Pay careful attention to the deadlines for assignments!! All written assignments should be uploaded to the Assignment Dropbox on the course iSite by the specified deadline. If for some reason you are unable to access the Assignment Dropbox, please email your written assignment as a word document (NOT a pdf) to wjacobs@law.harvard.edu and jcalahong@law.harvard.edu. Copies of all readings will be posted on H20 under [LOCATION].

QUESTIONS TO ANSWER AND POST NO LATER THAN NOON ON TUESDAY, FEBURARY 4 (you will work in teams – put all names on the submittal)* DO NOT do any research of secondary sources. The purpose of this exercise is to practice reading and interpreting the statutes yourselves. You do not need to check any law that is not on the list I am providing you. The list of statutes is posted below. As to each question, support your answer with an explanation (no more than a few sentences) and relevant statutory or regulatory citation(s): 1. What is an environmental impact statement (EIS)? Who will prepare the EIS for a wind farm that is proposed by a private development company? 2. What is the chief difference between an EIS and an EIR (environmental impact report)? 3. If the proposed wind farm project would have adverse environmental impacts, as confirmed in an EIS, may the Department of the Interior (DOI) through its Bureau of Ocean Energy Management (BOEM) still approve the project? How is BOEM’s approval memorialized (i.e., what type of legal document will BOEM use to express its approval)? 4. Assuming the wind farm will be situated in water that is at least 25 meters deep, is the Outer Continental Shelf Lands Act (OCSLA) triggered? What is the “Outer Continental Shelf”? 5. Which federal agencies will likely be “consulted” pursuant to OCSLA with regard to an offshore wind farm proposal? May any of the “consulted” agencies block the project? 6. If construction of the proposed wind farm would disturb the migration, reproduction, and/or feeding patterns of dolphins or seals, may the project proceed? 7. Does the anchoring of the turbine to the seabed or the laying of cables beneath the seabed trigger the Endangered Species Act (ESA)? Does your answer change if you are told that no endangered species will be present in the area during the months when construction will occur? Explain. 8. Assuming a private development company seeks to build a wind farm five (5) miles off the coast of Massachusetts, to which agency will the developer (a/k/a the project proponent) apply for permission first: • the Army Corps of Engineers under Section 10 of the Rivers and Harbors Act; • the Bureau of Ocean Energy Management (BOEM) under the Outer Continental Land Shelf Act; • the National Marine Fisheries Service under the Marine Mammal Protection Act or the Endangered Species Act; • the Massachusetts Executive Office of Environmental Affairs under the Massachusetts Environmental Policy Act; • the Massachusetts Coastal Zone Management Office, under the Coastal Zone Management Act? *Submit all homework assignments by the specified deadline date and time on the course iSite [http://isites.harvard.edu/icb/icb.do?keyword=k98394&login=yes] under “Assignment Dropbox.” Each homework assignment will have a designated folder where you can upload your submission. If for some reason you cannot access the Assignment Dropbox, please email your homework submission in word format (NOT pdf) to wjacobs@law.harvard.edu and jcalahong@law.harvard.edu.

FEDERAL STATUTES Clean Air Act, 42 U.S.C. § 7401, et seq. Clean Water Act, 33 U.S.C. § 1251, et seq. Coastal Zone Management Act, 16 U.S.C. § 1451, et seq. Endangered Species Act, 16 U.S.C. § 1531, et seq. Energy Policy Act of 2005, 42 U.S.C. §15801, et seq. Federal Aviation Administration Act, 49 U.S.C. § 44718, et seq. Federal Land Policy and Management Act, 43 U.S.C. § 1701, et seq. Marine Mammal Protection Act, 16 U.S.C. § 1361, et seq. Marine Protection, Research, and Sanctuaries Act (MPRSA), 33 U.S.C. § 1401, et seq. (NOTE: the permit and enforcement provisions of MPRSA are often referred to as the Ocean Dumping Act.) Migratory Bird Treaty Act, 16 U.S.C. § 703, et seq. National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et seq. Noise Control Act, 42 U.S.C. § 4901, et seq. Oil Pollution Act, 33 U.S.C. § 2701, et seq. Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331, et seq. Rivers and Harbors Act, 33 U.S.C. § 401, et seq. Submerged Lands Act, 43 U.S.C. § 1301, et seq. MASSACHUSETTS STATUTES Energy Facilities Siting Board, MGL c. 164, § 69H, et seq. Massachusetts Environmental Policy Act (MEPA), M.G.L. c. 30, §§ 61-62H Massachusetts Oceans Act of 2008, 2008 Mass. Acts Chapter 114 and M.G.L. c. 21A, § 4C

Submit completed statutory chart. For each statute listed on the chart, indicate whether or not it applies to the wind farm project proposed by Gust Power (read the Gust Power hypothetical posted below) and include the specific statutory citation(s) and fact(s) that support your answer. You will be assigned to a different team.

