[*PG221]NEITHER OUT FAR NOR IN DEEP: THE PROSPECTS FOR UTILITY-SCALE WIND POWER IN THE COASTAL ZONE

Rusty Russell*

Abstract:  Utility-scale winds in shallow offshore areas offer a significant source of clean energy to help meet green power commitments, growing electricity demand, and the heightened challenges of climate change and air pollution. This is particularly true in the Northeastern United States, which has few indigenous energy sources and serious transmission constraints. But the primary regulatory mechanism for mediating among conflicting uses of the coast and coastal ocean—the Coastal Zone Management Act of 1972—is highly decentralized and subject to a disorganized array of project veto opportunities. State coastal zone programs may not sufficiently account for wind generation’s broad environmental benefits. Thus, regulatory outcomes—fueled by inapt analogies to a history of offshore oil and gas exploitation—will disfavor this clean energy source. Federal and state authorities should better coordinate their coastal management programs to enable responsible siting where near-shore wind power potential is most promising.

. . . while we listen to the bells—
anywhere, but somewhere else!

—Robert Lowell, Waking Early Sunday Morning1

There’s almost always a better site for anything.

—Bill McKibben2

[*PG222]Introduction

What goes around comes around. Policymaking moments, like the winds, visit in cycles. For a brief moment in the early 1940s, Vermont held the distinction of hosting the nation’s first and only commercial wind generator.3 Three decades later, in the 1970s, New England’s coast was to be the site of what would have been the first offshore wind power development in the country.4 Although those plans were abandoned,5 the passing of another three decades finds the region—indeed, the entire Northeastern seaboard—awash in proposals to site America’s first utility-scale wind farms in the open ocean. By early 2003, nearly two dozen offshore projects from Massachusetts to Virginia were under discussion. Based on the initial applications, these projects totaled nearly 13,000 megawatts, or about forty percent of the capacity available to the entire six-state region.6

In little over half a century, grid-linked wind power has progressed from a workbench fantasy to a renewable resource that, in the view of an increasing number of observers, is ready to compete head-to-head with the conventional technologies that continue to generate the bulk of the nation’s electricity: combustion of coal and natural [*PG223]gas, and nuclear fission.7 Yet in the United States today, the power of wind remains largely untapped.8

Many signs, however, point to a considerably larger role for wind in the near future. These include: (1) new federal9 and particularly state10 commitments to the development of renewable resources; (2) the intensifying effort to identify broad-scale strategies that can effectively address climate change;11 (3) public recognition of environmental12 [*PG224]consequences of an electricity industry based primarily on coal and nuclear power; (4) awareness of the lack of resource diversity and the risks it creates; and (5) mounting anxiety that this highly-centralized system of production poses both economic13 and security14 threats.

Parts of the nation, particularly the Great Plains area, offer wind resources of such magnitude that they could theoretically satisfy America’s entire demand for power.15 But electricity is ephemeral. Large supplies cannot be stored, and physics and economics place limits on how far it can be transmitted. This makes the development of renewable resources in proximity to large population centers an option worth investigating.

The goal of this Article is twofold. First, it endeavors to show that large-scale, offshore wind generation represents a significant resource likely to be of growing interest to energy developers and policymakers over the next decade. Next, it considers the extent to which the Coastal Zone Management Act of 197216—the primary legal framework for assessing development and conservation along America’s 96,300-mile coastline17—is suited to the task of addressing both the challenge and opportunity presented by offshore, utility-scale wind generation. This Article concludes that the growing interest in offshore wind is not likely to receive a sympathetic hearing under the Act, its regulations, or the highly-differentiated, locally-focused programs states have designed in its wake. In fact, if corrective action is not taken soon, the existing legal framework could deal renewables a major setback.

[*PG225]I.  Offshore Wind Power: A Resource Waiting To Happen

A.  A Maturing Energy Option

Wind power has grown at a rate of over thirty percent a year for at least a decade.18 It is now the most rapidly expanding commercial-scale energy resource in the world.19 In 1999, more megawatts (MW)20 of wind power capacity were installed than nuclear capacity.21 Globally, total terrestrial and offshore wind capacity grew from 4800 MW in 1995 to more than 37,200 MW at the beginning of 2004 .22 By the turn of the century, wind power had become a $2.5 to $3 billion industry.23 Of all renewable energy sources under development in the United States, wind is the one most likely at present to be in a position to compete economically with fossil fuels. It is more cost efficient than conventional generation, at least in some areas and applications.24 Furthermore, industry optimism has grown over recent years. As one proponent recently put it, wind has finally “achieved a sort of critical mass.”25

Nonetheless, wind power’s actual contribution thus far has been modest, particularly in the U.S. Here, in 2002, it supplied less than [*PG226]0.3% of the nation’s electricity.26 Indeed, all non-hydropower renewables together accounted for a mere 2.18% of total net electricity generation.27

Several states have emerged as leaders in wind energy as a result of focused state policy initiatives, funding, or tax incentives.28 Still, total installed capacity in early 2004 was only 6336 MW. All but four percent is west of the Appalachians, and virtually none is on the East Coast or in New England.29

B.  The Attraction of Offshore Wind Energy

The coastal zone represents an important and potentially sizable untapped source of wind power.30 This is particularly so along the eastern seaboard.31 The reasons are several.

