Weaving Sustainable Development into the United States ...



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.”[i]

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.

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.[ii] 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.[iii]

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 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.[iv]

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.[v] 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.[vi]

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 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.[vii] 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.[viii] The recent development of wind farms–large expanses of land or sea upon which hundreds of wind turbines stand erect, ready to 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.[ix] 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.”[x] The nacelle is the enclosure behind the rotor and contains a gearbox, drive train, and generator.[xi] 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.[xii]

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 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 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.[xiii]

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.[xiv]

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 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.[xv] 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.[xvi]

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.[xvii]

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.).[xviii] 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.”[xix] Residents living near wind farms, however, 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 found.[xx] 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.[xxi] 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.[xxii]

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.[xxiii] 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.[xxiv] 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.[xxv]

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.[xxvi] 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.[xxvii]

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.[xxviii] 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 1985[xxix] and is currently listed as threatened for the Massachusetts region.[xxx] While critical habitat under the ESA has been designated for the Plover, such habitat does not include the Massachusetts region.[xxxi] 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 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.[xxxii] 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.[xxxiii] The facility would lie five miles from Cape Cod, nine miles from Martha’s Vineyard, and thirteen miles from Nantucket.[xxxiv]

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,[xxxv] 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.[xxxvi] 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.[xxxvii] The project will generate up to 420 MW of electricity.[xxxviii]

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 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).[xxxix] Seaward of the three miles, the Outer Continental Shelf Lands Act (OCSLA) governs all submerged seabeds and grants exclusive jurisdiction to the federal government.[xl] 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 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.[xli] To the extent any gaps exist in the federal law, the courts held, state law will play the role of surrogate to federal law.[xlii] 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.[xliii]

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.[xliv] 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).[xlv] 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 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.[xlvi] 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 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.[xlvii] 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.[xlviii]

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 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 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.[xlix] 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.[l] 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.[li] Environmentalists also contend the wind farms will hurt tourism, negatively impact fishing, damage the natural beauty of the coastline, reduce property value, and potentially impact migratory birds.[lii] 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.”[liii] Developers, however, contend these offshore wind farms present an opportunity to generate clean, renewable energy without the emission of harmful greenhouse gases.[liv]

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.”[lv]

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, 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.[lvi] 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.[lvii] 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).[lviii] Cape Wind, Shulz argues, is not in the business of “extracting minerals” as intended by OCSLA.[lix]

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.[lx] 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.[lxi] 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.[lxii] 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.[lxiii] While attacking the decisions by the courts and the Corps, Shulz posits several alternatives, which would legitimize the harvesting of wind from OCS locations.

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.[lxiv] 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.[lxv] 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. . . ."[lxvi] The bill, Shulz concludes, fails to address how the Department of the Interior would allocate OCS lands among competing development interests.[lxvii] 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.[lxviii]

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.[lxix] 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.[lxx] 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.[lxxi] The zoning would create a map delineating areas available for renewable energy production as well as those areas unavailable.[lxxii] Availability would depend upon environmental and political factors such as energy needs, current uses and characteristics of the area, and available wind resources.[lxxiii] 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.[lxxiv]

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.[lxxv] 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.[lxxvi] 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.[lxxvii] 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.[lxxviii]

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.[lxxix] Further, the Corps’ permitting process is ad hoc and will allow Cape Wind to occupy the OCS without adequate permission from Congress.[lxxx] Other problems arise with the project, argue Martin and Smith, as Cape Wind’s permit was granted without comprehensive resource-specific review and will enable Cape Wind to use federal public lands to harness wind energy without payments to the United States.[lxxxi]

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.[lxxxii] 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.[lxxxiii] OCSLA jurisdiction, it is argued, applies only to minerals, not renewable resources such as wind.[lxxxiv] 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….”[lxxxv]

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.[lxxxvi] 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.[lxxxvii] Critics 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.[lxxxviii] 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.[lxxxix] 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.[xc]

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.[xci] Such permitting behavior by the Corps, the authors purport, would result in “wholesale abdication of the federal interest in OCS lands.”[xcii] 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 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.[xciii]

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.[xciv] 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.[xcv]

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.[xcvi] 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 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.[xcvii] 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.[xcviii]

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.[xcix] 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.[c] 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.

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.[ci]

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.[cii]

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.[ciii]

When the permitting process takes place, authorities should apply a balancing test when siting an offshore wind energy project.[civ] 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 impacts.[cv] 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. [cvi] 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.[cvii] 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.”[cviii] 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.[cix] The legislation, however, fails to promote adequate environmental standards and fails to resolve the permitting jurisdiction issue.[cx]

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 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.

-----------------------

[i] Gro Bruntland, The United Nations World Commission on Environment and Development, 1987,United Nations Educational, Scientific and Cultural Organization, available at (last visited Apr. 20, 2005).

[ii] JARED DIAMOND, COLLAPSE 79-119 (Penguin Group 2005).

[iii] JARED DIAMOND, COLLAPSE 136-56 (Penguin Group 2005).

