Siting Wind Energy Facilities in North Carolina

by Brooks Pierce

The North Carolina legislature is now considering proposed legislation (SB 491/HB 484) under which the siting of "Wind Energy Facilities,” otherwise known as wind turbine farms and the supporting infrastructure, would be subject to a permitting process that would require consideration of potential impacts to the environment and to military training operations. Bill Cary, a partner with Brooks Pierce and former General Counsel of DENR, has posted an article exploring potential reasons for this legislation and why it matters for the future of wind energy in North Carolina. It can be found at this link. The following is a brief synopsis.

The US Military is the second largest sector of North Carolina's economy, accounting for over $23 Billion dollars per year of the Gross State Product. The Military’s ability to train is critical to assuring the Military's continued presence in North Carolina, and that training, especially in eastern North Carolina, is often conducted at low altitudes over largely agricultural and forest lands. Wind energy generation can support achievement of the Military's aggressive energy conservation goals. At the same time, the siting of a wind facility can impact low-level, high speed air operations and training due to the height of wind turbines, which often exceed 500 feet in height. Additionally, there are environmental concerns to consider when siting wind facilities, such as areas of environmental sensitivity and sensitive bat and bird populations.

Coordination and communication can overcome many of the challenges of siting wind energy facilities in areas of compatible land use. Currently, the responsibility for siting these wind facilities rests with the North Carolina Utilities Commission. None of its certification criteria require consideration of the impacts on Military training and use of air space. In addition, the consideration of environmental impacts is extremely limited. Although a federal mechanism exists to review potential adverse impacts to military readiness, that process has not to date demonstrated a practical sensitivity to State impacts and does not appear to permit each service branch to advocate independently concerning threats to readiness programs at the State level. When put to the test, this process failed to take into account potentially negative effects on Military training last summer in Beaufort County.

The legislation, as proposed, would put in place a permit process, overseen by the North Carolina Department of Environment and Natural Resources (DENR), that would seek to establish a permitting process for wind energy facilities that explicitly takes into account military and environmental compatibility issues. DENR is a natural home for this process, as the military in North Carolina and the agency have a long history of working closely together. In addition, DENR has the expertise to evaluate potential ecological impacts of the facilities, and the knowledge and experience to develop ways to minimize or mitigate those impacts.

Siting WEFs in North Carolina without consideration of potential impacts on the Military and its mission would have significant negative effects on both the Military and, ultimately, North Carolina’s economy. The current regulatory scheme does not give timely consideration -before the developer has expended significant time and resources- to these potential impacts. The proposed legislation would facilitate the development of wind energy in North Carolina in ways compatible with the Military’s mission, the environment and the economy.

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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