[*PG227] First, although the data are preliminary, a number of offshore locations appear to offer outstanding, perhaps even optimal, conditions for utility-scale wind generation.32 These sites are close to the shore, reducing the capital costs of connection to the land-based transmission grid.33 Depths do not exceed fifty feet,34 which right now is considered at or near the limit of technical feasibility.35 The sites are near high-voltage transmission lines on land36 and thus offer lower connection [*PG228]costs. Moreover, they do not present obvious conflicts with migratory birds, mobile-gear fisheries, ocean-based shipping, or marine recreation.

In addition, many coastal areas, particularly in the Northeast, have large population centers37 with sizable demand for electricity. Any attempt to meet this demand exclusively by siting large wind power facilities on land would face substantial and possibly insurmountable barriers. These include intense public opposition, lack of available sites, incompatible zoning and land-use regulation, and potentially severe conflicts with other uses—among them, aviation, recreation, and conservation. These drawbacks are amplified by the generally modest nature of the wind resource available within populous shoreline counties.38 In contrast, an offshore wind farm sited near concentrated demand can still side-step some or all of these barriers, and should therefore stand a better chance of approval.

The most attractive feature of offshore generation is that the resource itself is generally better. First of all, wind speeds are consistently higher than on land—perhaps by twenty-five percent or more.39 Since the energy content of wind increases by the cube of wind speed, twenty-five percent higher velocity nearly doubles the energy potential.40 In addition, when winds are free of terrestrial impediments—office buildings, houses, and the crenellated landscape—they benefit [*PG229]from shorter and less frequent fluctuations of the type that can damage a turbine or force a shut-down.41

Although offshore wind turbines cost more than those built at prime sites on land,42 a good many of the latter are in the vicinity of North Dakota or other sparsely populated areas. Hence, offshore wind remains a particularly attractive and significant option in energy poor regions like the Northeast. This is amplified by the difficulty of siting land-based turbines, which arises from a combination of transmission constraints,43 the rarity of good sites near large population centers, and the relatively high cost of other energy resources, especially in New England.44

C.  The International Experience

By the numbers, offshore wind power is more advanced in other nations than in the United States. By the end of 2002, large projects were operating in Denmark, with others on line in the U.K., Sweden and the Netherlands.45 Major initiatives were planned elsewhere.46

[*PG230] Denmark, in fact, is a benchmark of wind-power success. In 2001, wind generation met nearly twenty percent of the nation’s total electricity consumption; by the end of 2003, offshore wind generation alone supplied nearly four percent of total Danish electricity demand. At that time, five offshore projects were in operation, with a sixth under construction. The largest on line now, Horns Rev, consists of eighty 2-MW turbines placed six to seventeen miles from shore in depths of approximately nineteen to forty-six feet.47 Other project sites range from a little more than one to twelve miles off the coast,48 generally in water of this depth or less. The current Danish energy plan contemplates that wind power will supply half of the nation’s electricity by 2030.49 Given the limited number of suitable sites on land, much of this new capacity is expected to be developed in the relatively shallow seas that surround the country.50

In addition to Denmark, other nations have ambitious plans. Germany, which has the largest installed wind capacity in the world,51 is considering the development of 12,000 MW offshore.52 The UK is moving forward with similar plans for at least 9000 MW, and possibly more.53

Unlike Europe, however, the U.S. has few large areas that are relatively far from shore and that offer shallow water and strong winds.54 As [*PG231]a result, renewable energy policy in this country is faced with a dilemma: either wait until cost-effective deep-water construction technology has been developed and fully tested, a process that could take years, or make an effort right now to site turbines in areas that are relatively close to land—most of them in waters over which the states have primary jurisdiction.

D.  Near-Shore Wind Generation: The Coastal Issues

Size is the chief siting issue that near-shore development raises. Economics of offshore wind favor large turbines as well as large arrays.55

At sea, the optimal project will tend to be larger than it is on land. First, fixed costs—particularly those of the undersea cable, steel foundations and installation apparatus, and maintenance—are considerably higher. All else being equal, it makes sense to spread those costs among many generators. Second, economies of scale in the manufacture of both the turbines and the foundations favor larger wind farms. Third, it is easier to capture the higher offshore winds using the largest turbines commercially available.56

Considering the higher cost of offshore construction, the optimal size of an ocean-based project is likely to be 100 MW or greater.57 Relying on technology available today, a project like this will consist of forty to fifty turbines—each of which may be more than 420 feet from base to blade tip.58 Attractive to some, imposing to others, an array of this magnitude inevitably will be understood as a threat to other uses and interests in the coastal area and on the water. If opposition reaches critical mass, the perception of threat will evolve into organized opposition, becoming a political and legal reality.

[*PG232]II.  Coastal Management: A Regulatory Collage

Expansive near-shore wind development is likely to attract controversy and opposition.59 But whether the outcry is loud or muted, the controversy will be examined through the lens of the nation’s coastal zone management program. The coastal zone program is the primary means by which federal, state, and local agencies and political units attempt to balance and harmonize intensive and contradictory patterns of use along the expansive American shore. To fully appreciate the challenges wind power faces, it is necessary to consider the values, policy objectives, and legal framework of this unusual program.60

A.  The Fault Line of Coastal Policy

Over the centuries, the American coastline has become a conflict waiting to happen. From colonial times, public trust concepts have accorded to private citizens the right to engage in a variety of commercial activities along the coast and in coastal waters.61 During that early period, the states generally took the lead in regulating offshore fishing.62 Not long after, the federal government developed an interest in maintaining shoreline integrity.63 American federalism, augmented by a long tradition of local land use control, continues to ensure that coastal oversight is a relatively decentralized, and therefore complex, task.

