October 18, 2021

Volume XI, Number 291

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October 15, 2021

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Increasing Offshore Wind Projects: A Focus on Regulatory Authority

I. Introduction: The Rise of Offshore Wind Projects

Meeting the challenges of environmental sustainability and climate control will require unprecedented advances in the global energy market through regulatory consistency, policy incentives, and economic integration.  Energy conservation and environmental preservation are important to all human welfare.  The current energy structure, on a global level, has contributed significantly to the drastic climate fluctuations as well as environmental destruction.  Now that the impacts of fossil fuel consumption have become significant, a diversified energy structure is needed to ensure sustainability.[i]  The United States needs to become more invested in alternative renewable energy sources in order to curb the impacts caused from fossil fuel consumption which include: environmental degradation, pollution, death, exhaustion, depletion, etc. 

The energy demand in the United States as well as the rest of the world will continue to increase with industrialization, advancements in technology and population growth.  While energy consumption rates skyrocket to never-before-seen heights, access to fossil fuels becomes more difficult and more expensive.  Global development and energy demands will continue as newly industrialized countries become competitive with developed countries, and yet the global arena lacks an authoritative body to manage our precious fossil fuels.  The United States should not hesitate in decreasing its dependency on fossil fuels and increasing renewable energy development.

As a result of rising concerns about energy prices, supply uncertainties, and adverse environmental impacts, the United States has taken a new approach to its energy structure by working towards developing renewable energies and generating more energy from domestic sources, while trying to lessen the environmental impacts.[ii]  This approach calls for a cohesive system of agency regulation and management to streamline the permitting process for alternative renewable energy resources, especially offshore wind projects.

The potential energy generation from offshore, renewable resources is substantial and implementation is essential for environmental sustainability and responsible environmental resource management.[iii]  For example, an offshore turbine is capable of producing fifty percent more electricity than an onshore turbine of the same size because offshore winds are stronger and more constant. [iv] The potential for U.S. offshore wind electricity is estimated to be more than 900,000 megawatts, a figure equal to the United States' current production capacity.[v]  The public needs to become educated on environmental impacts caused by fossil fuel consumption and the potential for renewable resources to mitigate those impacts.  In turn, the public needs to pressure those agencies responsible for energy production to promote consistent and dependable methods for permitting renewable energy resource development.

In April 2010, the BP oil spill, the largest accidental oil spill in American history, caused irreparable damage to the water supply, marine wildlife and the entire ecosystem of the Gulf of Mexico.  The actual damage caused by exploiting fossil fuel resources, in addition to the potential risks and unpredictable long-term impacts, provides sufficient motivation to move in the direction of promoting renewable energy resources, which pose relatively zero risks.[vi]  However the current national energy structure is exactly the opposite.  Renewable energy projects coming online are sadly minimal and the United States and other nations continue to pursue fossil fuel projects.

Part II discusses how the United States has delegated jurisdiction over the ocean to various agencies and provides an overview of the conflicts that exist among agencies with regard to jurisdiction over the ocean.  Part III provides a case specific analysis of the permitting process for an offshore wind project and the difficulty of satisfying the requirements of the environmental review process.  This section also suggests that the federal government should create new legislation for managing offshore wind projects, as well as for other renewable energy resources.  Finally, Part IV offers recommendations that the federal government and the public should pursue initiatives and existing practices in the fossil fuel arena to be applied to the renewable energy arena, as to protect the health and economic stability of the United States.

II. Regulatory Background of Offshore Management – Jurisdictional Conflict Among Agencies

In 1945, President Truman proclaimed that the United States had jurisdiction and control over the U.S. Continental Shelf and the natural resources on the shelf and of the subsoil.[vii]  Enacted in 1953, the SLA gave coastal states jurisdiction and control over the sea and the submerged lands, extending three nautical miles seaward from the coastline.[viii]  However, SLA reserved the federal rights to “commerce, navigation, national defense, and international affairs.”[ix]  OCSLA, enacted shortly after SLA, codified the Truman Proclamation and delegated to the Secretary of the Interior authority over exploration and development on the Outer Continental Shelf (OCS), submerged lands seaward from each states’ territory.[x]  It is now established law that the seabed of the ocean beyond three miles from the shore and on the OCS is within U.S. territorial water and under exclusive federal jurisdiction.[xi]  The OCSLA, delegated authority to the Department of the Interior to issue oil and gas leases, but it did not delegate authority over renewable energy development on the OCS.[xii]