PROJECT DESCRIPTION Gust Power LLP (Gust) proposes to construct and operate a commercial wind energy facility 11 miles off the southeastern coast of Massachusetts within Nantucket Sound. The project calls for 150, 5.0 megawatt (MW) wind turbine generators (WTGs), each with a hub height of 315 feet, as well as an electrical service platform (ESP), inner-array cables, and 2 transmission cables. Each of the 150 WTGs would generate electricity independently of each other. The total capacity of the project is 750 MW, with a derated capacity of 250 MW (i.e., expected annual output), enough to supply up to 85% of the electricity needs of 5-8 Massachusetts coastal communities. Solid dielectric submarine inner-array cables from each WTG would interconnect with the grid and terminate at their spread junctions on the ESP. The ESP would serve as the common interconnection point for all of the WTGs. Each WTG will be mounted on a tubular conical steel tower, supported by a monopile foundation system. An access platform and service vessel landing would be provided at the base of each tower. The proposed project footprint would be approximately 27 square miles; the entire area to be used for project activities is approximately 35 square miles. The project would be situated so as to maximize the production of energy from wind. In order to generate maximum wind energy production, the WTGs would be arranged in parallel rows in a grid pattern. For this area of Nantucket Sound, the wind power density analysis conducted by the applicant determined that orientation of the array in a northwest to southeast alignment will provide optimal wind energy potential for the WTGs. This alignment would position the WTGs perpendicular to prevailing winds, which are generally from the northwest in the winter and from the southwest in the summer for this area of Nantucket Sound. The WTGs would have a computer-controlled yaw system to ensure that the nacelle is always turned into the wind and perpendicular to the rotor. In addition to maximizing potential wind energy production, the WTGs must also be sufficiently spaced within the array in order to minimize power losses due to wind shear and turbulence caused by other WTGs within the array. Gust proposes to use 5.0 MW turbines, a new technology produced by REPower. The turbines will include a monopole foundation driven approximately 85 feet into the seafloor; three blades with a rotor diameter of 430 feet; and each tower will reach a hub height of 315 feet. The monopoles would utilize two different diameter foundation types depending on water depth. For shallower waters, the monopole would be 16 feet in diameter; for deeper waters, they would be 18.5 feet in diameter. Turbines generally “turn on” when the wind speed reaches 3 to 5 meters per second and shut down when wind speeds exceed 25 meters per second to avoid damaging the turbine components. The turbines will have a spacing of 0.34 nautical miles by 0.54 nautical miles, and will include Federal Aviation Administration (FAA) and U.S. Coast Guard (USCG) approved lighting for safety measures. The individual turbines will be connected to an electrical service platform by 33 kV inner-array cables. Within the nacelle of each turbine, a wind-driven generator would produce low voltage electricity, which would be “stepped up” by a transformer to produce 33 kV electric transmission capacity. The inner array submarine cable system would use a three-conductor cable with all phases under a common jacket. The electrical service platform will be located in the middle of the array. It will collect all the electricity from the turbines, and then send the electricity to shore via 115 kV cables that would make landfall in Cape Town on Cape Cod in Massachusetts. In addition to the electrical equipment, the ESP would include fire protection, battery backup units, and other ancillary systems. These systems will include ventilation, safety, communications, and temporary living accommodations. The living accommodations are for emergency periods when maintenance crews cannot be removed due to severe weather conditions. These accommodations would utilize waste storage holding tanks that would be pumped to the service vessel for proper disposal. All equipment would be contained within an enclosed weather-protected service area. Maintenance and service access to the ESP would normally be by service boat. A boat landing dock consisting of a fender structure with ladder is attached to the ESP to allow boat landing and transfer of personnel and equipment and temporary docking of the service craft. The ESP would have a helicopter deck to allow personnel access when conditions preclude vessel transport and for emergency evacuation. Equipment and material transfer would be by a crane mounted on the ESP. All cables will be buried beneath the seafloor to a depth of 6 feet. Two 115 kV transmission circuits would interconnect the ESP with the existing Massachusetts Electric transmission grid serving Cape Cod. Two AC circuits are necessary to provide the required electric transmission capacity when operating at high capacity to the Massachusetts Electric transmission system and to provide increased reliability and redundancy in the event of a circuit outage. Each circuit consists of two (2) three-conductor cables, resulting in a total of four (4) cables. The proposed onshore transmission cable would be located within the existing public roadways for a length of approximately 4 miles (6.4 km) from