In the twentieth century, particularly in recent decades, the potential for conflict has been realized. The 1990 U.S. population living in coastal counties stood at more than 133 million. That population is increasing nearly fifteen percent faster than in inland areas.64 By 2025, [*PG233]nearly three-quarters of the nation is expected to live along the coast65—even though its 672 coastal counties account for only fourteen percent of the total land area of the contiguous states.66

New understanding of the enormous biological productivity of the coastal ocean—the area stretching 200 nautical miles from the shoreline to the far edge of the Exclusive Economic Zone67—has served to intensify the conflict. Today, the coastal ocean is a vital and unique ecological resource. It also is the source of fossil fuel and mineral wealth, and significant recreational opportunities.68 Offshore wind power is one of the most recent arrivals in a complicated, congested, and contentious arena. At the most general level, the challenges that confront wind development arise from the two faces of federalism: (1) state exercise of power to defend territorial waters from locally undesirable coastal uses;69 and (2) a persistent federal aversion to addressing or even identifying the most pressing of the myriad demands for coordination that test coastal management.70

B.  The CZMA: A Harbinger of Devolution

The Coastal Zone Management Act (CZMA)71 establishes the structure whereby competing demands and conflicts along the coast and in state waters are mediated among federal, state, and local agen[*PG234]cies.72 When it was enacted more than thirty years ago, the CZMA presaged a shift in regulatory authority from the federal government to the states—a trend that has accelerated over the past two decades.73 The Act and state programs it promotes mark a period of intensifying and sometimes incompatible public and private interest in coastal resources, both on land and in water. Unlike other legislation affecting the coast and ocean,74 the CZMA is designed to be general and integrative in its application. Unlike many other major environmental laws, it openly embraces a devolutionary federalism.75 It encourages states to take charge of their own coastal problems, often with little federal oversight and even less interference.

The CZMA, in fact, remains one of the few major examples of a federal statute that envisions a fully cooperative relationship among the levels of government. It is said to be both the federal government’s “first major experiment with an integrated environmental program,”76 and “the oldest national-level coastal management program in the [*PG235]world . . . .”77 And, from a state perspective, the CZMA appears to have weathered relatively well.78 But for others, particularly those seeking to site utility-scale wind farms near populated shorelines, the early signs point to choppy waters ahead.

1.  The General Approach

The Coastal Zone Management Act addresses a wide spectrum of potentially conflicting activities and uses, yet it does this in an indirect manner.79 Rather than attempting to command specific substantive results, Congress established a procedural matrix that, in its view, would achieve those results in practice.80 Its central premise is that effective coastal management can arise from comprehensive state-level planning, provided background authority is properly allocated among federal, state, and local officials.

The CZMA is intended to further the protection and development of each state’s coastal zone,81 including the coastal zone’s “natu[*PG236]ral, commercial, recreational, ecological, industrial and esthetic resources . . . .”82 Each one of these goals is broad and vague. In the aggregate, they serve to sharpen conflict among uses and users.83

Reflecting the breadth and flexibility of these findings is the “great flexibility”84 of the Act itself. States enjoy enormous leeway in crafting customized coastal zone plans. These plans can and do address a diverse range of issues.85 Like coastal ecology itself, those issues may vary widely from jurisdiction to jurisdiction.86 The CZMA’s focus on process means that each coastal management program tends to operate like a “black box”—it can generate decisions, while failing to enunciate the clear principles and performance standards that many believe are a necessary prerequisite to coherent coastal-zone management over the long term.87

It is ironic that, at the time of its passage, the CZMA’s main legislative competitor was a more comprehensive national land-use bill that would have subsumed coastal protection. Many in the environmental community favored this broader approach because the program would have been under the control of the Department of the Interior rather than the Department of Commerce, and because it promised a stronger federal hand in state decisionmaking.88 But an influential [*PG237]commission89 that had been clearing the path for national shoreline legislation concluded that coastal management should be largely the responsibility of the individual states. The result was a separate measure—the CZMA—guided by the principle of “cooperative federalism.”90 The more comprehensive initiative notwithstanding, coastal policy has remained a matter of state and local supervision for the past three decades. Like land-use planning and zoning,91 it has been driven by distrust of centralized federal direction.92

2.  The Planning Process

The cooperative coastal zone management blueprint is not difficult to read. The CZMA program is voluntary, yet it has attracted almost unanimous participation. This has been achieved by offering participating states two benefits: money and a conditional power to block federal decisionmaking.93 To receive them, states must submit—then implement and maintain—a qualifying coastal management plan. Funding has never been generous. For all CZMA programs combined, it has averaged about $40 million a year, or a mere $1.2 million for each participating jurisdiction.94 As a result, the second inducement, so-[*PG238]called “consistency review,”95 has come to serve as the more effective carrot.96

Once a state’s plan has been approved, federal coastal officials periodically review its implementation.97 Enforcement, however, is limited. Funds may be withheld only if implementation has failed, and then only after a process that can take more than three years to complete.98 States, of course, may update their approved coastal zone management plans to meet new challenges, but they are under no obligation to do so. Federal authorities may not manipulate or withhold grants or other funding as a means of pressuring a state to revise its coastal plan.99

