After protracted litigation challenging plans to build 130 wind turbines, each 440 feet tall, in a 25 square mile area of Nantucket Sound, the D.C. Circuit last month denied petitions for review of the Federal Aviation Administration’s (“FAA”) determination that the turbines would pose no hazard to air navigation.

The petitioners, the Town of Barnstable, Massachusetts and a non-profit group of pilots and others, challenged the no hazard determinations based on the FAA’s failure to analyze the safety risks posed by the project and to perform an environmental review required by the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332.  The D.C. Circuit had previously vacated a 2010 no hazard determination based on the FAA’s failure to consider potential adverse effects of the turbines on pilots operating under visual flight rules (“VFR”) and the potential that electromagnetic radiation from the turbines would interfere with radar systems in nearby air navigation facilities.

Noting the circumstances had changed after the FAA upgraded the radar and beacon at Otis Airfield, the circuit court’s January 22, 2014 opinion upheld the FAA’s 2012 no hazard determinations.  The court concluded that the FAA properly based its determinations on aeronautical studies conducted according to the FAA Handbook, Procedures for Handling Airspace Matters, FAA Order JO 7400.2J (February 9, 2012), of which Section 3 on identifying and evaluating aeronautical effect was applicable.  According to the court, the FAA could reasonably view its Handbook procedures implementing the Secretary of Transportation’s regulations as requiring a threshold finding before triggering the need for a more advanced “adverse effects” analysis under Handbook Section 6–3–3 which states that “[a] structure is considered to have an adverse effect if it first … is found to have physical or electromagnetic radiation effect on the operation of air navigation facilities.”
 


Continue Reading D.C. Circuit Upholds FAA’s “No Hazard” Determinations Regarding Electromagnetic Radiation from Nantucket Sound Wind Turbines

With the advent of wind energy development, much attention has been given in the aviation community to the impacts wind turbines located near airports might have on aviation safety. However, a not so readily apparent impact that has not been widely addressed is the impact of wind farms on an important segment of aviation, agricultural aviation. Because many of the country’s richest wind resources are located in agricultural areas, an increasing number of wind farms are being built on leased farmland property. Wind farm land leases provide farmland owners a continuing income source. However, in negotiating, preparing and entering into lease agreements, wind energy developers and landowners should consider other potential economic impacts wind farms might have on farming operations which extend beyond the boundaries of the leased property.
Continue Reading Wind Farms and Agricultural Aviation