Adam Regar
Weaving Sustainable Development into the United States Energy Plan: The Effects and
Regulation of Wind Energy Production
I. Attack of the Quagmire: Humanity Imposes Its Burden Upon the Earth.
As far back as the late eighteenth century, economist Thomas Malthus predicted
deficiencies in the ability of the planet to provide for its people when he stated population growth
of humans would grow exponentially while food production would increase only arithmetically.
Thus, at some point, there would be more people than food, and that is the case today. Malthus’
statement, however, did not consider the impact of human population growth on non-comestible
resources such as timber, arable land, and fossil fuels. Human impact on the environment likely
poses the greatest threat to the success of human civilization. With four percent of the world
population, the United States consumes over one-quarter of the world’s energy and produces
over one-half of the world’s waste. Simple math reveals population growth and practice on the
scale at which the United States currently enjoys will not work for the entire world population.
Enough resources simply do not exist. Thus, a dramatic rethinking of what successful
development means must occur. Upon rethinking, one will conclude sustainable development,
which provides a framework within which growth and development meet sustainable practice,
provides an answer. While many definitions exist to describe sustainable development, then
Norway Minister Gro Bruntland coined the definition within which this paper operates when she
stated sustainable development is “Development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.”1
Is the state of affairs such that humanity requires a shift to deep ecology where human
behavior conforms to the ability of the environment to provide resources? Such a concept
violates the tenet of Greco-Roman faith holding humanity’s duty is to subdue the Earth, not vice
versa. To probe the riddle the fact of dwindling environmental resources poses, this paper
discusses sustainable development in the context of deep ecology and Greco-Roman faith and
seeks a resolution somewhere between the two viewpoints: a place called sustainable
development. More specifically, this paper addresses the harnessing of wind as a source of
renewable energy and sustainability.
Part Two of this text discusses several factors driving the need for a change in the present
development policy by looking at how past societies collapse and the meaning of our
contemporary fossil fuel dependence. Part Three of this paper addresses wind energy production
as a partial remedy to overconsumption and environmental degradation and, because of its
positive environmental impacts, a technology inextricably intertwined with sustainable
development. Part Three also outlines what constitutes wind energy production as well as what
benefits and burdens wind energy production creates. Part Four of this paper considers the legal
disputes arising from operation and permitting of both onshore and offshore wind farms. Part
Five of this text documents reactions to the court decisions surrounding offshore wind farm
permitting in Nantucket Sound, suggestions to remedy the current permitting structure, and
pending Congressional legislation, which proposes an alternative permitting framework for
offshore renewable energy. Part Six of this paper concludes the courts have spoken on wind
energy production issues, and anyone seeking further redress should turn to legislation as a
remedy for environmental oversight in the wind farm permitting process.
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II. Arising from the Quagmire of Overconsumption and Scarce Resources: Sustainable
Development
Throughout history, human societies, by living beyond their means, have driven
themselves to the brink of extinction. As far back as the Polynesian tribes living on Easter Island,
societies have placed unreasonable and unsustainable demands upon the lands in which they live.
Often, such demands are not warranted for survival, as when the ancient Polynesian chiefs on
Easter Island pushed the community to create huge statues, called moai, in the name of power.2
The statues themselves served little, if any, functional purpose, but rather conveyed status of the
few powerful leaders who could persuade workers to create the statues. While the value of art
should not be diminished, one must consider why a society would continue building such statues
when their creation demanded the deforestation of an entire island.
While some cultures have done themselves in by overexploitation of natural resources,
others fail simply because their chosen location fails to provide for their population. The Anasazi
of the Southwestern United States settled in present-day New Mexico in an area now well-known
as Chaco Canyon. The Anasazi did not erect moai, as did the Easter Islanders, yet their culture
still failed. The choice of the Anasazi to live where they did brought upon them certain
detrimental environmental conditions no amount of conservative lifestyle could have prevented.3
Stories of failed societies are not just things of the past. Only a decade ago, Rwanda saw
a massive killing off of nearly one million of its inhabitants. The incident has been termed
genocide, a slaughter between the warring Hutu and Tutsi tribes. The two tribes, both of whom
share Rwanda, have been described as at-odds and separate. The more likely story, however,
posits tribes assimilated years ago, with the distinctions between the two minimal at best, and
people from each tribe often exchanging their identity as Hutu or Tutsi. Hutu and Tutsi have
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intermarried and even reclassified themselves as one or the other. Since the explanation for the
one million deaths in 1994 cannot be explained away by genocide, an alternate explanation must
be available. The Hutu and Tutsi generally live on small farms, which are passed on with each
generation, and each generation diminishes the size of the parcel to be passed down. Thus,
resources become scarce as the parcel sizes of property diminish and the smaller parcels can no
longer accommodate those living upon it. Thus, those Hutu and Tutsi who lacked the natural
resources to provide for themselves became desperate, taking up weapons and killing in an
attempt to regain those resources they lost.4
Authors commonly argue oil subsidies inhibit proper economic development. Bill
McKibben, in his book “The End of Nature,” argues oil subsidies prevent the free market from
operating properly; thus, McKibben states, artificially low oil prices reduce the incentive to find
new sources of energy because the subsidies mitigate the hard economic reasons to move away
from oil dependence.5 Oil has enabled us to act in superhuman ways, the author states, as the
power now available at the human fingertip is exponentially greater than before oil. It has
enabled us to escape from hard labor and enjoy the comforts of contemporary life, such as
automobile transportation and air conditioning, not known before the advent of fossil fuel
consumption.6
III. Emerging from the Quagmire: Wind Energy as a Remedy for Sustainable Development
Methods to achieve sustainable development come in varied forms. While no clear leader
emerges in the race for one method of sustainable development, clean (i.e., non-polluting) energy
production from renewable resources represents a cornerstone of humanity’s viability. This text
presents wind energy as one of the leading renewable energy technologies and analyzes the use
in the United States of onshore and offshore offshore wind farms to achieve sustainable
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development. The paper also addresses the problems associated with birth of wind farm
electricity as a viable renewable resource.
A. What is Wind Energy Production?
Energy production from wind, while not a new concept, has enjoyed an economic boom
in the recent decades commensurate with rising populations, needs for renewable energy, and
trends toward sustainable development. In fact, in the past two decades, wind energy production
has emerged as a viable energy resource and now powers communities around the world. Among
other countries, Denmark, Australia, and the United States have created massive “wind farms”
which contain hundreds of goliath windmills covering several square miles and producing
enough energy to provide substantial portions of community electricity needs. This section of the
paper explores several aspects of wind power, including windmill composition and function and
the positive and negative aspects of wind energy production.
