Rough seas ahead: confronting challenges to jump-start wave energy.

• Author: Salcido, Rachael E.
• Position: Greening the Grid Building a Legal Framework for Carbon Neutrality

1. INTRODUCTION II. BACKGROUND A. Wave Energy and How It Can Contribute to a "Greener" Grid B. What Is the Existing Regulatory Framework for Hydrokinetic Projects? 1. Jurisdiction: Permitting, licensing, and Leasing 2. Confronting Federalism Issues 3. Addressing Environmental Concerns 4. Offshore Mapping, Zoning, and Planning Efforts III. INTELLECTUAL PROPERTY CONFRONTS THE OBLIGATION TO SHARE RESEARCH A. Background on Research, Development, and Intellectual Property for Wave Energy B. Theories: Incentives, Efficiency, and the Scientific Process C. Sharing Information and Retaining Incentives D. Conclusion IV. FROM FREEDOM AND COMMON HERITAGE TO INDIVIDUALIZING OCEAN SPACE A. Historical Development of Domestic and International Management Paradigms B. Degradation of Ocean Health and Potential Wave Energy Impacts 1. Potential Impacts 2. Applicability of Existing Laws: Why the Patchwork is Insufficient C. Ocean Industrialization D. Balancing Wave Energy with Other Uses V. POLICY PRESCRIPTIONS AND THE "ROAD" AHEAD Role of Ocean Renewables in Energy Policy. B. Sustainable Wave Energy--Proving the Green Credentials C. Marine Spatial Planning and Marine Protected Areas VI. CONCLUSION I. INTRODUCTION

   The wave energy business is expanding at a rapid pace. For those favoring sustainable alternatives to fossil fuels it is not quick enough, and much attention has been directed to "expediting" the process. (1) But getting wave energy to the grid will require increased technical knowledge as well as a legal framework that encourages investment in this form of alternative energy. Further, the claims that such energy is "green" and sustainable must address concerns about environmental impacts to ocean and coastal areas and socioeconomic impacts to coastal communities. Various obstacles must be confronted to bring wave energy to the grid in significant amounts at an accelerated rate.

   This Article will examine various challenges to the goal of accelerating wave energy development within the sustainable development framework. Three specific recommendations for paving the road ahead are to establish the role of ocean renewables within the larger energy policy, to prioritize research that will prove the "green credentials" of wave energy, and to establish marine reserves and conservation areas in an ecosystem-based ocean management system that plans for the Sustainable long-term health of our oceans.

   The first paradigm to confront is the intellectual property regime. Providing property fights in new inventions provides a strong incentive to develop new technology. Technology is developed by trial, error, reevaluation, and success, all requiring a significant investment of time and resources with some degree of risk. The sharing of knowledge about wave energy generation would theoretically increase the likelihood that successful technology will be developed in a shorter time frame. With a very large data gap regarding offshore baseline conditions and potential mitigation measures, sharing information generated during pilot projects will be essential. On the other hand, the incentive for developing the technology is reduced if the right to profit exclusively (at least for a limited time) from the technology is not limited to the person who first produces the technology. Finding a solution that encourages the sharing of information but still retains the incentive to innovate is a challenge for bringing wave energy to the grid quickly. Solutions from other disciplines provide potential avenues for addressing this challenge. Establishing the anticipated role of ocean renewable energy in U.S. energy policy and progress in proving the "green credentials" of wave energy will also be critical to the budding industry.

   A second paramount challenge, which must be addressed, is the complicated legal framework that has evolved to manage oceans. We have only limited experience with controlling individual rights in fixed areas of the ocean. For generations, the right of navigation was of the utmost importance for commerce and fishing. (2) Today, industrialization of the oceans is occurring at a fast pace, with various fixed-location activities competing with traditional uses that rely on open, unimpeded access. (3) Complicating the tension is increased awareness of the responsibility for preserving marine ecosystem integrity and biological diversity for current and future generations. (4) Thus, fixed activities such as aquaculture and wind and ocean (including, but not limited to, wave) energy generation must be reconciled with shipping, fishing, recreation, and environmental preservation. The interest in perpetuating the wisdom of the public emphasis on shared ocean benefits and responsibilities is a centerpiece of most recent reform efforts. Most will agree that a workable legal framework must balance wave energy among competing public benefits. However, putting this ideal into practice will be difficult and potentially quite time consuming. Prioritization must ultimately prevail. This controversial work will be helped by locating ocean renewable energy within a larger energy policy framework, proving wave energy's "green credentials," and utilizing marine reserves within area-based ocean management keyed to sustaining marine ecosystems for current and future generations.

