Offshore wind policy in a time of potential growth

by Lily Cohen J.D. ’22

Working with Ocean Conservancy over January term, I had the opportunity to learn about policies that can enable responsible offshore wind development. Focusing on the ways to successfully transition to a carbon free economy reminded of me of the potential we still have as a society.  I came to law school to work towards a just transition, and I am hoping to graduate in the middle of a wave of investment into communities and infrastructure.  As an added bonus, the chance to dream about the wide open ocean was an excellent antidote to winter in the middle of a pandemic.

Offshore wind holds promise as a renewable energy source because the wind blows stronger and more consistently than over land. Conveniently, 80% of the U.S. population lives in a coastal or Great Lakes state.  While Europe has already built over 5,000 offshore wind turbines, the U.S. has only built 5. We will need to rapidly develop renewable energy projects if we hope to achieve the lofty goals set forth by the Biden administration. However, we will also need to make sure that we protect and conserve the oceans. Well-designed regulations can enable both efficient and responsible permitting for renewable energy leases in the ocean.

With the guidance of my supervisor, I began my research looking into the history of offshore oil and gas drilling. For better or worse, much of the framework for offshore renewable leasing has been borrowed from fossil fuel leasing.  Luckily, offshore wind will not follow the gruesome history of offshore oil and gas because the worst case scenario for a wind farm is far less catastrophic than anything resembling the Deepwater Horizon blowout.  Next, I compared the nascent offshore wind program to how the federal government has worked to promote solar and wind development on public lands.

My research allowed me to take a deep dive into the details of legislative history, statutes, and implementing regulations in a way that gave me greater appreciation for the task of policy writing.  For example, I learned about how ambiguities in a statute can lead to disputes over which agency has jurisdiction.  In this case, the Energy Policy Act of 2005 allows two different agencies to have authority over renewable energy leases in the ocean.  This kind of uncertainty can be a nightmare for renewable developers because they don’t want to begin the permitting process only to find that they weren’t following the correct regulations. Luckily, in this case the agencies were able to come to an agreement. 

In the end, sometimes the details that are the most important are the ones that are not included. While the statutes and regulations require input from local communities, they don’t say when or how they must be included. Growth in offshore wind development has faced numerous challenges from local industries and wealthy communities. Some of these challenges represent a story of using rules designed to promote environmental justice but flipping them around in order to engage in the worst NIMBY tendencies. However, some of the challenges highlight the failure to involve all of the necessary stakeholders at the planning stages of the process. The bright side of this problem is that there is plenty of room for the federal agency to improve their methods of coordination, consultation, and planning. There are no regulations preventing the new administration from getting local input early and planning in a way that addresses legitimate concerns. 

This independent clinical project gave me the chance to learn about a topic that is likely going to gain more attention as offshore wind projects start coming online. Also because everything was remote, I was able to connect with Ocean Conservancy staff from D.C. to Alaska. I look forward to following their work, and hopefully working with them again in the future. 

Read Lily’s independent clinical final paper in the Harvard Environmental Law Review here.