Considering the idea of a windmill, one may fancy an image of a robust, wooden
structure standing two or three stories tall and topped with four fragile blades. Perhaps one might
think of Holland in the late 1800’s and its pill-shaped farm houses supporting a rickety fan or of
Don Quixote de La Mancha in the 1600’s going off with his faithful horse Rocinante to battle the
windmills.7 Today’s windmill, however, bears little resemblance to those mythologized by time
and imagination. Workers now construct contemporary windmills using steel (for the tower) and
composite fibers such as wood-epoxy or fiberglass reinforced polyester (for the blades). The
windmills now stand in excess of four hundred feet tall, typically with three blades mounted to a
narrow post driven over twenty meters into the Earth.8 The recent development of wind farms–
large expanses of land or sea upon which hundreds of wind turbines stand erect, ready to
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generate energy capable of powering thousands of homes and businesses–further accentuates the
differences between Don Quixote’s windmills and our own.
Wind farms have cropped up worldwide, including the United States. Several popular
international locations for wind farms include Australia and Denmark, while California,
Vermont, and even Iowa have been leaders in domestic wind energy production.
While the windmill gestalt has morphed over the centuries, the process of windmill
energy generation remained the same. Quite simply, today’s wind turbines, like the old ones, use
blades to capture the wind’s force and convert it to electricity, which consumers then can use for
heating homes, powering computers, and watching television.9 Consumers may also convert the
wind’s force into mechanical, rather than electric, energy. Such mechanical energy often carries
out functions like pumping water and grinding grain. The wind farms at issue in this paper,
however, represent those used for electricity production and follow a basic design.
Generally, an electricity-producing wind turbine contains a rotor, nacelle, tower, and
related electrical equipment. The rotor, also known as the blade, spins with the wind and
converts the wind’s energy into “rotational shaft energy.”10 The nacelle is the enclosure behind
the rotor and contains a gearbox, drive train, and generator.11 The tower is the tall, usually
tubular, vertical structure, which supports the nacelle and rotor while holding the rotor high
enough in the air to allow the rotor to spin with the wind. The electrical equipment includes, inter
alia, cables, controls, and interconnection equipment.12
B. Positive and Negative Aspects of Wind Energy Production: Output, Pollution,
Water Use, Cost, Noise, and Avian Interference.
After obtaining a general understanding of how a wind farm operates, a person inquiring
into the value of wind energy production should consider the positive and negative aspects of
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wind farms. Few contest the idea most economic development projects contain both good and
bad elements, wind farms not excepted. The litmus test for answering the question of whether a
development, such as a wind farm, constitutes a substantial step towards sustainable
development, however, asks whether the benefits outweigh the burdens and whether a net gain in
benefit will result for generations to come. A reader can answer the second prong of the litmus
test, whether one can reproduce wind energy’s net benefits for generations to come, simply by
recognizing wind as a renewable resource, as plentiful today as it will be two hundred years from
today, no matter how much people consume. Thus, the issue of wind farms as a viable resource
turns on whether the benefits of its energy outweigh the burden of producing that electricity. In
answering this question, this section considers six factors of wind energy production: output,
pollution, water use, cost, noise, and interference with birds.
Doubtless, wind farms can provide to consumers substantial amounts of electricity. In
fact, a 1.8 megawatt (MW) turbine can power up to 500 households. To help understand this
calculation, consider the average household consumes approximately 10,000 kilowatt hours
(kWh) of energy per year and roughly 1.14 kW per hour. The average wind turbine unit
generates between 700 kilowatts (kW) and 1.8 megawatts per hour. Because of the substantial
energy output of wind turbines, energy companies and municipalities can incorporate wind
power into the power grid, and many cities, communities, and even schools have already done
so.
A shining example of the success of wind power comes from Spirit Lake, Iowa, where
the Spirit Lake Community School District has erected two wind turbines, one producing
750kWh of energy and the other producing 250kWh of energy. In 1992, the school district
received funding for the construction of the 250kWh turbine through a grant from the
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Department of Energy, who provided nearly $120,000 for the project. Due to the success of the
first turbine, the school district, several years later, borrowed nearly $800,000 to construct the
750kWh turbine, which became operational in 2001. While the turbines generate substantial
electricity for the school, the units have no storage capacity, so when the turbines produce excess
energy, the school sells the energy to the local power company for just over six cents per kWh.
Alternatively, when the turbines operate at an energy deficit, the school purchases energy from
the local power company for just over eight cents per kWh. The turbines have created an energy
surplus, which actually generates revenue for the school district. The district estimates by 2007
the turbines will have generated nearly $120,000 in income, which the district will use for
investment in educational programs.13
While energy output makes wind turbines a viable piece of the sustainable development
puzzle, one should also consider several other production factors such as pollution. Wind farms,
while causing pollution from non-generating activities, as when a company constructs and
transports the turbines, do not appear to create pollution when actually generating electricity. In
fact, estimates show 120MWh of wind energy will offset 88 tons of carbon dioxide a facility
otherwise would produce if generating energy through the combustion of fossil fuels. Wind
energy, even when one considers the total fuel cycle, which includes production and
transportation of turbines, may create as little as 1-2% of the pollution associated with fossil fuel
energy production.14
Another favorable aspect of wind energy stems from its minimal use of water. Wind
farms use substantially less water than many other energy industry production methods.
According the American Wind Energy Association, wind energy production consumes less water
than nuclear, coal, and natural gas energy production. For example, while nuclear energy
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production consumes approximately 0.62 gallons of water per kWh, wind energy production
consumes approximately 0.001 gallons per kWh. In comparison, coal energy production
consumes approximately 0.49 gallons per kWh, oil consumes 0.43 gallons per kWh, and natural
gas consumes about 0.25 gallons per kWh.15 While the non-renewable energy production
consumption of water frequently occurs from evaporation, wind energy consumption of water
results from using water to clean rotors soiled by dust and insects, which, if left intact, may
damage the rotor.16
To compete in the marketplace, wind energy must be cost effective and economically
competitive with other energy resources. The cost of wind energy depends upon several factors,
especially the size of the project and the wind speed. For example, a 3 MW wind energy project
operating with the wind blowing at 8.08 meters per second (roughly 18 miles per hour), would
cost a consumer approximately $0.059 per kWh, while a 51 MW wind energy project operating
at the same wind speed would cost $0.036 per kWh. Electricity from the 51 MW project
operating at a wind speed of 7.15 meters per second would cost $0.048 per kWh and $0.026 per
kWh at a wind speed of 9.32 meters per second.17
While output, water use, cost, and pollution factors all favor the use of wind energy,
debate ensues over the noise generated by a wind farm, and perspectives vary as much as the
wind itself. Proponents of wind farms, such as the American Wind Energy Association, claim
wind energy production is a virtually noiseless endeavor. In fact, the Association claims at a
distance of 350 meters, the noise heard from a turbine ranges from 35 to 45 decibels (dB) (A
quiet bedroom reaches about 35 dB, and a busy office reaches about 60 dB.).18 The Association
asserts, “Today, an operating wind farm at a distance of 750 to 1000 feet is no noisier than a
kitchen refrigerator or a moderately quiet room.”19 Residents living near wind farms, however,
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often have a different story to tell about the noise and have complained the noise was unbearable,
miserable, horrible, and depressing.
