shalegas.energy.gov/. 

The first 90 Day Report issued on August 18, 2011 “focused exclusively on production of natural gas (and some liquid hydrocarbons) from shale formations with hydraulic fracturing stimulation in either vertical or horizontal wells.”  SEAB Shale Gas Production Subcommittee – 90 Day Report (August 18, 2011).  

A list of the Subcommittee’s findings and recommendations follows.

1. Improve public information about shale gas operations: Create a portal for access to a wide range of public information on shale gas development, to include current data available from state and federal regulatory agencies. The portal should be open to the public for use to study and analyze shale gas operations and results. 
2. Improve communication among state and federal regulators: Provide continuing annual support to STRONGER (the State Review of Oil and Natural Gas Environmental Regulation) and to the Ground Water Protection Council for expansion of the Risk Based Data Management System and similar projects that can be extended to all phases of shale gas development. 
3. Improve air quality: Measures should be taken to reduce emissions of air pollutants, ozone precursors, and methane as quickly as practicable. The Subcommittee supports adoption of rigorous standards for new and existing sources of methane, air toxics, ozone precursors and other air pollutants from shale gas operations. The Subcommittee recommends:

(1) Enlisting a subset of producers in different basins to design and rapidly implement measurement systems to collect comprehensive methane and other air emissions data from shale gas operations and make these data publically available; (2) Immediately launching a federal interagency planning effort to acquire data and analyze the overall greenhouse gas footprint of shale gas operations throughout the lifecycle of natural gas use in comparison to other fuels; and (3) Encouraging shale-gas production companies and regulators to expand immediately efforts to reduce air emissions using proven technologies and practices. 

1. Protection of water quality: The Subcommittee urges adoption of a systems approach to water management based on consistent measurement and public disclosure of the flow and composition of water at every stage of the shale gas production process. The Subcommittee recommends the following actions by shale gas companies and regulators – to the extent that such actions have not already been undertaken by particular companies and regulatory agencies: (1) Measure and publicly report the composition of water stocks and flow throughout the fracturing and clean-up process. (2) Manifest all transfers of water among different locations. (3) Adopt best practices in well development and construction, especially casing, cementing, and pressure management. Pressure testing of cemented casing and state-of-the-art cement bond logs should be used to confirm formation isolation. Microseismic surveys should be carried out to assure that hydraulic fracture growth is limited to the gas producing formations. Regulations and inspections are needed to confirm that operators have taken prompt action to repair defective cementing jobs. The regulation of shale gas development should include inspections at safety-critical stages of well construction and hydraulic fracturing.  (4) Additional field studies on possible methane leakage from shale gas wells to water reservoirs.  (5) Adopt requirements for background water quality measurements (e.g., existing methane levels in nearby water wells prior to drilling for gas) and report in advance of shale gas production activity. (6) Agencies should review field experience and modernize rules and enforcement practices to ensure protection of drinking and surface waters. 
2. Disclosure of fracturing fluid composition: The Subcommittee shares the prevailing view that the risk of fracturing fluid leakage into drinking water sources through fractures made in deep shale reservoirs is remote. Nevertheless the Subcommittee believes there is no economic or technical reason to prevent public disclosure of all chemicals in fracturing fluids, with an exception for genuinely proprietary information. While companies and regulators are moving in this direction, progress needs to be accelerated in light of public concern. 
3. Reduction in the use of diesel fuel: The Subcommittee believes there is no technical or economic reason to use diesel in shale gas production and recommends reducing the use of diesel engines for surface power in favor of natural gas engines or electricity where available. 
4. Managing short-term and cumulative impacts on communities, land use, wildlife, and ecologies. Each relevant jurisdiction should pay greater attention to the combination of impacts from multiple drilling, production and delivery activities (e.g., impacts on air quality, traffic on roads, noise, visual pollution), and make efforts to plan for shale development impacts on a regional scale. Possible mechanisms include:  (1) Use of multi-well drilling pads to minimize transport traffic and need for new road construction.  (2) Evaluation of water use at the scale of affected watersheds.  (3) Formal notification by regulated entities of anticipated environmental an community impacts.  (4) Preservation of unique and/or sensitive areas as off-limits to drilling and support infrastructure as determined through an appropriate science-based process.  (5) Undertaking science-based characterization of important landscapes, habitats and corridors to inform planning, prevention, mitigation and reclamation of surface impacts.  (6) Establishment of effective field monitoring and enforcement to inform ongoing assessment of cumulative community and land use impacts.  The process for addressing these issues must afford opportunities for affected communities to participate and respect for the rights of surface and mineral rights owners. 
5. Organizing for best practice: The Subcommittee believes the creation of a shale gas industry production organization dedicated to continuous improvement of best practice, defined as improvements in techniques and methods that rely on measurement and field experience, is needed to improve operational and environmental outcomes. The Subcommittee favors a national approach including regional mechanisms that recognize differences in geology, land use, water resources, and regulation. The Subcommittee is aware that several different models for such efforts are under discussion and the Subcommittee will monitor progress during its next ninety days. The Subcommittee has identified several activities that deserve priority attention for developing best practices: 
6. Air: (a) Reduction of pollutants and methane emissions from all shale gas production/delivery activity. (b) Establishment of an emission measurement and reporting system at various points in the production chain.
7. Water: (a) Well completion – casing and cementing including use of cement bond and other completion logging tools. (b) Minimizing water use and limiting vertical fracture growth. 
8. Research and Development needs. The public should expect significant technical advances associated with shale gas production that will significantly improve the efficiency of shale gas production and that will reduce environmental impact. The move from single well to multiple-well pad drilling is one clear example. Given the economic incentive for technical advances, much of the R&D will be performed by the oil and gas industry. Nevertheless the federal government has a role especially in basic R&D, environment protection, and safety. The current level of federal support for unconventional gas R&D is small, and the Subcommittee recommends that the Administration and the Congress set an appropriate mission for R&D and level funding. 

