Can Wind Energy Serve As Baseload Power? The First Circuit Agrees with the NRC That, For Now, The Answer Is “Not Yet.”

Foley Hoag LLP - Environmental Law

In an interesting decision issued last Friday, the Court of Appeals for the First Circuit, in Beyond Nuclear v. NextEra Energy Seabrook, affirmed the decision by the NRC rejecting a challenge to Seabrook’s relicensing posed by a coalition of environmental groups.  The decision seems clearly correct, but raises an important policy issue that is likely to recur as renewable energy technologies advance, so seemed worth mention.

The issue in the case was that the environmental groups, known collectively as “Beyond Nuclear,” contended that the relicensing proceeding should include wind as a “reasonable alternative.”  The NRC rejected BN’s contention on the ground that, because Seabrook provides baseload power, any alternative must also do so.  The NRC further concluded the intermittent nature of wind power means that it cannot be considered baseload without effective energy storage mechanisms, and that storage technology is “not sufficient demonstrated at this time.”

But what does it mean not to be sufficiently demonstrated?  As the Court noted:

The Commission explained that, because of the difficulty inherent in predicting the viability of technologies decades in advance, in most cases reasonable alternatives are those that are “currently commercially viable, or will become so in the relatively near term.”

On that standard, the Court determined that, on the record before it, the NRC had reasonably decided that wind energy could not provide baseload power “in the relatively near term.”

However, all hope is not lost for renewable energy backers.  The Court concluded by stating that:

If new information about the technical and economic feasibility of offshore wind as a source of baseload power, which differs materially from that which was available when the contention at issue was filed, becomes available prior to Seabrook’s license renewal, NRC regulations would permit the filing of a new contention, if timely submitted.

It will be interesting to see how the development of the storage industry affects these types of cases going forward.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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