landfall to the Massachusetts Electric transmission cable right of way (ROW) located on the west side of Cape Street. The applicant has identified a new industrial port facility in New Bedford, Massachusetts as having the attributes required for construction, assembly, and development of an offshore wind project of this magnitude. The port facility is currently under construction in order to support the burgeoning offshore wind industry and is located in New Bedford Harbor in New Bedford, Massachusetts approximately 15 nautical miles from the proposed project location. As part of construction, the project includes the dredging and removal of approximately 250,000 cubic yards of PCB-contaminated sediment caused by industrial waste generated and discharged during the 1930s and 1940s. The EPA has jurisdiction over the removal of this sediment because New Bedford Harbor is a designated Superfund site. Approximately 18,300 tons of sediment will be removed from the port before it can support the vessels required for offshore wind construction. Under federal law (The Jones Act), all vessels transporting cargo or equipment between two U.S. points must be manufactured and flagged in the U.S. However, the only operational vessels that can support the offshore wind industry are manufactured in Europe. As a result, the WTGs for this project will either need to be assembled on land and placed on a barge by a walking crane in the terminal facility or will need to use a jack-up barge manufactured in the U.S. Manufacture of a specialized jack-up barge called the “RD MacDonald” is expected to be complete by the end of 2014. A jack-up barge with a crane would be utilized for the actual installation of the monopiles. The jack-up barge would have four legs with pads a minimum of four meters on a side (approximately 172 ft2 [0.0039 acre or 16 square meter [m2]). The “RD MacDonald” has a 78-foot wide hull that is 260 feet long and 22 feet deep. A crane with a 280-foot boom will be installed on the barge. The crane would lift the monopiles from the transport barge and place them into position. The monopiles would be installed into the seabed by means of a pile driving ram or vibratory hammer to an approximate depth of 85 ft (26 m). This would be repeated at all WTG locations. Only two pieces of pile driving equipment would be present within the proposed action area at any one time, and they are not planned to be operated simultaneously. Since the monopiles are hollow, sediments would be contained within them. Length of monopile, insertion distance, and finished elevation would vary by individual location due to water depth and structural and geotechnical parameters. Scour mats will be placed on the seabed by a crane onboard the support vessel. Final positioning will be performed with the assistance of divers. After the mat is placed on the bottom, divers would use a hydraulic spigot gun fitted with an anchor drive spigot to drive the anchors into the seabed. The mats are removed with divers and a support vessel in a similar manner to installation, and are expected to result in greater amounts of suspended sediments than levels associated with the original installation of the mats. Rock armor scour protection has also been proposed for an alternative approach to scour control. Rock armor design is driven by wave action (wind-driven and ocean swell) and currents (tidal and wind-driven). The armor stones are sized so that they are large enough not to be removed by the effects of the waves and currents, while being small enough to prevent the stone fill material placed underneath it from being removed. If it were used, the rock armor and filter layer material would be placed on the seabed using a clamshell bucket or a chute. In those locations where rock armoring had been used for scour protection, it would also be removed following project decommissioning. The 33 kV cable would be transported to New Bedford, Massachusetts from the Wind Cable Factory in a special cable transport vessel. The cable would be transferred onto the cable installation barge. The linear cable machines on-board the barge would pull the cables from coils on the transport vessel onto the barge, and into prefabricated tubs. The installation barge and auxiliary barge loading take place in New Bedford, Massachusetts. After the cable has been transferred, the installation barge would be towed to the New Bedford wind farm site. This would be repeated as required to deliver and install all the required cable. The proposed method of installation of the submarine cable is by the hydroplow embedment process, commonly referred to as jet plowing. This method involves the use of a positioned cable barge and a towed hydraulically-powered jet plow device that simultaneously lays and embeds the submarine cable in one continuous trench from WTG to WTG and then to the ESP. The barge would propel itself along the route with the forward winches, and the other moorings holding the alignment during the installation. The six point mooring system would allow a support tug to move anchors while the installation and burial proceeds uninterrupted on a 24-hour basis. When the barge nears the ESP, the barge spuds would be lowered to secure the barge in place for the final end float and pull-in operation. The cable would be pulled into the J-tube and terminated at the switchgear. The following is a list of the primary installation equipment: • Hydroplow cable burial machine designed for 6 ft burial