CONGRESS, THE COURTS, AND THE ARMY CORPS: SITING THE FIRST OFFSHORE WIND FARM IN THE UNITED STATES

* Carolyn S. Kaplan, Esq., is counsel in the Boston, Massachusetts, office of the law firm of Nixon Peabody LLP.
1 See H.R. 6, 108th Cong. � 1302 (2003) (conference report; unless otherwise noted, all citation to House Bill 6 is to this version) (recognizing the need to develop the nation’s renewable energy industry and including an extension of the production tax credit for various types of renewable energy, such as wind, until 2007), available at http://www. house.gov/rules/text_6cr.pdf (last visited Apr. 5, 2004); see also H.R. 5156, 107th Cong. (2002).
2 See Am. Wind Energy Ass’n, Global Wind Energy Market Report 1 (2003), http://www.awea.org/pubs/documents/globalmarket2003.pdf (last visited Feb. 8, 2004) [hereinafter Global Wind Energy Market Report].
3 See Elinor Burkett, A Mighty Wind, N.Y. Times, June 15, 2003, � 6 (Magazine), at 48; Stephanie Ebbert, On Wind, Some Blow Hot & Cold, Boston Globe, June 17, 2003, at A1.
4 See Ari Reeves, Renewable Energy Policy Project, Wind Energy for Electric Power: A Repp Issue Brief 10 (2003), http://solstice.crest.org/articles/static/1/binaries/ wind%20issue%20brief_FINAL.pdf (last visited Feb. 8, 2004).
5 See John Leaning, Winergy Pitches Two More Wind Farms Near Cape, Cape Cod Times, Nov. 13, 2002, http://www.capecodonline.com/special/windfarm/winergypitches13.htm (last visited Feb. 8, 2004).
6 See Reeves, supra note 4, at 14–15.
7 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64, 72 (D. Mass. 2003) (challenging the construction of a wind energy plant in Nantucket Sound); Reeves, supra note 4, at 16.
8 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 72.
9 See id.; H.R. 6, 108th Cong. (2003).
10 See Global Wind Energy Market Report, supra note 2, at 1.
11 Am. Wind Energy Ass’n, Windpower Outlook 2003: Solid Growth for Wind Power Despite Crisis in Energy Sector 1 (2003), http://www.awea.org/pubs/documents/Outlook2003.pdf (last visited Feb. 8, 2004) [hereinafter Windpower Outlook 2003]. The generating capacity of global wind power grew from 7600 megawatts (MW) at the end of 1997 to an estimated 31,128 MW at the end of 2002. Global Wind Energy Market Report, supra note 2, at 1.
12 A megawatt (MW) is 1000 kilowatts, or 1 million watts, and is the standard measure of an electric power plant’s generating capacity. U.S. Dep’t of Energy, Information Resources: Glossary, at http://www.eere.energy.gov/consumerinfo/energyglossary.html (last visited Feb. 8, 2004) [hereinafter Glossary]. A kilowatt is a standard unit of electrical power equal to 1000 watts, or to energy consumption at a rate of 1000 Joules per second. Id.
13 See Global Wind Energy Market Report, supra note 2, at 2. Together, Germany, Spain, and Denmark accounted for eighty-nine percent of European wind power capacity. Id. In 2002, Germany installed 3247 MW of new wind power capacity for a total installed capacity of 12,001 MW; Spain installed 1493 MW of new wind capacity, to reach a total installed capacity of 4830 MW; and Denmark installed 497 MW to for a total of 2880 MW. Id. at 2–3. Other European countries leading the way in installed wind power capacity in 2002 included: the Netherlands with 217 MW; Italy with 103 MW; and the United Kingdom with 78 MW. Id. at 3. Total European installations were down only slightly in 2003. Am. Wind Energy Ass’n, Global Wind Energy Market Report: Wind Energy Industry Grows at Steady Pace, Adds Over 8,000 MW in 2003, at 6 (2004) available at http://www.awea.org/pubs/documents/globalmarket2004.pdf (last visited Mar. 28, 2004) [hereinafter Global Wind Energy Market Report 2004].
14 See Windpower Outlook 2003, supra note 11, at 1–2. In the United States installed capacity grew from 1848 MW in 1998 to 4685 MW in 2002, a compound growth rate of twenty-six percent. George Sterzinger et al., Renewable Energy Policy Project, The Effect of Wind Development on Local Property Values 1 (2003), http://solstice. crest.org/articles/static/1/binaries/wind_online_final.pdf (last visited Feb. 8, 2004); see also Am. Wind Energy Ass’n, Windpower Outlook 2004: Stiff Challenges, Big Opportunities 2 (2004) (stating that from 1999 through 2003, U.S. wind generating capacity expanded at an annual average rate of twenty-eight percent), available at http://www.awea. org/pubs/documents/Outlook2004.pdf (last visited Mar. 28, 2004) [hereinafter Windpower Outlook 2004].
15 See Mike O’Bryant, Another Year of Bust After Boom; Near Record for New Capacity in 2003 but 2004 Looking Thin, Windpower Monthly, Jan. 2004, at 21; see also Windpower Outlook 2004, supra note 14, at 2 (indicating that 1687 MW of new wind power was constructed in 2003). Wind power development is occurring in many regions of the country. See Am. Wind Energy Ass’n, Wind Energy Projects Throughout the United States of America, at http:// www.awea.org/projects/index.html (last modified Jan. 21, 2004). Utility-scale turbines are operating in thirty states; the states leading in cumulative capacity are: California, with 2403 MW; Minnesota, with 563 MW; Iowa, with 472 MW; and Wyoming, with 285 MW. Global Wind Energy Market Report 2004, supra note 13, at 4.
16 O’Bryant, supra note 15, at 21; see also Windpower Outlook 2004, supra note 14, at 2 (indicating that the current installed capacity in the United States is 6374 MW).
17 See Sterzinger et al., supra note 14, at 1. The Department of Energy (DOE) is working in conjunction with the American Wind Energy Association (AWEA) to attain the wind industry’s goal for wind energy to provide six percent of the nation’s electricity by 2020 with 100,000 MW of installed capacity. Office of Energy Efficiency & Renewable Energy, U.S. Dep’t of Energy, Wind Power Today: Wind Energy Program Highlights 3 (2002), http://www.nrel.gov/docs/fy02osti/31583.pdf (last visited Feb. 8, 2004) [hereinafter Wind Power Today].
18 See discussion infra Part I.A.1–2 and accompanying notes.
19 Navigant Consulting, Inc., The Changing Face of Renewable Energy A Navigant Consulting Multi-Client Study 5 (2003), http://www.navigantconsulting.com/ A559B1/navigant.nsf/vGNCNTByDocKey/PP522DD1693019/$FILE/NCI-RenewableEnergy Study-publicdoc-2003-v8.pdf (last visited Feb. 8, 2004). Two decades ago, the capacity of wind turbines averaged approximately 150 kilowatts, at least five times less than the average capacity of wind turbines today. See Office of Energy Efficiency & Renewable Energy, U.S. Dep’t of Energy, Wind Farms and Wind Farmers, at http://www.eere.energy.gov/consumerinfo/refbriefs/ad2.html (last visited Feb. 8, 2004) [hereinafter Wind Farms and Wind Farmers]. A 3.6 MW turbine is currently the largest offshore wind turbine in commercial operation. Drew Robb, Technological Maturity Means Greater Acceptance: Gains Over Two Decades Point to Continued Growth, N. Am. Windpower, Feb. 2004, at 18, 18. REpower Systems AG recently unveiled plans for a prototype five MW wind turbine with a rotor diameter of 126.5 meters (415 feet), making it the largest wind turbine in the world. Press Release, REpower Systems AG, REpower Presents REpower 5M—The World’s Largest Wind Turbine—At HUSUMwind (Sept. 23, 2003), available at http://www.repower.de/uk/news/mitteilu.htm (last visited Mar. 16, 2004). It uses the longest wind turbine blade ever built and will have a hub height of 120 meters (394 feet). Id.