Over the last decade, the delegation of federal authority to manage environmental regulations and oversee the development of offshore projects has created confusion among several agencies.  Prior to 2005, the Army Corps of Engineers (Corps) was responsible for permitting offshore wind projects pursuant to the Rivers and Harbors Act.[xiii]  However, under the Energy Policy Act of 2005, the Secretary of the Interior was given the power to grant leases, easements, and rights-of-way on the Outer Continental Shelf (OCS) for renewable energies.[xiv]  In 2006, the Secretary of the Interior delegated its authority to the DOI’s Mineral Management Service (MMS).[xv]  The Corps, however, retained its authority over permitting offshore projects.[xvi]  

In response to confusion between MMS and the Corps as to who had exclusive authority over offshore renewable energy projects, the DOI and the Federal Energy Regulatory Commission (FERC) signed a Memorandum of Understanding (MOU) that gave MMS exclusive jurisdiction over offshore wind energy projects on the OCS.[xvii]  The MOU charged MMS with conducting environmental reviews and ensuring that offshore wind projects comply with other federal agency requirements, including requirements under NEPA.[xviii]

The CEQ is charged with specific duties to carry out NEPA’s standards, including the duty to suggest, “national policies to foster…environmental quality to meet…goals of the Nation.”[xix]  Under NEPA, federal agencies such as MMS are required to submit to CEQ a statement detailing any potential environmental impacts of any “major Federal actions significantly affecting the quality of the human environment.”[xx]

The Energy Policy Act of 2005 authorized the Department of the Interior (DOI) to issue leases, easements, or right-of-ways for alternative energy projects on the OCS.  Prior to 2005, MMS had been responsible for managing oil, natural gas, and other resource activities on OCS lands.  Under the Energy Policy Act of 2005, MMS became respo­­­nsible for managing alternative energy-related activities, including renewable resources, on OCS lands.[xxi]  MMS became the lead agency to coordinate the permitting process, and to monitor and regulate alternative energy production.[xxii]  MMS is charged with ensuring that projects are in conformity with NEPA before permits are issued.  Therefore MMS and its predecessors must comply with NEPA when considering applications, such as the Cape Wind application discussed below.[xxiii]

The statement detailing environmental impacts, required by the CEQ, can take the form of an environmental impact statement (EIS),[xxiv]a thorough assessment of the environmental impacts, or an environmental assessment (EA),[xxv]which is more conciseimpact statement.  The EIS must include: (1) the environmental impacts of the proposed action, (2) alternatives to the proposed action; and (3) “any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.”[xxvi]  MMS recognizes that offshore wind projects will significantly affect the human environment, therefore requiring an EIS instead of an EA.[xxvii]

MMS published the Renewable Energy and Alternative Uses of Existing Facilities on the Outer Continental Shelf (Rules),[xxviii]which requires two additional environmental reviews before MMS issues a commercial lease for an offshore wind project.[xxix]  Under the Rules, a lessee is required to submit a Site Assessment Plan (SAP) before conducting a site assessment and then was required to submit a Construction and Operations Plan (COP) before beginning construction.[xxx]  Both the SAP and the COP must undergo a NEPA review.[xxxi]  After the SAP is approved, a five-year site assessment term begins, during which the lessee assesses the potential impacts of the project’s activities and prepares the COP.[xxxii]

However to reduce the review time, MMS decided that the SAP and COP could be submitted simultaneously.[xxxiii]  If the SAP introduces additional information not included in the initial EIS, a second environmental review is required.[xxxiv]  Another environmental review is required when the COP is submitted.[xxxv] MMS, initiated an interim policy to make the environmental review more efficient, under which resource data collection facilities “could be considered and authorized for installation and operation on the OCS before promulgation of final rules.”[xxxvi]