depth; • Installation barge 100 ft wide x 400 long x 24 height; • Anchor handling tugs – two 3000 hp twin screw (would be with the barge for the duration of the installation); • Six-point mooring system with two 60-inch (1.52 m) spuds. The mooring system would consist of 3 double winches, plus another double drum winch for controlling the two spuds. Each winch drum would contain approximately 2,000 ft (610 m) of 1 1/8 inch (28.6 mm) mooring cable and have an anchor attached. Mid-line buoys would be attached to minimize anchor cable scour. Pendant wire with 58-inch (1.48 m) steel ball buoys would be attached to the anchors for deployment and quick recovery; • Cable burial support system including pumps, and Hydroplow accessories; • Cable laying support system including cable machines, chute, tubs and complete diving operations center to support divers; • Auxiliary trencher pulling barge – a barge of 40 x 100 ft (12.2 x 30.5 m) dimensions outfitted with spuds; and • Auxiliary vessels – there would be a crew boat, two inflatable boats, and several skiffs. Jet plow equipment uses pressurized sea water from water pump systems on board the cable vessel to fluidize sediments. The jet plow device is typically fitted with hydraulic pressure nozzles that create a direct downward and backward “swept flow” force inside the trench. This provides a down and back flow of re-suspended sediments within the trench, thereby “fluidizing” the in situ sediment column as it progresses along the predetermined submarine cable route such that the submarine cable settles into the trench under its own weight to the planned depth of burial. The jet plow’s hydrodynamic forces do not work to produce an upward movement of sediment into the water column since the objective of this method is to maximize gravitational replacement of re-suspended sediments within the trench to bury or “embed” the cable system as it progresses along its route. The pre-determined deployment depth of the jetting blade controls the cable burial depth. The installation of the submarine transmission cable via jet plow embedment is anticipated to take approximately two to four weeks to complete. As the jet plow progresses along the route, the water pressure at the jet plow nozzles would be adjusted as sediment types and/or densities change to achieve the required minimum burial depth of 6 ft (1.8 m). In the event that the minimum burial depth of 6 ft (1.8 m) below present bottom is not met during the jet plow embedment, additional passes with the jet plow device or the use of diver-assisted water jet probes would be utilized to achieve the required depth. The transition of the interconnecting 115 kV submarine transmission cables from water to land would be accomplished through the use of a methodology that will minimize disturbance within the intertidal zone and near shore area. The technology (HDD) would be staged at the onshore landfall area and involve the drilling of the boreholes from land toward the offshore exit point. Conduits would then be installed the length of the boreholes and the transmission cable would be pulled through the conduits from the seaward end toward the land. A transition manhole/transmission cable splicing vault would be installed using conventional excavation equipment (backhoe) at the onshore transition point where the submarine and land transmission cables would be connected. There would be four 18-inch (457 mm) diameter HDPE conduit pipes (one for each three-conductor 115 kV cable and fiber optic cable set) installed to reach from the onshore transition vaults to beyond the mean low water level. The offshore end would terminate in a pre-excavated pit where the jet plow cable burial machine would start. The four conduits would have an approximately 10 ft (3 m) separation within the pre-excavation area. The four boreholes would be approximately 200 ft (61 m) long (borehole diameters would be slightly larger than the conduit diameter to allow the conduit to be inserted in the borehole). A drill rig would be set up onshore behind a bentonite pit where a 40 ft (12.1.m) length drill pipe with a pilot-hole drill bit would be set in place to begin the horizontal drilling. A bentonite and freshwater slurry would then be pumped into the hole. The HDD construction process would involve the use of bentonite and freshwater slurry in order to transport drill cuttings to the surface for recycling, aid in stabilization of the in situ sediment drilling formations, and to provide lubrication for the HDD drill string and down-hole assemblies. This drilling fluid is composed of a carrier fluid and solids. The selected carrier fluid for this drilled crossing would consist of water (approximately 95 percent) and inorganic bentonite clay (approximately 5 percent). The bentonite clay is a naturally occurring hydrated aluminosilicate composed of sodium, calcium, magnesium, and iron. After each 40 ft (12.1 m) of drilling, an additional length of drill pipe is added, until the final drill length is achieved. To minimize the release of the bentonite drilling fluid, freshwater would be used as a drilling fluid to the extent practicable for the final section of drilling just prior to the drill bit emerging in the pre-excavated pit. This would be accomplished by pumping the bentonite slurry out of the hole, and replacing it with freshwater as the drill bit nears the pre-excavated pit. When the drill bit emerges in the pre-excavated pit, the bit is replaced with a series of hole opening