Avian interference represents another factor weighing against the sustainability of wind
farms. While the extent of wind farms’ effect on bird populations remains debatable, no doubt
exists wind farms do kill birds. Birds collide with wind farm turbines and power lines connecting
the turbines, and such collisions cause death in a significant number of birds each year. The most
prominent example in the United States of wind farms affecting bird flight patterns and longevity
takes place in Altamont Pass, California, where nearly 1000 raptors, including eagles, owls,
falcons, and hawks, die each year from collisions with wind farm turbines. Concerned citizens
have filed lawsuits against the owners and operators of the Altamont Pass wind farms, and the
case remains unsettled.
On balance, the scientific issues discussed above favor the propagation of wind farms as
a viable sustainable development tool. The legal issues, however, render the decision of wind
farm viability more difficult. Wind energy production has not only found its way into the
courtroom, but also has appeared in Congress. While wind energy benefits sustainable
development, the legal mechanisms for implementing those benefits remain contested.
IV. Reentering the Quagmire: Legal Disputes Hindering the Production of Wind Energy:
The Cases of Nantucket Sound and Altamont Pass.
A. Altamont Pass: Onshore Wind Turbines Cause Death of Thousands of Raptors.
In January of 2002, the Center for Biological Diversity filed a lawsuit against, among
others, Florida Power and Light Group, Inc., owners and operators of the Altamont Pass Wind
Resource Area near San Francisco, California. The Center’s lawsuit seeks an injunction halting
the operation of the land-based Altamont Pass wind farm until a remedy to the raptor deaths is
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found.20 The Center filed suit in the Federal District Court in San Francisco and alleged the
companies violated the Lanham Act and the California Business and Professions Code § 17200,
which prohibits businesses from violating other laws. The Center also alleged the defendants
have violated the Bald and Golden Eagle Protection Act (BGEPA), the Migratory Bird Treaty
Act (MBTA), and several provisions of the California Fish and Game Code.21 The Center, which
supports wind energy, alleged the power companies have been negligent in their treatment of the
raptor kill issue and sought, as part of the remedy, to have the defendants set aside habitat for the
birds.22
In January of 2004, the Center suspended the lawsuit, hoping to reach an agreement with
the defendants. An agreement was not reached, however, and the Center refiled the lawsuit in
the Superior Court of the State of California, County of Alameda.23 The currently pending state
lawsuit alleges the defendants violated the California Business and Professions Code, the
California Fish and Game Code, Migratory Bird Treaty Act, the California Penal Code, and the
Bald and Golden Eagle Protection Act.24 The lawsuit alleges further the United States Fish and
Wildlife Service, the party responsible for implementing the MBTA and BGEPA, formally
requested the United States Attorney’s Office prosecute the defendants for the violations, but the
USAO failed to file charges.25
The Center claims the old wind turbines the defendants still use in Altamont Pass are
made using old technologies (the windmills are 10-20 years old), and replacing the old windmills
with new ones will create a much safer atmosphere for the birds.26 The Center seeks declaratory
relief, restitution, criminal penalties, and forfeiture from the defendants, but as of spring 2005,
the court has not yet rendered a judgment in the case.27
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While Altamont Pass provides the most poignant example of bird deaths resulting from
wind farms, Cape Wind Associates, LLC, a private development company, proposes a wind farm
in Nantucket Sound, off the coast of Massachusetts. Cape Wind’s proposal may also cause
problems for birds. Of particular concern are two species listed under the Endangered Species
Act (ESA) as endangered or threatened. Located northeast of Cape Wind’s project, Monomoy
National Wildlife Refuge provides a home to the endangered Roseate Tern and the threatened
Piping Plover.
It is important to note the North Atlantic United States colony of the Roseate Tern was
listed as endangered in 1987 and remains so today.28 A migratory species, the Tern migrates to
South America, and the United States Fish and Wildlife Service (USFWS) has listed the
Monomoy National Wildlife Refuge (MNWR) as a refuge on the Tern’s path. Like the Tern, the
Piping Plover was listed as threatened or endangered in 198529 and is currently listed as
threatened for the Massachusetts region.30 While critical habitat under the ESA has been
designated for the Plover, such habitat does not include the Massachusetts region.31 Even though
the Plover has not had critical habitat listed in the Massachusetts region, the USFWS has listed
MNWR as a refuge for the Plover. Because the Tern and Plover are listed under the ESA and
live near Cape Wind’s proposed wind farm, the potential exists for further deaths of sensitive
bird species.
B. Nantucket Sound: The United States’ First Attempt at Offshore Wind Energy
Production.
Geography and weather patterns played a major role in Cape Wind’s selection of
Nantucket Sound for its wind farm. Nantucket Sound is located off the eastern shore of
Massachusetts and lies to the south and southeast of Cape Cod, Massachusetts. The islands of
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Martha’s Vineyard, Nantucket, and Monomoy border the eastern and southern sides of the
Sound. While much of the Sound is open to the Atlantic Ocean, the islands provide a protective
barrier from open ocean waves. Within the Sound lies an area called Horseshoe Shoal, a shallow
(water depths of less than 50 feet), submerged area where Cape Wind wants to construct a wind
farm. While near Massachusetts, Horseshoe Shoal is located over three miles from the
Massachusetts coast on the Outer Continental Shelf and is thus subject to federal jurisdiction.32
In November of 2001, Cape Wind applied to the Army Corps of Engineers (Corps) for a permit
to construct a 130-unit wind farm facility.33 The facility would lie five miles from Cape Cod,
nine miles from Martha’s Vineyard, and thirteen miles from Nantucket.34
As mentioned, Cape Wind chose Nantucket Sound partly because of the favorable
weather conditions there, as the Sound experiences some of the highest sustained winds in the
northeastern United States. Wind speeds in Nantucket Sound blow on average between 19 and
21 miles per hour,35 thus creating favorable conditions for wind turbines to generate electricity.
If approved and constructed, the Cape Wind project will consist of approximately 130
wind turbines covering an area approximately 24 square miles.36 The turbine towers will stand
approximately 260 feet tall with rotor blades 160 feet long, making the total height of the turbine,
tower plus blade, approximately 420 feet.37 The project will generate up to 420 MW of
electricity.38
1. Cape Wind, Part One: Whether Massachusetts Has Jurisdiction Over
Nantucket Sound Permitting: Ten Taxpayer Citizens Group v. Cape Wind
Associates, LLC
Litigation in the Ten Taxpayer case arose over Cape Wind’s construction of a Scientific
Devices Measuring Station (data tower) in Nantucket Sound. While the impact of the data tower
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may be negligible, the litigation represents the larger issue of whether Cape Wind can construct
an offshore wind farm in the same area. The law, as decided by the federal courts in this case,
holds Massachusetts state law applies only to submerged lands up to 3 miles off the coast. In
justifying this conclusion, the courts reasoned Congress granted this jurisdiction under the
Submerged Lands Act (SLA).39 Seaward of the three miles, the Outer Continental Shelf Lands
Act (OCSLA) governs all submerged seabeds and grants exclusive jurisdiction to the federal
government.40 Cape Wind plans to locate the data tower on the seabed of the Outer Continental
Shelf (OCS) in Nantucket Sound, more than three miles from any coast. As a matter of
consequence to Ten Taxpayer, Horseshoe Shoal is adjacent territory to Massachusetts, and the
location of a data tower there, along with the potential for a large-scale wind generating facility
to follow, is cause for alarm.