The Rules for permitting offshore wind projects were unsurprisingly similar to the regulatory process for oil and gas leasing since MMS was the lead agency for both.[xxxvii]  The Rules allowed for leasing of commercial development on the OCS, and allowed for the issance of right-of-ways and right-of-use easements necessary to support renewable energy projects.[xxxviii]  Commercial leases enable the lessee to deliver power by including the right to a project easement, allowing the lessee to install transmission cables.[xxxix]  The Rules also require environmental reviews to be consistent with the CZMA.[xl]  The CZMA was enacted, “to preserve, protect, develop, and where possible, to restore or enhance, the resources of the Nation’s coastal zone.”[xli]  Congress gave states the authority to establish management programs, in accordance with CZMA, to oversee the development of offshore projects in and adjacent to the state’s territorial lands.[xlii]  However a project may be exempt from the state’s program if it serves national interests and is consistent with the CZMA.[xliii]

In an effort to streamline the environmental review process, that has substantially prolonged, or completely stopped, some energy development programs, on June 18, 2010, MMS was reorganized and renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE).[xliv]  BOEMRE met with the same challenges of the environmental review process as MMS, and its response yielded similar deficiencies.  As a result, the federal agency was reorganized again.  On October 1, 2011, BOEMRE was replaced by the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE).[xlv]  BOEM is now responsible for the environmental review process and for managing responsible development of offshore resources other than oil and gas.[xlvi] BSEE is responsible for the oversight of offshore oil and gas operations.[xlvii]  BOEM consolidates all relevant information that developers of offshore wind projects must consider when applying for lease permits and complying with the steps necessary to begin construction.[xlviii]

III. Cape Wind

Cape Wind Associates, LLC (Cape) began its consistently-obstacle-ridden journey to develop a wind energy plant on Horseshoe Shoal in Nantucket Sound, Massachusetts, in November 2001.  Cape filed a permit application with the Corps to construct a scientific measurement device station (SMDS) to monitor and assess the potential impacts of the wind farm.[xlix]  The U.S. Court of Appeals for the First Circuit upheld the Corps’ regulatory authority to permit Cape’s construction of the SMDS, which would collect data for five years.[l]  The Corps issued a permit to Cape under section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401, for the construction of the SMDS after determining that the project posed no threat to marine and avian life and that it would aid navigation.[li]

In addition to the permit, the Corps issued an EA and a Finding of No Significant Impact (“FONSI”) pursuant to NEPA requirements.[lii]  The United States Court of Appeals for the First Circuit affirmed the district court’s decision that the Corps’ did not violate its authority in issuing the permit for the SMDS.[liii]  Once Cape tackled the hurdle of getting the first permit, the State of Massachusetts added more challenges, prolonging the project and risking Cape Wind’s financial stability. 

After the Corps granted the permit, Massachusetts, represented by Ten Taxpayers Citizen Group, et al., challenged the issuance of the permit claiming the state rather than the federal government had jurisdiction over the project.[liv]  However, the United States Court of Appeals for the First Circuit affirmed the district court’s dismissal of the complaint on the basis that the project fell under federal jurisdiction and Massachusetts statutes were therefore inapplicable to the Cape’s project.[lv]  The court recognized the general rule that rights to offshore seabeds are reserved to the federal government as an incident of national sovereignty.[lvi]

On November 21, 2002 Cape submitted a separate application to the Corps for a permit to construct and operate an offshore wind energy plant.  Cape planned to install and operate of 170 offshore wind turbine generators (WTGs) to generate up to 420 megawatts (MW) of renewable energy.[lvii]  The Corps determined that an EIS was required for the project, the first proposal of its kind in the United States at the time. Subsequent to the EIS, construction of the project was intended to start in 2004.[lviii]  The EIS was to include an assessment of alternatives to the project, including: the no action alternative; alternative wind park locations, including offshore versus upland; submerged cable route alternatives; alternative landfall and overland cable route locations, and alternative connections to a transmission line.[lix]

