 | 4/4/2013 | Judge sides with Xcel, throws out lawsuit over canceled wind farm |
A federal judge has sided with Xcel Energy and vindicated the utility for its 2011 decision to cancel a $400 million wind farm in North Dakota that posed a potential risk to two protected birds.
U.S. District Judge Michael Davis dismissed a lawsuit filed by the developer of the Merricourt project, whose wind turbines were seen as a risk to the piping plover and whooping crane.
The developer, EDF Renewable Energy, a U.S. affiliate of Paris-based EDF Energies Nouvelles, sued Xcel for dropping out of the 100-turbine wind farm, which has not been built. Until last August, the development company called itself EnXco.
Davis, ruling in Minneapolis, threw out the case before trial, saying that Xcel had a right to terminate its agreement at a drop-dead date — March 31, 2011 — because EDF Renewable Energy had not yet obtained a state site permit for the project. The site permit was approved two months later by North Dakota utility regulators.
“We do not believe the brief delay, which had no impact on the project, Xcel or its ratepayers, justified the termination,” EDF spokeswoman Sandi Briner said in a statement. “ We disagree with the court’s ruling and plan to appeal.”
Although the project near Ellendale, N.D., obtained a site permit, it still lacks a key federal permit allowing limited, accidental killing of the rare birds. Conservation groups are opposed to the U.S. Fish and Wildlife Service granting such a permit for the whooping crane.
EDF has contended that bird-protection issues can been addressed, and is now conducting studies of the threatened piping plover and the endangered whooping crane, which migrate through the region. Eventually, EDF would need a federal “incidental take” permit to avoid prosecution if a protected bird were killed by turbine blades.
In the lawsuit against Xcel, EDF said it already had purchased turbines for the Merricourt project when Xcel terminated it. But Xcel asserted that EDF deployed the turbines at another wind farm, cutting its losses.
In his ruling, issued Thursday, the judge said EDF Renewable Energy “is a sophisticated commercial entity that has entered into many projects involving wind projects and ... is knowledgeable of the varying risks that may arise with respect to such projects.”
Even if EDF revives the project on appeal or by finding a new buyer, the American Bird Conservancy, a nonprofit advocacy group, says it will oppose granting a permit to kill whooping crane because fewer than 400 of them exist in the wild.
“There aren’t enough whooping cranes left,” said Kelly Fuller, who leads the conservancy’s wind campaign. “There has been a tremendous conservation effort to save this bird and this project really has come under fire from the conservation community.”
Fuller said the conservancy hasn’t take a position yet on whether it would oppose an incidental take permit on the piping plover. She said the group wants to see the environmental studies first.
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| 2/8/2013 | Potential Whooping Crane Deaths Demand EIS For North Dakota Wind Project, Groups Say |
Seventy-six groups led by American Bird Conservancy (ABC), one of the nation’s leading bird conservation organizations, have called on the U.S. Fish and Wildlife Service (FWS) to fully analyze the environmental consequences of a proposed North Dakota wind farm to the endangered Whooping Crane. FWS is considering issuing the first-ever Incidental Take Permit (ITP) to a wind farm for the killing of endangered Whooping Cranes and threatened Piping Plovers.
“Because there are fewer than 400 individual Whooping Cranes left in the wild, a decision to potentially authorize the killing of any of these birds is of great public concern,” said Kelly Fuller, Wind Campaign coordinator for ABC. “This is also a precedent-setting decision that the agency should take the time to make sure is done right.”
FWS is being asked by the groups to prepare an Environmental Impact Statement (EIS) in contrast to an abbreviated Environmental Assessment (EA) in connection with the Habitat Conservation Plan being prepared for the Merricourt Wind Power Project in North Dakota, related to a permit allowing the project to kill endangered Whooping Cranes and Piping Plovers. A letter signed by ABC and 76 groups raises concerns about the project and asks for an EIS.
