CONGRESS, THE COURTS, AND THE ARMY CORPS: SITING THE FIRST OFFSHORE WIND FARM IN THE UNITED STATES

Boston College Environmental Affairs Law Review, 2004 by Kaplan, Carolyn S

Abstract:

Once considered an issue only for environmentalists, renewable energy has entered the mainstream dialogue as fears of climate change, acid rain, and dependence on foreign sources of fuel become more prevalent. There is now broad support for adding renewable energy, including wind power, into our nation's fuel mix. Technological advances have allowed wind power to compete with traditional fossil fuels and lessen other potentially harmful impacts. Land-based wind power is widespread globally, and offshore wind facilities have been operating in Europe for over a decade. While there are currently several proposals for large-scale offshore wind farms in the United States, no such facilities have been sited to date. An intense legal controversy has emerged, stemming from a proposal to site a wind farm off the coast of Massachusetts. The outcome of this dispute will have important consequences for future proposals for offshore wind farms.

INTRODUCTION

Scientists, policy analysts, and the public have long debated the potentially devastating impacts of traditional fossil fuels on our environment and our economy. Fears of global climate change, acid rain, health impacts, and lately reliance on foreign sources of fuel have dominated national headlines. In recent years, the winds of change have redirected the dialogue on energy policy, focusing attention on the benefits of renewable energy. Wind energy has stirred the air, generating a heated debate over the merits and drawbacks of alternatives to fossil fuels.

Until recently, the term renewable energy was found only in the lexicon of environmentalists, a throwback to the 1970s when oil prices resulted in long lines at the gas station. Yet there is now strong, broadbased support for including renewable energy in our nation's fuel mix.1 Wind energy-the world's fastest growing energy resource-leads the way towards less reliance on fossil fuels.2 In spite of its tremendous benefits, however, wind is not a holy grail, and the possibility of offshore wind farms has sparked a controversy that has captured much of the nation's attention.3

Historically, wind power in the United States has been landbased, often located in remote, underutilized locations.4 In the last few years, however, there have been a number of proposals to harness offshore wind along the eastern seaboard, within miles of heavily populated areas and along a coastline valued for its fisheries, aesthetics, and recreational attributes.5 These offshore wind farms could generate enough electricity to power entire regions, while dramatically decreasing toxic emissions and reliance on fossil fuels.6 Yet fears of 300-foot spinning blades and blinking navigational lights blanketing the horizon have caused an uproar that threatens to drown out wind power's loudest advocates.7

This Article explores the debate that has developed over wind power. It begins with a brief discussion of wind power's dramatic growth abroad and, to a more limited extent, in the United States. This is followed by an accounting of technological advances and federal and state renewable energy policies, each of which impacts wind energy's costs and its ability to compete with traditional fossil fuels. To provide context, there is a brief comparison of land-based and offshore wind. The Article then describes the most prominent offshore wind proposals in the United States, and explores the intense legal controversy that has emerged in response to a project proposed off the coast of Massachusetts-a project referred to simply as Cape Wind.8 The contentions permitting process of the U.S. Army Corps of Engineers (the Corps), the vehement arguments of the project's supporters and detractors, the federal court's view, and Congress's response-these are all elements of Cape Wind's turbulent journey, and part of a developer's quest to site the first offshore wind farm in the United States.9

I. THE POWER OF WIND

A. Global Wind Power Developments

Wind is often referred to as the world's fastest-growing energy source.10 Wind energy advocates proudly proclaim that global wind power generating capacity has quadrupled over the past five years. At the end of 2002, wind was generating enough energy worldwide to power the equivalent of 7.5 million average American households.11 The most dramatic growth has been in Europe: a total of 5871 megawatts (MW)12 of wind energy was installed in the European Union in 2002, and total regional wind power capacity grew thirty-three percent to 23,056 MW.13

B. Growth of Wind Power in the United States

Although Europe has four to five times more wind projects than the United States, the last five years have shown dramatic growth in the United Slates, rivaling that of Europe.14 In 2003, wind projects were completed in seventeen states and installed wind generation reached almost 1691 MW.15 By the end of 2003, the country's total installed capacity reached 6337 MW, "elevating the U.S. in world ranking to second place behind Germany."16 It is widely expected that the wind power industry will continue to grow at the rate of the past five years.17 As described below, this rapid rate of development is largely due to a combination of decreasing costs and government incentives.18