In its lawsuit, Ten Taxpayer agreed federal jurisdiction attached to the OCS lands where
Cape Wind sought to construct the data tower but contended Cape Wind must also obtain an
administrative permit from the State of Massachusetts because construction of the data tower
would affect fishing in Nantucket Sound. Because the data tower would affect fishing, Ten
Taxpayer contends the Magnuson-Stevens Act (MSA) applies. The MSA, for the purpose of
regulating the fishing industry, granted to Massachusetts exclusive jurisdiction over all of
Nantucket Sound. Thus, the Federal District Court for the District of Massachusetts and the
United States Court of Appeals for the First Circuit considered whether Congress, under these
facts, delegated to Massachusetts jurisdiction to regulate permitting for data towers located more
than three miles from the coast.
Both the district and circuit court held OCSLA granted federal jurisdiction for data tower
construction occurring on submerged lands three miles seaward of the coast. Even though
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Massachusetts argued the MSA, which granted state jurisdiction to all of Nantucket Sound,
controlled, the courts found OCSLA had explicitly preempted all other law regarding jurisdiction
over submerged lands three miles seaward of the coast.41 To the extent any gaps exist in the
federal law, the courts held, state law will play the role of surrogate to federal law.42 The courts
read the Massachusetts statutes to see if any statute applied to construction of the data tower in
Nantucket Sound and found the statutes did not address the issue. Had the statutes addressed the
issue, the courts would have considered whether those statutes were consistent with federal
law.43
The courts also considered several key terms in the legislation at issue. In reaching its
decision, the circuit court found the term “tide waters” as used in the Massachusetts statutes, did
not encompass those waters in Horseshoe Shoal, and the term “waterway” as used by the
Massachusetts Department of Environmental Management, only applied to waters lying within
the commonwealth.44 The court further held OCSLA did not allow states to require permits for
activities located on the Outer Continental Shelf (OCS), which includes submerged lands
seaward of three miles from the coast).45 Thus, the circuit court found Massachusetts did not
have jurisdiction over the data tower permitting process.
Thus, both the federal and district courts ruled in favor of the data tower. It is important
to note, however, the Ten Taxpayer and Alliance (discussed infra) litigation represents only
disputes over permitting of the data tower, not the permitting of the entire wind farm project.
While the courts’ decisions ruled on the jurisdiction issue under the specific facts of the data
tower, one can imagine the courts, if they consider the issue of jurisdiction over the entire wind
farm project, would follow the same reasoning and again find Massachusetts does not have
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jurisdiction over the OCS. Such a finding would open the door for the wind farm project to
proceed.
2. Cape Wind, Part Two: Army Corps Permit Validity, Property Interests,
APA, and NEPA: Alliance to Protect Nantucket Sound v. United States
Department of the Army.
Along with Ten Taxpayer and its litigation of permitting jurisdiction, another concerned
citizens group, Alliance to Protect Nantucket Sound (Alliance), filed suit on several grounds in
an attempt to slow down or stop wind farm development (i.e., the construction of the data tower)
in the Sound. As with Ten Taxpayer, the Alliance pled its case in the United States District Court
for the District of Massachusetts and subsequently appealed to the United States Court of
Appeals for the First Circuit. Unlike Ten Taxpayer, however, Alliance did not rely on the MSA
to argue Massachusetts had jurisdiction, and Alliance did not sue Cape Wind. Alliance filed its
cause of action against the United States Department of the Army, alleging the Army Corps of
Engineers (Corps) issued an invalid permit, Cape Wind lacked a property interest in Horseshoe
Shoal, and the Corps decision violated the Administrative Procedure Act (APA) and the National
Environmental Policy Act (NEPA).
The factual basis for Alliance’s lawsuit mirrors Ten Taxpayer’s: in November of 2001,
Cape Wind submitted a permit application to the Corps to construct a Scientific Measurement
Devices Station (data tower) on Horseshoe Shoal in Nantucket Sound.46 The Corps granted the
permit, and litigation ensued.
The first of Alliance’s arguments focused on whether the permit issued by the Corps for
the data tower constituted a valid permit. Alliance alleged the permit issued was not valid
because the Corps, who relied Section 10 of the Rivers and Harbors Act of 1899 (RHA), did not
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have jurisdiction under that statute. As a result of the 1978 amendments to OCSLA, however,
Section 10 gives the Corps jurisdiction to regulate obstructions to navigation in navigable waters
off the coast of the United States.47 The district court found in favor of the Corps and held
Congress clearly delegated authority for such actions to the Corps. The circuit court affirmed,
stating the Corps had jurisdiction and issued a valid permit for construction of the data tower on
the OCS. In its reasoning, the circuit court examined the language of OCSLA, specifically
Section 1331(a)(1), stating, “which may be erected thereon for the purpose of exploring for,
developing, or producing resources therefrom.” The circuit court found this language described
merely the types of structures which may be placed on the OCS but did not limit Corps
jurisdiction, as Alliance contended.48
Alliance also raised the issue of whether Cape Wind must demonstrate a property interest
in the location where the permit is sought. The district court found the Cape Wind signature on
the permit application was adequate to satisfy the property interest requirement. On appeal, the
circuit court affirmed. In its reasoning, the circuit court examined language in the Code of
Federal Regulations, which described the property interest requirement. Specifically, the court
read 33 C.F.R. § 325.1(d)(7) (stating “The signature [of the application] …will be an affirmation
that the applicant possesses or will possess the requisite property interest to undertake the
activity proposed in the application…[,]”) to mean the Corps did not have to conduct additional
research to determine property ownership. The court also examined 33 C.F.R. § 320.4(g)(6),
which stated, “A [Corps] permit does not convey any property rights…or any exclusive
privileges…. The [Corps] will not enter into disputes but will remind the applicant of the above.
The dispute over property ownership will not be a factor in the Corps public interest decision.”
Further, the circuit court found the Corps satisfied 33 U.S.C. § 320.4(a)(1), which required the
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Corps, in its permit review, to consider the public interest impact on federal property rights when
issuing a permit. Finally, with regard to the property interest issue, the circuit court held no
further authorization was necessary for construction of the data tower. The court, however, stated
Congress has devised regulatory schemes for other structures (such as thermal energy plants, oil
& gas extraction, and deepwater ports construction, all of which require approval beyond a
Section 10 permit from the Corps) and likely will require Cape Wind to obtain a license from an
agency in order to construct the wind farm.