SEAB Shale Gas Production Subcommittee – 90 Day Report (August 18, 2011). 

The Draft SEAB Shale Gas Production Subcommittee – Second 90 Day Report (November 18, 2011) focuses on implementation of the recommendations (listed above) from the initial report.  The Shale Gas Production Subcommittee comments below on the perceived failure to implement its recommendations: 

The Subcommittee has the impression that its initial report stimulated interest in taking action to reduce the environmental impact of shale gas production by the administration, state governments, industry, and public interest groups. However, the progress to date is less than the Subcommittee hoped and it is not clear how to catalyze action at a time when everyone’s attention is focused on economic issues, the press of daily business, and an upcoming election. The Subcommittee cautions that whether its approach is followed or not, some concerted and sustained action is needed to avoid excessive environmental impacts of shale gas production and the consequent risk of public opposition to its continuation and expansion. 

DraftSEAB Shale Gas Production Subcommittee – Second 90 Day Report (November 18, 2011) at p. 10. 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.

EPA’s Controversial Greenhouse Gas Endangerment Finding Faces Internal Criticism for Lackluster Peer Review

In December of 2009, the United States Environmental Protection Agency (“EPA”) made an “endangerment finding” that six greenhouse gases together are harmful to public health and welfare and may be regulated alongside more traditional pollutants through the Clean Air Act (“CAA”).  EPA’s Office of Inspector General (“OIG”), which serves as the agency’s independent auditor and ensures that EPA both uses and distributes reliable information, reviewed EPA’s endangerment finding.  On October 26, 2011, OIG released a report titled Procedural Review of EPA’s Greenhouse Gas Endangerment Finding Data Quality Processes that was critical of EPA’s peer review of its controversial endangerment finding. 

The federal Office of Management and Budget (“OMB”) published a guidance document in 2005 called Final Information Quality Bulletin for Peer Review that establishes government-wide standards for the peer review of government science documents.  OMB breaks its peer review standards into two categories, “influential scientific information” and “highly influential scientific assessments.” Highly influential scientific assessments are defined as any document that “[c]ould have a potential impact of more than $500 million in any year on either the public or private sector, or is novel, controversial, or precedent setting, or have significant interagency interest.”  

Despite the fact that EPA’s endangerment finding was the first of its kind, was hugely controversial, and will have severe economic implications on the country if fully implemented as it could serve as the basis for limiting emissions from high greenhouse gas generating activities such as coal-fired power plants, EPA deemed the finding only “influential scientific information” and subjected it to less rigorous peer review. Accordingly, the finding was reviewed by a panel of 12 climate scientists rather than independent reviewers, and the panel’s results and EPA’s response were not made publicly available.  Further, one of the 12 reviewers on the review panel was an EPA employee, which violates the independence requirements for peer review of highly influential scientific assessments.  

