THE RENEWABLE FRONTIER: IMPROVING OFFSHORE WIND DEVELOPMENT WITHIN THE GREAT LAKES THROUGH STATUTORY INITIATIVES.

• Date: 22 September 2023
• Author: Blair, Anjelica D.
• Published date: 22 September 2023

CONTENTS
                INTRODUCTION
                I. OFFSHORE WIND: A BIRD'S-EYE VIEW
                 A. Technological Advancements and Response
                 B. Renewable Portfolio Standards
                II. THE CURRENT STATE OF GREAT LAKES OFFSHORE WIND
                III. GREAT LAKES STATES: THE PIECEMEAL APPROACH
                 A. Ohio
                 B. New York
                 C. Illinois
                IV. FEDERAL GOVERNMENT OPERATIONS: COMPARED
                V. ICEBREAKER WIND: FORECASTING FUTURE PROBLEMS
                VI. SOLUTIONS
                 A. Updating Current Law
                 1. Offshore Wind Statutes and Regulations Workshopping Ohio
                 and Illinois Laws
                 a. Ohio
                 b. Illinois
                 2. Submerged-Land Leasing Provisions: Workshopping New York
                 Law
                 B. Statute and Regulation Creation
                 1. Federal Law: Demystifying Great Lakes Wind
                 2. Ohio Law: Following Others' Lead
                CONCLUSION
                

INTRODUCTION

Renewable energy development has been and continues to be a clear societal objective. (1) However, "while policymakers may set lofty goals, the future of the American power grid is in fact being determined in town halls, county courthouses and community buildings across the country." (2) Make no mistake--constituents and their community leaders are speaking up. While the renewable energy movement gained momentum within the past twenty years, (3) anti-wind groups are also speaking up across the country. (4) Their impact is significant: governments axed over 300 wind development projects, partly due to the concerns of anti-wind citizens action groups. (5) These groups, under the maxim of "not in my backyard (NIMBY)," (6) predominantly concern themselves with scenic preservation and perceived health risks associated with wind farms. (7)

Offshore wind, in addition to being more efficient, (8) has the potential to address these NIMBY concerns. The turbines are miles off the coast, thus reducing their noise and visibility. (9) While offshore wind construction continues to develop in the federal government's Outer Continental Shelf, (10) the Great Lakes' freshwater version leaves much to be developed. In fact, 2020 was the first year a state government defended the leasing of a Great Lakes offshore wind development project. (11)

This Note explores several reasons why almost 600 gigawatts of energy remain untapped in the Great Lakes region. (12) Further, it explores solutions that, individually or in combination, might facilitate the region's offshore wind growth. Understanding the relevant wind energy science and the current state of both national and Great Lakes' offshore wind is critically important. Parts I and II cover these topics. The following Part examines three Great Lakes example states, followed by a deep dive into the permitting problems surrounding the Great Lakes' most-developed but currently suspended offshore wind project, Icebreaker Wind. (13) This examination highlights the varying legal and policy obstacles unique to the Great Lakes states. Part V then evaluates the federal government laws and permitting process. And finally, Part VI examines the potential solutions rooted within statutory development and regional submerged land lease continuity.

I. OFFSHORE WIND: A BIRD'S-EYE VIEW

Compared to its terrestrial counterpart, offshore wind is more efficient and less intrusive. The wind speeds are faster and steadier, and distance from the coast provides a buffer between humans and the wind turbines. (14) Likewise, "[t]he acquisition of land for [terrestrial] wind generation costs money, which may or may not be the case with offshore projects where the State controls the resource," and "[t]he assembly of land through leases and purchases with individual landowners is cumbersome at best." (15) So, land-sourcing problems may not be as burdensome on offshore projects.

A. Technological Advancements and Response

The Department of Energy (DOE) speculates that offshore wind's capacity could double the United States' energy generation. (16) Recent scientific advancements make offshore wind consumption more accessible. Offshore wind costs dipped 13 percent in 2021 alone, and 60 percent since 2010. This is due, in part, to the development of floating turbine technologies. (17) In fact, floating turbines are the subject of lease sales both domestically and abroad. (18) Globally, as of 2021, 123 megawatts of floating offshore wind were in operation. (19) While used primarily in the deeper ocean waters, floating wind turbines may be suitable for potential Great Lakes wind locations with a lake bed deeper than fifty meters. (20) However, there are risks associated with freshwater wind development. For example, freshwater ice poses risks to both anchored and floating turbines. (21) In fact, "[u]nlike other offshore structures in cold areas, [freshwater] offshore wind turbines are not only subject to coupled forcing from ice, winds, waves and currents, their structural responses are also influenced by turbine dynamics and forces." (22) The installation of water-level inverted cone structures that siphon ice away from the turbine are a viable option depending on engineering limitations. (23)