tools called reamers, to widen the borehole. Once the desired hole diameter is achieved a pulling head is attached to the end of drill pipe and then the drill pipe is used to pull back the 18-inch (457 mm) diameter HDPE conduit pipe into the bored hole from the offshore end. As with the pilot hole drilling process, freshwater would be utilized to the maximum extent practicable as the reaming tool nears the pre-excavated pit. The drilling fluid system would recycle drilling fluids and contain and process drilling returns for offsite disposal, and while the intention is to minimize the discharge or release of drilling fluids to marine or tidal waters, the HDD operation would be designed to include a drilling fluid fracture or overburden breakout monitoring program to minimize the potential of drilling fluid breakout into the waters. It is likely that some residual volume of bentonite slurry would be released into the pre-excavated pit. The depth of the pit and the temporary cofferdam perimeter are expected to contain any bentonite slurry that may be released. Prior to drill exit and while the potential for bentonite release exists, diver teams would install a water-filled temporary dam around the exit point to act as an underwater “silt fence.” This dam would contain the bentonite fluid as it escapes and sinks to the bottom of the pre-excavated pit to allow easy clean-up using high-capacity vacuum systems. It is expected that the HDD conduit systems would be drilled through sediment overburden at the landfall location. However, it is anticipated that drilling depths in the overburden would be sufficiently deep to avoid pressure-induced breakout of drilling fluid through the seafloor bottom based primarily on estimates of overburden thickness and porosity. Nevertheless, a visual and operational monitoring program would be implemented during the HDD operation to detect a fluid loss. This monitoring includes: • Visual monitoring of surface waters by drilling operation monitoring personnel on a daily basis to observe potential drilling fluid breakout points; • Drilling fluid volume monitoring by technicians on a daily basis throughout the drilling and reaming operations for each HDD conduit system; • Development and implementation of a fluid loss response plan and protocol by the drill operator in the event that a fluid loss occurs. The response plan could include drill stem adjustments, injection of loss circulation additives such as Benseal that can be mixed in with drilling fluids at the mud tanks, and other mitigation measures as appropriate; and • Use of appropriate bentonite drilling fluids that would gel or coagulate upon contact with sea water. Depending on manufacturers, gearbox oil within each turbine is usually changed after one year of operation and thereafter every two years. For this operation a larger vessel is required than regular crew boats. Drums of oil must be transported, lifted to the transition platform and hoisted up the tower to the nacelle machine room. Equally, the old oil must be transported in reverse. This operation is usually conducted by a separate team taking approximately one day per turbine. The project would have a detailed Spill Prevention Control and Counter Measure Plan (SPCC) to ensure proper oil handling procedures are used and to provide procedures to address possible contingencies in the use of oil or other potential pollutants. Several mitigation measures will be proposed by Gust to ensure protection of the marine and human environment. In addition, Gust will purchase emission reduction credits (ERCs) to offset the emissions from vessels and equipment used during construction of the project. The project would be monitored 24/7 by a staffed control center on Cape Cod. The control center will have a direct line of communications with the USCG. In case of emergency, the turbines could be remotely shut down from the command center. The project would operate on the periphery of the Atlantic Flyway, a key migratory route for birds on the east coast, including Roseate Terns. North Atlantic right whales and grey seals have been observed in areas as close as two nautical miles from the proposed project location. All along the Cape Cod coast, piping plovers breed and nest. Nantucket Sound is a significant area for commercial and recreational fisheries. The commercial fisheries in the area typically use trawl nets.

Each student (no teams this time) is to prepare a graphic depiction of the process for obtaining a particular permit, approval, or other necessary government decision. You are strictly limited to three slides at most (preferably only two slides but I am also looking for accuracy and sometimes oversimplification affects accuracy). You must use a legible font size! The purpose of the exercise is to communicate complex information clearly and accurately with as few words as possible. Be sure to consider the facts provided in the Gust Power hypothetical to guide and focus your legal analysis. Your audience (whether a project supporter or opponent, whether the developer, a resident or a regulator in the community in which the project will be situated, a state or federal regulatory agency, or an NGO) needs to understand what is entailed, how long the process will take, opportunities for public participation, opportunities for delay and expedition of the process, and appeals. This exercise is about process so do not waste your energy (or words) describing the contents of required