While OIG’s criticism draws extra scrutiny to an EPA document that has been controversial since its inception, both OIG and EPA have reiterated that OIG’s did not review the actual quality of the underlying scientific information on which EPA based its finding that greenhouse gasses are injurious to health and public welfare. 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.

Highlights of Marcellus Shale Coalition’s 2011 Study on Pennsylvania Marcellus Natural Gas Industry

On July 20, 2011, the pro-Marcellus shale industry organization, the Marcellus Shale Coalition (MSC), headquartered in Canonsburg, PA, released a study entitled “The Pennsylvania Marcellus Natural Gas Industry: Status, Economic Impact, and Future Potential.”  While the subject of the study was specifically Marcellus shale resources within Pennsylvania, the study and its report are illustrative of the potential benefits of the Marcellus shale resource within the entire Marcellus region -- comprised of West Virginia, Pennsylvania, Ohio, Maryland and New York.  

The report shows that the Pennsylvania Marcellus could produce approximately a quarter of America’s natural gas by 2020.  Conducted by researchers at Pennsylvania State University and commissioned by the MSC, the study analyzes production data and industry investments, as well as the overall economic impact natural gas development from the Marcellus Shale is having in Pennsylvania.  

“Just a few years ago, Pennsylvania relied heavily on other states for natural gas to fuel our economy. That dependence is no longer, though, as Pennsylvania is now a net natural gas exporting state,” said Kathryn Klaber, president and executive director of the MSC.  “And soon, the natural gas produced in Pennsylvania can help meet a quarter of our nation’s demands.  This is a truly remarkable milestone; one made possible by the dedicated efforts of the men and women who work each day to responsibly develop the Marcellus’ clean-burning natural gas resources.” 

“Large-scale development of the Marcellus is reshaping the economic landscape of Pennsylvania,” concluded Drs. Timothy J. Considine, Robert Watson, and Seth Blumsack, authors of the study.  “Strategies and policies that encourage growth of the Marcellus gas industry will generate significant economic and environmental benefits for the Commonwealth of Pennsylvania, transforming Pennsylvania to a net natural gas exporter while creating hundreds of thousands of jobs and generating billions of dollars in additional output, income, and tax revenues.” 

Key Findings of the Report 

•  Marcellus Shale natural gas production could reach 17 billion cubic feet per day in 2020, potentially allowing the Marcellus to become the single largest producing gas field in the United States, if real natural gas prices do not fall significantly. 

•  During 2010, the Pennsylvania Marcellus Shale natural gas industry triggered $11.2 billion in economic activity, generated $1.1 billion in state and local taxes, and supported nearly 140,000 jobs. 

•  The Pennsylvania Marcellus industry is projected to generate more than $12.8 billion in economic activity in 2011, leading to more than $1.2 billion in state and local taxes and supporting more than 156,000 jobs. 

•  As a result of Pennsylvania Marcellus production, residential electricity and natural gas bills across the Commonwealth are $245.1 million lower [$217.4 million from lower natural gas bills and another $27.7 million from lower electricity bills]. 

•  In 2010 alone, natural gas companies paid over $1.6 billion in lease and bonus payments to Pennsylvania landowners. 

•  By 2015, Pennsylvania’s Marcellus Shale could produce more than 12 billion cubic feet per day, second only to Texas in natural gas production. 

Per the MSC web site http://marcelluscoalition.org/about/: 

Founded in 2008, the Marcellus Shale Coalition is an organization committed to the responsible development of natural gas from the Marcellus Shale geological formation and the enhancement of the region’s economy that can be realized by this clean-burning energy source. 

The members of the coalition work with our partners across the region to address issues with regulators, local, county, state and federal government officials and communities about all aspects of producing clean-burning, job-creating natural gas from the Marcellus Shale. 

The Marcellus Shale Coalition may be contacted as follows:

4000 Town Center Boulevard, Suite 310

Canonsburg, PA 15317

(724) 745-0100

To view or download an electronic version of the Report of the Marcellus Shale Coalition’s 2011 Study on the Marcellus Natural Gas Industry in Pennsylvania go to:

http://marcelluscoalition.org/wp-content/uploads/2011/07/Final-2011-PA-Marcellus-Economic-Impacts.pdf

To view or download an electronic version of the Fact Sheet of the Marcellus Shale Coalition’s 2011 Study on the Marcellus Natural Gas Industry in Pennsylvania go to:

http://marcelluscoalition.org/wp-content/uploads/2011/07/MSC_2011_Study_FactSheet.pdf

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers.  For more information on the author see here.