Also included in the EIS were “analyses of impacts associated with construction, operation, maintenance and decommissioning of the WTGs on resources.”[lx]  The Corps recognized that the EIS should also include analyses of the projects with regards to the Endangered Species Act of 1973, the Magnuson-Stevens Fishery Conservation and Management Act, the National Historic Preservation Act of 1966, the Fish and Wildlife Coordination Act of 1958, CZMA, CWA, the Rivers and Harbors Act of 1899, the OCSLS, and applicable Executive Orders.[lxi]

However, when MMS became responsible for the environmental review process in 2005, it assumed authority over the Cape project.  Therefore Cape became subject to a new review under MMS that was practically governed by the same principles as the review undertaken by the Corps.  MMS assumed lead federal responsibility and initiated its own independent environmental review pursuant to NEPA.  Therefore that which was accomplished in the first four years of the permitting process became practically irrelevant and Cape was pushed back to where it started in 2001.  It was not until May 2006 that MMS announced its Notice of Intent (NOI) to prepare an EIS for the Cape project.[lxii]  The EIS was to include all that which was required under the Corps review well as analyses of avian species, marine mammals, shellfish resources, essential fish habitat, commercial and recreational fisheries, air and water quality, visual impact, noise assessment, alternative sites, marine archeological and cultural resources, air and sea navigation, local meteorological conditions, sediment transport patterns, local geological conditions, and economic impacts.[lxiii]

In addition to requiring the EIS, MMS invited participation by cooperative agencies and commenced a 45-day comment period, pursuant to NEPA, to allow “Federal, State, tribal, and local governments and other interested parties to aid the MMS in determining the significant issues, potential alternatives, and mitigating measures to be analyzed in the EIS and the possible need for additional information.”[lxiv]  MMS invited qualified government entities to inquire about cooperating agency status for the Cape Wind EIS.[lxv]  However those cooperating agencies’ input neither enlarges nor diminishes the final decision-making authority of any other agency involved in the NEPA process.[lxvi]  Unqualified agencies could still comment during the normal public input phases of the NEPA/EIS process.  MMS announced that alternatives to the proposal would be considered in the EIS.[lxvii]

MMS published the Cape Wind draft EIS in January 2008 and the final EIS and in 2009, MMS announced the release of the Final Environmental Impact Statement (FEIS) for the Cape project, noting that it had “assessed the physical, biological, and social/human impacts of the proposed project and 13 alternatives.”[lxviii] In 2010, MMS announced its Notice of Availability of an Environmental Assessment and Draft Finding of No New Significant Impact (FONNSI) for Public Review and Comment for the Cape project.[lxix]  On April 28, 2010, the Department of Interior announced the availability of the Record of Decision (ROD) for the Cape Wind Project.[lxx]  With the ROD, Cape’s future was the brightest it had since it had overcome many obstacles, and yet the project was challenged again in 2010. But again, the Supreme Court of Massachusetts upheld the project for satisfying its requirements and meeting applicable standards.[lxxi]  Since the project was at its final stages when MMS was reformed into BOEMRE and then subsequently BOEM, Cape did not have to undergo additional reviews but continues to face criticism, even after construction began. 

Construction of the offshore wind plant finally commenced in 2011.[lxxii]  The project is still being challenged for failing to meet certain requirements under NEPA and other environmentally protective provisions.  From start to finish Cape has had to endure a decade of challenges in dealing with regulatory inconsistency, jurisdictional conflicts, and from proponents claiming to promote environmental protection.  Not many investors would be attracted to a project that needed at least ten years before completion, not to mention the additional time needed to make a return on the investment.  It is hard to reconcile the goals of those challenging a renewable energy project as being concerned with environmental protection with the fact that no fossil fuel project has faced such challenges to delay construction for a decade.  It would seem more logical that proponents claiming to promote environmental protection would be supportive of renewable energy production and would focus their efforts on delaying fossil fuel production, such as offshore oil rigs that have the potential for a blow out that would devastate the marine life and surrounding environments as witnessed by the BP oil spill.