A key feature of this process is the generality that is allowed, and indeed expected of,100 state coastal zone management plans.101 This is enhanced by the significant discretion the CZMA accords states to freely interpret those plans when specific conflicts arise. Typically, the burden is on a project developer to demonstrate that its activities conform to the coastal zone plan.102 But it is seldom possible to ensure con[*PG239]formity based on review of the plan document itself. To apply coastal program standards, more process—particularly interaction with state agency staff—is required.103 But if that miscarries or fails, essentially no enforcement mechanism exists to set matters aright. The federal government exercises only limited control over how states conduct their review, and neither the CZMA nor the typical state coastal zone program makes provision for aggrieved private citizens to seek judicial relief from private developers, local governments, or the state itself.104 Although coastal zone programs vary in their priorities as well as their effectiveness, they all tend to operate in a zone of discretion lying between the federal government and shoreline municipalities.105

For wind energy, the most potentially accommodating areas of the overall statutory design are provisions for federal aid to the states, and the requirement that, to be approved, a plan must consider the “national interest,” including “the siting of . . . energy facilities which are of greater than local significance.”106 But each offers less than it appears.

Federal aid would seem to be a way to stimulate the state innovation that will be needed in many cases to accommodate wind power. But, beyond a modest baseline, the prospects are poor, given the historically low level of federal support for coastal zone management and renewable energy development.107

Moreover, when federal agencies comment on a proposed state plan or an amendment to an existing one, the CZMA has been read to assume that a state’s program addresses the national interest, including interest in energy security.108 Even if conditions change later, the plan as written remains in effect—largely, if not wholly, immune from attack.

[*PG240] From the perspective of wind power development, the manner in which coastal plans are created, approved, implemented, and administered creates significant regulatory uncertainty.109 The plans themselves typically do not offer specific guidelines or even basic guidance—for example, guidance to help identify areas in which offshore wind generation might be favorably considered. Instead, plans elaborate upon the broad array of principles enunciated in the CZMA. Typically, they demand a complex balancing of related but often conflicting standards, while suggesting few criteria that would aid in discerning priorities among them. Finally, as will be discussed, the sheer generality of the program document makes it easier for an individual state to argue that a federally-permitted project is inconsistent with some aspect of its plan, thus blocking the siting of the project.110

Although the CZMA’s one undisputed effect has been to encourage states to view the coastal zone as a unified ecological area, this new understanding has not always inspired new modes of action.

3.  Program Structure

a.  Basic Design

State coastal zone programs vary widely in scope,111 as well as structure.112 Some, like North Carolina’s and California’s, are comprehensive and centralized.113 A single state agency implements the program, although some authority may be delegated to municipali[*PG241]ties.114 The majority, however, are “networked” among the potentially numerous state and local agencies that share some say over coastal affairs. Often, a single state agency coordinates all or most of the others. The Massachusetts, Maine, New Hampshire, Virginia, Florida, and Texas coastal zone programs are of the networked variety.115 Through executive orders, policy directives, or memoranda of understanding, networked coastal programs attempt to amalgamate and shape the preexisting activities and agendas of parallel agencies.116

b.  Spillover Effects

For the development of offshore wind power, the structure of the state coastal zone management system creates a potentially serious boundary, or spillover, problem.

Wind energy provides significant benefits well beyond the borders of a given jurisdiction—for example, by addressing climate change and global security issues. But a relatively small percentage of those benefits are captured locally. Moreover, in at least some cases, the local benefits of wind energy will not outweigh the locally perceived detriment to coastal “character,” aesthetics, other environmental values, and other uses of coastal resources.117

Although this spillover, or externality, problem is not unique to wind development,118 it presents itself here in an unusual posture,119 given the continuing debate over the nature and significance of the local impacts of wind, and the equity issues that a shoreline headcount cannot adequately resolve.120

[*PG242]c.  Massachusetts: A Case in Point

To understand why state territorial waters might be an unfriendly environment for wind development, it may be useful to examine a specific, representative coastal zone management program. The Massachusetts program has received high marks,121 and, like the majority, is a networked program. In addition, the state has a fairly typical range of environmental statutes, including those that address environmental impacts, the siting of power plants, ocean protection, and public trust resources.

The commonwealth’s coastal program is based on at least seven memoranda of understanding between the Massachusetts Office of Coastal Zone Management and the other state agencies that exercise supervisory authority over use and development of the coastline.122 These include the state Energy Facilities Siting Board, the Executive Office of Transportation and Construction, the Massachusetts Envi[*PG243]ronmental Policy Act Office, the Department of Agricultural Resources, and the Department of Conservation and Recreation.123

State law does not provide the public with the means to challenge action or inaction by coastal officials, or to require the coastal office to enforce its agreements with other agencies—although two review processes might help. First, in many cases (especially those involving sizable coastal incursions), a factual record detailing environmental harms and benefits must be developed, largely through the commonwealth’s environmental impact review process.124 Second, the Energy Facilities Siting Board has the authority, but not the obligation, to facilitate the siting of for power generation projects by waiving local and state permitting requirements.125