Groups Attack Proposed Delaware River Basin Fracking Rules

On August 4, 2011, the Delaware Riverkeeper and others sued the Delaware River Basin Commission (“DRBC”) and the Army Corps of Engineers to prohibit the DRBC from finalizing fracking rules without first complying with NEPA.  See Delaware Riverkeeper Network v. Army Corps of Engineers, No. CV11-3780 (E.D. N.Y.).  NEPA prohibits “major federal actions” which could significantly affect the quality of the human environment absent either a finding of no significant effect (a so-called “FONSI”) or an environmental impact statement (“EIS”).  The plaintiffs allege that the DRBC is a “federal agency” for NEPA purposes.  They sued the Corps of Engineers because statutorily it is required to supply federal funds to the DRBC and because it had “approved” the release of the draft rules. 

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.

USEPA Continues to Support Carbon Capture and Sequestration

United States Environmental Protection Agency (USEPA) recently proposed its latest rule to continue its support of the deployment of carbon capture and sequestration (CCS) technologies.  CCS is one option available to help mitigate greenhouse gas emissions from fossil fuel combustion.  CCS is a three step process by which the carbon dioxide is captured from the emissions of combustion of fossil fuels, transported via pipeline, and then injected deep underground in appropriate geologic formations for long term storage.  CCS should prevent the carbon dioxide from escaping to the earth’s atmosphere and help mitigate the ecological effects of fossil fuel combustion.  

In its latest proposal (available at http://federalregister.gov/a/2011-19915), USEPA proposes to exclude carbon dioxide streams injected for geologic sequestration in Class VI wells designated for CCS under the Safe Drinking Water Act (SDWA) from the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations.   According to the agency, the proposed management of these carbon dioxide streams does not present a substantial risk to human health or the environment.  Therefore additional regulation under RCRA is unnecessary.  USEPA expects this proposal to reduce barriers to the use of CCS technologies and to reduce the uncertainty associated with identification of such carbon dioxide streams under RCRA subtitle C.  

This proposal is intended to complement other rulemaking including:  the final rules under the Clean Air Act that require reporting by facilities that capture or inject carbon dioxide streams and SDWA regulations for CCS wells.  This proposal is consistent with President Obama’s interagency task force on carbon dioxide sequestration and helps the U.S. support the deployment of clean energy technologies.  Comments to the proposed rule are due on or before October 7, 2011.  More information on the proposed rule can be found at http://www.epa.gov/epawaste/nonhaz/industrial/geosequester/index.htm. 

This article was authored by Laura G. Swingle, Jackson Kelly PLLC. For more information on the author see here.

Subpart W GHG Reporting Rule: EPA Proposes Revisions to BAMM Provisions

On June 27, 2011, the U.S. Environmental Protection Agency (EPA) published a proposed rule proposing to amend provisions related to best available monitoring methods in its regulations for Petroleum and Natural Gas Systems of the Greenhouse Gas Reporting Rule (76 Fed. Reg. 37,300).  In the final Subpart W: Petroleum and Natural Gas Systems of the Greenhouse Gas Reporting Rule that was published November 30, 2010 (75 Fed. Reg. 74,458), EPA requires specified data input requirements for determining greenhouse gas emissions but allows best available monitoring methods, also called BAMM, in lieu of the specified data input requirements in certain circumstances for specified emissions sources. BAMM includes supplier data, monitoring methods currently used by the facility that do not meet the specifications of a relevant subpart of the rule, engineering calculations, and/or other company records.  Originally, EPA had allowed the use of BAMM only through June 30, 2011, and had required that a request for an extension to use BAMM during calendar year 2011 beyond June 30, 2011, be submitted by April 30, 2011, and that a request for an extension beyond 2011 be submitted by September 30, 2011.  Earlier this year, EPA extended the April 30, 2011 deadline to July 31, 2011, and the June 30, 2011 deadline to September 30, 2011 (76 Fed. Reg. 22,825, April 25, 2011).  The proposed rule would extend the BAMM deadlines again.   