20 Wind Farms and Wind Farmers, supra note 19. A kilowatt hour (kWh) is a unit of measure for electricity supply or consumption of 1000 Watts over the period of one hour, equivalent to 3412 Btu. Glossary, supra note 12.
21 Am. Wind Energy Ass’n, The Most Frequently Asked Questions About Wind Energy 6 (2002), at http://www.awea.org/pubs/documents/FAQ2002%20-%20web.PDF (last visited Feb. 8, 2004) [hereinafter Most Frequently Asked Questions].
22 Wind Power Today, supra note 17, at 3. Currently, utility-scale wind turbines located on Class 6 wind sites—those in which wind speeds average 6.7 meters per second at ten meter height or sixteen miles per hour at thirty-three feet—have the capacity to generate electricity for four cents per kWh. Nat’l Wind Tech. Ctr., About the Program: Low-Wind-Speed Turbines, at http://www.nrel.gov/wind/about_lowspeed.html (last visited Feb. 8, 2004). Generators operating at Class 4 sites—those averaging wind speeds of 5.8 meters per second at ten meter height or thirteen mph at thirty-three feet—can market wind energy at prices in the range of five to six cents per kWh. Id.
23 Wind Power Today, supra note 17, at 3.
24 Navigant Consulting, Inc., supra note 19, at 11.
25 Id. at 5. Although in recent years the American wind power market has experienced considerable growth, “it is still both difficult and costly to finance a wind farm in the U.S. today.” See Christine Real de Azua, Investors Need to Notice Wind Energy’s Performance, Solar Today, Jan.–Feb. 2004, at 40. Nevertheless, wind advocates are working diligently to disabuse U.S. lenders and investors from perceptions which are arguably outdated and unfounded. See id. (referencing efforts by AWEA to address several considerations for financiers). For instance, while wind is variable, supporters argue that “extremely accurate predictions are possible within defined bounds of uncertainty.” Id. In addition, they assert that “forecasting of output is improving rapidly[,] . . . wind energy equipment itself is low risk and very reliable,” and wind power also provides insurance against fluctuations in the costs of power from traditional fuel sources. Id.
26 Navigant Consulting, Inc., supra note 19, at 5–6.
27 See Union of Concerned Scientists, Update: Wind and Biomass Tax Credit Saved—Again (2002), at http://www.ucsusa.org/clean_energy/renewable_energy/page. cfm?pageID=121 (last modified Oct. 29, 2002) [hereinafter Update] (stating that production tax credits (PTCs) are “[a] key federal policy that promotes the development of renewable energy”); Diane Bailey, Small Win in Battle for National Standard; Senate Bill Includes Minimum Standard of 10% Renewables, Windpower Monthly, Sept. 2003, at 49. As an example of the potential value of this credit, one estimate is that Cape Wind Associates (Cape Wind) would receive $28 million annually for ten years in PTCs once its 130 turbine wind farm is constructed. Jack Coleman, Cape Wind Eyes Subsidy, Cape Cod Times, July 26, 2003, http://www.capecodonline.com/special/windfarm/capewind26.htm (last visited Feb. 8, 2003). A federal provision “allowing accelerated depreciation against tax of investment in new equipment” also provides tax advantages. Mike O’Bryant, Market Stymied by Policy Gridlock: Dynamics of Delay Halt Industry Ready to Roll, Windpower Monthly, Mar. 2004, at 45, 46 [hereinafter Dynamics of Delay].
28 26 U.S.C. � 45(a)–(b) (2000). As adjusted for 2003, the PTC currently stands at 1.8 cents per kWh. 68 Fed. Reg. 19,073 (Apr. 17. 2003) (outlining the inflation adjustment factor and the reference prices for the year 2003); see also 26 U.S.C. � 45(d)(2)(A).
29 The Energy Policy Act of 1992 included a PTC of 1.5 cents per kWh, adjusted for inflation, for energy produced from a new wind power facility brought on-line after December 31, 1993, and before July 1, 1999, for the first ten years of the facility’s existence. Energy Policy Act of 1992, Pub. L. No. 102-486, � 1914(a), 106 Stat. 3020 (codified as am-ended at 26 U.S.C. � 45). In 1999, Congress extended the wind production tax credit until December 31, 2001. Ticket to Work and Work Incentives Improvement Act of 1999, Pub. L. No. 106-170, � 506(a)–(c), 113 Stat. 1922. In March 2002, Congress extended the PTC until December 31, 2003. H.R. 3090, 107th Cong. � 303(a) (2002).
30 See Windpower Outlook 2003, supra note 11, at 5. In 2001, 1700 MWs of wind power capacity were installed in the United States. Update, supra note 27. In 2002, U.S. wind development reached only 410 MW. Windpower Outlook 2003, supra note 11, at 1. According to the wind industry, this substantial decrease was due in large part to the expiration of the PTC at the end of 2001 and the delay in its reinstatement until March of 2002. See Mike O’Bryant, Record Breaking Year on the Way in America; More Than 1800 MW of Projects Now in the Frame for 2003, Windpower Monthly, Sept. 2003, at 29 [hereinafter Record Breaking Year].
31 Navigant Consulting, Inc., supra note 19, at 5–6.
32 See Most Frequently Asked Questions, supra note 21, at 7; Record Breaking Year supra note 30, at 29. According to wind power advocates, “[a]lthough wind turbine efficiencies have improved to the point where electricity produced by wind is nearly competitive with other resources, developers say the U.S. wind industry needs the PTC for five to ten more years to compete head-to-head with gas and coal resources.” O’Bryant, supra note 15, at 33.
33 See Energy Bill Dead for the Year Following GOP Rift Over MTBE, Nat’l Gas Week, Nov. 26, 2003, available at 2003 WL 64743551.
34 See H.R. 6, 108th Cong. � 1302 (2003). The United States had not enacted comprehensive energy legislation in over a decade, and President Bush made passing an energy bill a priority, citing economic and national security issues. See John J. Fialka, Energy Bill Passes House But Fate in Senate Uncertain, Wall St. J., Nov. 19, 2003, at A4. The House and Senate had passed different versions of energy legislation in spring and summer 2003, and both bills included a three year extension of the PTC. See H.R. 6, 108th Cong. � 41002 (2003) (passed by House); H.R. 6, 108th Cong. � 1901 (2003) (Engrossed Amendment as Agreed to by Senate). Pressure to push through a bill increased after a massive power blackout in August 2003. Janet Hook, Events Stir the Agenda in D.C.: Congress Returns to Work This Week to Face New Pressures Fueled by Turmoil at Home and Abroad While It Was on a Monthlong Recess, L.A. Times, Sept. 1, 2003, at A1. A conference committee crafted House Bill 6 behind closed doors during late summer and fall 2003. See Mary O’Driscoll, Republicans Strike Energy Deal, Schedule Conference Vote Next Week, Env’t & Energy Daily, Nov. 14, 2003, at http://www.eenews.net (on file with author).