Nonetheless, the Massachusetts regulatory system poses a number of challenges to offshore wind development. The first is its sheer complexity.126 Multiple sets of regulations address similar activities in similar language, yet they do so in seemingly uncoordinated and sometimes inconsistent ways.127 As a result, wind development may be diverted to [*PG244]federal waters, if any shallow enough can be found.128 The second challenge is the generality of the standards.129 They demand a great deal of interpretation, which increases transaction costs. Third, the coastal zone itself is a “generalized” space, creating further uncertainty. Most, if not all, of the values that its varied resources support may require assessment each time a significant project triggers the commonwealth’s coastal protection apparatus. Although the process this necessitates may be adept at identifying discrete interests and values, it may be far less effective in translating those findings into specific conditions that apply to designated activities in specified locations. Fourth, a high degree of generality may be favored as a way to conserve agency resources, if not ocean resources. The more precise a given policy or decision, the clearer it acts as directive or precedent. Agencies may seek to avoid such precision, since one of its by-products is the assignment of priority to values and uses—and in consequence intensifying the demand for hands-on, and often controversial, resource management. [*PG245]Finally, the commonwealth’s coastal program appears to be ambivalent about whether wind power should be encouraged or not.130 Some coastal zone management provisions seem to treat the resource as a potentially water-dependent activity that should be favored. Others lean in the opposite direction.131 This adds to the regulatory uncertainty.

Whether wind generation will be sited off the Massachusetts coast remains an open question. But the regulatory pathway that will determine the fate of each proposal has more twists than necessary.132 This does not mean the Massachusetts program is particularly weak. In fact, survey results tabulated in Appendix A suggest that the commonwealth is considerably farther along than most other eastern seaboard states in reconsidering its coastal program in light of the evident potential for utility-scale wind power in or near state waters.133

But the bottom line is the same: near-shore wind power’s potential is being dissipated by a decentralized system ill-suited to this new regulatory challenge. One unintended consequence is that developers will propose more massive projects, on the assumption that the ensuing negotiation will demand broader concessions, and that—given a basic lack of structure—the negotiation will impose additional costs that can be offset only by the extra revenue generated by more or larger turbines. Yet, this dynamic could easily heighten regulatory scrutiny, with the consequence that the entire project ultimately is [*PG246]rejected. That outcome, however, is not consistent with existing policy in any coastal state.

C.  (In)Consistency

The most unusual feature of the CZMA and the one that has drawn the most attention from courts and commentators is consistency review, its single, clear enforcement mechanism.134 In brief, consistency review permits a state whose coastal zone is affected by a federal or federally-permitted project135 to file an objection, and thereby either halt the project or force its modification—if the project is found to be incompatible with an enforceable component of that state’s federally-approved coastal zone management plan.136

Consistency has attracted wide commentary.137 Whether it hands states “veto” power over activities that may harm the coastal zone, or [*PG247]whether its effects are more subtle and less predictable, is a matter of continuing discussion.138 Nonetheless, when adopted in 1972, the consistency provision represented “a significant innovation.”139 More than three decades later, it continues to carry symbolic, and potentially real, force.140 Indeed, responding to a 1984 Supreme Court decision limiting its scope,141 Congress in 1990 amended the CZMA to allow states to review the coastal impact of federal actions in federal waters.142

Consistency is important here because it gives states the power to reject an offshore143 wind power facility, even one to be built outside the state’s three-mile territorial limit. Although disagreement continues regarding the scope of the power and its overall utility,144 in state hands consistency review operates like a one-way ratchet. If a state does not want to encourage offshore wind, or wants to discourage a particular proposal, consistency review potentially serves to deflect both the developer’s request for federal approvals and a federal government—or at least a federal agency—that is supportive of renewable energy.145 On [*PG248]the other hand, if state policy seeks to encourage near-shore wind, consistency review is irrelevant; it cannot be used to force a federal agency to license a project. As for the federal agency itself, consistency is not an option. The ratchet turns only one way. Thus, the CZMA is more than simply non-preemptive; it engages in a form of reverse preemption.146 Of course, if a project is opposed by both state and federal officials, the mechanism is not relevant.

But even if most agree that the consistency doctrine is more than a hobgoblin, is it in fact a barrier to projects like an offshore wind farm? No formal analysis has addressed this question.147 Yet, the way in which the process plays out suggests that it might not be a substantial barrier. State consistency objections to federal license and permit applications are reviewed by the Secretary of Commerce.148 The Secretary may override an objection if the proposal is found to be consistent with the objectives of the CZMA, or if it is otherwise essential to national security.149 In the first instance, the Secretary must base a consistency finding on each of three criteria, one of which also requires the presence of a strong national interest.150 As the discussion [*PG249]below suggests, if review by the Secretary has had any impact at all, it has helped to stimulate oil and gas exploration on the Outer Continental Shelf.151 Whether it also might be of assistance to offshore wind power projects is questionable, given long-standing federal energy policy.