The groups called for the action on the proposed 100-turbine project that would be built in a key migratory pathway for many birds in the Prairie Pothole Region of North Dakota. The Prairie Pothole Region is sometimes called “North America’s duck factory.”
The highly endangered Aransas-Wood Buffalo population of Whooping Cranes is likely to be adversely affected since the entire population migrates through North Dakota in the spring and fall. FWS has already stated that the “mortality of any birds in such a small population also represents a loss of genetic material and represents a setback for recovery efforts.” Because of a recent change in the methodology of counting the cranes in this population, DOI does not even know with any degree of certainty, how many of these Whooping Cranes are actually left.
The comment letter asks DOI for three things:
1. Preparation of a full Environmental Impact Statement (“EIS”) which the groups say is warranted under NEPA as opposed to the proposed, much shorter Environmental Analysis;
2. To extend the scoping comment period by 30 days since there has been inadequate public participation; and
3. To publish notice of the scoping comment period in the Federal Register, so that the public will have better notice.
According to ABC, both the Whooping Crane and Piping Plover are the subjects of intensive conservation efforts. The Whooping Crane, in particular, has been the focus of a multi-million dollar captive breeding and recovery program.
The Merricourt Wind Project proposes to build approximately 100 turbines within a 22,400-acre project area and build about 33 miles of access roads. DOI has advised the project developer that the wetland stopover habitat in the project area is critical to the survival and recovery of the Whooping Crane. The site is also about two miles from designated critical habitat for Piping Plovers. In addition, DOI has told the developer that three ESA candidate species may be present at the site (Sprague’s Pipit, Dakota skipper, and Powesheik skipperling).
The controversial wind project has already been the subject of at least three lawsuits. After a utility company, Xcel Energy, cancelled its contract to purchase electricity from the project, reportedly due to the project’s Whooping Crane and Piping Plover issues, Xcel and the project developer, enXco, sued each other in U.S. District Court in Minnesota. In 2012, ABC successfully sued DOI for failing to provide information about certain wind facilities, including the Merricourt Wind Power Project, as required by the Freedom of Information Act.
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| 6/8/2011 | enXco’s Permit for Merricourt Wind Project Approved |
The Merricourt Wind Project today received its Certificate of Site Compatibility from the North Dakota Public Service Commission, delivering the final state approval required for the project. Its developer, enXco, is ready to build the project on schedule if the utility purchaser settles litigation in order to resume the contract.
Merricourt is a 150-megawatt project being developed in southeastern North Dakota by enXco, an EDF Energies Nouvelles Company (PARIS: EEN). enXco and Xcel Energy announced plans to develop and build the Merricourt Wind Project in November 2008. Xcel recently filed suit in an attempt to abrogate its contract to purchase the project on the basis that project was not permitted following several procedural and weather delays. enXco countersued to uphold the contract but has offered to begin settlement talks in order to see the project built.
"As we committed to Xcel in 2008, the project is fully permitted and ready to commence construction. We remain dedicated to our contractual obligations with Xcel and would be happy to build this project within the stipulated schedule rather than pursue legal action," said Tristan Grimbert, President & CEO of enXco.
"Today marks a crucial milestone in the development of this important renewable energy project to our nation's energy infrastructure," said Steve Peluso, enXco's Senior Vice President for Origination. "We applaud the commission for understanding the importance of this project in helping our nation become less dependent on foreign oil, the value of renewable energy and the economic benefits this project brings to the local community. We also appreciate their recognition that Merricourt is located in an area highly suitable for wind development and deserves to be built after eight years implementing best in class development practices."
Merricourt will consist of 100 wind turbines and encompass approximately 18 square miles southeast of Kulm, on the eastern edge of McIntosh County and western edge of Dickey County. It will provide renewable energy to approximately 43,500 homes and millions of dollars in economic benefits to the local area. The project will also provide 150 construction jobs and 10 long-term, full-time positions once in operation.