35 H.R. 6, 108th Cong. � 1302(b)(1)(d)(1) (2003).
36 Fialka, supra note 34, at A4; Mary O’Driscoll, Senate GOP Unlikely to Pursue Energy This Week, Env’t & Energy Daily, Nov. 24, 2003, http://www.eenews.net (on file with author). The bill collapsed under the weight of regional and partisan differences days before the Thanksgiving holiday. See Joe Tuini, Energy Bill Skirmishes Approach Endgame, Waste News, Nov. 24, 2003, available at 2003 WL 9784107. Among other things, members of Congress were in substantial disagreement over legislative provisions providing liability protection for producers of a fuel additive MTBE alleged to have contaminated drinking water supplies in many parts of the country. See id.
37 See Amy Goldstein, Bush Goes to a Balky Congress: Many of His Previous State of the Union Proposals Have Been Stymied, Wash. Post, Jan. 20, 2004, at A11; Richard Simon, Senate Won’t Act Now on Energy Bill; After Republican Leaders Fail to Round up the Votes Needed to Cut off Debate, They Declare the Legislation Dead Until Next Year’s Session, L.A. Times, Nov. 25, 2003, at A10.
38 See Mary O’Driscoll, Energy Bill No. 1 Priority for 2004, Frist Says, Greenwire, Nov. 26, 2003, at http://www.eenews.net/Greenwire.htm (on file with author). Wind energy advocates are hopeful that Congress will extend the Production Tax Credit in 2004. See Memorandum from the American Wind Energy Association, to AWEA Membership 1 (Jan. 20, 2004) (on file with author).
39 S. 2095, 108th Cong. � 1301 (2004).
40 Id.; Jesse Broehl, Slimmed Down Energy Bill RE Provisions, SolarAccess.com, Feb. 27, 2004, at http://www.solaraccess.com/news/story?storyid=6197 (last visited Mar. 28, 2004). The inflation adjustment provision would still apply to any project placed in service before October 1, 2004. Id. Senate Bill 2095 would also eliminate an “exemption from the Alternative Minimum Tax . . . for the first four years of turbine operation that had been contained in [House Bill 6].” One-year and Three-year PTC Extensions Moving on Separate Tracks, Wind Energy Wkly. (Am. Wind Energy Ass’n, Wash., D.C.), Mar. 28, 2003, at 5.
41 See S. 1637, 108th Cong. (2003) (amendment 2687 (2004)); Mary O’Driscoll, Grassley Adds Energy Tax Credits to Corporate Tax Bill, Env’t & Energy Daily, Mar. 8, 2004, at http://www.eenews.net (on file with author); One-year and Three-year PTC Extensions Moving on Separate Tracks, supra note 40, at 5.
42 One-year and Three-year PTC Extensions Moving on Separate Tracks, supra note 40, at 5.
43 See Press Release, American Wind Energy Association, Energy Bill Stalls in Congress; Wind Energy Production Tax Credit Will Expire Without Being Renewed (Nov. 25, 2003), available at http://www.awea.org/news/news031125ptc.html (last visited Feb. 19, 2004).
44 Id.
45 Id. According to AWEA, the impact of the failure to extend the PTC was being felt immediately after Congress announced it would put off consideration of comprehensive energy legislation until 2004. See id.

In North Dakota, a state that had enthusiastically welcomed the new jobs created by the budding wind energy industry, over half of the employees at West Fargo-based DMI Industries, a manufacturer of wind turbine towers, have been laid off just prior to the holidays. In Texas, Lone Star Transportation of Fort Worth, Tex., would lose as much as $ 1.5 million in revenue per month due to the PTC delay. In 2002, a full 20% of Lone Star company revenues came from wind energy by trucking wind turbine blades, towers, generating units[,] and other equipment to development sites. Nationwide, thousands of jobs and billions of dollars in economic activity could be lost due to the delay in securing an extension.

Id. Uncertainty over the PTC’s future has caused companies such as FPL Energy, the country’s largest wind developer, to delay new projects until later in 2004. Diane Bailey, Production Tax Credit Stalled, Windpower Monthly, Dec. 2003, at 28; see also Dynamics of Delay, supra note 27, at 46 (citing to reductions in construction due to delays in extending the PTC).
46 See Press Release, Congressman James L. Oberstar, Oberstar to Oppose Controversial Energy Bill (Nov. 7, 2003), available at http://www.oberstar.house.gov (last visited Mar. 18, 2004). A national standard would address the fact that the majority of states have yet to create any effective renewable energy programs either through funds or standards. See Jeff Deyette et al., Union of Concerned Scientists, Plugging in Renewable Energy: Grading the States 4–5 (2003), http://www.ucsusa.org/documents/Plugging_In_Renewable_Energy.pdf (last visited Feb. 19, 2004). A national standard would also provide an opportunity to create a more level playing field among states that have already enacted standards, by enforcing a minimum standard that states could still choose to exceed. See id. at 4. Not all wind advocates see a federal RPS as a benefit, however. Dynamics of Delay, supra note 27, at 46. Nancy Rader of the California Wind Energy Association, and one of main developers of the RPS concept, “worries that [President Bush] and Congress would have passed a faulty RPS that could have preempted standards in the few states that have workable laws.” Id.
47 Office of Energy Efficiency & Renewable Energy, U.S. Dep’t of Energy, State—Policy Issues Content: Renewable Portfolio Standard (RPS), at http://www. eren.doe.gov/state_energy/policy_content.cfm?policyid=27 (last visited Feb. 19, 2004).
48 See Union of Concerned Scientists, Fact Sheet: The Senate Renewable Electricity (Portfolio) Standard 1 (2002), http://www2.ucsusa.org/documents/ACFzFSan3.pdf (last visited Feb. 19, 2004) [hereinafter Clean Energy Fact Sheet]. According to the Union of Concerned Scientists, the Senate RPS would have “gradually increase[d] renewable energy from about 15,000 megawatts (MW) today to 74,000 MW by 2020—enough to power about 53 million homes.” Id.
49 See Dan Morgan & Peter Behr, Renewable Energy Provision Stalls; Conferees Will Not Consider Senate Requirement in Compromise Legislation, Wash. Post, Sept. 30, 2003 at A4, available at 2003 WL 62219229. The House bill passed in April 2003 included an extension to the PTC but did not include a national renewable portfolio standard. See H.R. 6, 108th Cong. � 41002 (2003).
50 Letter from Spencer Abraham, Secretary of Energy, U.S. Department of Energy, to Pete V. Domenici, Chairman, House and Senate Conference on H.R. 6, at 2 (Sept. 10, 2003), at http://www.solaraccess.com/download/adminposition.pdf (last visited Feb. 19, 2004).
51 See Senator Byron L. Dorgan, Wind Energy, at http://www.dorgan.senate.gov/ legislation/windenergy.cfm (last visited Mar. 19, 2004).
52 W. Area Power Admin., Green Power and Market Research News (2003), at http://www.wapa.gov/es/greennews/2003/oct13’03.htm (last visited Mar. 18, 2004).

The letter—spearheaded by Sens. Jeff Bingaman (D-N.M.), Susan Collins (R-Maine), and Jim Jeffords (I-Vt.) states that “the inclusion of a strong renewable fuels portfolio standard” is necessary to help develop regional renewable energy markets and to help utilities meet future clean air requirements. It also said the use of renewable fuels “will promote fuel diversity and reduction of our substantial dependence on natural gas . . . (and) ease shortages and price spikes in our natural gas supplies.”