IV. Progressive Policy Initiatives Need to Progress

With the reorganization and restructuring of the controlling agencies, the environmental review process need not be met with similar obstacles apparent throughout history.  The United States Department of Energy (DOE) recognizes a potential for wind energy to contribute 20% of United States electricity by 2030, if significant obstacles are overcome.[lxxiii] These obstacles include: 1) improving turbine technology, 2) changing transmission systems to deliver the energy to the grid system, 3) expanding markets to purchase and use it, 4) policy development and 4) environmental regulation. [lxxiv]  Concentrated, domestic wind energy has enormous potential to supply electricity, but its maximum effectiveness has only occurred in localized areas such as Nantucket Sound because of wind patterns and jurisdictional battles.  Recent advanced technological enhancements have improved performance and the industry is gaining some momentum but the governmental agencies need to make substantial changes. 

Recognizing the difficult nature of the environmental review process, BOEMRE introduced the “Smart from the Start” wind energy initiative, to identify suitable areas for wind energy projects on the OCS.[lxxv]  The two primary purposes of the initiative are to 1) provide decision makers with the most current data, by calling for public and expert inputs, and 2) to streamline the issuance of leases and approval of site assessment activities, in accordance with the DOI and CEQ regulations implementing the provisions of NEPA.[lxxvi]  Another purpose of the initiative is to identify areas that are most suitable for offshore wind energy projects.[lxxvii] The initiative “focuses on the identification and refinement of areas on the OCS that are most suitable for renewable energy development,” and “utilizes coordinated environmental studies, large-scale planning processes, and expedited review processes within these areas to achieve an efficient and responsible renewable energy leasing process.”[lxxviii]

If the initiative is successful, it should reduce the time, expense, and energy required to complete the environmental review requirements while still promoting environmentally safe activities.  Initiatives such as this should be pursued in order to provide developers with efficiency and success, while providing the nation with a more diverse energy scheme and loosening the nation’s dependency on fossil fuel resources.  This goal is countered by the Energy Policy Act of 2005.  The Act is dedicated to supporting oil and gas production by providing incentives to developers, but the Act neglects to give wind energy equal support.[lxxix]  There are other provisions, though not as supportive as those for the fossil fuels, dedicated to geothermal and hydroelectric energy.[lxxx]  However there should be specific details under the act, or a similar act, supporting wind energy production, which is the largest contributor of electricity among the renewable energies.  Wind energy should be given the same initiatives, if not more, than fossil fuels.

The DOE established the Federal Energy Management Program (FEMP) to help federal agencies obtain funding for energy efficiency, renewable energy, water conservation, and greenhouse gas (GHG) management projects.[lxxxi]  The DOE recognized the risk of federal energy projects temporarily stopping or completely stopping because Congressional appropriations, alone, were insufficient to fund federal energy project needs’ to meet federal requirements.[lxxxii] Additional funding options include energy savings performance contracts (ESPCs), utility energy service contracts (UESCs), power purchase agreements (PPAs), and energy incentive programs.[lxxxiii]  However in constructing a scenario where federal contributions would be feasible for the future, the DOE neglected to compare the scenarios for renewable energy projects to fossil fuel energy plans and neglected to lay out an action plan which would benefit the renewable energy market.[lxxxiv]  The DOE, through the FEMP, should extend ESPCs, UESCs and PPAs to potential renewable energy projects such as Cape to foster the development and production of sites so that renewable energy markets can become competitive with fossil fuel markets and in turn attract investors and establishing a perpetual cycle leading to a diversified national energy structure.


Special Thanks to Eric Hull.

[i]Jared Wiesner, A Grassroots Vehicle for Sustainable Energy: The Conservation Reserve Program & Renewable Energy, 31 WM. & MARY ENVTL. L. & POL'Y REV. 571, 588(2006).

[ii]ENERGYEFFICIENCY ANDRENEWABLE ENERGY, U.S.DEP'T OF ENERGY, 20% WIND ENERGY BY 2030: EXECUTIVESUMMARY 1(May 2008), available at http://www1.eere.energy.gov/wind/pdfs/42864.pdf.

