Symposium on Legal Challenges and Opportunities for Offshore Wind

Pace Environmental Law Review hosted the Symposium on Legal Challenges and Opportunities for Offshore Wind and Hydrokinetic Energy Development in the Northeast on March 2, 2012.  The panelists addressing Offshore Wind on the Eastern Seaboard of the United States included Michael Ernst, the Director of Regulatory Affairs at Tetra Tech, Inc.; Brandi Colander, an attorney with the Natural Resource Defense Council (NRDC); Michael Burger, an associate professor of law at Rodger Williams University School of Law; and finally Michael Snyder, an Ocean and Lakes Policy Analyst at the New York State Department of State.

Each of the panelists emphasized the need to adapt to new, alternative energies in the coming years.  Mr. Ernst states that New York State’s clean energy regulations will require 8,000 megawatts of clean energy by 2013.  In order to comply with this mandate, New York will need to go offshore to harness the energy of the wind on the East Coast.  The panelist presented an illustration depicting the offshore wind potential throughout the United States. The East coast, from northern Maine to South Carolina, has outstanding natural potential with consistent winds of seventeen to twenty miles per hour.

However, each panelist stressed the numerous challenges and barriers to the growth of the offshore wind industry within the United States.  Public perception remains a challenging issue with concerns over EMF (electromagnetic field) emissions and ascetics.  Mr. Ernst and Mr. Snyder suggest that public perception may improve as a result of offshore wind farms being placed significantly farther from shore.  The heavily litigated Cape Wind project would have been sited roughly four miles offshore while the proposed NYPA/LIPA/ConEd Long Island offshore wind farm will be located eleven miles offshore; thereby reducing ascetic concerns.

A dominating concern is the lack of legal framework and the possibility of tension between states with established wind industries and the federal government.  Professor Burger spoke about Rhode Island’s lack of decision-making framework when approached by industry companies wanting to site wind farms.  As a result, Rhode Island, and other early wind adopter states, have developed state specific decision-making framework when considering possible farms.  However, Professor Burger states this could cause tension between the states and the federal government, with newly enacted regulations, because many of the currently proposed projects are placed deeper than three miles offshore in federal waters.

Currently there is a lack of tax incentives, benefit programs and loan guarantees to spur investment.  This lack of financing, coupled with stakeholder concerns such as the lack of an adequate regulatory process, unknown cable system impacts and data deficiencies (although the U.S. industry does look towards Europe) discourages substantial investment into the offshore wind industry.

Despite the obstacles, the Panelists appear to have a positive outlook on the future and growth of the offshore wind industry.  Mr. Ernst seemed enthusiastic about the current testing of floating wind turbines off the coast of Norway, which produce more energy than any other wind turbine. The proposed Long Island wind farm will generate local, clean energy next to the New York Metropolitan area, a city with the largest energy demand.  There has been success in involving commercial fisherman, potential adversaries, in determining sites for plans and resolving possible conflicts with fishing grounds and techniques.  Although the offshore wind industry is proceeding rather slowly and faces barriers, Ms. Colander states that the industry as a whole is trying to do it right from the start by involving necessary stakeholder, researching risks and planning for the future of the industry, rather than rushing in without evaluating the risks.

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