The project received approval in May 2009 by the Minnesota Public Utilities Commission and later in August 2009, the North Dakota Public Service Commission approved the Certificate of Public Convenience and Necessity. The issuance of the Certificate of Site Compatibility now allows the project to move into construction phase.
enXco has also received acknowledgment from the U.S. Fish & Wildlife Service regarding the company's development of an Avian and Bat Protection Plan (ABPP) and commitment of $1.3 million to support habitat conservation for the whooping crane and piping plover. This is the latest result of a two-year process in which enXco has worked closely with the Service to study and address potential wildlife effects.
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| 5/5/2011 | Xcel, enXco sue each other over N.D. wind farm |
Just when it looked like the fight between Xcel Energy Inc. and enXco Inc. over a North Dakota wind farm was over, it now looks like it just might be starting up.
Both companies sued each other in federal court Wednesday over Xcel’s decision to drop the $400 million project because of the threat the windmills would cause to two endangered birds.
The lawsuits came just days after Escondido, Calif.-based enXco gave Minneapolis-based Xcel (NYSE: XEL) a $100 million refund on the 150-megawatt Merricourt Wind Project.
Xcel, through its Northern States Power Co. subsidiary, is asking the U.S. District Court in Minnesota to say that its termination of its contract with enXco was proper.
EnXco, a subsidiary of Paris-based EDF Energies Nouvelles, is asking the court to force Xcel to complete the contract, or to pay enXco at least $245 million for breaking the agreement.
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| 4/28/2011 | Xcel’s N.D. bird fight may be over; EnXco, the developer of a wind project, has refunded the utility’s $100M deposit |
The disagreement between Xcel Energy Inc. and a business partner over a controversial North Dakota wind farm may have blown over.
Project developer EnXco has refunded Xcel’s $100 million down payment on the planned 100-turbine Merricourt wind farm, where protecting two endangered birds is causing delay and extra expense, Xcel said Thursday during its first-quarter earnings announcement.
Xcel said it will look for other wind projects in North Dakota. It may even partner with EnXco, the American subsidiary of EDF Energies Nouvelles, at another location. Xcel has told North Dakota it wants to develop 200 megawatts of wind power there.
“EnXco has expressed interest in exploring alternative resolutions to our termination of the Merricourt contract,” Judy Poferl, president of Xcel’s Minnesota operations, said in a letter to regulators.
EnXco declined to answer questions, but issued a statement Thursday that it was committed to the Merricourt projec. It’s unclear who would own the wind farm, which was to begin construction this year.
The dispute erupted over the endangered whooping crane, which migrates through the state, and the piping plover, a threatened species on the northern plains. Federal wildlife officials fear plovers could be slashed by turbine blades and whooping cranes scared off their nests. Both birds are protected under federal laws.
EnXco, which was to build the wind farm for Xcel, initially had objected to the Minneapolis-based utility’s decision last month to terminate the $400 million project in southeastern North Dakota. Xcel said the 150-megawatt project faced unacceptable delay and extra cost.
More recently, EnXco has told regulators it has agreed to suggestions by the U.S. Fish and Wildlife Service to develop a bird habitat plan and obtain a permit to avoid federal penalties if an endangered bird accidentally is killed. At least temporarily, the Merricourt project would join a handful of U.S. wind farms with agreements to shut off turbines to protect birds that are migrating or spotted nearby.
Xcel reported $204 million in earnings for the quarter, or 42 cents per share, in line with what stock analysts expected. The Minneapolis-based utility said it benefited from interim electric rate increases in Minnesota and North Dakota and cooler temperatures during the heating season. The utility reported higher operating, maintenance and other expenses that partly offset the higher electric and natural gas margins.
Xcel reiterated its earnings target of $1.65 to $1.75 per share for the year. Analysts have expected Xcel to hit the higher end of that range. Shares closed Thursday at $24.31, up 7 cents.
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