Specifically, EPA is proposing to extend until December 31, 2011, the time period during which owners and operators of covered facilities with listed emissions sources would be permitted to use BAMM during calendar year 2011 without having to seek approval from EPA.  In addition, EPA is proposing to allow use of BAMM beyond 2011 for unique or unusual circumstances provided the owner/operator makes an initial submission of a notice of intent to request use of BAMM beyond 2011 followed by a submission of a full request for approval to use BAMM beyond 2011.  The proposal would require that the initial notice of intent be submitted electronically by December 31, 2011, and the full extension request would be due March 30, 2012.  Under the proposal, owners/operators submitting both a notice of intent and full extension request would be granted an automatic extension through June 30, 2012.    

The proposed regulatory text would require that the full extension request contain the following information: 

(A) A list of specific source categories and parameters for which the owner or operator is seeking use of best available monitoring methods.

(B) A description of the unique or unusual circumstances, such as data collection methods that do not meet safety regulations, technical infeasibility, or specific laws or regulations that conflict with each specific source for which an owner or operator is requesting use of best available monitoring methodologies.

(C) A detailed explanation and supporting documentation of how and when the owner or operator will receive the services or equipment to comply with all of this subpart W reporting requirements.

Id. at 37,307/1.  

If finalized, the proposed revisions could affect owners or operators of natural gas systems, including pipeline transportation of natural gas, natural gas distribution facilities, petroleum and natural gas production facilities, and natural gas liquid extraction facilities.  The proposal to extend BAMM deadlines would address owner/operator concerns of insufficient time, leak detection and measurement equipment, or service providers to comply with Subpart W reporting requirements.     

The groups of emission sources that EPA has identified as appropriate for use of BAMM include:  well-related emissions (e.g., gas well venting during well completions and workovers using hydraulic fracture and well testing, venting, and flaring); specified activity data (e.g., cumulative hours of venting, days, or times of operation; number of blowdowns, completions, workovers, or other events; or cumulative volume produced, volume input or output or volume of fuel used); leak detection and measurement (e.g., reciprocating compressor rod packing vents for facilities downstream of onshore petroleum and natural gas production; centrifugal compressor wet seal oil degassing venting; acid gas removal vents; measurement of equipment leaks from valves and connectors; transmission storage tanks); and “unique or unusual circumstances”.  

“Unique or unusual circumstances” include data collection methods that do not meet safety regulations, technical infeasibility, or legal issues.  To illustrate its interpretation of “technical infeasibility,” EPA describes “a compressor never having maintenance during the calendar year rendering the installation of a port or meter difficult”.   By “legal issues,” EPA means issues that rise to the level of “rendering [owners/operators] unable to meet the requirements of [S]ubpart W,” such as Subpart W monitoring requirements that “conflict” with other specific federal, state, or local laws or regulations.  The proposal would clarify that other unique or unusual circumstances may be appropriate for requesting BAMM but must be properly demonstrated. 

EPA emphasizes in the proposal that facilities that submit the notice of intent but fail to follow up with a BAMM request would not be allowed automatic use of BAMM after December 31, 2011.  EPA also notes that the notice of intent is intended for issues that are known at the time, and not as a protective filing for possible future issues. 

The proposed rule is in response to industry petitions for reconsideration of the BAMM provisions in the final Subpart W: Petroleum and Natural Gas Systems of the Greenhouse Gas Reporting Rule.  Comments on the proposed rule are due July 27, 2011. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.

Morgantown City Council Votes to Ban Fracking, Raises Legal Concerns

In a six to one vote, the Morgantown, West Virginia, City Council passed an ordinance banning hydraulic fracturing within a one mile radius of its city limits.  See Pam Kasey, Morgantown Bans Fracking, The State Journal, at 1 (June 24–30, 2011).  The ban, which was passed during the June 21 regular City Council meeting, prohibits any operations using horizontal drilling and fracking to operate within the city limits or within one mile of the city limits.  The decision has raised both support and criticism from the community, industry, and the City Council itself.  Councilman Charles Bryer, who offered the lone vote in opposition to the ordinance, stated that “I think we’re basically going to be regretting this down the road.  We have opportunity here.  We’re sitting on a treasure . . . [a]nd I think we’re on a slippery slope from a legal perspective.”  Id. at 4.