submittals. Usually, but not always, the legislators delegate to the agencies the job of developing the procedures for obtaining permits/approvals and memorializing them in regulations. Hence, you should focus your attention in this exercise on the relevant implementing regulations. You should also double-check the statute to make sure that nothing important has been omitted by the regulator. To save you time, I have provided the citations for you in the format you should use for citation purposes. Note that C.F.R. refers to the Code of Federal Regulations; CMR refers to the Code of Massachusetts Regulations; and, M.G.L. refers to the Massachusetts General Laws. Please let me know by email as soon as possible if you do not understand the assignment or if you are having any trouble. I intend this to be an exercise in interpretation and communication, not frustration! You will be assigned one and only one of the following: 1. Final Incidental Take Authorization for North Atlantic Right Whale. 16 U.S.C. § 1374; 50 C.F.R. Part 216; 50 C.F.R. Part 222; 15 C.F.R. Part 904. [David Baake, Sarah Weiner] 2. Final M.G.L. c. 91 Waterways License. M.G.L. c. 91; 310 CMR 9.00. [Ryan Cook, Andrew London] 3. Secretary’s Certificate of Compliance of Final Environmental Impact Report (FEIR) (for activities occurring within Massachusetts jurisdiction). M.G.L. c. 30, §§ 61-62H; 301 CMR 11.00. [Mateen Safaie, Sean Morrison] 4. Final Wetlands Protection “Permit” (this permit is termed “Order of Conditions” or “Superseding Order of Conditions”). M.G.L. c. 131, § 40; 310 CMR 10.00. [Daniel Carpenter-Gold, Rachel Raymond] 5. Final Massachusetts Office of Coastal Zone Management decision regarding the Federal Consistency Certification. 301 CMR 21.00; 15 C.F.R. Part 930, Subpart E. [Corey McGehee, Casey Clausen]

1. For this exercise, consider yourselves the team leaders who are responsible for orchestrating the project for Gust Wind. You need a vision of how you will get Gust Wind from concept to construction. Thinking about the legal framework we have been studying and using the permit list I am providing (no research required) as a starting point, each team should submit to the iSite an organized list of the experts/expertise that Gust Power will need to engage for the project. Think about the big picture and about the details. For example, what expertise/experts will you need to engage in order to get through the OCSLA leasing process? The NEPA/MEPA processes? What tasks will you assign each expert to handle? Each student on the team is equally responsible for the quality, organization, comprehensiveness, and clarity of the list. You will each receive the same grade. 2. In addition, still working with your assigned team and still using the Gust Power facts and the laws with which we have been working, each team should submit to the iSite a memorandum addressed to your client answering the assigned question. The memorandum should be no more than 2-3 double-spaced pages! Each student on the team is equally responsible for and should carefully review and edit the memorandum to ensure that it is accurate, succinct, and well-written! TEAM 1 [Daniel Carpenter-Gold and Rachel Raymond]: Your clients are a group of Cape Cod residents who support the project. They want to know what legal leverage they have to push for the project. Provide several examples from the laws and regulations we have been studying. TEAM 2 [Ryan Cook and Corey McGehee]: Your clients are a group of Cape Cod residents who oppose the project. They want to know what legal leverage they have to block the project. Provide several examples from the laws and regulations we have been studying. TEAM 3 [Sarah Weiner and Casey Clausen]: Your client is the Massachusetts Department of Environmental Protection (DEP) which has no stake in the outcome but must participate in various consultation processes and potentially render decisions on permit applications. You are the lawyer in the Office of General Counsel who has been asked to advise the Commissioner about how the various laws should inform his participation in the consultation processes with BOEM, the MEPA office and the MCZM Office. Provide several examples from the laws and regulations. TEAM 4 [Mateen Safaie and David Baake]: Your clients are a national group of bird watchers and enthusiasts who oppose the project. They want to know what legal leverage they have to block the project. Provide several examples from the laws and regulations we have been studying. TEAM 5 [Andrew London and Sean Morrison]: Your client is the Massachusetts Department of Environmental Protection (DEP) which has no stake in the outcome but must participate in various consultation processes and render decisions on permit applications. You are the lawyer in the Office of General Counsel who has been asked to advise the Commissioner about how the various laws should inform his participation in the consultation processes with BOEM, the MEPA office and the MCZM Office. Provide several examples from the laws and regulations.

Read the materials posted on the iSite in the Homework Assignments folder under Course Materials prior to our March 6 tour of the Wind Technology Testing Center in Charlestown (WTTC). Do not spend more than 2 ½ - 3 hours reading - You don’t need to master them!! Come on March 6 with 2-4 questions to pose to Rahul Yarala, WTTC Executive Director, and Bill White, Senior Director of Offshore Wind. Please make sure to bring a photo ID with you to the March 6 tour.