[iii]W. MUSIAL & S.BUTTERFIELD, FUTURE FOR OFFSHORE WIND ENERGY IN THE UNITED STATES 7 (National Renewable Energy Laboratory 2006), available at http://www.nrel.gov/docs/fy04osti/36313.pdf.

[iv]Bent Ole Gram Mortensen, International Experiences of Wind Energy, 2 ENVTL. & ENERGY L. & POL’Y J. 179, 207 (2008).

[v]Supra note 6.

[vi]Potential risks for wind projects include: visual obstructions, noise obstructions, frequency and flight obstructions, placement in marine and avian habitats, cleanup if a wind turbine falls over or into waters, etc.

[vii]Proclamation No. 2667, 3 C.F.R. 40 (1945).

[viii]43 U.S. §§ 1301-1315 (2011).

[ix]Id. § 1314(a).

[x]Id. § 1331-1356.

[xi]Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 373 F.3d 183 (1st Cir. 2004) (citing 420 U.S. 515, 522); see also 43 U.S.C. §§ 1301, 1331(a).

[xii]43 U.S.C.§ 1337(a).

[xiii]ADAM VANN, CONG. RESEARCH SERV., RL 32658, WIND ENERGY: OFFSHORE PERMITTING 5 (2008), available at http://www.cnie.org/NLE/crs/abstract.cfm?NLEid=254; 33 U.S.C. §§ 407-687.

[xiv]43 U.S.C. § l337(p)(l) (2011) ("The Secretary ... may grant a lease, easement, or right-of-way on the outer Continental Shelf.. . if those activities .. (C) produce or support production, transportation, or transmission of energy from sources other than oil and gas.").

[xv]Renewable Energy and Alternate Uses of Existing Facilities on the Outer Continental Shelf, 74 FR 19638-01.

[xvi]43 U.S.C. § l337(p)(9). (“Nothing in this subsection displaces, supersedes, limits, or modifies the jurisdiction, responsibility, or authority of any Federal or State agency under any other Federal law”).

[xvii]See Memorandum of Understanding Between the U.S. Department of the Interior and the Fed. Energy Regulatory Comm’n (Apr. 9, 2009), available at http://boemre.gov/regcompliance/MOU/PDFs/DOI_FERC_MOU.pdf.

[xviii]Id.

[xix]42 U.S.C.A. § 4344 (2011).

[xx]Id. at § 4332.

[xxi]Outer Continental Shelf, Headquarters, Cape Wind Offshore Wind Development 2007, 71 FR 30693-01.

[xxii]Id.

[xxiii]Outer Continental Shelf, Headquarters, Cape Wind Offshore Wind Development 2007, 71 FR 30693-01.

[xxiv]An EIS is "a detailed written statement as required by section 102(2)(C) of [NEPA]." 40 C.F.R. § 1508.11(2010).

[xxv]An EA is "a concise public document for which a Federal agency is responsible that serves to: (1) [b]riefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact[;] (2) [a]id an agency’s compliance with the Act when no environmental impact statement is necessary[;] [and] (3) [f]acilitate preparation of a statement when one is necessary." Id. § 1508.9(a).

[xxvi]42 U.S.C. § 4332(2)(C).

[xxvii]Id.

[xxviii]Supra note 38.

[xxix]Id. at 19,685-6 (“We chose this approach for a commercial lease because there are two distinct phases for commercial development for renewable energy projects: (1) A site assessment phase, where a lessee may install a meteorological or marine data collection facility to assess renewable energy resources; and (2) a generation of power phase, which includes construction, operations, and decommissioning.”)

[xxx]See 30 C.F.R.285.611 (2010) (describing NEPA information required to be submitted in conjunction with SAP); 30 C.F.R. §285.646 (describing NEPA information required to be submitted in conjunction with COP).

[xxxi]Preamble to the Rules, supra note 21, at 19670.

[xxxii]Peter J. Schaumberg & Angela F. Colamaria, Siting Reneable Enargy Projects on the Outer Continental Shelf: Spin, Baby, Spin!, 14 Roger Williams U. L. Rev. 624, 634-35 (2009).

[xxxiii]Supra note 54.

[xxxiv]Id, at 19690.

[xxxv]Id.