[iv] JARED DIAMOND, COLLAPSE 311-28 (Penguin Group 2005).

[v] BILL MCKIBBEN, THE END OF NATURE 145 (Anchor Books 1999) (1989).

[vi] BILL MCKIBBEN, THE END OF NATURE 150 (Anchor Books 1999) (1989).

[vii] See The Literature Network, Don Quixote, available at (last visited Apr. 19, 2005).

[viii] American Wind Energy Association, Wind Web Tutorial: Wind Energy Basics, available at (last visited Apr. 14, 2005).

[ix] Id.

[x] Id.

[xi] Id.

[xii] Id.

[xiii] Spirit Lake Community Schools Wind Energy: Spirit Lake Wind Project–Vision to Reality, available at (last visited Apr. 15, 2005).

[xiv] American Wind Energy Association, Wind Web Tutorial: Wind Energy Basics, available at (last visited Apr. 14, 2005).

[xv] Id.

[xvi] Id.

[xvii] American Wind Energy Association, Wind Energy Fact Sheet: Comparative Cost of Wind and Other Energy Sources, available at (last visited Apr. 15, 2005).

[xviii] American Wind Energy Association, Wind Energy Fact Sheet, available at (last visited Apr. 15, 2005).

[xix] Id.

[xx] Center for Biological Diversity, Lawsuit Seeks Redress for Massive Illegal Bird Kills at Altamont Pass, CA, Wind Farms, available at (last visited Apr. 15, 2005).

[xxi] Id.

[xxii] Id.

[xxiii] 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).

[xxiv] Id. at p.2 ¶ 1.

[xxv] Id. at p.19 ¶ 79.

[xxvi] Id. at p.2 ¶ 3.

[xxvii] Id. at p.29 ¶ A-D.

[xxviii] 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).

[xxix] 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).

[xxx] 50 C.F.R. § 17.11(2005).

[xxxi] 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).

[xxxii] Alliance to Protect Nantucket Sound v. United States Department of the Army, 288 F.Supp. 2d 64, 67 (D. Mass. Sept. 18, 2003).

[xxxiii] 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).

[xxxiv] Id. at 286.

[xxxv] Woods Hole Research Center, Energy, Planning, and Management of Coastal Resources: A Wind Farm in Nantucket Sound, available at (last visited Apr. 15, 2005).

[xxxvi] Supra, note 26 at 286.

[xxxvii] 288 F.Supp. 2d at 68.

[xxxviii] U.S. Army Corps of Engineers, New England District, Cape Cod Wind Farm Permit Application and Environmental Impact Statement, available at (last visited Apr. 15, 2005).

[xxxix] Ten Taxpayer Citizens Group v. Cape Wind Associates, LLC, 373 F.3d 183, 188 (1st Cir. 2004).

[xl] Id.

[xli] Id. at 192.

[xlii] Id. at 193.

[xliii] Id. at 194.

[xliv] Id. at 195.

[xlv] Id. at 196.

[xlvi] 288 F.Supp. 2d at 67.

[xlvii] 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).

[xlviii] 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).

[xlix] 288 F.Supp. 2d at 79.

[l] 288 F.Supp. 2d at 80.

[li] CBS News, Wind Farms Face Green Resistance, available at (last visited Apr. 15, 2005).

[lii] Id.

[liii] Id.

[liv] Id.

[lv] Id.

[lvi] 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).

[lvii] Id. at 439.

[lviii] Id.

[lix] Id. at 440.

[lx] Id. at 442.

[lxi] Id.

[lxii] Id. at 443.

[lxiii] Id. at 444.

[lxiv] Id. at 447.

[lxv] Id.

[lxvi] Id. at 446-47.

[lxvii] Id. at 447.

[lxviii] Id.

[lxix] Id. at 448.

[lxx] Id.

[lxxi] Id. at 448-49.

[lxxii] Id. at 449.

[lxxiii] Id.

[lxxiv] Id.

[lxxv] Supra, note 26 at 287.

[lxxvi] Id.

[lxxvii] Id.

[lxxviii] Id.

[lxxix] Id. at 288.

[lxxx] Id. at 289.

[lxxxi] Id.

[lxxxii] Id.

[lxxxiii] Id. at 294-95.

[lxxxiv] Id. at 295.

[lxxxv] Id. at 296.

[lxxxvi] Id. at 301-04.

[lxxxvii] Id. at 289.

[lxxxviii] 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.

[lxxxix] Id. at 297-98.

[xc] Id. at 299-300.

[xci] Id. at 300.

[xcii] Id.

[xciii] Id. at 315.

[xciv] Id.

[xcv] Id. at 316.

[xcvi] Id.

[xcvii] Id. at 316-17.

[xcviii] Id.

[xcix] Id. at 317.

[c]Id. at 318.

[ci] Id. at 318-19.

[cii] Id. at 319.

[ciii] Id.

[civ] Id. at 320.

[cv] Id.

[cvi] Id. at 321.

[cvii] Id.

[cviii] Id. at 322. See H.R. 5156, 107th Congress (2002).

[cix] Id.

[cx] Id. at 322.

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