As we near the end of 2010, budgeting for 2011 is in full swing. Although I plan to skip several of the trade shows and conferences I have regularly attended for years, there is one event I refuse to miss: BuildingEnergy, which is hosted by the Northeast Sustainable Energy Association.

I attended my first BuildingEnergy, or BE, conference in 2008 and was completely blown away by the content and enthusiasm of attendees and presenters. By that time, I had been working in the green-building industry for five years as editor of a nationally circulated green-building magazine and had only met fragmented groups of people discussing the issues that were the main focus of BE’s program. NESEA’s members are passionate about building smarter buildings, being accountable for their work and wiping out greenwashing. I immediately was a fan of NESEA and began telling everyone I knew about BE’s merits.

In 2009 and this year (BE is held annually in March in Boston), I attended the opening Public Forum and both days of the conference and took copious notes during every session, keynote, presentation and networking event I attended. I’d like to share a few words of wisdom I heard at this year’s BE that have inspired me to keep forging ahead to improve our nation’s buildings:

“Treat the future like we do death; just prepare the best you can.” –Author Sharon Astyk during the Public Forum, Case Studies of the Way Forward: Creative Solutions to Global Crises

“We are meant to be connected. Our community has been taken from us, and we’ve been told we can do everything alone.” –Transition Towns Activist Tina Clarke during the Public Forum

“Offshore oil drilling will not make a big difference, nor will ethanol.” –Dr. Samuel Baldwin, chief technology officer and member of the board of directors Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy, keynote address during the Opening Plenary

“’Scorekeeping’ is the first step but then you need to figure out what a winning score is. This helps you get your clients somewhere important. Run the numbers and show that they’re here and open the conversation to getting there.” –Paul Eldenkamp of Byggmeister Inc. during Counting, Measuring, Reporting: What’s Important?

“I did a show and tell at my son’s school and explained to the kids that old doesn’t mean throw away.” –John Seekircher during Upgrading Windows in Historic and Non-Historic Buildings

“Spiders are indicators of airflow; they build webs where there’s wind, so they can easily go for food. Go up into the plenum above the ceiling; you shouldn’t see light at the roof-to-wall connection.” –Larry Harmon of Air Barrier Solutions LLC during What’s Up with the Gaps, Cracks and Holes?

“One calculation to figure out dewpoint is dumb because that doesn’t figure how the wall acts during the entire year.” –Joe Lstiburek of Building Science Corp. during How to: Vapor Barriers, Insulating Sheathing and Drying Potential

“In a conventional wall, 25 percent of the wall is framing, which kills us on insulation. Eliminate wood and add more insulation.” –Chet Pascho of Preferred Building Systems during Alternative Framing Systems: Advanced Framing, Prefab, Modular

Would you like to read more? Larry Harmon wrote “Simple Steps,” which you can read on Eco-Logic. The article compares your home to a child in winter and goes through a systematic approach to keep it warm. As you can see from this article, much of what NESEA’s members speak and write about can be adopted throughout the country. I hope to provide more articles from NESEA’s members and BE’s presenters on Eco-Logic, so you can tap into their collective genius.

To get even more BE content, I highly recommend you attend BE11 at the Seaport World Trade Center, Boston, March 8-10, 2011. The planning committee has been in full swing for months, thinking about how to keep the conference informative and considering how the current world should affect the way NESEA’s members and BE’s conference attendees think as they take their businesses into an uncertain future.

One of the top renewable-energy legal decisions in 2009 has to be the injunction issued on Dec. 8 by U.S. District Judge Roger Titus in Animal Welfare Institute v. Beech Ridge Energy LLC. The ruling halted the construction of a 122-turbine wind project in West Virginia due to the failure to study adequately the impacts of the turbines on the endangered Indiana bat. The case highlights the importance of heeding the formal advisories of agencies, such as the U.S. Fish and Wildlife Service (USFWS), in the pre-construction evaluation of a project's impacts on local fauna.