[xxxvi]Request for Information and Nominations of Areas for Leases Authorizing Alternative Energy Resource Assessment and Technology Testing Activities Pursuant to Subsection 8(p) of the Outer Continental Shelf Lands Act, as Amended. 72 F.R. 62674 (2007).

[xxxvii]Stephanie Showalter & Terra Bowling, Offshore Renewable Energy Regulatory Primer (Nat’l Sea Grant L. Center), July 2009, at I, available at http://nsglc.olemiss.edu/offshore.pdf.

[xxxviii]Preamble to the Rules, supra note 21, at 19647.

[xxxix]Id.

[xl]Id. at 19691tbl.2.

[xli]16 U.S.C. § 1452(1) (2011).

[xlii]Id. § 1451(i)-(m).

[xliii]Id. § 1456(d).

[xliv]U.S. Dep’t of the Interior, Change of the Name of the Minerals Management Service to the Bureau of Ocean Energy Management, Regulation, and Enforcement, Order No. 3302 (June 18, 2010) available at http://www.doi.gov/deepwaterhorizon/loader.cfm?csModule=security/getfile&PageID=35872.

[xlv]30 C.F.R. § 585.100 (“The Secretary of the Interior delegated to the Bureau of Ocean Energy Management (BOEM) the authority to regulate activities under section 388(a) of the EPAct. These regulations specifically apply to activities that: (a) Produce or support production, transportation, or transmission of energy from sources other than oil and gas; or (b) Use, for energy-related purposes or for other authorized marine-related purposes, facilities currently or previously used for activities authorized under the OCS Lands Act.”).

[xlvi]The Reorganization of the Former MMS. The Bureau of Ocean Energy Management. 2011. Available at http://boem.gov/About-BOEM/Reorganization/Reorganization.aspx.

[xlvii]Id.

[xlviii]Id. § 585.102.

[xlix]Alliance To Protect Nantucket Sound, Inc. v. U.S. Dept. of Army, 288 F. Supp. 2d 64, 78 (D. Mass. 2003) aff'd, 398 F.3d 105 (1st Cir. 2005).

[l]Id. at 66-78.

[li]Ten Taxpayers Citizen Group v. Cape Wind Associates, LLC, 278 F.Supp.2d 98, 99 (D. Mass. 2003).

[lii]Supra note 72.

[liii]Alliance To Protect Nantucket Sound, Inc. v. U.S. Dept. of Army, 398 F.3d 105, 115 (1st Cir. 2005).

[liv]Id.

[lv]Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 373 F.3d 183, 185 (1st Cir. 2004).

[lvi]Id. at 188-89.

[lvii]Intent To Prepare a Draft Environmental Impact Statement (DEIS) for Proposed Cape Wind Energy Project, Nantucket Sound and Yarmouth, MA Application for Corps Section 10/404 Individual Permit, 67 FR 4414-01; compare with Outer Continental Shelf, Headquarters, Cape Wind Offshore Wind Development 2007, 71 FR 30693-01 (stating the proposal was for 130 WTGs generating approximately 454 MW).

[lviii]Id.

[lix]Id.

[lx]Id. (Resources included: recreational and commercial boating and fishing activities, endangered marine mammals and reptiles, birds, aviation, benthic habitat, aesthetics, cultural resources, radio and television frequencies, ocean current.)

[lxi]Intent To Prepare a Draft Environmental Impact Statement (DEIS) for Proposed Cape Wind Energy Project, Nantucket Sound and Yarmouth, MA Application for Corps Section 10/404 Individual Permit, 67 FR 4414-01 (“To the fullest extent possible, the EIS will be integrated with analyses and consultation required by the Endangered Species Act of 1973, as amended (Pub. L. 93-205; 16 U.S.C. 1531, et seq.); the Magnuson-Stevens Fishery Conservation and Management Act, as amended (Pub. L. 94-265; 16 U.S.C. 1801, et seq.), the National Historic Preservation Act of 1966, as amended (Pub. L. 89-655; 16 U.S.C. 470, et seq.); the Fish and Wildlife Coordination Act of 1958, as amended (Pub. L. 85-624; 16 U.S.C. 661, et seq.); the Coastal Zone Management Act of 1972, as amended (Pub. L. 92-583; 16 U.S.C. 1451, et seq.); and the Clean Water Act of 1977, as amended (Pub. L. 92-500; 33 U.S.C. 1251, et seq.), Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. 403 et seq.); the Outer Continental Shelf Lands Act (Pub. L. 95-372; 43 U.S.C. 1333(e))”).