Id.
53 See H.R. 6, 108th Cong. � 1302 (2003).
54 See Deyette et al., supra note 46, at 14; Ryan Wiser et al., Nat’l Geothermal Collaborative, Evaluating State Renewables Portfolio Standards: A Focus on Geothermal Energy 1–2 (2003) (“The RPS, or RPS-like mandates, [have] been established in 13 U.S. states: Arizona, California, Connecticut, Iowa, Maine, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, Pennsylvania, Texas, and Wisconsin.”), http://www.geocollaborative.org/publications/RPS_Summary.pdf (last visited Feb. 19, 2004). Hawaii, Illinois, and Minnesota have “renewable goals”; Colorado, Delaware, Maryland, New York, Rhode Island, Utah, Vermont, and Washington are considering renewable portfolio standards. Kimberly Burger Capozzi, Portfolio Standards Blow Through North America, N. Am. Windpower, Mar. 2004, at 8–9.
55 See Windpower Outlook 2003, supra note 11, at 5. According to renewable energy advocates, “[s]tate RPS laws will provide for over 12,400 megawatts (MW) of new renewable power by 2012—an increase of more than 90% over total 1997 U.S. levels (excluding hydro[power]).” Union of Concerned Scientists, Fact Sheet: Renewable Energy Standards at Work in the States 1 (2003), http://www2.ucsusa.org/documents/rps_ states.pdf (last visited Feb. 19, 2004); see also Office of Energy Efficiency & Renewable Energy, U.S. Dep’t of Energy, State—Policy Case Studies for Massachusetts, at www.eere.energy.gov/state_energy/policy_casestudies_massachusetts.cfm (last modified Feb. 17, 2004). For an analysis of the experience of states in implementing renewable portfolio standards see Bob Grace et al., N.Y. State Energy Research & Dev. Auth., Renewable Portfolio Standards: Background and Analysis for New York State (2002), http://www.nyserda.org/rpsbackgroundpaper.pdf (last visited Feb. 19, 2004).
56 See Wiser et al., supra note 54, at 2 (“An important observation is that there is no single way to design an RPS, and . . . states . . . [have] crafted their policies differently, sometimes radically so.”).
57 See generally, Interstate Renewable Energy Council, Database of State Incentives for Renewable Energy, at http://www.dsireusa.org (last modified Feb. 16, 2004).
58 Id.; see generally Am. Wind Energy Ass’n, Inventory of State Incentives for Wind Energy in the U.S.: A State by State Survey (2002), available at http://www. awea.org/policy/documents/inventory.PDF (last visited Mar. 28, 2004). Tradable renewable certificates (TRCs) represent the “green” non-energy attributes of electricity produced from renewable resources. Garrett Fitzgerald et al., Berkeley Lab & the Clean Energy States Alliance, Case Studies of State Support for Renewable Energy: The Experience of State Clean Energy Funds with Tradable Renewable Credits 1–4 (2003), available at http://eetd.lbl.gov/ea/EMS/cases/TRC_Case_Study.pdf (last visited Mar. 28, 2004). TRCs are often used to track compliance with a state’s RPS. Id. at 1. They can also be used to “verify[] wholesale renewable energy transactions” and to facilitate the purchase of green power. Id.
59 Soren Krohn, Danish Wind Energy Ass’n, Offshore Wind Energy: Full Speed Ahead (2002), at http://www.windpower.org/en/articles/offshore.htm (last visited Mar. 19, 2004).
60 Reeves, supra note 4, at 10.
61 C.A. Morgan et al., Garrad Hassan & Partners Ltd., Review of Offshore Wind Farm Project Features 7 (2003), http://www.nae.usace.army.mil/projects/ma/ ccwf/reviewofwindfarms.pdf (last visited Feb. 19. 2004).
62 Another four projects, for a combined 477 MW, are under development within the twelve nautical mile zone. Sara Knight, German Offshore Process Inches Along, Windpower Monthly, Jan. 2004, at 29, 30. Six offshore wind plants, totalling 3475 MW, are planned for installation in the Baltic Sea outside the twelve nautical mile zone, and another four projects of 149 MW are planned for installation inside the zone. Id. A gigawatt is a unit of power equal to 1 billion watts, 1 million kilowatts, or 1000 megawatts. Glossary, supra note 12.
63 See Robert Lea, A Wind-powered Windfall; Danes Poised to Cash in on the ‘New North Sea Oil and Gas,’ Evening Standard, Dec. 8, 2003, at 37, available at 2003 WL 69698734; UK’s First Major Offshore Wind Farm Goes Live, Wind Energy Wkly. (Am. Wind Energy Ass’n, Wash., D.C.), Nov. 21, 2003, at 7. In December 2003, the Crowne Estate—the landowner of the seabed—granted preliminary approval to energy companies seeking to erect more than 1000 turbines off England’s coast. Heather Timmons, British Plan Major ‘Wind Farm’ to Generate Power Along Coasts, N.Y. Times, Dec. 19, 2003, at A6 (“The wind farms . . . would generate as much as seven gigawatts of electricity—enough to supply four million households, or to meet 7 percent of Britain’s energy needs.”).
64 Elisa Wood, Renewable Energy World, The U.S. Offshore Wind Market, Can it Stay on Course?, at http://www.jxj.com/magsandj/rew/2003_03/us_offshore_wind. html (last visited Mar. 19, 2004); see Doreen Leggett, Winenergy: Are They for Real?, The Cape Codder, July 18, 2003, http://www.townonline.com/brewster/news/local_regional/ cc_newcawinergy07182003.htm (last visited Mar. 19, 2004).
65 Reeves, supra note 4, at 14.
66 See John J. Fialka, Emissions Credits See Brisk Trading Tied to Kyoto Pact, Wall St. J., Dec. 5, 2003, at A4; European Parliament Resolution to Ratify the Kyoto Climate Change Protocol, IGA News (Int’l Geothermal Ass’n, Pisa, Italy), Jan.–Mar. 2002, at 7–8, at http://iga.igg. cnr.it/pdf/n47.pdf (last visited Feb. 19, 2004).
67 Reeves, supra note 4, at 14.
68 Waters on the East Coast of the United States tend to be relatively shallow closer to shore, while waters are deeper along the west coast. Bruce Bailey, Nat’l Wind Coordinating Comm., Potential for Offshore Wind Development in the United States (2003), available at http://www.nationalwind.org/events/offshore/030701/presentations/ bailey.pdf (last visited Mar. 19, 2004). Current technologies generally limit construction of offshore turbines to waters of fifty foot depths or less. Id. at 13. Thus, until technological advances allow for construction of turbines in deeper waters, offshore wind in the continental United States will likely be limited to the eastern United States and other shallow waters. Id. at 13, 22.
69 Nat’l Wind Tech. Ctr., supra note 22.
70 See Reeves, supra note 4, at 14.
71 See Bailey, supra note 68, at 22.
72 See Reeves, supra note 4, at 14.
73 Id.
74 Id.
75 Id. “‘Due to the lack of proximity of natural barriers such as mountain ranges and urban areas, wind experiences less turbulence over water.’” Robb, supra note 19, at 18 (quoting Steve Zwolinski, president and CEO of GE Wind Energy).