Councilman Bryer is not alone in worrying about the legality of the ban; the ordinance’s passage has sparked a legal debate and a law suit.  Northeast Natural Energy, a company operating two Marcellus gas wells in the Morgantown area, filed suit in Monongalia County Circuit Court on June 24.  The complaint requests a temporary injunction prohibiting the ordinance from taking effect.  See http://www.thedaonline.com/news/fracking-ban-questioned-in-county-court-1.2418458.  Also included in the lawsuit is Enrout Properties, LLC, a company that owns the mineral rights to the land Northeast is drilling on.  Among other things, the complaint alleges that the ordinance illegally bans activity outside of the city limits.  Monongalia County Circuit Judge Russell Clawges denied the injunction request.  

The West Virginia Constitution states that any municipal ordinance or charter “shall be invalid and void if inconsistent or in conflict with this Constitution or the general laws of the State then in effect, or thereafter, from time to time enacted.”  W. Va. Const. art. 6, §39(a).  Therefore, if it is found that the ordinance conflicts with sections of the West Virginia Code, it could be deemed unconstitutional and, therefore, unenforceable.  In addition to concerns of constitutionality, the ordinance raises other concerns, as it conflicts with mineral owners’ rights.  In passing the ordinance, the City has effectively prohibited property owners from leasing the gas beneath their properties to gas companies, thereby nullifying a valuable property right.    

As demand continues to rise for natural gas and the energy that it helps produce, issues like this one will continue to flourish in states who can supply those minerals.  Most of these issues are those of first impression and are without easy answers.  

This article was authored by Chris M. Hunter, Jackson Kelly PLLC. For more information on the author see here.

EPA Announces Federal Radon Action Plan

The United States Environmental Protection Agency (EPA) announced the development of a Federal Radon Action Plan (Plan) on June 20, 2011.  Radon causes an estimated 21,000 lung cancer deaths in the U.S. every year.  

This initial Plan was developed by the EPA in a working group that also included the General Services Administration and the Departments of Agriculture; Defense; Energy; Health and Human Services; Housing and Urban Development; Interior; and Veterans Affairs.  These agencies will help focus efforts on radon reduction and mitigation in homes, schools and daycare facilities, as well as radon-resistant new construction. Over this next year, these federal agencies will develop new policies and regulations to implement the Plan. 

The Plan includes three stated goals which have the potential to effect costs to businesses and government: 

·         Incorporating radon testing and mitigation into federal programs.

·         Investing in new standards and updating codes for measurement and mitigation in schools, daycare facilities, and multi-family housing.

·         Establishing incentives that drive testing and mitigation in the private and public sectors. 

EPA touts that the Plan will help spur greater action in the marketplace, create jobs in the private sector, and significantly reduce exposure to radon.  The EPA has estimated that this effort will impact 7.5 million homes, schools and daycare facilities. 

This article was authored by William Chambers, Acacia Environmental Group LLC. For more information on the author see here.

2011 Wind Energy Outlook: After a Slow 2010 in US, Prospects Look a Bit Better in 2011

US Wind Energy Market

The year 2009 was the best year for US wind industry, but 2010 was a somewhat down year for US wind power, despite many new wind energy projects that were installed in 2010.  Among the main reasons for this slowdown was the increased popularity of natural gas, lagging demand for new power generation capacity, and uncertainty over federal climate change/renewable energy policy direction.  

New wind powered generating capacity installed in 2010 in the US was roughly half that installed in 2009, but there is a fairly robust pipeline of new capacity currently under construction, according to the American Wind Energy Association (AWEA). 

In 2010 the US added a total of 5,115 MW of new wind power capacity.  And 2011 is looking better as currently there is 5,600 megawatts currently under construction.  Favorable tax credits are set to expire at the end of 2011, and this will no doubt cause new wind energy projects to start construction before yearend. 

Natural gas, with its current low prices, looks to be the main competitor to the wind energy sector, but future natural gas prices remain an uncertainty compared to wind power prices which have been dropping in recent years. 

At the end of 2010 the total US installed wind capacity was 40,180 MW; China now for the first time tops the world as the largest wind energy producer with a total wind power capacity of 41,800 MW.  Texas is still the nation's leader in installed wind power capacity with 10,085 MW, followed by Iowa with 3,675 MW, California with 3,177 MW, Minnesota with 2,192 MW and Washington with 2,105 MW. 

Developers installed 5,115 MW of new wind powered generating capacity in the US last year, compared with approximately 10,000 MW installed in the record year of 2009, and 8,500 MW in 2008, AWEA said in its new report.  "The industry is likely to finish 2011 ahead of 2010 numbers," said Elizabeth Salerno, AWEA director of industry data and analysis. 