[lxii]Continental Shelf, Headquarters, Cape Wind Offshore Wind Development 2007, 71 FR 30693-01.

[lxiii]Cape Wind: America’s First Offshore Wind Farm on Nantucket Sound. 2011. Available at http://www.capewind.org/article72.htm.

[lxiv] Continental Shelf, Headquarters, Cape Wind Offshore Wind Development 2007, 71 FR 30694. (In 2006, the Cooperating Agencies on the Cape Wind project EIS included: United States Fish and Wildlife Service, Cape Cod Commission, United States Department of Energy, United States Coast Guard, United States Department of the Interior/Office of Environmental Policy and Compliance, Wampanoag Tribe of Gay Head, Federal Aviation Administration, Massachusetts Coastal Zone Management, Massachusetts Environmental Policy Act Office, National Oceans and Atmospheric Association/National Marine Fisheries Service, United States Environmental Protection Agency, United States Army Corps of Engineers.)

[lxv]Id. Under guidelines from CEQ, qualified agencies and governments are those with “jurisdiction by law or special expertise.”

[lxvi]Id.

[lxvii]Id.

[lxviii]Environmental Assessment Prepared for Proposed Cape Wind Energy Project in Nantucket Sound, MA, 75 FR 10500-01.

[lxix]Id.

[lxx]Id.

[lxxi]See ALLIANCE TO PROTECT NANTUCKET SOUND, INC., et al., Town of Barnstable, and Cape Cod Commission, Petitioners, v. ENERGY FACILITIES SITING BOARD, Department of Environmental Protection, Cape Wind Associates, LLC, et al., Respondents; Town of Barnstable and Cape Cod Commission, Plaintiffs-Appellants, v. Massachusetts Energy Facilities Siting Board, and Cape Wind Associates, LLC, Defendants-Appellees., 2010 WL 3612847 (Mass.).

[lxxii]America’s First Offshore Wind Farm on Nantucket Sound: The true cost of electricity. December, 2011. Available at http://www.capewind.org/article32.htm.

[lxxiii]Id.

[lxxiv]Id.

[lxxv]Commercial Wind Lease Issuance and Site Characterization Activities on the Atlantic Outer Continental Shelf (OCS) Offshore Rhode Island and Massachusetts, 76 FR 51391-01.

[lxxvi]Id.

[lxxvii]Id.

[lxxviii]Id.

[lxxix]42 U.S.C. §§ 15902-15912 (2011).

[lxxx]42 U.S.C. §§ 15872, 15881 (2011).

[lxxxi]ENERGY EFFICIENCY AND RENEWABLE ENERGY, U.S. DEP’T OF ENERGY, FEDERAL ENERGY MANAGEMENT PROGRAM (July 2011), available at http://www.nrel.gov/docs/fy11osti/52085.pdf. DOE SCIENTIFIC AND TECHNICAL INFORMATION, Alternative Financing for Energy Efficiency and Renewable Energy: Quick Guide (May 1, 2009). Available at http://www.nrel.gov/docs/fy11osti/52085.pdf.

[lxxxii]Id.

[lxxxiii]Id.

[lxxxiv]Id.

© 2012 Kiboni YarlingNational Law Review, Volume II, Number 68
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About this Author

Ms. Yarling has a B.A. cum laude in Political Science and Minors in Environmental Studies and Honors from Northern Kentucky University. Currently she is a second year law student at Florida Coastal School of Law and enrolled in the Environmental Certificate Program.  For the 2011 Fall semester, she had an internship with North Florida Land Trust (NFLT) and  is currently interning at the Florida Department of Environmental Protection.

(904) 680-7700
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