WIND POWER DEVELOPMENT ON THE UNITED STATES OUTER CONTINENTAL SHELF: BALANCING EFFICIENT DEVELOPMENT AND ENVIRONMENTAL RISKS IN THE SHADOW OF THE OCSLA

Boston College Environmental Affairs Law Review, 2004 by Ransom, Elizabeth A

Abstract:

Calls for United States energy independence and concerns about dwindling fossil fuel reserves have drawn national attention to the search for viable sources of alternative energy. One such source is offshore wind power generation. Offshore wind farms have already proven successful in Europe and Australia, but none yet exist off the coasts of the United States. A private proposal to build such a facility off the coast of Massachusetts has faced strong opposition. Debate exists as to whether the Outer Continental Shelf Lands Act permits the federal government to lease areas of the Outer Continental Shelf for alternative energy development. Oil and gas extraction developments authorized under the Act have allowed accelerated development at the expense of the environment. This Note argues that a current proposal to amend the Act to include wind power generation facilities does not address the problems encountered by oil and gas developments, and calls for entirely new legislation.

INTRODUCTION: THE DEMAND FOR WIND POWER DEVELOPMENT ON THE OUTER CONTINENTAL SHELF (OCS)

We live in a world where fossil-fuel resources dwindle while demand for energy steadily increases.1 The Organization for Economic Cooperation and Development has warned that by 2020, the demand for fossil fuels will "sky rocket" due to fast-paced economic growth in China, India, Russia, and other nations.2 With such an increase in fossil-fuel use, carbon emissions could double, causing "massive" pollution, shortages, and political conflicts over increasingly scarce fuel resources.3 This looming energy crisis has focused public attention on the development of other sources of clean, affordable, and most importantly, renewable energy.4

As a result, public attention has come to rest on wind as an "abundant, inexhaustible, and cheap" source of energy that some believe could provide the foundation for powering the economies of the future.5 In fact, wind power is now the fastest growing energy technology in the world.6 Globally, wind-powered electricity generation increased by about 30 percent in 2001, and almost 500 percent overall since 1995.7 In 2002, approximately 50,000 wind turbines were in operation around the world, including wind farms off the coasts of Great Britain, Germany, Australia, and Sweden.8 Supporters claim that wind power could also be successful in the United States because of its "large, untapped wind potential."9 Wind power, however, generates less than one percent of electricity in the United States,10 and no offshore wind farms exist in U.S. waters.11

While fifty-four percent of the U.S. population resides in coastal states, few viable onshore sites for large-scale wind development exist in these areas.12 In order to bring alternative energy sources to this population, developers are turning to offshore areas as prime targets for wind power development.13 A number of sites are currently being considered by private developers along the eastern seaboard, in both state and federal waters.14 The federally controlled Outer Continental Shelf (OCS) has been specifically targeted for private wind power development for two reasons: (1) it provides the best source of shallow waters and sustainable winds,15 and (2) gaps currently exist in federal legislation that would expedite development on the OCS, enhancing the profitability of these projects.16

Because no offshore wind farms exist in waters of the United States, 17 the process by which currently proposed projects obtain property rights from the federal government will impact the viability of offshore wind farms as a major source of alternative energy. Thus, the question of how private development of the OCS for wind power generation should proceed is of paramount importance.

Part I of this Note describes the tensions between the environmental costs and benefits of wind power development on the OCS. Part II gives a brief history of private oil and gas development on the OCS, describing the federal statutory policy of accelerating production over environmental concerns. It also focuses on how the Outer Continental Shelf Lands Act (OCSLA)18 uses revenue and siting as the primary methods of implementing this policy, and how concerns over the OCSLA's failure to protect the environment led to a Congressional moratorium on oil and gas leases on the OCS.

Part III highlights the current legislative gap that exists regarding wind power development on the OCS and describes recently proposed legislation that would amend the OCSLA to authorize use of the OCS by private corporations for wind power development. Part IV introduces the theory that the stewardship philosophy of the public trust doctrine could be emphasized in new legislation as a means of moving national policy towards greater environmental protection of public resources.

Finally, Part V of this Note argues that the current legislative gap regarding alternative energy development on the OCS necessitates new legislation before development occurs. It argues that the recently proposed legislation, however, does not adequately change national policy to avoid the problems encountered by the application of the OCSLA to oil and gas development. New legislation should contain a stronger statement of the public trust philosophy of environmental stewardship, provide specific limitations on the amount of the OCS land that can be granted at one time, and use revenue payments to the federal government as a means of encouraging private developers to mitigate environmental risks.