BOSTON COLLEGE
Environmental Affairs

Student
Publications

Volume 31 2004 Number 2

[Pages 177-220]
CONGRESS, THE COURTS, AND THE ARMY CORPS: SITING THE FIRST OFFSHORE WIND FARM IN THE UNITED STATES
Carolyn S. Kaplan, Esq.*

Abstract:  Once considered an issue only for environmentalists, renewable energy has entered the mainstream dialogue as fears of climate change, acid rain, and dependence on foreign sources of fuel become more prevalent. There is now broad support for adding renewable energy, including wind power, into our nation’s fuel mix. Technological advances have allowed wind power to compete with traditional fossil fuels and lessen other potentially harmful impacts. Land-based wind power is widespread globally, and offshore wind facilities have been operating in Europe for over a decade. While there are currently several proposals for large-scale offshore wind farms in the United States, no such facilities have been sited to date. An intense legal controversy has emerged, stemming from a proposal to site a wind farm off the coast of Massachusetts. The outcome of this dispute will have important consequences for future proposals for offshore wind farms.

[Pages 221-262]
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.

[Pages 263-284]
NANTUCKET SOUND OFFSHORE WIND STAKEHOLDER PROCESS
Greg Watson* Fara Courtney**

Abstract:  In response to government efforts to promote renewable energy development, Cape Wind Associates proposed the first offshore wind farm in the United States. The plan has been met with both vehement opposition and ardent support. In response to an increasingly unproductive debate over the project, the Massachusetts Technology Collaborative (MTC), a quasi-state agency, held a series of stakeholder meetings to establish a shared framework for analyzing the proposed wind farm. Through a facilitated process, stakeholders established rules and agendas for the six resulting meetings, which included presentations, discussions, and questions and answer sessions. The MTC compiled a wealth of materials generated by these meetings and made the results widely available both online and on compact disc. Most participants in the stakeholder sessions found substantial value in the opportunity for information exchange in a neutral setting. The MTC concluded that unbiased, reliable information is a powerful tool in fostering acceptance of new renewable energy technologies; however, in the case of offshore wind development, aesthetic concerns and the absence of an established regulatory framework for ocean-based renewable energy projects remain significant obstacles.

[Pages 285-324]
THE WORLD'S LARGEST WIND ENERGY FACILITY IN NANTUCKET SOUND? DEFICIENCIES IN THE CURRENT REGULATORY PROCESS FOR OFFSHORE WIND ENERGY DEVELOPMENT
Guy R. Martin* Odin A. Smith**

Abstract:  Cape Wind Associates’ proposal to build the first offshore wind facility in Nantucket Sound has exposed a regulatory void resulting from the lack of a federal management program designed to govern the development of offshore wind energy projects. Though there are statutes that govern offshore oil and gas development, thermal energy conversion, and deepwater port construction, no such law exists for offshore wind energy development. In the face of this lack of federal management, Cape Wind seeks to freely use the lands and waters of Nantucket Sound with no property right or grant of permission other than a simple permit authorizing an impediment to navigation under Section 10 of the Rivers and Harbors Appropriation Act of 1899. No permits for projects like Cape Wind’s proposal should be issued until a comprehensive program is developed; this program should make possible the orderly, expeditious, and environmentally sound consideration of offshore wind energy projects with full return to the federal government.

[Pages 325-348]
SACRED LANDSCAPES AND PROFANE STRUCTURES: HOW OFFSHORE WIND POWER CHALLENGES THE ENVIRONMENTAL IMPACT REVIEW PROCESS
Jay Wickersham*

Abstract:  The review of the 420-megawatt Cape Wind project proposed for Nantucket Sound, being conducted under the National Environmental Policy Act (NEPA) and the Massachusetts Environmental Policy Act (MEPA), challenges existing environmental review laws and programs. First, the review shows how NEPA and MEPA can provide a forum for crystallizing government policy; here, on siting and reviewing offshore wind power projects. Second, the review raises concerns that in creating a system of planning and regulating the ocean, we might zone out renewable energy projects, the way we have allowed affordable housing and other social needs to be zoned out of the land. Finally, the Cape Wind review dramatizes how our cult of wilderness, with is presumption that human actions always harm the natural environment, can impede the development of a truly sustainable approach to environmental law and policy.