Indeed, initial data suggest that the consistency doctrine has had minimal impact. The simple truth is that most states go along with most federal licensing decisions almost all of the time. The federal Office of Ocean and Coastal Resource Management estimates that states have consented to approximately ninety-five percent of all reviewable federal actions.152 Nonetheless, of the forty cases decided on petition to the Secretary of Commerce since the early 1980s, more than a third have involved energy exploration.153 The Secretary upheld the state’s objection in half of them.154 Although one cannot confidently declare this a trend, it underscores a tendency that may be of importance to near-shore wind generation: states scrutinize big projects closely.155 Even though such proposals have been relatively infrequent, such consistently searching scrutiny, over time, may create a powerful preference for the status quo.156

By deterring or forcing the revision157 of unsound projects, the consistency provisions also may exercise a more influence in situations that do not result in a negative determination by the state. Although no [*PG250]formal study has quantified this effect,158 most projects not initially deemed consistent are modified through negotiation.159 A recent amendment to the CZMA regulations underscores the role of negotiation, particularly between states and project proponents.160

When Congress enacted the CZMA, it accorded exceptional authority to states rather than to municipalities in the belief that the former would better reflect the national interest and thus could achieve broader consensus around any given coastal issue.161 Although controversial to some, offshore wind generation has the capacity to deliver significant environmental benefits to constituencies far larger and more dispersed than those who live within eyeshot. Nonetheless, any proposed development that lacks strong local political support is likely to run into difficulty if it is to be sited in state territorial waters.162

Nearly three decades of experience supports the conclusion that the coastal zone management program is not sufficiently well-coordinated to manage significant challenges unanticipated in 1972 or at the time of any of the Act’s later amendments. One of these challenges is offshore wind.

D.  The Deceptive Authority of the Oil and Gas Meta-Narrative

The CZMA and fossil fuel exploration share a turbulent history. The Act, often to good effect, maintains a tension between state policy and federal prerogative. During the Reagan Administration’s campaign in the early 1980s to promote the development of offshore oil and gas deposits, some states took advantage of the consistency review process to try to block exploration, while others flatly refused to draft coastal [*PG251]zone management plans that identified areas suitable for energy exploitation.163

Since then, power has alternately tilted toward and away from the states, while at the same time the policy pendulum has moved from environmental protection to energy development, and then back again. Responding to the gasoline price spike of the early 1970s,164 the 1976 CZMA amendments165 underscored an intensified federal interest in fossil fuel supplies by directing states with approved coastal management plans to address the need for, and the siting and operational impacts of, energy extraction in the coastal zone.166

The 1976 amendments included a program to compensate states affected by oil and gas development on the Outer Continental Shelf. Fourteen years later, the fund was repealed by another set of amendments,167 the most important of which was to extend state consistency review to activities that, although conducted outside the coastal zone, might have impacts within it.168. The amendments also established a smaller fund to advance environmental objectives, and to promote “procedures and enforceable policies to help facilitate the siting of energy facilities and . . . energy-related activities . . . which may be of greater than local significance.”169 Overall, the 1990 amendments have realigned the coastal zone program with what is widely viewed to be its primary purpose: environmental protection.170 The most recent set of regulatory changes, promulgated in 2000, make slight adjustments in consistency review. Their preamble identifies energy facility [*PG252]siting as an activity that “significantly” advances the national interest.171 The pendulum may be swinging back again.172

Wind power sits on a ridge between environmental protection and economic development. Offshore, it constantly risks being perceived as the new century’s version of big oil—a corporate behemoth seeking to expropriate the Outer Continental Shelf. The issue is not whether wind energy and fossil fuel combustion have vastly different impacts on the environment.173 Clearly they do. Rather, wind power proponents will have to reject the simplistic analogy to oil and gas exploration and avoid being characterized by the narrative that has emerged from it.174 To the extent this fails, regulators will be more likely to conclude that offshore wind projects negatively affect the coastal environment and coastal uses.175 Given past patterns, the fed[*PG253]eral government is unlikely to shore up organized wind power so it can do battle with the states.176

III.  Coastal Zone Management: the Line and the Sand

The Coastal Zone Management Act (CZMA), standing alone, is often depicted as a moderately successful—albeit unusual—example of legislation that attempts to integrate environmental protection with resource management and development,177 while simultaneously enhancing principles of federalism.178 But when the inquiry is recast as a general assessment of U.S. coastal policy, the prevalent view is sharply critical.179

A.  The Fickle Foundations of Federalism

More than seventy years ago Justice Brandeis set down his now-famous observation that a “single courageous State may . . . serve as a laboratory” for “novel social and economic experiments . . . .”180 Although he was writing in dissent, there is general agreement that the “happy incident” of federalism can provide the necessary space for states to test promising policy innovations.181 Indeed, state activism may help dissolve federal impasse, while checking the wider spread of misguided public programs.

Justice Brandeis may not have been considering the challenge of modern environmental protection when he suggested that states experiment with economic and social policy. Indeed, when the problems those policies seek to address have significant extra-jurisdictional impacts, state experimentation may fail. In addition, the rigorous [*PG254]practice of federalism can obstruct or delay the realization of national goals and implementation of national norms.182 By exacerbating the spillover effect, it also may generate significant external costs.183

Though proposed as an environmental improvement rather than a problem, utility-scale offshore wind generation runs the risk of becoming a victim of federalism. To avoid this result, while providing review procedures that properly balance local, regional, and national interests, administrative coordination and broader consideration of social costs and benefits are needed. Otherwise, the final irony will be harsh: offshore wind turbines could become harder to site than oil platforms.184

B.  Observations & Recommendations

The current coastal zone management regime may represent both the best prospect for the coordinated siting of wind generation and the biggest impediment to any siting at all.185 When conflicts arise in the coastal zone—often the result of a specific development challenge—the solutions suggested frequently are systemic in nature. These include assigning responsibility to the agency believed to be the most expert,186 and placing greater reliance on other branches of government.187

[*PG255] But given the probability that change, if it is to happen at all, is more likely to happen incrementally,188 here is a short list of incremental and potentially achievable adjustments that could responsibly balance the needs of offshore wind power with other important coastal values.