Beech Ridge Project

The project obtained its siting certificate in 2006 with the West Virginia Public Service Commission concluding that the evidence before it did not support a conclusion that Indiana bats lived near the project. Following a trial in October 2009, the U.S. District Court in Maryland concluded otherwise and criticized the project's consultant for disregarding the repeated formal advisories of USFWS to conduct multi-year studies using a variety of tools (radar, thermal imaging, acoustical studies, mist-netting and other appropriate sampling techniques) during spring and fall to determine the presence and risks to endangered Indiana bats. The consultants primarily relied on surveys using mist-nets (small-screen fine-mesh nets) conducted during two summer seasons and only incidental, and apparently unintended, collection of acoustical data.

This did not sit well with the judge, who said that the mist-nets, which did not capture any Indiana bats, at best could only establish that the bats were not present in large numbers during the summer, but did not establish absence of the bats at other times of the year.

The acoustic data, which apparently a field technician collected on his own, did not get evaluated until trial and arguably indicated that some Indiana bats might be present. The court relied heavily on this disputed acoustic data to confirm "to a virtual certainty" the presence of Indiana bats and to conclude it is "a virtual certainty that Indiana bats would be harmed, wounded or killed" by the wind project in violation of the Endangered Species Act.

The court reluctantly issued an injunction halting the Beech Ridge project and chided the developer for "disregard[ing] not only repeated advice from the [US]FWS but also fail[ing] to take advantage of a specific mechanism, the [incidental take permit] process, established by federal law to allow their project to proceed in harmony with the goal of avoidance of harm to endangered species."

Had the Beech Ridge project followed the USFWS suggestions and combined acoustic data with the mist net surveys the developer might have been in a position to make a case for an incidental take permit under the Endangered Species Act and to have better evidence to oppose a court challenge. The cautionary tale in all this is that the injunction effectively halted the project, which at the time had poured foundations for the initial 67 turbines, taken delivery on turbines and strung transmission lines.

Wind Turbine Guidelines Advisory Committee

In the meantime, the USFWS Wind Turbine Guidelines Advisory Committee is preparing a set of recommended measures to reduce or minimize impacts to wildlife and their habitats related to land-based wind energy facilities. The American Wind Energy Association (AWEA) lists completion of the Advisory Committee work among its wind power trends for 2010, and the Beech Ridge decision suggests that such draft guidelines, if followed, might be helpful to avoid the harsh results of the case.

The sixth draft issued by a workgroup of the Advisory Committee in late October 2009 proposes a five-tiered approach to wildlife assessment and siting decisions that includes pre-construction evaluation of avian and bat impacts.

The draft guidelines specifically recommend against using mist-netting to assess the presence of bats and birds, in part because it is not feasible at the heights of the rotor-swept zone, and captures below that zone may not adequately reflect risk of fatality. If mist-netting is used, the draft guidelines recommend using it in combination with acoustic monitoring.

Litigation Likely

The Beech Ridge court's critique of the methodologies used in that case lends some credence to the Advisory Committee's draft recommendations. Even, however, as that process works toward final guidelines for approval by Interior Secretary Ken Salazar, they may not prove to be a hallmark event in wind power development for 2010 because of the strong likelihood of a court challenge.

Indeed, the attorney who represented the plaintiffs in the Beech Ridge case wrote a letter earlier in 2009 asking Secretary Salazar to disband the Advisory Committee because its draft recommendations "contain little but vague bromides and generic pronouncements" and "read more as an unabashed endorsement of wind power than a rigorous effort to address the harmful—and ever growing—effects of poorly sited and constructed wind power projects on wildlife." While that letter was written well before the current draft guidelines, it indicates that the final recommendations could well face litigation.

In the absence of implementation of the guidelines, the Beech Ridge case provides a strong signal that it does not pay to ignore or minimize an agency's formal advisories in the pre-construction evaluation of a project.

Michael Nesteroff is a shareholder and chair of the Sustainability & Climate Change team at Lane Powell P.C., Seattle. This blog first appeared on his blog in December 2009. Nesteroff can be reached at nesteroffm@lanepowell.com or through www.lanepowell.com.