Vermont Law School

On November 4th, Energizer Brian Martin and I had the privilege of attending the New England Regional Ocean Law and Policy Workshop: Offshore Wind Facility Siting. The goals of the workshop were to 1) identify common legal issues encountered by New England state and federal managers when considering offshore wind; 2) understand the research, work and progress done on thus far on these issues; 3) discuss coordinated efforts to address these legal issues and; 4) consider future collaborative coordination between researchers (at academic intuitions) and management agencies. The workshop aimed to identify what legal barriers existed in the development of offshore wind facilities and how collaborative and coordinated efforts across agencies and with research institutions could provide solutions and generate the development of offshore wind facilities.

Attending the workshop were representatives of federal[1] and New England state agencies[2] responsible for coastal management, law professors and students.[3] This meeting was the final meeting of a three-day long conference on regional ocean and coastal planning.[4]

The Agenda included a discussion of state efforts on legal issues, federal perspectives on legal issues, a discussion of overlapping issues and issues in need of research, and a brief discussion of possible coordination.

During the meeting, representatives from the states of Massachusetts, Maine and Rhode Island each gave short presentations on the initiatives, work, progress and challenges they have respectively encountered in their offshore wind, ocean management and marine spatial planning endeavors.

Massachusetts, through the Massachusetts Ocean Act, created the “Massachusetts Ocean Plan” which designated areas for potential offshore wind siting. A detailed and comprehensive PowerPoint examined the full state and federal regulatory history facing offshore plans, as well as the ongoing concerns for Massachusetts-based projects. Massachusetts suggested that the workshop participants could resolve some existing concerns, such as jurisdictional overlap between Rhode Island and Massachusetts coastal waters. The key issues Massachusetts is currently facing include: a) state leasing authority; b) interaction of state and federal interests through regional ocean planning, energy siting (MMS) and programmatic EIS; c) integrated planning and EA work and; d) interstate coordination through planning, MMS and CZMA.

Maine, through an Executive Order in November 2008, established an Ocean Energy Task Force which is charged with the responsibility of meeting several goals, including promoting research and demonstrations projects of offshore wind energy, maintaining and updating information on energy resources off the coast of Maine and identifying laws and policies that would interfere with the environmentally-responsible development of energy generation facilities. Maine emphasized its special ongoing interest in developing deepwater siting projects, including an $8 million federal grant to spur development. The Ocean Energy Task Force has been responsible for passing legislation for demonstration projects and received a grant to conduct these projects. The Task Force has identified potential siting locations. Issues that Maine has faced include municipal boundaries and taxation, lease fee structures for both demonstration areas and commercial farms, federal agency feedback and review and issue with compensation.

Rhode Island currently has six special area management plans that guide their marine spatial uses. Each zone has specific performance standards. Rhode Island hopes to develop a renewable energy plan that would include marine waters out to 30 nautical miles. Rhode Island approached the Mineral Management Service (MMS) and U.S. Army Corps of Engineers to develop a collaborative plan for Rhode Island’s marine spatial uses. Notably, Rhode Island and Massachusetts have begun to formally collaborate on siting concerns due to commercial interests that would “straddle” the offshore territories of the neighboring states. Key issues that Rhode Island is facing are insurance issues with commercial fisherman and incorporating the issues of global climate change and clean energy development into plans.

The federal agencies which were present, including U.S. EPA, MMS, Army Corps, the U.S. Coast Guard and NOAA, also gave short presentations on the legal issues with offshore wind siting. Their presentations highlighted systemic redundancies and how the federal agencies have acted, generally, as “reactive” agencies that wait until state agencies regulations are satisfied before initiating their permitting processes. Those permitting processes were repeatedly described as “redundant.”

We then discussed common issues at the both the state and federal level. Furthermore, we discussed components of developing an efficient process to marine spatial planning. The most conferred upon issue was streamlining and consistency between the state and federal permitting processes. Currently, there are multiple NEPA reviews, creating huge time-delays to offshore permitting. In the state review process, states take a proactive approach to offshore spatial planning—collecting large samples of data and in-depth research before granting permits. If the state research and efforts could be incorporated into the federal permitting process and NEPA requirements, then the permitting process would be substantially faster and offshore wind energy development would become much more viable. Furthermore, consistency between state and federal permitting requirements would increase investments in offshore wind development. Offshore wind facilities require huge capital investment. Capital investment is much more likely when there is predictability in regulatory regime governing the project. The workshop also discussed how vital it was to make the permitting process to offshore wind development bulletproof to avoid litigation. There was also a proposal of new federal legislation to address the issues of offshore wind. The development of clean, domestic energy sources is a national priority in the face of climate change and national security.

The workshop concluded with a discussion of potential research opportunities. The tenor of the room suggested that many legal challenges persist, that federal delays are the most significant current roadblock, but that future litigation may continue to impede development. The limited funding and timetables for many state initiatives to encourage offshore wind development may represent another likely impediment.

Research and development opportunities seem ample. We hope to continue work in this area.

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[1] Federal offices that sent representatives included: U.S. Environmental Protection Agency (EPA), the Office of Alternative Energy Management at the Minerals Management Service (MMS), Army Corps of Engineers, the U.S. Coast Guard and the National Oceanic and Atmospheric Administration (NOAA) Fisheries Service

[2] State office that sent representatives included the Coastal Resources Management Council (RI), Maine Coastal Program, and the Massachusetts Office of Energy and Environmental Affairs.

[3] Professors included professors from the Marine Affairs Institute at Roger Williams School of Law, the University of Rhode Island, and the University of Maine. Students represented Roger Williams, Vermont Law School, and the University of Rhode Island.

[4] The law students were joining, essentially,