Offshore wind: what steps need to be taken to ensure it has a future in America.

• Author: Puliafico, Amy

Cite as 12 J. High Tech. L. 330 (2011)

Offshore wind development has failed to develop in the United States despite the growing trend toward green energy. (1) Wind turbines produce energy with no air or water pollution. (2) Unlike land-based farms, offshore wind farms can be larger, gather more wind, and produce more power than each one on land. (3) Yet, unclear zoning laws, overlapping jurisdictions, and public opposition have entirely stopped the development of this green energy source. (4)

Massachusetts and other coastal states have yet to deal with these issues effectively, so only a few projects are beginning to take shape. (5) The Cape Wind project claimed it would be America's first offshore wind farm, but ten years into development not a single turbine has been installed. (6) NIMBY-ism, redundant sources of law, lack of clear jurisdictional boundaries, and dozens of sources of authority have stopped all forward progress. (7) In response, Massachusetts passed the Massachusetts Ocean Management Plan in 2010, and the legislature attempted to enact the Wind Energy Siting Reform Act to address some of these issues. (8)

This Note addresses how Massachusetts has dealt with its offshore wind farm and the subsequent steps it has taken to remedy the problems encountered by Cape Wind. It will compare land-based and offshore projects to explain the differences in and provide examples for offshore zoning law. Then the Note will address the feasibility and potential future use of ocean plans in permitting. Finally, this Note will analyze state and federal regulations plus judicial review procedure for offshore wind turbines and suggest some alternatives. Offshore energy is a growing field, which is why the states, federal government, and courts need to develop a cohesive, efficient, environmentally friendly way of handling it.

1. History

   1. Introduction

      It is important to understand how wind is transformed into clean energy. Wind energy is captured using wind turbines that look like windmills. (9) The turbine has a rotor, which typically has three aerodynamic blades that are pushed by the wind, and can be turned so they face in the direction to receive the most wind possible. (10) Next, the mechanical energy of the rotating rotor goes into the generator where it is converted into electrical energy. (11) From there, the energy is moved through transmission lines to join energy from other turbines within the same grid. (12) The grids connect to an electronic service platform on land via a transmission line where breakers and electric relays transmit the power to electric companies or directly to power outlets. (13)

      Unlike offshore wind farms, America has embraced land-based wind farms due to the available space and lower energy costs. (14) However, land-based farms are limited because it is wasteful to transfer electricity over long distances, and these farms are located in sparsely populated areas. (15) More than half of the United States population lives near the ocean, so offshore projects can be larger, and reach people easier, without the high transmission costs. (16) Additionally, offshore winds are "typically stronger and less turbulent than land-based winds, increasing the revenue potential," which can offset the higher costs of installation and maintenance. (17) Offshore development is the next logical and necessary step in green technology. (18)

      Wind energy is not an American technology; Europe installed the first offshore wind project and is currently leading the way. (19) As of 2009, Europe had approximately twenty-five operational wind farms off its coast. (20) Presently, nine countries have over thirty-nine offshore wind farms comprising over 2,063 megawatts of electricity-generating capacity, with fifty-two more projects already permitted, totaling more than 16,000 megawatts. (21) That number is likely to continue to grow dramatically, as the European Union recently committed to generating twenty percent of its energy from renewable sources by 2 0 2 0. (22) The United Kingdom alone plans to have a 6.6 gigawatt energy capacity from offshore wind by 2015. (23) The European Wind Energy Association has suggested consolidating permitting so developers only have to follow the European Union's regulations, and not those of each individual country to facilitate a more efficient process. (24) Despite the current dual layers of regulation, the European system is the most efficient and advanced in the world. (25)

   2. Cape Wind Permitting

      In contrast to Europe's advancements, America does not have a single wind turbine in its waters. (26) So far, no project has successfully completed the planning or permitting phases and started construction. (27) The most developed and controversial project is Cape Wind, off of Cape Cod, Massachusetts. (28) The proposed site would be the largest in the world when it is built at 420 megawatts, and consist of 130 wind turbines. (29) The turbines would cover twenty-four square miles off the coast of Cape Cod in an area known as Nantucket Sound. (30) It is expected to produce on average 170 megawatts, which is "almost 75% of the 230 megawatt average electricity demand for Cape Cod and the Islands of Martha's Vineyard and Nantucket." (31) The project would be 6.5 miles from Cape Cod and be farther from the nearest home than any other electricity generating facility in Massachusetts. (32) On a clear day, from the closest beach on Cape Cod, the turbines would appear one-half inch above the horizon. (33)