76 Reeves, supra note 4, at 14. Offshore facilities have capital costs thirty to seventy percent higher than such costs at onshore sites. Id. These higher costs are primarily due to “the high cost of building marine foundations, procuring installation equipment, and laying submarine cables to transmit electricity to shore.” Id. Advances in foundation technology have led to a recent decrease in these costs. Id. Other costs, such as operation and maintenance, are also higher for offshore facilities as personnel and equipment must be transported to the turbines by ship, and rough seas may make turbines inaccessible. Id.
77 Id.
78 See Reeves, supra note 4, at 14; see also Robb, supra note 19, at 18.
79 See Cape Wind Assocs., America’s First Offshore Wind Farm in Nantucket Sound, at http://www.capewind.org (last visited Feb. 19, 2004) [hereinafter Cape Wind Homepage]; Long Island Offshore Wind Initiative, Long Island’s Offshore Wind Energy, at http://www.lioffshorewindenergy.org (last visited Feb. 19, 2004); Winergy LLC, A Company Devoted to Clean Energy, at http://www.winergyllc.com (last visited Feb. 19, 2004). Other small-scale projects are also under construction; for instance, Hull, Massachusetts, hopes to erect a single offshore wind turbine in waters just off the coastline. Wendy Williams, Windy Battle for the Hearts and Minds of Cape Codders Continues; U.S. Army Corps of Engineers Hearing in Falmouth, Cape Cod Today, Oct. 30, 2003, http:www. capecodmedia.com/cctoday.php?sid=170 (last visited Feb. 19, 2004) [hereinafter Windy Battle].
80 See Cape Wind Homepage, supra note 79.
81 See John Leaning, Long Island Utility Tests the Waters, Cape Cod Times, May 14, 2002, http://www.capecodonline.com/special/windfarm/longisland14.htm (last visited Mar. 19, 2004).
82 See Leggett, supra note 64.
83 The project as originally proposed included 170 turbines. See Notice of Intent to Prepare a Draft Environmental Impact Statement, 67 Fed. Reg. 4414 (Jan. 30, 2002), available at http://www.nae.usace.army.mil/projects/ma/ccwf/NOI Cape Wind.pdf (last visited Mar. 19, 2004).
84 Currently, the two largest wind farms in the world are both in Denmark: an offshore wind project at Nysted, with seventy-two turbines at 2.3 MWs for a total capacity of 165.6 MW, and another at Horns Rev, with eighty turbines at two MWs for a total capacity of 160 MW. Jack Jackson, Which Is the Biggest?, Windpower Monthly, Sept. 2003, at 78, 78. Due to permit limitations, the official generating capacity of the Nysted wind farm is 158.4 MW. Id. If approved and constructed, the world’s largest proposed offshore wind farm would be located off the coast of the United Kingdom, comprised of some 250 turbines capable of producing 1.2 GW. Janice Massy, Wind in a New League off British Coast, Windpower Monthly, Jan. 2004, at 28, 28.
85 Mass. Energy Consumers Alliance, Wind Power, at http://www.massenergy. com/Wind.html (last visited Feb. 19, 2004) The closest land, Point Gammon, is 4.7 miles from the wind farm. Alliance to Protect Nantucket Sound, Proposed Location (2003), at http://www.saveoursound.org/chart.html (last visited Feb. 19, 2004).
86 See generally Cape Wind Homepage, supra note 79.
87 Cape Wind Assocs., Project Overview: Project Construction, at http://www. capewind.org (last visited Mar. 19, 2004); Mass. Energy Consumers Alliance, supra note 85.
88 U.S. Army Corps of Eng’rs, Wind Farm Proposal Environmental Impact Statement Public Scoping Session 27–28 (2002) (quoting testimony of Jim Gordon, president of Cape Wind Associates), available at http://www.nae.usace.army.mil/projects/ ma/ccwf/4-18-02Edgartown.pdf (last visited Mar. 28, 2004); see Cape Wind Assocs., Project Overview: Project at a Glance, at http://www.capewind.org (last visited Mar. 19, 2004).
89 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 69–70 (D. Mass. 2003).
90 Cape Wind Assocs., Project Overview: Measuring Offshore Conditions at http://www.capewind.org (last visited Mar. 19, 2004) [hereinafter Cape Wind Measuring Offshore Conditions].
91 33 U.S.C. � 403 (2000). A citizens group, the Alliance to Protect Nantucket Sound (the Alliance), appealed the U.S. Army Corps’s of Engineers (the Corps’s) decision to issue the section 10 permit. See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 66–67. Additional information about this appeal is provided below. See discussion infra Part III.D.
92 See Notice of Intent to Prepare a Draft Environmental Impact Statement, 67 Fed. Reg. 4414 (Jan. 30, 2002), available at http://www.nae.usace.army.mil/projects/ma/ccwf/ NOI Cape Wind.pdf (last visited Mar. 19, 2004). As the issuing authority for a federal permit under section 10 of the Rivers and Harbors Appropriations Act of 1899 (RHA), the Corps is the lead agency in preparing an Environmental Impact Statement (EIS) under NEPA. See 42 U.S.C. �� 4321–4370d (2000). A portion of the wind project is also located in state waters, and triggers thresholds for environmental review under the Massachusetts Environmental Protection Act, requiring an Environmental Impact Report (EIR) under state law. See Mass.Gen.Laws ch. 30, �� 61–62H (2001). The project is also subject to review by the Cape Cod Commission (CCC) as a Development of Regional Impact (DRI). See Cape Cod Commission Act of 1989, 1989 Mass. Acts 716. Cape Wind agreed to file one set of documents that fulfill the majority of the requirements of NEPA, MEPA, and the CCC, allowing for a coordinated review process. See Mass. Executive Office of Envtl. Affairs, Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form 4 (2002), available at http://www.state.ma.us/envir/mepa/ downloads/12643cert.doc (last visited Feb. 20, 2004). The project is also subject to review under other federal, state, and local laws. See discussion infra Part IIIA–E.
93 Mary Grady, Reaping the Wind in a Brand New Age, Conservation Matters, Spring 2003, available at http://www.clf.org/CM/03Spring/reaping_the_wind_in_a_brand_new_ age.htm (last visited Feb. 19, 2004).
94 See id.
95 See Mass. Tech. Collaborative, MTC’s Cape and Islands Offshore Wind Public Outreach Initiative, at http://www.mtpc.org/RenewableEnergy/green_power/outreach/offshore_cape.htm (last visited Feb. 20, 2004). The Cape and Islands Offshore Wind Stakeholder Process, brokered by the Massachusetts Technology Collaborative, was comprised of six meetings held between October 2002 and March 2003. Id. The MTC’s goal was not to achieve consensus, but rather “to discover and communicate objective information relevant to the proposed project that would help decision makers and average citizens participate in the permitting process in the most informed and constructive manner possible.” Id.
96 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 66–67; Ten Taxpayers Citizen Group v. Cape Wind Assocs., 278 F. Supp. 2d 98, 99 (D. Mass. 2003).
97 See, e.g., H.R. 1183, 108th Cong. � 2 (2003) (promoting the “sensible development” of renewable energy in the waters of the coastal zone); S. 380, 182d Gen. Ct. (Mass. 2003) (requiring a study of the “feasibility of wind energy projects on offshore sites, including Cape Cod and Nantucket Sound”).
98 Press Release, Long Island Offshore Wind Initiative, LIPA Issues RFP for Offshore Wind Generation Project (Jan. 22, 2003), available at http://www.lioffshorewindenergy. org/press/2003/jan22.html (last visited Mar. 19, 2004).