Each of you has been assigned a topic on which you will write a comment letter and present oral comments at a public hearing (in class on March 27). To develop your comments, you will review and rely on the DEIR and selected supporting documents. I have significantly redacted the actual document (Draft EIS for Cape Wind’s proposed off shore wind farm) in an effort to make the task more manageable for you but still meaningful. Although I have reduced it by many hundreds of pages, it is still several hundred pages long. Please know that in “real” life, you would be reading many hundreds, if not thousands, of pages of material to engage in the discussion we will be having and to prepare comments. Please read the rest of this memorandum BEFORE you read the DEIS! The purposes of the upcoming exercise are several: (1) To give you some experience reading typical technical documents. Yes, they are often dense and turgid. Be glad I am not giving you the raw, first draft to edit! You’ll do lots of that in practice. (2) To force you to practice reading such documents “efficiently.” This means you need to think about what you are looking for in the document before you spend a lot of time wrestling with it. This means (building on our prior classes) start with the Table of Contents. Watch out because the information you need for your task/purpose will not necessarily be presented where you expect to find it! Remember the Clean Air Act? Figure out how the author(s) organized the material. Sometimes it turns out to be useful to thumb through the entire document. That doesn’t mean you are closely reading every page if the task doesn’t call for it. (3) To give you some practice using this type of document to support your position. There is material in the document that is helpful to those who support the project; there is material that is helpful for those who oppose the project. Your job as the lawyer is to challenge the experts’ assumptions and conclusions. That should be your focus whether you are editing or reading documents, whether you are writing comments or preparing to examine a witness, whether the author is on your team or on the other side. (4) To practice using the law as the backdrop for a factual argument. I will give you instructions next week in class about how to write a comment letter and how to present comments at a hearing. Both are very different from brief-writing and judicial testimony, but the law still plays a pivotal role. You will be using the DEIS to develop (and then present at our mock hearing) both written and oral comments from the perspective and on the issue I will assign you. It was not practical for me to edit every page of the DEIS to match our GustPower hypothetical, so I am asking you to accept that all references to Cape Wind in the DEIS are really to Gust Power and where you have any question about the facts, please refer to the Gust Power fact sheet. By noon on Wednesday, March 12, you should each post on the i-site between 4 and 6 questions that you have about the DEIS. Please bring to class on March 13 a preliminary outline of your written comments. We will discuss the art of writing comments during class. You may submit your written comment letter anytime before April 3. The letter should be no more than 12 double-spaced pages supported by statutory and regulatory citations, the DEIS, and any other technical documents you been provided. You will work as individuals, not as teams. The assignments are as follows: 1. Representing GustPower on the issue of impact to birds and bats = Sarah. Please focus specifically on piping plovers, roseate terns, red knot shore birds, and bats. 2. Representing GustPower on the issue of impact to marine mammals = Ryan. 3. Representing GustPower on the issue of impacts to fishing = Mateen. 4. Representing a group of year-round residents of the town that will host the transmission cable who support the project = Andrew. 5. Representing Gust Power with regard to the analyses of alternatives in DEIR generally and impacts of the project on whale watchers specifically = David. 6. Representing a group of Cape Cod recreational and commercial fishermen who oppose the project = Casey. 7. Representing a group of summer residents of the town that will host the transmission cable who oppose the project = Sean. 8. Representing a group of people who own property on Cape Cod who oppose = Rachel. 9. Representing a group of whale watchers who oppose the project and whose comments focus on the alternatives analyses in the DEIR = Corey 10. Representing a group of bird watchers who oppose = Daniel. Please focus specifically on piping plovers, roseate terns and red knot shore birds. Read the DEIS and supporting documents from the perspective you’ve been assigned. You do not need to do any independent research or read sections of the DEIS that I did not include. I reserve the right to give you additional material if I think you need it to prepare a good set of comments. You should certainly let me know if you think you need additional material to support your assigned position. Think about what result you want from the public hearing/comment submittal process. As always, let me know if you have any questions. The DEIS and supporting documents will be located on [SELECT LOCATION]

Review NEPA regulations at 40 C.F.R. Part 1503 (commenting); Part 1506.6 (public involvement); and Part 1500 (generally). Read Administrative Procedure Act scope of judicial review of agency actions. 5 U.S.C. § 706. Be ready to present oral comments at our public hearing. Each student will have 5-7 minutes maximum. That includes time to answer questions if any are posed by the hearing officer. You may NOT read. You may use notes, but no laptops. No powerpoints. Your written comments are to be submitted anytime before midnight on April 3. Read syllabus for details. Read materials posted on the iSite in the Homework Assignments folder under Course Materials. The materials include the NEPA statute, NEPA regulations, DOI regulations, several cases, and portions of a treatise.

*All of the following are posted on [LOCATION] 1. Read Master Services Agreement between Gust Power and Sustainable Energy Engineering Consultants. 2. Answer written questions (SEE BELOW). 3. Read MMS Cape Wind DEIS pp. 2-24 to 2-25, 5-28 to 5-31. 4. Read Boring log (1 page). 5. Read Massachusetts Oil and Hazardous Material List (1 page). 6. Look up and carefully read: a. CERCLA Section 107, 42 U.S.C. § 9607 b. M.G.L. c. 21E, Sections 2 and 5 c. 30 C.F.R. § 585.406

Submit your Answers by Tuesday, April 1st at noon to These Questions Regarding Terms & Conditions for Environmental Services between Gust Power and Sustainable Energy Engineering Consultants *As to each answer, provide a couple of sentences explaining your reasoning. 1. Which Articles concern you the most in your role as Gust Power’s lawyer? 2. Which would concern you most if you represented Sustainable Energy Engineering Consultants? 3. Is Article 3 adequate? Does it make sense? 4. What is the relationship between representations and warranties and indemnities? 5. How many indemnities are there in this contract? 6. What is a survival clause (Article 15)? Why is it important? 7. What is the purpose of the severability clause (Article 19)? Where else do you find severability provisions? 8. Who are the third-parties referenced in Article 23? 9. Why is the non-assignment clause in Article 13 important?