[Pages 349-384]
NEPA REVIEW OF OFFSHORE WIND FARMS: ENSURING EMISSION REDUCTION BENEFITS OUTWEIGH VISUAL IMPACTS
Dorothy W. Bisbee*

Abstract:  Wind power may greatly reduce overall emissions of air pollutants from fossil fuel plants. Benefits could range from fewer premature deaths to reduced global warming, and cover the gamut of goals that the National Environmental Policy Act (NEPA) articulates. Previous NEPA reviews of wind projects, however, have focused on local aesthetic objections and given only cursory treatment to emission reductions. This imbalance threatens to frustrate, rather than further, NEPA’s goals. Beginning with the offshore wind farm proposed near Cape Cod, Massachusetts, reviewers must accord the prominence and depth of treatment to emission offset benefits that NEPA requires. Local aesthetic preferences must not be permitted to overshadow broad regional benefits.

[Pages 385-402]
OFFSHORE MANAGEMENT CONSIDERATIONS: LAW AND POLICY QUESTIONS RELATED TO FISH, OIL, AND WIND
John A. Duff*

Abstract:  The United States has depended upon offshore resources throughout its history. Past approaches to managing resources such as fish and offshore oil raise questions about how the nation might shape new regulatory management systems to govern evolving uses and resources such as offshore wind power. At the same time, increasing, overlapping, and conflicting uses of ocean resources suggest that public land management systems ought to be examined to capitalize on terrestrial success while avoiding potential pitfalls. Because new technologies and uses for offshore resources are emerging at a rapid rate, legislators and policymakers would do well to ensure that these developments do not lead to inadvertent plunder.

[Pages 403-430]
WHY "UNDERFILING" BY STATES CAN AND SHOULD BE USED TO ENFORCE ENVIRONMENTAL REGULATIONS
Alex P. Abrams*

Abstract:  “Overfiling” occurs when the federal government files an environmental enforcement action in situations where the state environmental enforcement agency has not sufficiently prosecuted a violator of a federal environmental statute. A recent case from the Tenth Circuit appears to support the idea of overfiling under the Resource Conservation and Recovery Act, and other courts have upheld overfiling actions under the Clean Water Act and the Clean Air Act. This Note argues that the practice of “underfiling,” a process in which states file environmental enforcement actions even after the federal government has already overfiled, is also supported by these federal court decisions. This Note also suggests that states may intervene under Rule 24 of the Federal Rules of Civil Procedure in federal environmental enforcement actions in order to seek additional relief from violators of environmental statutes.

[Pages 431-464]
TO HAVE AND HAVE NOT-NANTUCKET, MARTHA'S VINEYARD, AND THE PUBLIC TRUST DOCTRINE: REMEMBERING THE LAND THAT TIME FORGOT
Christopher Coli McMahon*

Abstract:  The Public Trust Doctrine, an ancient mandate under which the sovereign holds unique natural resources in trust for the benefit of the general public, has been adopted by the United States as a staple of American property law. While the federal government is the ultimate trustee of these lands, the states may flexibly interpret and administer this law to maximize the public benefit derived from trust resources. For instance, although most states own the land between the high and low tide lines in trust for its citizens, Massachusetts bases its common law interpretation of the Doctrine on the Colonial Ordinance of 1641-41, a statute passed by the early settlers of the commonwealth providing for private ownership of the ocean flats. However, the current application of the Doctrine to the beaches of Martha’s Vineyard and Nantucket directly contradicts the overall intent of the Doctrine. Although the Supreme Court of the United States and the Supreme Judicial Court of Massachusetts have reasoned otherwise, there are strong historical, legal, and public policy arguments that these islands are instead subject to the traditional common law application of the Doctrine.

[Pages 465-500]
WIND POWER DEVELOPMENT ON THE UNITED STATES OUTER CONTINENTAL SHELF: BALANCING EFFICIENT DEVELOPMENT AND ENVIRONMENTAL RISKS IN THE SHADOW OF THE OCSLA
Elizabeth A. Ransom*

Abstract:  Calls for United States energy independence and concerns about dwindling fossil fuel reserves have drawn national attention to the search for viable sources of alternative energy. One such source is offshore wind power generation. Offshore wind farms have already proven successful in Europe and Australia, but none yet exist off the coasts of the United States. A private proposal to build such a facility off the coast of Massachusetts has faced strong opposition. Debate exists as to whether the Outer Continental Shelf Lands Act permits the federal government to lease areas of the Outer Continental Shelf for alternative energy development. Oil and gas extraction developments authorized under the Act have allowed accelerated development at the expense of the environment. This Note argues that a current proposal to amend the Act to include wind power generation facilities does not address the problems encountered by oil and gas developments, and calls for entirely new legislation.