99 Id.; see generally Long Island Offshore Wind Initiative, supra note 79.
100 Press Release, supra note 98; see generally Long Island Offshore Wind Initiative, supra note 79.
101 See Long Island Power Auth., Request for Proposals: Power Supply From an Offshore Wind Park 1 (2003), http://www.lipower.org/pdfs/projects/wind/offshore_ wind_RFP.pdf (last visited Feb. 20, 2004) [hereinafter LIPA RFP]; Wendy Williams, Shortlist Soon for Long Island 140 MW Offshore Project, Windpower Monthly, July 2003, at 35.
102 Tom McGinty, Tilting at Windmills / One Side Touts them as Clean Power; Detractors Call them Eyesores, Newsday (New York) Dec. 23, 2003, at A5, available at 2003 WL 69083121.
103 Id.
104 LIPA and community wind power organizations have been holding “bi-weekly” outreach meetings with concerned citizens. Williams, supra note 101, at 35.
105 See Leaning, supra note 5.
106 John Leaning, Winergy Shelves Four Planned Turbine Sites, Cape Cod Times, July 31, 2003, http://www.capecodonline.com/special/windfarm/winergyshelves31.htm (last visited Feb. 20, 2004). Within Massachusetts, two Winergy proposals—Nantucket Shoals and Davis Bank—”involve[] large wind farms in federal waters with cable connections through state waters and onto the mainland. Three other proposed projects (Winergy Falmouth, Winergy Truro, and Winergy Gloucester) involve relatively small (18MW) developments wholly within state waters and lands.” 2 Mass. Office of Coastal Zone Mgmt., Waves of Change: The Massachusetts Ocean Management Task Force Technical Report 149 (2004), available at http://www.state.ma.us/czm/moMI/technicalreport.pdf (last visited Mar. 30, 2004).
107 See Leggett, supra note 64.
108 See id. Winergy’s failure to pursue several of its permit applications led the Corps to “administratively close” the applications. John Leaning, Winergy Tower Bid Tabled After Missed Deadline, Cape Cod Times, Oct. 4, 2003, http://www.capecodonline.com/special/ windfarm/winergytower4.htm (last visited Feb. 20, 2004). Winergy’s strategy may have been partially influenced by its belief that it held lease agreements with the Corps and had somehow secured these sites for exclusive development. U.S. Army Corps of Eng’rs, Clarification on Corps Permitting Authorities 1, at http://www.nae.usace.army.mil/ projects/ma/winergy/clarification.pdf (last visited Mar. 19, 2004). According to the Corps, however, this assumption is inaccurate. Id.
109 See Steve Urbon, Regulations Lag Behind Wind Power Technology, Sunday Standard Times (New Bedford, Mass.), June 1, 2003, http://www.safewind.info/articles/regulations_6_1.htm (last visited Feb. 20, 2004). According to Mark Rasmussen, executive director of the Coalition for Buzzard’s Bay, since “wind power has become economically feasible, there’s a little bit of a gold rush going on. And this gold rush has caught public agencies who oversee the public interest in the waters offshore off-guard.” Id; see also Leggett, supra note 64.
110 See U.S. Comm’n on Ocean Policy, Homepage, at http://www.oceancommission. gov (last visited Mar. 19, 2004).
111 See id. In September 2001, the U.S. Commission on Ocean Policy, a federal commission authorized by Congress and appointed by the President, began its work to establish findings and make recommendations for a coordinated and comprehensive national ocean policy. Id. A draft report is expected in early 2004. Id. In May 2003, the Pew Oceans Commission released its report on the state of America’s oceans, the first comprehensive review of U.S. ocean policy in more that thirty years. Pew Oceans Comm’n, America’s Living Oceans: Charting a Course for Sea Change, at vii (2003), available at http:// www.pewoceans.org/oceans/downloads/oceans_report.pdf (last visited Feb. 20, 2004).
112 See Anita Huslin, Tilting Over Windmills in the Sea; Coastal Communities Consider Entrepreneurs’ Plans for Energy Plants, Wash. Post, May 20, 2003, at B1.
113 See id.
114 See Cape Wind Assocs., About Cape Wind Associates: Company History and Management Team, at http://www.capewind.org (last visited Feb. 20, 2004). Energy Management Inc., managing partner for Cape Wind, has successfully developed six natural gas fired electric generation projects. Id. EMI began developing energy projects in 1975, and built New England’s first natural gas-fired merchant power plant in Dighton, Massachusetts in 1999. New England’s EMI Plans 420-Megawatt Nantucket Windfarm, Competitive Utility (Info. Forecast, Inc., Canoga Park, Cal.), Nov. 2001, at 10, http://www.competitiveutility.com/cu112001.pdf (last visited Feb. 20, 2004).
115 See Press Release, U.S. Army Corps of Engineers, Cape Wind Applies for Corps Permit to Install Scientific Measuring Tower in Nantucket Sound (Dec. 4, 2001), http://www. nae.usace.army.mil/news/2001-162.html (last visited Mar. 19, 2004).
116 Id.
117 As originally proposed, the project included 170 turbines. See Notice of Intent to Prepare a Draft Environmental Impact Statement, 67 Fed. Reg. 4414 (Jan. 30, 2002), available at http://www.nae.usace.army.mil/projects/ma/ccwf/NOI Cape Wind.pdf (last visited Mar. 19, 2004).
118 Press Release, U.S. Army Corps of Engineers, Cape Wind Applies for Corps Permit to Install Scientific Measuring Tower in Nantucket Sound (Dec. 4, 2001), available at http://www.nae.usace.army.mil/news/2001-162.html (last visited Mar. 19, 2004).
119 See Notice of Intent to Prepare a Draft Environmental Impact Statement, 67 Fed. Reg. 4414 (Jan. 30, 2002), available at http://www.nae.usace.army.mil/projects/ma/ccwf/ NOI Cape Wind.pdf (last visited Mar. 19, 2004).
120 U.S. Army Corps of Eng’rs, Public Notice 1 (2001), available at http://www.nae. usace.army.mil/projects/ma/ccwt/capewindfarmsllcnov2001.pdf (last visited Mar. 19, 2004).
121 Id.
122 See Notice of Intent to Prepare a Draft Environmental Impact Statement, 67 Fed. Reg. 4414 (Jan. 30, 2002), available at http://www.nae.usace.army.mil/projects/ma/ccwf/ NOI Cape Wind.pdf (last visited Mar. 19, 2004).
123 See U.S. Army Corps of Eng’rs, Environmental Assessment and Statement of Findings 14, available at http://www.nae.usace.army.mil/projects/ma/ccwt/ea.pdf (last visited Feb. 20, 2004).
124 PR Newswire, Corps Issues Permit to Cape Wind for Scientific Data Tower in Nantucket Sound (Aug. 19, 2002), available at http://www.findarticles.com/cf_dls/m4PRN/2002_August_19/90828719/p1/article.jhtml (last visited Feb. 20, 2004).
125 See, e.g., Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003).
126 Outer Continental Shelf Lands Act, 43 U.S.C. � 1337 (2000); see Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 70–71.
127 33 U.S.C. � 403.
128 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 72–73. “The term ‘outer Continental Shelf’ means all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . . and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control[.]” 43 U.S.C. � 1331(a). The term “‘lands beneath navigable waters’” is defined as “all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographic miles distant from the coast line of each [of the respective] State[s] . . . .” 43 U.S.C. � 1301(a)(2).