"Wind's costs have dropped over the past two years, with power purchase agreements being signed in the range of 5 to 6 cents/kWh recently," Salerno said. "With uncertainty around natural gas and power prices as the economy recovers, wind's long-term price stability is even more valued." 

Bode argued that with "uncertainty over national policies still holding back the US industry, state targets for renewable energy continue to drive wind installations in many areas of the country." 

Two states, according to AWEA, began tapping wind resources last year for the first time --  Delaware and Maryland.  According to AWEA there are now 38 states that have utility-scale wind projects, with 14 of those now having installed more than 1,000 MW of wind power. 

Global Wind Energy Market

In 2010 the total global installed wind capacity reached 196,630 MW, showing sustained growth on 2009's 159,050 MW, 2008's 120,903 MW, and 2007's 93,930 MW. 

China accounted for more than half of the world wind energy market in 2010. If China were excluded, the offshore sector would in fact have shrunk by one third.  Still, installed wind capacity has more than doubled every third year, a trend which continues even in the face of the downturn. 

Last year a total of 83 countries, one more than in 2009, used wind for electricity generation and 52 countries increased their total installed capacity, up from the 49 in the previous year. 

Next to China, strong growth was mainly concentrated in east and southeast European countries including Romania, Bulgaria, Turkey, Lithuania, Poland, Hungary, Croatia, Cyprus, and Belgium. 

Africa, with the exception of Egypt and Morocco, and Latin America, excluding Brazil, again lagged behind the rest of the world in their commercial use of wind power. 

Offshore wind capacity continued to grow in 2010 and was apparent in 12 countries, 10 of which were in Europe.  Japan and China were the other two.  The total global installed offshore wind capacity reached 3117.6 MW, of which 1161.7 MW was added in 2010, representing a growth rate of 59 percent.  Offshore wind capacity, in terms of the global wind sector, saw its share increase from 1.2 percent in 2009 to 1.6 percent in 2010. 

In 2010, the Chinese wind market came into its own, representing more than half of the world market for new wind turbines, adding 18.9 GW and scoring a market share of 50.3 percent.  Meanwhile there was a sharp decrease in new capacity in the US — where its share in new wind turbines fell to 14.9 percent (5.6 GW) in 2010 — from 25.9 percent, or 9.9 GW, in 2009. 

By continent, the most dynamic progress of the wind industry took place in Asia, and the focus of the global wind sector moved further away from Europe and North America.  Asia became the new continental leader, accounting for 54.6 percent of the newly installed wind turbines compared with 40.4 percent in 2009 and 31.5 percent in 2008.  Five years ago Europe dominated the world market for new wind turbines with 70.7 percent of the market. 

The total global installed wind capacity at the end of 2010 could potentially contribute 430 TWh annually, representing 2.5 percent of total global demand. 

In some countries and regions wind has become one of the largest electricity sources.  For instance in terms of wind share, Denmark is the world leader with 21 percent, Portugal follows with 18 percent, Spain at 16 percent, and Germany with 9 percent.  In China, wind contributed 1.2 percent to overall electricity supply, while in the US, wind's share reached about 2 percent. 

By the end of 2010 about 670,000 people were employed worldwide, both directly and indirectly, in the various branches of the wind sector.  Within the past five years, the number of jobs has almost tripled, from 235,000 in 2005. 

Based on the current growth rates, WWEA has revised its expectations for the future growth of the global wind capacity.  In 2015, a global capacity of 600 GW is possible.  By the end of year 2020, at least 1,500 GW can be expected to be installed globally. 

For further details onthe outlook for wind power, see the following:

Renewable Energy World Magazine, May-June 2011, pp. 29-34.

World Wind Outlook: Down But Not Out

http://www.renewableenergyworld.com/rea/news/article/2011/05/world-wind-outlook-down-but-not-out

Wind power installation slowed in 2010, outlook for 2011 stronger: AWEA

http://www.platts.com/RSSFeedDetailedNews/RSSFeed/ElectricPower/6773195

This article was partially excerpted from publically available information, and was authored by Rick Wilson, Acacia Environmental Group LLC.  Any opinions expressed in this article are those solely of the author, and are not intended as legal or professional guidance to any specific readers.  For more information on the author see here.