Alliance also raised the issue of whether the Corps acted arbitrarily and capriciously in
violation of the APA, 5 U.S.C. § 706(2)(A), when granting the data tower permit. The district
court and the circuit court on appeal both found the Corps did not violate the APA.
Alliance also alleged the Corps violated NEPA. Within this claim, Alliance alleged three
separate violations: one, the Corps failed to circulate the environmental assessment (EA) and
finding of no significant impact (FONSI) for public comment, two, the Corps failed to
adequately consider the alternatives to the data tower, and three, the Corps incorrectly considered
the data tower permit application separate from the wind energy plant permit application. As
with the other claims, the district and circuit courts found in no violation had occurred.
In reaching its decision, the circuit court looked to 40 C.F.R. § 1501.4(e)(2)(ii), which
states a draft EA and FONSI must be made available for public comment when “the nature of the
proposed action is one without precedent.” The court held, however, precedent existed here
because another data tower (i.e., a physically similar structure with similar environmental
impacts) currently stands in state waters near Martha’s Vineyard, and other pile-supported
structures exist in the marine environment in Nantucket Sound. The court found, because
precedent existed, the Corps did not have to circulate the EA and FONSI, and the public
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comment requirements had been met. As to the second claim, the circuit court looked to the text
of the EA and found the Corps adequately considered a sufficient range of alternatives to the data
tower because the Corps had considered land-based alternatives, sonic detection and ranging
technology, existing data sets, other offshore locations, and alternative tower designs. 49
Regarding Alliance’s third NEPA challenge, the circuit court found the Corps correctly separated
the data tower and wind energy plant applications. In its reasoning, the court found, under
Council on Environmental Quality (CEQ) regulations, permit applications constituting connected
or cumulative actions require the Corps to consider the permit applications together in the same
EA or EIS.50 The data tower and wind energy plant applications, the circuit court found, did not
constitute connected or cumulative actions. Thus, as of the date of the circuit court’s decision,
Cape Wind may go forward with the construction of the data tower in Nantucket Sound.
V. The Quagmire Reprise. The United States Court of Appeals for the First Circuit Has
Spoken: Now What? Reactions to the Court’s Decisions, the Process of Permitting Offshore
Wind Farms, and Suggestions for the Future of Offshore Wind Farm Regulation.
While Cape Wind has the green light for construction of a data tower on Horseshoe
Shoal, it does not yet have permission to construct the wind farm itself. Debate rages over the
merits of the Cape Wind project, as it is the first of its kind–an offshore wind farm–in the United
States. While other countries such as Denmark have successfully implemented offshore wind
farm development, advocates on both sides of the issue continue to weigh in on the merits of
such activity.
Recent articles pit the environmentalists against the developers and state the
environmentalists consider the offshore wind farms as a private appropriation of federal public
lands.51 Environmentalists also contend the wind farms will hurt tourism, negatively impact
19
fishing, damage the natural beauty of the coastline, reduce property value, and potentially impact
migratory birds.52 Robert Kennedy, Jr., president of Waterkeeper Alliance, equated placing a
wind farm in Nantucket Sound with placing one in Yosemite National Park and stated in a recent
article, “I am committed to wind energy, but you wouldn’t put a wind farm in Yosemite Park.”53
Developers, however, contend these offshore wind farms present an opportunity to generate
clean, renewable energy without the emission of harmful greenhouse gases.54
Thus, the debate continues, and proponents of wind farm development state those in
opposition have a case of NIMBYism. NIMBY stands for “not in my back yard,” and is often
used when referring to someone who wants development but not when the development would
locate near his or her residence. Dennis Quaranta, president of a northeastern wind energy
company stated recently, “Everyone is a great environmentalist, until it’s in their area. Then it’s
not in my back yard, not in my beach view, not in the ocean, not anywhere.”55
Further exemplifying this debate, several organizations recently got together and
produced some myth-busting literature, which recently became available on the internet web site
of a wind farm development company. Tilting the balance in favor of the developers, however,
was the strong support this myth-busting material received from the community, including
organizations such as Greenpeace, the Conservation Law Foundation, the Union of Concerned
Scientists, Clean Water Action, and the Climate Action Network. Thus, with two federal circuit
court decisions in favor of the Cape Wind project and considerable support from reputable
organizations like those mentioned above, it appears offshore wind farms soon will take root in
the chilly Atlantic waters of the northeastern United States.
With wind energy taking root offshore and the permitting process underway, critics still
contend offshore data tower and offshore wind farm permitting has flaws. Most critics, however,
20
agree the benefits of wind energy production are great in light of fossil fuel alternatives. Those
same critics, however, argue the lack of clear guidance by Congress in the development of
offshore wind farms creates a legal quagmire wherein the Corps may have overstepped its
regulatory authority. Much has been written about this controversial issue.
In his note, Michael Shulz argues OCSLA is limited in scope and does not reach
renewable energy production such as offshore wind farms.56 Taking a textualist approach to
interpreting the OCSLA, Shulz finds the language of the statutes indicates the Corps has
permitting authority on the OCS for oil, gas, and other mineral extractions, but the Corps does
not have jurisdiction to issue permits for renewable energy development.57 Thus, by granting a
permit to Cape Wind to build a data tower, the Corps has overstepped its jurisdiction as laid out
in 33 C.F.R. § 320.1(b)(3) and (4).58 Cape Wind, Shulz argues, is not in the business of
“extracting minerals” as intended by OCSLA.59
Shulz also attacks the Cape Wind project on another front, alleging the company does not
and did not have property rights to the OCS lands where the data tower was built, as required by
the permitting regulations.60 It would be impossible for Cape Wind to have a property interest in
the area of proposed development because no federal law exists controlling such activity. 61
Because Cape Wind had no property interest, and no federal law exists to grant such a property
interest, Shulz argues the federal courts should have invoked the public trust doctrine and held
Cape Wind lacking in property rights and thus unable to obtain a permit.62 Such a finding would
have been within the purview of the federal courts because Congress has not spoken on the issue,
and thus, no question of preemption would arise.63 While attacking the decisions by the courts
and the Corps, Shulz posits several alternatives, which would legitimize the harvesting of wind
from OCS locations.
21
Alternatives loom on the horizon, Shulz concludes, as Congress has considered an
amendment to OCSLA, and ocean zoning has become a possibility. The bill Congress
considered, while not completely adequate by Shulz’ standards, began to address a property
rights framework under OCSLA.64 The proposed bill, H.R. 793, would bring within the purview
of OCSLA non-oil and non-gas activities such as offshore wind energy production, not currently
regulated under OCSLA.65 While formally bringing offshore wind energy production under the
OCSLA, H.R. 793 would also place permitting authority in the hands of the Minerals
Management Service, an agency of the Department of the Interior, for granting “an easement or
right-of-way for alternative energy on the OCS, including renewable energy projects, such as
wave, wind, or solar projects. . . ."66 The bill, Shulz concludes, fails to address how the
Department of the Interior would allocate OCS lands among competing development interests.67
Alternatively, Shulz recommends, as OCSLA currently does for oil and gas exploration and
development, the amendment should establish a leasing program to allocate OCS lands for use in
renewable energy production.68
In conjunction with an OCSLA amendment including renewable resource management,
ocean zoning may provide a suitable framework for the development of offshore wind farms.