129 Press Release, U.S. Army Corps of Engineers, Corps to Hold Public Scoping Meetings for EIS on Proposed Wind Farm in Nantucket Sound (Feb. 28, 2002), available at http://www.nae.usace.army.mil/news/2002-33.html (last visited Mar. 19, 2004).
130 See U.S. Army Corps of Eng’rs, Agencies 1–2 (2003), at http://www.nae.usace. army.mil/projects/ma/ccwf/agencies.pdf (last visited Feb. 20, 2004). For example, the Corps describes various roles for: the U.S. Environmental Protection Agency; the Federal Aviation Administration; the U.S. Department of the Interior, Fish and Wildlife Service and Minerals Management Service; the U.S. Coast Guard; the U.S. Department of Commerce, National Marine Fisheries Service; and the U.S. Department of Energy. Id.
131 See Submerged Lands Act, 43 U.S.C. � 1301(a)(2) (2000). Projects sited up to three miles from shore are technically on state lands per the Submerged Lands Act, which vests states with control and title over those lands. See id.
132 See Massachusetts Environmental Policy Act, Mass. Gen. Laws ch. 30, �� 61–62H (2002); Mass. Regs. Code tit. 301, � 11.01 (2003) (outlining MEPA Regulations).
133 See Mass. Executive Office of Envtl. Affairs, Certificate of the Secretary of Environmental Affairs on the Environmental Notification Form 5 (2002), available at http://www.state.ma.us/envir/mepa/downloads/12643cert.doc (last visited Feb. 20, 2004). Sometimes referred to as a little NEPA, MEPA provides state level environmental impact review. Id. at 3. MEPA review, however, technically applies only to those portions of the project that are located within Massachusetts, including state waters, generally within three miles from shore. Id. The proposed wind turbines would be sited outside of the commonwealth’s jurisdiction, and, therefore, would not be subject to MEPA review. Id. Despite the jurisdictional limitations, Cape Wind voluntarily filed an Environmental Notification Form to allow MEPA review of the entire project, including the wind turbines. Id.
134 See Cape Cod Comm’n, Developments of Regional Impact (DRIs), available at http://www.capecodcommission.org/regulatory/driQA.htm (last visited Feb. 20, 2004).
135 See Mass. Executive Office of Envtl. Affairs, supra note 133. In addition to the section 10 permit process and federal, state, and regional environmental impact review, the project is subject to review and/or approval by numerous other federal, state, and local authorities. See Mass. Gen. Laws ch. 164, �� 69H–69Q (2003) (establishing an energy facilities siting board to facilitate the provision of reliable energy to the commonwealth with a minimum impact on the environment); Mass. Gen. Laws ch. 21A, � 7 (establishing the Massachusetts Department of Environmental Protection); Mass. Gen. Laws ch. 21A, � 4A (establishing within the Executive Office of Environmental Affairs a coastal zone management office for the purpose of securing the “objectives and benefits of the federal Coastal Zone Management Act”); Mass. Gen. Laws ch. 40, � 8D (authorizing cities and towns in Massachusetts to establish historical commissions “for the preservation, protection and development of the historical or archaeological assets”); Mass. Gen. Laws ch. 40, � 8C (authorizing cities and towns to establish conservation commissions for the protection of natural resources); Mass. Gen. Laws ch. 40A (outlining local zoning authority in Massachusetts).
136 Cape Wind Assocs., Frequently Asked Questions: Questions About the Cape Wind Project, at http://www.capewind.org (last visited Feb. 20, 2004).
137 See U.S. Army Corps of Eng’rs, Environmental Impact Statement: Scope of Work, Wind Power Facility Proposed by Cape Wind Associates, LLC 3–7, available at http://www.nae.usace.army.mil/projects/ma/ccwf/windscope.pdf (last visited Feb. 20, 2004). The permit decision will be based on the public interest factors listed at 33 C.F.R. � 320.4. Id at 1.
138 See 40 C.F.R. � 15.02.14 (2003); see also 33 C.F.R. � 325 app. B(9)(b)(5)(a) (2003) (indicating that “only reasonable alternatives need to be considered in detail”).
139 Press Release, U.S. Army Corps of Engineers, Corps Announces Alternatives to be Reviewed in Windfarm EIS (Oct. 29, 2003), http://www.nae.usace.army.mil/projects/ ma/ccwf/2003-122.html (last visited Feb. 20, 2004). The onshore alternative is the Massachusetts Military Reservation, on Cape Cod; the three shallow water alternatives are Horseshoe Shoal, Tuckernuck Shoal, and Hankerchief Shoal, all in Massachusetts; the combined locations alternative joins New Bedford Harbor, Massachusetts, with a reduced footprint at Horseshoe Shoal; finally, the deep water alternative is the area south of Tuckernuck Island, Massachusetts. Id.
140 See U.S. Army Corps of Eng’rs, supra note 137, at 2. Existing merchant power plant projects with which the Cape Wind farm will compete are typically 200 to 1500 MW. U.S. Army Corps of Eng’rs, Public Information Meeting, Oct 29, 2003, at 8 (slide presentation), http://www.nae.usace.army.mil/projects/ma/ccwf/10-29-briefing.pdf (last visited Feb. 20, 2004).
141 Wendy Williams, Cape Cod Offshore Permitting: A Slow and Deliberate Process, Windpower Monthly, Dec. 2003, at 31.
142 Id.
143 Id.
144 See Windy Battle, supra note 79. The precise timing will depend in large part on how much data needs to be collected and analyzed. See id.
145 See John Leaning, Judge: Corps Can Give Permit, Cape Cod Times, Sept. 19, 2003, http://www.capecodonline.com/special/windfarm/judgegive19.htm (last visited Feb. 20, 2004).
146 See generally Cape Wind Homepage, supra note 79. According to Cape Wind, the project will supply clean energy, boost the local economy, and will have only moderate visual impacts from the shore. See id. At the same time, the project will not be a hazard to navigation for boats or airplanes, or pose a hazard to birds, fish, sea mammals, or the ecosystem of Horseshoe Shoal. See id.
147 Wendy Williams, Long Island Authority Hastens Selection Process for 140 MW Offshore, Windpower Monthly, Sept. 2003, at 47.
148 See Barry Hopkins, The Council of State Gov’ts, Trendsalert: Renewable Energy and State Economies 5 (2003), available at http://www.csg.org/CSG/Policy/infrastructure/renewable+energy+and+state+economies.htm (last visited Feb. 20, 2004). Approximately fifty-two percent of electricity is generated by coal and seventeen percent by natural gas. Id. Over-reliance on any one primary source of electricity can make an economy vulnerable to severe price fluctuations. See id. According to a study by Industrial Energy Consumers of America (IECA), as a result of rising natural gas prices U.S. consumers paid $111 billion more for gas between June 2000 and October 2003 than they did during the previous forty-one month period. Indus. Energy Consumers of Am., 41 Month Natural Gas Crisis Has Cost U.S. Consumers Over $111 Billion, at 1 (2003), available at http://www.ieca-us.com/downloads/natgas/$111bilion.doc (last visited Feb. 20, 2004). According to IECA, average price from June 2000 to October 2003 was $4.34 per million British thermal units (MMBtu), while the average between January 1997 and May 2000 was only $2.37 per MMBtu. Id. at 4; see also The Inst. for Am.’s Future et al., New Energy for America, The Apollo Jobs Report: Good Jobs & Energy Independence 3 (2004) (stating that public and private investment in clean energy technologies such as wind power, solar power, and hydrogen fuel cells will create high-wage jobs, capture growing markets, reduce our dependence on foreign oil imports, create a resilient energy system, bolster national security and clean up our environment), available at http://www.apolloalliance.org/docUploads/ApolloReport%2Epdf (last visited Feb. 20, 2004).