Read the cases posted in “Homework Due April 8 by Noon” folder under Course Materials on the iSite. Prepare answers to the questions about the cases for class on April 10 (you do not need to submit written answers on the questions to the iSite). Review the materials from last week (posted in the “Homework Due April 1 by Noon” folder under Course Materials on the iSite). Review CERCLA Section 107, M.G.L. c. 21E, Sections 2 and 5, and 30 C.F.R. § 585.406. Use track changes to edit the Master Services Agreement between Gust Power and Sustainable Energy Engineering Consultants from the perspective of a lawyer for Gust Power. Edit Articles 3, 4, 7, 11, 15, 20, 21, and 23 of the contract for substance/content where you think it is necessary to do so, BUT DO NOT alter or fix the formatting using track changes. Upload to iSite by April 8th at noon.

Outlines of your witness examinations must be uploaded to the Assignment Dropbox on the iSite by Wednesday, April 16 at 2:00pm. Read the materials on project finance and ethics, located in the Homework Assignments folder under Course Assignments. Be prepared to discuss your assigned ethical problem in-class on April 17. Ethical problems with assignments are posted below. Please contact your witness to schedule a time to meet on Monday, April 21. (Watch for email from me introducing you and providing contact information).

ENVIRONMENTAL LAWYERING: VALUES AND ETHICS Ponder and be prepared to discuss your assigned ethical dilemma during class on April 17, 2014. Each student will have 5 minutes to present his/her response to the ethical dilemma posed and 5 minutes to lead or guide class discussion. [STUDENT] 1. How should you, as the in-house lawyer (governmental, NGO, or corporate), respond to violations or potential violations of environmental law that are within the control of the organization? a. Does your answer change if you, the lawyer, are outside counsel to the organization? b. Does your answer change if a non-lawyer within the organization confides in you, the lawyer, about the violations? [STUDENT] 2. What can/should a lawyer do when his/her personal values (environmental or other) conflict with those of his/her client or employer? Does it make a difference whether your client/employer is the government, an NGO, a corporation, or an individual? [STUDENT] 3. You are a lawyer at the general services agency responsible for state-owned buildings in your state. The agency proposes to close one of the state’s large, old office buildings in a blighted inner-city neighborhood. The building will be demolished, and the site will then be turned into a large public park. There are no other parks in this neighborhood. Although the state has a statute that requires the preparation of an environmental impact statement before a proposal of this magnitude can be carried out, the top management of the agency wishes to save the expense and delay that would be caused by a full environmental review process. You have been directed by the head of the agency to edit the project description to make sure the proposal will not trigger the statutory environmental review thresholds. a. What should you do? b. Would your response to management’s directive be different if the proposal were reversed, i.e., if the plan were to destroy a large public park in order to construct a large office building? If so, why? c. Does your view of the environmental benefits of the proposal affect your obligations regarding compliance with the statute? [STUDENT] 4. Using the Reserve Mining story (Lazarus, chapter 2, on the isite) and Section 7003 of RCRA, 42 U.S.C. § 6973, to frame the issue, how should you balance scientific uncertainty against the likelihood of environmental damage? What if environmental damage is only “possible” but not “likely”? Does it matter whether you are embroiled in litigation or not? a. Rachel will take the position of the corporate officers/management of Reserve Mining b. Ryan will take the position of the Reserve Mining scientists c. Corey will take the position of the outside lawyer representing Reserve Mining d. David will take the position of a lawyer representing the public interest (i.e., either a government lawyer or an NGO lawyer). How will you balance scientific uncertainty against the quest for “truth” in litigation? [STUDENT] 5. You work in the General Counsel’s Office at the U.S. Environmental Protection Agency in Region IV, representing North Carolina. You have been asked to review a permit application to site a hazardous waste landfill in a poor, primarily non-Caucasian neighborhood. The application is in order and meets all regulatory requirements. What do you advise the General Counsel? [STUDENT] 6. What should you, an ethical environmental lawyer, do when your client asks you to push for delay in a case where the law is unclear and the result of delay is certain and continuing damage to the environment?