Borrowed from the land use concept of zoning, ocean zoning would divide the ocean into
districts where each district would serve a distinct purpose.69 One difference, Shulz concludes,
between ocean and land zoning stems from the fact ocean zoning would regulate public property
while land zoning typically regulates private property.70 Thus, ocean zoning likely would take
place on the state or federal, rather than local, level, with the states regulating within three miles
of the coast and the federal government regulating beyond three miles from the coast.71 The
zoning would create a map delineating areas available for renewable energy production as well
22
as those areas unavailable.72 Availability would depend upon environmental and political factors
such as energy needs, current uses and characteristics of the area, and available wind resources. 73
The benefits of ocean zoning, Shulz contends, would mitigate issues created during offshore
wind development and include limiting private overuse of resources, aiding in natural resource
allocation, reducing conflicting uses, increasing the quality of use by increasing competition for
the use of scarce resources and granting the permit to the best project, and changing over time
with the needs of society.74
Other authors also contend the Corps permit to Cape Wind represents a raw deal for the
public. Guy Martin and Odin Smith, in their article, argue the Nantucket Sound wind energy
project brings to the forefront the issue of private profit from public resources.75 The wind
energy permitting process under Section 10 of the RHA, they contend, presents a regulatory void
or loophole through which shoddy permits may pass.76 Several factors contribute to this
regulatory anomaly, including Cape Wind’s ability to occupy federal waters and harvest wind
energy without paying renter’s royalties.77 Further, the current RHA § 10 permitting procedures
do not provide for a competitive bidding process, require the acquisition of property rights, nor
require adequate federal scrutiny because no federal oversight exists during the process. 78
Like Shulz, Smith and Martin agree wind power provides a good alternative energy
resource, but Nantucket Sound, they argue, is not the place to do it. The Sound currently
possesses great ecological, commercial, and recreational value, and construction of a wind farm
would detract from the value.79 Further, the Corps’ permitting process is ad hoc and will allow
Cape Wind to occupy the OCS without adequate permission from Congress.80 Other problems
arise with the project, argue Martin and Smith, as Cape Wind’s permit was granted without
23
comprehensive resource-specific review and will enable Cape Wind to use federal public lands
to harness wind energy without payments to the United States.81
Some also question, as raised in the Ten Taxpayer litigation, whether the Corps actually
has jurisdiction under Section 10 of the RHA to grant a permit in Outer Continental Shelf
waters.82 As Section 10 of the RHA applies only to submerged lands up to three miles from shore
and Cape Wind’s data tower is greater than three miles from shore, critics argue the Corps
erroneously relied on OCSLA for jurisdiction.83 OCSLA jurisdiction, it is argued, applies only to
minerals, not renewable resources such as wind.84 The authors rely on the 1978 amendments to
OCSLA for their argument, stating Congress intended to limit the resources falling under
OCSLA’s jurisdiction when it inserted the clause “all other minerals authorized by an act of
Congress….”85
The authors further criticize the Section 10 permitting process, stating the public interest
review provided for under the RHA is inadequate, Section 10 was not intended for energy project
decisions, and Section 10 permitting is inconsistent with Congressional intent under OCSLA
principles.86 As with Shulz, however, the authors’ arguments use a narrow, textualist
interpretation to the meaning of OCSLA while the District Court of Massachusetts and the
United States First Circuit Court of Appeals applied a more expansive, interpretationist approach
when finding Cape Wind’s data tower fell under OCSLA jurisdiction.
It has been argued Cape Wind does not have property rights in the submerged lands upon
which the organization wishes to construct the wind farm. Arguably, Section 10 of the RHA does
not grant property rights to these submerged lands, and an issue arises whether the Corps
violated the Property Clause of the United States Constitution, which does not allow the
disposition of federal public property without the express authorization from Congress.87 Critics
24
argue Section 10 of the RHA fails to meet the regulatory standard taken in comparable contexts
because jurisdiction and ownership over OCS lands belongs to the United States, and Cape Wind
has not obtained adequate rights.88 Authors argue the permit obtained from the Corps does not
grant property rights, the Property Clause expressly prohibits the Corps from granting permits to
use federal land without a Congressional act, and Congress has not spoken on the issue of
offshore wind farm property rights.89 As example of what constitutes Congress speaking clearly
on an OCS property right, the authors refer to the Deepwater Port Act and the Ocean Thermal
Energy Conversion Act, both of which explicitly granted property rights for very specific
activities taking place on the OCS.90
Thus, the authors conclude, Cape Wind has no property rights in the OCS. The authors
also argue Corps permitting of OCS lands where no property rights have been explicitly granted
could lead to a slippery slope of abuse of those lands. For example, casinos, aquaculture, liquid
natural gas terminals, and other activities not intended by Congress to occur may begin cropping
up in OCS lands because the Corps’ permitting practice had grown too lenient.91 Such permitting
behavior by the Corps, the authors purport, would result in “wholesale abdication of the federal
interest in OCS lands.”92 Interestingly, in their argument, the authors do not distinguish between
the OCS property rights associated with the data tower and those rights associated with the wind
farm itself.
As a remedy for OCSLA and Section 10 permitting deficiencies, Smith and Martin
propose a comprehensive federal program to protect sensitive areas and promote alternative
energy. Thus, the authors call for a wind energy permit program separate from the Section 10
and OCSLA procedures currently in place and guiding the Cape Wind project. This paper briefly
25
describes each of the alternatives presented and, where appropriate, offers commentary on the
merits of those alternatives.
First, the authors call for specific Congressional direction and standards for wind energy
projects, which would include several agencies, such as the National Marine Fisheries Service
and the National Oceanic and Atmospheric Administration, applying their specific body of
expertise to the project. Congressional authority should be specific and detailed, providing a
rigorous decisionmaking framework not subject to shifts in agency leadership policy. 93
Second, until new federal framework is in place, permitting agencies, courts, and others
with power to allow wind energy projects to move forward, should place a moratorium on
offshore wind energy project permitting under Section 10 and OCSLA.94 Cape Wind’s data
tower provides an example of offshore wind energy projects moving forward without adequate
federal regulations in place. The Corps’ premature permitting of Cape Wind’s data tower has
resulted in the use of federal lands without Cape Wind obtaining a property right in the OCS and
without Cape Wind’s financial reimbursement to the government or the taxpayers for use of
those lands.95
The authors also argue the government should create pilot projects to test the feasibility
and impacts of offshore wind farms before developing a full-scale project. The private sector
should undertake such projects, which would enable further refinement and analysis of proposed
full-scale projects.96 The authors, however, fail to consider Horns Rev, Denmark’s 160 MW
offshore wind facility, as an adequate pilot project. Since 2002, Denmark has operated its
offshore wind farm on Horns Rev, which, while smaller than Cape Wind’s 420 MW project,
constitutes a full-scale development. Because of its large size and offshore location, Horns Rev
26
provides a pilot project adequate to determine the impacts of a full-scale offshore project in the
United States.