1.  Feasible Recommendations

Integrate Programs Even Further. The dominant program, the CZMA, offers a highly integrative structure. The Act and its regulations ought to take advantage of this. The coastal program should encompass additional terrestrial values and uses. Ultimately, this approach would permit (or perhaps even require) individual states to account for that portion of wind power’s utility not fully valued by the existing coastal review process.189 Movement in this direction could be initiated by federal policy guidance or relatively minor regulatory adjustment.190

Selectively Alter the Consistency Doctrine. Federal agencies might be given the option to preempt the states in certain limited circumstances. This approach—dubbed “reverse consistency”—has been suggested as a means of exercising a tighter regulatory grip on aquaculture.191 It is not clear, however, whether the scope of reverse consistency could be limited in a principled way,192 or if not, how it would win the necessary acceptance among state and local officials. Nonetheless, this raises the right question: shouldn’t expert federal agencies have at their disposal more reliable means of ensuring that state activities—which can easily halt a project under the weight of permitting—do not directly undermine broader environmental objectives?

[*PG256] “Apportion” the Ocean by Priority. Siting renewables of any scale is difficult at best.193 Here, the idea would be to adopt multi-layered “zones” in which certain activities are given preference, and others discouraged. This would build on the concept of coastally-dependent uses, while offering several advantages along all dimensions—vertical, horizontal, and temporal—including: (1) potentially many more categories; (2) development of a common means of comparison or aggregation; and (3) further categorical division within the coastal geography. While not able to achieve perfect numerical clarity or resolve all hard cases, it could provide clear answers in many situations that now lack them.194 Although the regulatory change needed to fully accomplish this is beyond the present scope, it should avoid a full-scale zoning scheme modeled on the terrestrial systems that have been in place for more than eighty years.195

Enhance Local Options. Conversely, states could create incentives for shoreline communities to encourage near-shore wind development. This might include a requirement that wind projects share revenue or profits with their nearest neighbors.196 Much of the spillover problem would remain, however, so a firm state-level presence would be necessary to encourage inter-community coordination and externality (cost and benefit) sharing.

Encourage Coastal Plan Revision. Although the CZMA itself would have to be amended to require that states respond specifically to the potential for offshore wind development, the Commerce Department and its agencies might find ways to induce states to plan for such development. The CZMA in the past has been amended to encourage such activities as aquaculture, and it is likely that encouragement could be offered by regulatory change or by administrative adjust[*PG257]ment of existing benefit programs. The obstacles here would be: (1) mismatch between the historical lack of federal commitment to significant wind energy development and an effective level of incentive; and (2) a history of approving coastal zone management plans that are overly general.

Embark on a Policy Experiment. Oregon is the poster child of land use planning,197 and the Oregon coastal program is integral to that state’s planning tableau. It is considered by some to be one of the best programs in the nation.198 Advance planning is expressly required by the Oregon program, and pilot projects are permitted where the effects of large changes are uncertain.199 A coastal state, with or without federal support, might structure wind energy planning around a suitable pilot program. Given the need to demonstrate feasibility and impact at a commercial scale, the pilot might be substantial. Nonetheless, it would be the type of state-level experiment that would “serve as a laboratory” for more general program design and coastal policy. The data generated could be studied concurrently with commercial operation. One of the current proposals might even be selected to serve as such a pilot.200

2.  Less Promising Recommendations

Public Trust Doctrine. This state-based doctrine, often fashioned by judges, suffers from many of the same ills that beset coastal policy. Moreover, extensive court involvement in day-to-day resource management can be unwieldy and time-consuming. Because of the institutional limitations of the courts—particularly state courts—public trust adjudication is likely to be inexpert and ad hoc. The better question is [*PG258]whether state public trust principles inhibit offshore wind in ways that courts—and in some states, legislators—could hardly have intended.201 If so, those principles may need to be reconsidered.

Major Legislative or Programmatic Changes. Proposed solutions that rely on large-scale amendment of the CZMA202 may not be desirable. Those that assume major federal initiatives to jump-start the production of wind energy and other renewables are unlikely to occur. Given that a number of offshore proposals are now under discussion, or several steps toward realization, solutions that can be implemented in the near term are the ones that deserve priority.

3.  Other Questions

Larger issues remain. A major one is how we think about the environment, especially our physical landscape.203 The notion of untamed wilderness lives deep in the American consciousness.204 Whether the time is ripe to accommodate a more domestic vision, one that is less dichotomized, is an open question. Yet wind power and other soft energy paths will quickly become dead ends if we are not able to countenance human action amid our “natural” backdrop.205 Indeed, if the human and the wild cannot be joined in a middle landscape, we may never resolve some of the most pressing environmental problems. Albeit flawed, the deep structure of the coastal zone management program seems designed to advance this important task.