      The Cape Wind project is being reviewed under the federal National Environmental Policy Act (NEPA), which requires an Environmental Impact Report (EIS), the Massachusetts Environmental Policy Act (MEPA), which requires an Environmental Impact Review (EIR), and the Development of Regional Impact (DRI). (34) The US Army Corps of Engineers (Corps) was the lead agency on the project, and drafted the required documents for the permitting process. (35) In 2005, Congress passed the Energy Policy Act of 2005 "in the face of criticism over the appropriateness of the Corps as the lead agency for energy development on the outer continental shelf (OCS)." (36) The Act switched power to grant an easement to the continental shelf from the Corps to the Department of the Interior who then delegated it to the Minerals Management Services (MMS). (37) Since then, the MMS has been renamed the Bureau of Ocean Management, Regulation and Enforcement (BOEMRE), and its subdivision, the new Bureau of Ocean Management, now handles offshore energy. (38) The Massachusetts Energy Facilities Siting Board (EFSB) is the state regulatory agency responsible for permitting the electric transmission line connecting the wind turbines to the power grid. (39) The approval and permit of these four agencies is necessary for the project to begin construction. (40)

      The first step in the permitting was the Corps determining the scope of the project in order to receive approval to research the site more carefully. (41) The MEPA Environmental Notification Form certificate and the NEPA Environmental Assessment were jointly filed in November 2001. (42) It included input from the seventeen participating government agencies and the public. (43) After three years of research and public hearings, the Corps, in November 2004, released a combined Draft EIS, Draft EIR, and Draft DRI. (44) The document is over 3,800 pages and includes all of their findings. (45) The scope of the draft included, "(1) avian; (2) marine habitat; (3) fisheries and benthic; (4) aviation; (5) telecommunication systems; (6) commercial and recreational navigation; (7) socio-economic; (8) aesthetic and landscape/visual; (9) cultural resources; (10) recreation; (11) noise and vibrations; (12) water quality; (13) electric and magnetic fields; (14) air and climate; and (15) safety." (46) Additionally it included an analysis of alternative locations, including "one land-based alternative, three in shallow water, a single location in deep water, two or more smaller site combined, and a no-build alternative." (47) The extensive document addresses all the issues necessary to satisfy NEPA and MEPA. (48)

      The next step in the permitting process came in May 2005 after a thirty-two month adjudicatory proceeding that "included 2,900 pages of transcripts and 932 exhibits;" the EFSB approved the connection of the electric lines from the wind farm to the electric transmission system in Massachusetts. (49) This ensured that once construction was complete, the electricity produced would be consumed by Massachusetts residents and businesses; due to appeals, this decision was not final until August 2010. (50) Next, in February 2007, Cape Wind filed their Final EIR, completing the Massachusetts application requirements. (51) In May 2009, the Massachusetts Environmental Siting Board issued a Certificate of Environmental Impact and Public Interest granting all of the state and local permits necessary for the project. (52) The Department of the Interior released the Final EIS in January 2009, and Interior Secretary Salazar released a Record of Decision approving the permit in April 2010. (53) The final federal step took place on October 6, 2010 when Secretary Salazar signed the nation's first offshore wind lease with Cape Wind. (54) It is a twenty-eight year lease costing approximately $88,000 per year before the project becomes operational and over one million dollars a year afterwards, of which twenty-seven percent will go to Massachusetts. (55) Federal and Massachusetts offices and agencies have been extremely inefficient in reviewing and approving these application documents. (56)

   3. Cape Wind Legal Battles

      In addition to the lengthy permitting processes over the land, Cape Wind has also been the subject of heated litigation, which has cost millions of dollars in legal fees and delayed the project by years. (57) The first of these cases, Ten Taxpayer Citizens Group v. Cape Wind...