Other engineering solutions that decrease costs may also contribute to potential community backlash. One example is increased turbine height, which correlates to better budgets but also increases turbine visibility and thus may be problematic for community groups. (24) As offshore turbines increase in size, (25) companies require fewer installation vessel trips and maintenance. (26) Indeed, "scaling up both wind turbine and power plant size can reduce balance-of-system and maintenance costs through economies of scale (e.g., spreading export cable costs over larger projects) while reducing losses from wakes." (27) While there is growing concern regarding the size of offshore wind farms globally, (28) increased distance from the shoreline minimizes turbine visibility. (29)

In response to recent technological advancement, the wind market is trending upward. Corresponding with the global growth of clean energy, the U.S. government anticipates continued offshore energy development, (30) and for good reason: "the U.S. offshore wind energy pipeline shows a 13.5% growth" between 2021 and 2022." (31) The Department of Interior's Bureau of Ocean Energy Management's (BOEM) 2021 announcement of seven new offshore auction areas, the record-setting $4.37 billion dollar New York Bight (5,600 megawatts (MW)) leases and almost 1,000 MW facilities currently in construction off the coast of both Massachusetts and New York all support the government's estimate of 40,083 MW in current offshore capacity. (32) That being said, offtake agreements (33) are still necessary "to developing a bankable [offshore wind] project." (34) To date, at least twenty-four offtake agreements exist for leased offshore wind areas (35) through either power purchase agreements (PPA) or offshore wind renewable energy certificates (OREC). (36)

Both PPAs and ORECs provide a "fixed price" for the offshore wind delivery services, the differences typically being the ultimate recipient (utilities for PPAs and agencies for ORECs) (37) and the level of hedging benefit. (38) In states such as Massachusetts, current state policy mandates utilities "to enter [PPAs] with offshore wind generators for a specified nameplate capacity." (39) PPAs typically involve an offshore wind generator that contracts its energy, services, and/or "associated environmental attributes" to a third party that ultimately injects power into a specified grid system. (40) In 2016, Massachusetts took legislative initiative to facilitate PPAs by "setting price restrictions, identifying implementing agencies, and procurement processes." (41)

As mentioned, ORECs are another viable option for some states. An OREC represents "the environmental attributes of one megawatthour of electric generation from an offshore wind project." (42) These credits "compensate offshore wind developers for their environmental attributes (e.g., zero carbon emissions)" without actually moving energy to the wholesale market. (43) New York currently facilitates OREC bidding through former Governor Cuomo's executive order (44) endowing the New York State Energy Research and Development Authority with the ability "to issue solicitations ... set review criteria, create incentives," and award ORECs. (45) To support investments and availability of expertise, potential offtake buyers within the same state might consider collaboration in transmission and labor wherever possible. (46) The success of any potential Great Lakes wind offtake agreement will rely on the continued efforts to enact state policies supporting offtake agreements--particularly in states like Ohio--where offtake policies are deficient. (47)

B. Renewable Portfolio Standards

At the state level, governments may support renewable energy markets through renewable portfolio standards (RPS). The RPS began appearing in the late 1990s after the Public Utility Regulatory Policies Act (1978) (48) and other electrical utility updates failed to promote renewable energy advancement. (49) Coinciding with electricity restructuring efforts, the RPS are "polic[ies] that obligate[] each retail seller of electricity to include in its resource portfolio ... a certain amount of electricity from renewable energy resources, such as wind ... and ocean energy." (50) Sellers achieve these standards by (1) producing their own renewable power; or (2) buying and reselling renewable power from another facility, perhaps through "tradable credits" that represent a purchase. (51) The RPS, by design, require all energy companies to enter the renewable energy market and rely on it for statutory compliance. (52) The implementation measures chosen by the state ultimately dictate how these electricity sellers "will ... apportion their renewables obligation among the products they sell within the state." (53) State governments also decide the "minimum percentage" of renewable energy that the electricity retailers must supply to their customer demand. (54) Thus, states do not uniformly shape their RPS; their...