[*PG259]Conclusion

The state territorial sea and its coastal zone represent an important but untapped renewable energy resource. Wind power is the technology best positioned to take advantage of what this narrow but accessible band offers. After sixty years, we can draw on some hard lessons.206 Offshore wind power is poised to test our federalism—to test whether a dispersed government presence can sufficiently protect a precariously connected environment. But without far greater commitment to coordinated regulatory oversight at all levels of government, any significance may go the way of the lone turbine atop Grandpa’s Knob.207

[*PG260]Appendix A

State Action to Address Offshore Wind Power on the Eastern Seaboard
State Status Lead Agency Comments
Delaware No activity N/A Winergy has proposed a project in federal waters off-coast and preliminary discussions have taken place with the company.
Florida No activity N/A
Georgia No activity N/A
Maine No activity N/A
Maryland No activity N/A At this stage, some background discussions are taking place, prompted by a Winergy proposal in federal waters off-coast, and in Virginia.
Massachusetts Ocean Management Task Force convened by Secretary of Executive Office of Environmental Affairs in June 2003 Massachusetts Office of Coastal Zone Management Task force mandate is broad and is examining all ocean policies and legal mechanisms, but wind power has figured informally in the process. A final report, including principles and recommendations was expected in late Feb. 2004. Several wind power proposals – including a 420-MW plan in federal waters – have been submitted for regulatory review.
New Hampshire No activity N/A
New Jersey Internal review; feasibility study New Jersey Coastal Management Office Preliminary staff work to develop a policy, including research about environmental impacts, is ongoing. State Board of Public Utilities has awarded a $300,000 grant for general feasibility study of wind in coastal zone. Winergy has proposed three projects in federal waters off New Jersey coast.
New York Informal discussion New York Coastal Management Program Ongoing informal discussions with potential developers, including Long Island utility, which is considering a proposal for a 100 MW+ offshore wind facility. Also, there are six other project proposals in state and federal waters off southern and eastern Long Island.
North Carolina Internal assessment, public opinion survey of coastal [*PG261]counties State Energy Office, with state Division of Coastal Management N. Carolina is actively reviewing current regulations and wind resources, surveying public attitudes about wind power in 20 coastal counties, and examining areas in which wind resources and necessary development infrastructure coincide. The State has received U.S. Dep’t of Energy funding for wind assessment, the costal stakeholder process, and models for apportioning local economic benefits of offshore wind. The State’s green power program has attracted proposals to develop costal wind resources.
Rhode Island No activity N/A
South Carolina No activity N/A S. Carolina’s energy office is investigating funding opportunities to develop statewide wind resource data.
Virginia No activity N/A Multi-stakeholder Virginia Wind Energy Collaborative is active, and Winergy has proposed a project off-coast.
Sources: Connecticut: Telephone Interview with Charlie Moret, Managing Director, Investments, Connecticut Innovations (Feb. 6, 2004); Delaware: E-mail from Susan Love, Resource Planner, Delaware Division of Soil and Water Conservation, Costal Resources Programs, to Rusty Russell (Jan. 27, 2004, 12:18:23 EST) (on file with author); Florida: E-mail from Debby Tucker, Environmental Manager, Florida Department of Environmental Protection, Costal Management Program, to Rusty Russell (Jan. 28, 2004, 10:08:46 EST) (on file with author); Georgia: E-mail from Julia Miller, Georgia Environmental Facilities Authority, to Rusty Russell (Jan. 28, 2004 11:20:09 EST) (on file with author); Maine: Telephone Interview with Todd Burrowes, Policy Development Specialist, Maine State Planning Office (Feb. 6, 2004); Maryland: E-mail from Dr. John Sherwell, Maryland Department of Natural Resources, Power Plant Assessment Program, to Rusty Russell (Jan. 26, 2004, 09:46:49 EST) (on file with author); Massachusetts: Telephone Interview with Jane W. Mead, Senior Project Review Coordinator, Massachusetts Office of Coastal Zone Management (Aug. 4, 2003); Mass. Office of Costal Zone Mgmt., Massachusetts Ocean Management Initiative, at http://www.state.ma.us/ czm/oceanmgtinitiative.htm (last visited Feb. 19, 2004); New Hampshire: Telephone Interview with Brian Mazerski, Principle Planner, New Hampshire Coastal Program (Jan. 30, 2004); New Jersey: E-mail from Kevin Hassell, Coastal Management Office, to Rusty Russell (Feb. 2, 2004, 10:00:00 EST) (on file with author); New York: E-mail from Steven C. Resler, Supervisor, Policy and Analysis, New York Coastal Management Program, New York Department of State, to Rusty Russell (Jan. 28, 2004, 14:36:38 EST) (on file with author); E-mail from Jeffrey M. Freedman to Rusty Russell (Aug. 12, 2003, 14:15:05 EST) (on file with author); North Carolina: E-mail from Bob Leker, Renewable Program Manager, North Carolina Energy Office, to Rusty Russell (Jan. 28, 2004, 9:36:55 EST) (on file with author); Rhode Island: Telephone Interview with Erich Stephens, Executive Director, People’s Power & Light (Jan. 29, 2004); South Carolina: Telephone Interview with Kate Billing Manager of Planning and Project Development, South Carolina Energy Office (Jan. 29, 2004); Virginia: E-mail from Ellie Irons, Federal Consistency Coordinator, Virginia Department of Environmental Quality, to Rusty Russell (Jan. 29, 2004, 009:17:13 EST) (on file with author).

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