Don't Need a Weatherman to Know Which Way the Wind Blows: What Does the Cape Wind Decision Foretell for the Offshore Wind Energy Industry?

Georgetown International Environmental Law Review, Winter 2005 by Heerde, Matthew C

I. INTRODUCTION

As scientific research increasingly foretells the perils of climate change and global warming, nations around the world are turning their attention to forms of energy production to supplement and eventually to replace current fossil fuel energy sources. Currently, one of the most promising alternative forms of energy is wind power. Wind energy is now the fastest growing commercial-scale energy technology in the world. ' Europe is far ahead of the United States in developed wind capacity in terms of generating capacity per capita.2 But the United States stands to make great strides in wind energy development, especially in offshore development. Federal legislation has been proposed to promote the development of wind energy, and the industry is sure to take advantage of such legislation.3 Offshore wind farms have already been proposed for sites up and down the East Coast.4

The proposal that has progressed the furthest and generated the most controversy is the Cape Wind Farm in Nantucket Sound, off the Massachusetts coast.5 The proposed Cape Wind offshore wind farm, at 420 megawatts, would be the largest offshore wind farm in the world. The wind farm project would place 130 wind turbines over twenty-four square miles of Nantucket Sound.6 Indeed, Massachusetts, like many other states, is in need of clean sources of energy. Cape Cod National Park is classified by the U.S. Environmental Protection Agency as a high-pollution area for ground level ozone,7 which is caused in large part by emissions from electric utilities.8 However, even though offshore wind power is gaining ground as a source of the United States' electricity, and despite the growing need for clean renewable energy, as yet no federal legislation exists to regulate the fledgling industry.

This lack of federal legislation has created a sticky situation. Currently, the Cape Wind project is poised to proceed without any specific federal legislation governing offshore wind farm development. Instead, it would seem the world's newest, largest wind farm will proceed with development under the supervision of the United States Army Corps of Engineers (USAGE) and under existing laws and regulations. Although the Corps' authority to permit a large wind farm will certainly be subjected to legal challenges when and if such a permit is issued, a recent federal court decision may have set the tone for the ensuing, sometimes quite bitter, battle that has embroiled environmentalists, NIMBYists,9 legislators and agency officials.10

In Alliance to Protect Nantucket Sound, Inc. v. United States Dep 't of the Army, decided in September 2003, United States District Judge Tauro of the District of Massachusetts rejected a suit brought by local groups challenging USACE's authority to permit construction of a data tower in Nantucket Sound." In August 2002, the Corps had issued a permit to Cape Wind authorizing the data tower project, subject to certain conditions set forth in the permit.12 The data tower, officially referred to as a Scientific Measurement Devices Station (SMDS), will gather meteorological and oceanographic data to evaluate the design and engineering criteria for the Cape Wind farm itself.13 Judge Tauro's decision affirming USACE's authority to permit the SMDS was explicitly limited to the SMDS only and said nothing regarding USACE's authority to permit the proposed wind farm itself.14

While Judge Tauro's decision seemed correct on the issues he decided, the decision has become the center of a whirlwind of controversy. This is not because the Alliance plaintiffs and other Cape Wind opponents are upset by the installation of a single data tower but because of what the decision might mean for the wind farm itself. Indeed, the Tauro decision raises significant legal and policy implications for development of the offshore wind industry. The three bases for the plaintiffs' challenge in Alliance to Protect Nantucket Sound nicely frame the major issues raised by the possibility of developing a wind farm under current laws and regulations: 1) Does the USAGE have the authority to permit a wind farm in Nantucket Sound?; 2) What kind of property rights are or should be required to construct a wind farm in federal waters?; and 3) Is the current regime of environmental review under National Environmental Policy Act (NEPA) and USAGE regulations sufficient to supervise a project such as Cape Wind and any future wind farms? In addition to these three specific issues, allowing a project such as Cape Wind to proceed without specific legislation has other, more generalized implications for the future of the offshore wind energy industry.

In Part II, I will analyze the questions raised in Alliance to Protect Nantucket Sound by reviewing the relevant statutory provisions to give an overview of the current regulatory scheme governing development in the outer continental shelf and Nantucket Sound in particular. In Part III, I will review the basis of Judge Tauro's decision in Alliance to Protect Nantucket Sound and examine the possible legal and policy implications of the decision for the Cape Wind project and the offshore wind industry in general. In Part IV, I will examine the advantages and disadvantages of allowing the Cape Wind project to proceed without specific authorizing legislation from Congress. I will conclude by arguing that although Congress may not have intended for the Corps to have permitting jurisdiction over such a project as Cape Wind, the Cape Wind project should be allowed to proceed.