2. BACKGROUND

   1. Wave Energy and How It Can Contribute to a "Greener" Grid

      Hydrokinetic energy is generated by tides, waves, and currents. (5) Various technologies have been created to capture wave energy generated in the oceans for use onshore. These include overtopping devices, point absorbers, attenuators, and oscillating devices. (6) Overtopping devices may consist of a floating structure that contains internal turbines. (7) Waves move over the device, and the water returning to the ocean moves the turbines. (8) Point absorbers are mounted to the seafloor or are floating buoys, which absorb energy from many directions. (9) Attenuators are floating segmented structures, visually similar to a snake, that when moved by waves would generate energy at the segment hinges. (10) Oscillating devices, such as an oscillating water column, would use the action of water entering a chamber to compress and decompress air to turn a turbine. (11) No single wave energy conversion device has yet emerged as the technology leader, and new designs continue to be proposed. (12)

      Energy from the oceans is renewable and most technologies make minimal use of chemicals. (13) The primary argument that wave energy is more environmentally benign than other forms of energy focuses on the fact that most existing sources (fossil fuels provide over eighty percent of current U.S. demands) generate greenhouse gases that contribute to global warming. (14) Although wave energy is renewable, uses minimal chemicals, and does not contribute greenhouse gases to the environment, any proposed wave energy project has the potential to disrupt marine ecosystems in a variety of ways, which are currently being researched. (15)

      Environmental impact research is lagging behind the rapid expansion of claims in coastal waters by those eager to bring wave energy to the grid. (16) It Will take time and effort to ensure wave energy production provides more benefit than harm, but existing research is supportive of the conclusion that wave energy is "green" energy in comparison with other nonrenewable sources such as oil, natural gas, and coal. (17)

      One of the more interesting aspects in the progress of the wave energy industry to achieve the principles outlined by sustainable development advocates is reflected by the joint policy paper adopted by various ocean stakeholders, environmental groups, and industry leaders on ocean renewable energy. (18) Sustainable development requires a unity of concern for social and environmental well-being, and is development that will meet the needs of people today without jeopardizing the ability of future generations to meet their needs. A core part of sustainable development is recognizing that humans are dependant on a healthy environment. The principles adopted by the joint stakeholder group reflect the concern that wave energy contributes to a "greener" grid by providing a source of energy that does not harm the environment. (19) This is Why the policy statement is supported by such prominent environmental groups as the National Resources Defense Council, the Surfrider Foundation, and the National Heritage Institute. (20)

      The sustainable development model also urges us to recognize the potential impact on coastal communities. These communities will be most affected, but could also experience the benefits of wave energy development most directly. An efficient use of hydrokinetic energy would be within coastal communities. In fact, areas that have sufficiently developed infrastructure and a demand for energy have been most aggressive in pursuing hydrokinetic energy as an addition to their existing energy portfolios. (21) However, this might be seen to conflict with the prevailing view of energy production, which focuses little on a diversified portfolio of multiple energy sources in favor of centralized, larger power sources that provide for the majority of energy demand. (22) This view has stalled development of technologies that have not yet proven their capacity and is a factor impeding wave energy offshore in the United States. (23)

      But the potential energy to be produced from the oceans is vast. Estimates of the amount of energy that could be generated by wave energy, and all hydrokinetic energy (including tidal), vary. Reliable estimates suggest that it is feasible that the oceans could provide ten percent of existing U.S. energy demand. (24) Taking this estimate as valid, the United States could depend on ocean energy to provide a reliable source of energy to the grid.

   2. What Is the Existing Regulatory Framework for Hydrokinetic Projects?

      1. Jurisdiction: Permitting...