While the Corps permitted Cape Wind’s data tower and currently reviews Cape Wind’s
application for the wind farm itself, the authors argue Congress should remove the Corps from
the lead federal permitting agency position.97 While the Corps lacks expertise in offshore
resource management, several other agencies, as well as the states, should maintain control over
the permitting process. For example, NOAA, the Bureau of Land Management, and the Minerals
Management Service should all play a role in evaluating an application for offshore wind energy
development and in permitting.98
Further, before allowing the project to proceed, the National Academy of Sciences should
conduct a feasibility study to evaluate all potential beneficial and adverse impacts. The authors
argue a project of this magnitude and level of technology has never taken place.99 Once again,
Denmark’s Horns Rev project provides an example of an offshore wind farm project whose
magnitude and technology provide an adequate measuring stick by which to measure the
feasibility of the proposed Cape Wind project.
A sixth argument by the authors posits a comprehensive planning process should take
place to ensure participation by all concerned parties, including the Departments of Commerce
and the Interior as well as other government agencies, industry, tribes, and the public. Such a
comprehensive process would promote area-specific decisionmaking, rigorous environmental
standards, and relevant agency participation.100 As a counter-argument, engaging in such a
practice may make agency procedure unduly cumulative, as statutes such as the Administrative
Procedure Act and the National Environmental Policy Act already provide for comment periods
when all interested parties may provide input on an environmental project.
27
The authors also argue Congress should ensure a permitting process for offshore wind
energy projects that includes the proper allocation of property rights. As previously mentioned,
Cape Wind has not established, beyond affirming by signature on their data tower permit
application, a property right to the offshore lands the company intends to use. Requiring a
development company wishing to construct an offshore wind farm in federal waters would
ensure a competitive bidding process, a fair payment of compensation to the government and the
taxpayers, and strict environmental review program.101
Congress should also create a payment system for offshore wind energy projects, as one
currently does not exist. The revenue would go to both state and federal governments, and
incentive-based royalty agreements, such as deferred royalty payments, could guide developers
to the most environmentally sound location for their project.102
Further, as states stand to earn revenue from a royalty system, Smith and Martin argue
the states should also play an increased role in the permitting process. Doing so would ensure
greater cooperation between the developer, the federal government, and the state while
remembering state and local governments ultimately grant the permit for transmission of
electricity to local power grids.103
When the permitting process takes place, authorities should apply a balancing test when
siting an offshore wind energy project.104 Here, the authors argue the Corps’ public interest
evaluation inadequately considered Cape Wind’s project impacts. Under a balancing test,
however, decisionmakers would consider finances as well as aesthetics, environmental quality,
historic preservation, and fish and wildlife impacts. Under a holistic balancing test, Cape Wind’s
Horseshoe Shoal wind farm would not receive a permit because the test would address
previously unconsidered factors such as tourism, property values, and commercial fishing
28
impacts.105 In the alternative, consideration of tourism, property values, and commercial fishing,
however, represent solely economic issues, the same considerations the authors argue should not
serve as a sole basis for permitting decisions.
Rigorous environmental standards beyond those employed by the Corps in its Cape Wind
data tower permit decision should apply to offshore wind farms. 106 Doing so, it is argued, would
entail establishing specific parameters through which to evaluate an offshore wind energy
project.
Lastly, the authors argue the future permitting legislation for offshore wind farms should
include a citizen suit provision enabling people to enforce the environmental standards set forth
in the legislation.107 As a counter-argument, however, the common law of nuisance as well as
several statutes, such as the Clean Air Act, the Administrative Procedure Act, and Clean Water
Act, provide for environmental enforcement, and including a citizen suit provision may unduly
create a cumulative body of environmental enforcement methods.
While critics offer many suggestions on how to better manage offshore wind farm
permitting, Congress has considered several pieces of legislation addressing the issue. Critics
argue, however, the legislation before Congress fails to adequately address the environmental,
permitting, and property rights concerns currently playing out in the Cape Wind controversy.
The pending legislation would place the Secretary of the Interior in charge of the permitting
process (that is to say, the granting of easements or rights-of-way on the OCS) for activities
producing and supporting “the production, transportation, or transmission of energy from sources
other than oil and gas.”108 The pending legislation also provides for development-area preclusion
if the area in question constitutes part of the National Park Service, National Wildlife Refuge
System, National Marine Sanctuary, or a National Monument.109 The legislation, however, fails
29
to promote adequate environmental standards and fails to resolve the permitting jurisdiction
issue.110
V. The Quagmire Lives: Wind Energy is Here to Stay, but Is the Corps Permitting
Process? The Courts Said “Yes,” and Congress Hasn’t Said Anything. State Legislation
May be the Answer.
There is no doubt contemporary wind energy production satisfies a significant portion of
our current energy needs and likely will do so into the future. While harnessing wind energy has
endured for centuries, neither the world’s energy requirements nor the capacity to harness the
wind been greater. Obviously, controversy surrounds how to harness that capacity for the
greatest good. Is offshore wind production a power grab by greedy energy companies? Have the
environmentalists gone too far with their NIMBYism? Likely the conclusion lies somewhere
between the two. While the United States Court of Appeals for the First Circuit has already ruled
the Corps had jurisdiction to grant the data tower permit, it is unlikely opponents can stop the
granting a permit for the wind farm on the basis of jurisdiction. Further, the court has also ruled
in favor of Cape Wind on the issue of property rights, the APA, and NEPA.
While the courts have ruled in favor of offshore wind energy development, the best
remedy for those opposing the permitting process as it currently stands likely will come from
legislation. As the recent proposals in Congress for legislation on offshore wind farms would
provide more guidance to permitting agencies, the offshore wind energy bills remain stalled in
Congress, and it is unknown when, if ever, the proposed legislation will become law. The courts
have mentioned, however, to the extent state legislation can provide surrogate law where the
federal statutes have not spoken, the courts would consider the state law as a gap filler as long as
the state law is consistent with federal law. Perhaps Massachusetts and other states concerned
30
with maintaining high environmental standards for offshore wind energy production can fashion
state legislation to assist in the implementation of the permit process recommendations
mentioned above. As federal law, such as the Clean Air Act, often creates a baseline standard
above which states may create stricter environmental requirements, perhaps the remedy
concerned citizens seek lies with the state legislature.
1
Gro Bruntland, The United Nations World Commission on Environment and Development, 1987,United Nations
Educational, Scientific and Cultural Organization, available at http://portal.unesco.org/education/en/ev.phpURL_ID=23543&URL_DO=DO_TOPIC&URL_SECTION=201.html (last visited Apr. 20, 2005).
2
JARED DIAMOND, COLLAPSE 79-119 (Penguin Group 2005).
3
JARED DIAMOND, COLLAPSE 136-56 (Penguin Group 2005).
4
JARED DIAMOND, COLLAPSE 311-28 (Penguin Group 2005).
5
BILL MCKIBBEN, THE END OF NATURE 145 (Anchor Books 1999) (1989).
6
BILL MCKIBBEN, THE END OF NATURE 150 (Anchor Books 1999) (1989).
7
See The Literature Network, Don Quixote, available at http://www.online-literature.com/cervantes/don_quixote/
(last visited Apr. 19, 2005).
8
American Wind Energy Association, Wind Web Tutorial: Wind Energy Basics, available at
http://www.awea.org/faq/tutorial/wwt_basics.html (last visited Apr. 14, 2005).
9
Id.
10
Id.
11
Id.
12
Id.
13
Spirit Lake Community Schools Wind Energy: Spirit Lake Wind Project–Vision to Reality, available at
http://www.spirit-lake.k12.ia.us/~apeck/bg/SLCS%20Wind%20Energy%20History.htm (last visited Apr. 15, 2005).
14
American Wind Energy Association, Wind Web Tutorial: Wind Energy Basics, available at
http://www.awea.org/faq/tutorial/wwt_environment.html (last visited Apr. 14, 2005).
15
Id.
16
Id.
17
American Wind Energy Association, Wind Energy Fact Sheet: Comparative Cost of Wind and Other Energy
Sources, available at http://www.awea.org/pubs/factsheets/Cost2001.PDF (last visited Apr. 15, 2005).
18
American Wind Energy Association, Wind Energy Fact Sheet, available at
http://www.awea.org/pubs/factsheets/WE_Noise.pdf (last visited Apr. 15, 2005).
19
Id.
20
Center for Biological Diversity, Lawsuit Seeks Redress for Massive Illegal Bird Kills at Altamont Pass, CA, Wind
Farms, available at http://www.biologicaldiversity.org/swcbd/programs/bdes/altamont/1-12-04pr.pdf (last visited
Apr. 15, 2005).
21
Id.
22
Id.
23
Plaintiff’s Complaint p.2 ln. 1-5, Center for Biological Diversity, Inc. v. FPL Group, Inc., et al., Case No.:
RG04183113 (Superior Court of California, Alameda County) (2004).
24
Id. at p.2 ¶ 1.
25
Id. at p.19 ¶ 79.
26
Id. at p.2 ¶ 3.
27
Id. at p.29 ¶ A-D.
28
50 C.F.R. § 17.11 (2005); Endangered and Threatened Wildlife and Plants, 52 Fed. Reg. 42,064-42,068
(November 2, 1987) (codified at 50 C.F.R pt. 17).
29
50 C.F.R. § 17.11(2005); Endangered and Threatened Wildlife and Plants, 50 Fed. Reg. 50,726-50,734
(December 11, 1985) (codified at 50 C.F.R. pt. 17).
31
30
50 C.F.R. § 17.11(2005).
Endangered and Threatened Wildlife and Plants, 66 Fed. Reg. 36,087-36,136, 36,038-36,086 (July 10, 2001)
(codified at 50 C.F.R. pt. 17).
32
Alliance to Protect Nantucket Sound v. United States Department of the Army, 288 F.Supp. 2d 64, 67 (D. Mass.
Sept. 18, 2003).
33
Guy R. Martin, Odin A. Smith, The World’s Largest Wind Energy Facility in Nantucket Sound? Deficiencies in
the Current Regulatory Process for Offshore Wind Energy Development, 31 B.C. ENVTL. AFF. L. REV. 285 (2004).
34
Id. at 286.
35
Woods Hole Research Center, Energy, Planning, and Management of Coastal Resources: A Wind Farm in
Nantucket Sound, available at http://www.whrc.org/resources/online_publications/essays/2005-01CoastalResources.htm (last visited Apr. 15, 2005).
36
Supra, note 26 at 286.
37
288 F.Supp. 2d at 68.
38
U.S. Army Corps of Engineers, New England District, Cape Cod Wind Farm Permit Application and
Environmental Impact Statement, available at http://www.ebcne.org/pdfs/111803karenadams.pdf (last visited Apr.
15, 2005).
39
Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 373 F.3d 183, 188 (1st Cir. 2004).
40
Id.
41
Id. at 192.
42
Id. at 193.
43
Id. at 194.
44
Id. at 195.
45
Id. at 196.
46
288 F.Supp. 2d at 67.
47
Alliance to Protect Nantucket Sound v. United States Department of the Army, 398 F.3d 105, 110 (1st Cir. 2005);
see 33 U.S.C. § 403 (2000).
48
288 F.Supp. 2d at 64 (citing H.R. Conf. Rep. No. 95-1474 at 82 (1978), reprinted 1978 U.S.C.C.A.N 1674, 1681).
49
288 F.Supp. 2d at 79.
50
288 F.Supp. 2d at 80.
51
CBS News, Wind Farms Face Green Resistance, available at
http://www.cbsnews.com/stories/2003/01/07/tech/main535607.shtml (last visited Apr. 15, 2005).
52
Id.
53
Id.
54
Id.
55
Id.
56
Michael Shulz, Questions Blowing in the Wind: The Development of Offshore Wind as a Renewable Source of
Energy in the United States. 38 NEW ENG. L. REV. 415 (2004).
57
Id. at 439.
58
Id.
59
Id. at 440.
60
Id. at 442.
61
Id.
62
Id. at 443.
63
Id. at 444.
64
Id. at 447.
65
Id.
66
Id. at 446-47.
67
Id. at 447.
68
Id.
69
Id. at 448.
70
Id.
71
Id. at 448-49.
72
Id. at 449.
73
Id.
31
32
74
Id.
Supra, note 26 at 287.
76
Id.
77
Id.
78
Id.
79
Id. at 288.
80
Id. at 289.
81
Id.
82
Id.
83
Id. at 294-95.
84
Id. at 295.
85
Id. at 296.
86
Id. at 301-04.
87
Id. at 289.
88
Id. at 291. For their argument, the authors also rely on United States v. Maine, 420 U.S. 515, 524-27 (1975)
(granting to the federal government offshore property rights, including ownership). Id.
89
Id. at 297-98.
90
Id. at 299-300.
91
Id. at 300.
92
Id.
93
Id. at 315.
94
Id.
95
Id. at 316.
96
Id.
97
Id. at 316-17.
98
Id.
99
Id. at 317.
100
Id. at 318.
101
Id. at 318-19.
102
Id. at 319.
103
Id.
104
Id. at 320.
105
Id.
106
Id. at 321.
107
Id.
108
Id. at 322. See H.R. 5156, 107th Congress (2002).
109
Id.
110
Id. at 322.
75
33