149 Union of Concerned Scientists, Clean Energy: Lessons from the August 2003 Blackout, http://www.ucsusa.org/clean_energy/renewable_energy/page.cfm?page ID=1248 (last visited Feb. 20, 2004).
150 See Union of Concerned Scientists, Environmental Impacts of Coal Power: Air Pollution (2001), at http://www.ucsusa.org/CoalvsWind/c02c.html (last visited Feb. 20, 2004). According to the Union of Concerned Scientists, a typical coal plant generates carbon dioxide, the primary cause of global warming; sulfur dioxide, which causes acid rain; airborne particles, a contributor to haze and respiratory problems; nitrogen oxide, which leads to the formation of smog; carbon monoxide, which aggravates health issues; volatile organic compounds, which form ozone; mercury, which can make fish unfit to eat; arsenic, a cancer causing substance; and other toxic heavy metals. Id. As a contrast,

Wind power produces no harmful emissions, and is not depleted over time. A single one megawatt (1MW) wind turbine running for one year can displace over 1,500 tons of carbon dioxide, 6.5 tons of sulfur dioxide, 3.2 tons of nitrogen oxides, and 60 pounds of mercury (based on the U.S. average utility generation fuel mix).

Reeves, supra note 4, at 4. Wind power also does not require cooling water nor the mining, transportation or storage of fuel. Union of Concerned Scientists, Wind Power: Clean, Sustainable, and Affordable (2002), available at http://www.ucsusa.org/CoalvsWind/ w01.html (last visited Jan. 21, 2004).
151 See Dr. James J. MacKenzie, World Res. Inst., Facing the United States’ Oil Supply Problems: Would Opening up the Arctic Wildlife Refuge (ANWR) Coastal Plain Really Make a Difference? (2001), http://www.wri.org/climate/anwr.html (last visited Feb. 20, 2004).
152 Press Release, Conservation Law Foundation, Environmental Advocates Support Ongoing Review Process for Cape Wind Project (Nov. 7, 2002), available at http://www. clf.org/hot/20021107.htm (last visited Feb. 20, 2004).
153 Id. (emphasis added).
154 See Green Nature, Proposed Cape Cod Wind Farm Faces Opposition, at http:// www.greennature.com/article1031.html (last visited Feb. 20, 2004); Wind Stop.Org, Home, at http://www.windstop.org/pages/1/index.htm (last modified Feb. 21, 2004). Critics claim that if offshore wind farms are permitted, otherwise serene ocean vistas will become a “steel forest” of towers, with hundreds of flashing navigational lights. See Wind Stop.Org, supra. Wind power opponents worried about their property values may take comfort in a study by Researchers for the Renewable Energy Policy Project (REPP). See Sterzinger et al., supra note 14, at 2. The study was funded by the federal government and looked at property value changes of 25,000 properties within the view shed of wind projects at least ten MW in size and operating between 1998 and 2001. Id. at i, 1–2. The results of this study suggest that there is no support for the claim that wind development will harm property values. Id. at 2.
155 The Massachusetts Audubon Society voiced its concerns regarding Cape Wind’s potential avian impacts:

Site selection is important in minimizing the avian risks of windfarms. This particular project site is an area with one of the highest concentrations of seaducks and terns on the Atlantic seaboard. The shoals at this location provide ample feeding opportunities for birds. The site is also located along a major migratory bird flightway. We do not agree with the [applicant’s] unsupported conclusions that avian risks are small or that bird use in the area is low.

Letter from John J. Clarke, Director of Advocacy, Massachusetts Audubon Society, to Bob Durand, Secretary, Executive Office of Environmental Affairs 1–2 (Dec. 13, 2001), available at http://www.saveoursound.org/pdfs/audubon.pdf (last visited Feb. 21, 2004); see also Avian Issues Resurface at Altamont Wind Farm, SolarAccess.com (Jan. 29, 2004), at http:// www.solaraccess.com/news/story?storyid=5978 (last visited Feb. 21, 2004); Wendy Williams, Positive Start to Mitigating Bat Kills, Windpower Monthly, Mar. 2004, at 30; Wendy Williams, Wildlife Problems in Search of Solutions, Windpower Monthly, Jan. 2004, at 50 (detailing a two-day meeting in November 2003 including representatives from industry, government, wildlife groups, and wildlife agencies that found little consensus on the meaning of “biological significance”); see generally Nat’l Wind Tech. Ctr., Avian Literature Database, at http://www.nrel.gov/wind/avian_lit.html# (last visited Feb. 21, 2004).
156 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64, 67, 78 (D. Mass. 2003) (challenging the Corps’s decision based, in part, on the assertion that there exists no proper regulatory scheme under which to proceed with this project).
157 See Stephanie Ebbert, On Wind, Some Blow Hot & Cold, Boston Globe, June 17, 2003, at A1; Donna Goodison, Ocean ‘Zoning’ Will Top Agenda for Task Force, Boston Herald, June 4, 2003, at 37.

There is no question that the sensible development of new sources of energy is one of the most important energy matters facing us today. Indeed, offshore wind projects present exciting possibilities for the development of renewable energy resources. The controversy surrounding a recent proposal to build a large wind energy facility in Nantucket Sound, however, highlights the immediate need to develop a meaningful process at the Federal level to carefully review these types of proposals.

Proposed Amendments to the Outer Continental Shelf Lands Act: Hearing on H.R. 793 Before the House Subcomm. on Energy and Mineral Resources, 108th Cong. (2003) [hereinafter Hearing on H.R. 793] (testimony of Thomas F. Reilly, Attorney General, Massachusetts), available at http://resourcescommittee.house.gov/108cong/energy/2003mar06/reilly.htm (last visited Feb. 21, 2004); see also Brief of Amicus Curiae the Commonwealth of Massachusetts at 2, Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64 (D. Mass. 2003) (No. 03-2604).
158 See S. 380, 182d Gen. Ct. (Mass. 2003), available at http://www.state.ma.us/legis/ bills/st00380.htm (last visited Feb. 21, 2004). Senate Bill 380 requires “a study into the feasibility of wind energy generation in Massachusetts. Said study shall include an analysis of possible locations and prohibitions for the creation of wind energy projects on offshore sites . . . .” Id. The analysis examines potential locations in light of project costs, environmental impacts, the potential for public-private partnership, and community impacts “in terms of historic uses, values and aesthetics.” Id. Massachusetts House Bill 963 limits ocean development until further studies show that the proposed development “does not present a coastal hazard, create adverse economic or aesthetic impacts, or significantly alter or otherwise endanger the ecology or the appearance of the ocean, the seabed or the subsoil thereof.” H.R. 963 182d Gen. Ct. (Mass. 2003), available at http://www.state.ma.us/legis/ bills/house/ht00963.htm (last visited Mar. 19, 2004).
159 Mass. Office of Coastal Zone Mgmt., Massachusetts Ocean Management Initiative, at http://www.state.ma.us/czm/oceanmgtinitiative.htm (last modified Jan. 26, 2004). Governor Romney announced the Massachusetts Ocean Management Initiative in March of 2003. Id. The Ocean Management Task Force issued its final report in March, 2004. See generally 1 Mass. Office of Coastal Zone Mgmt., Waves of Change: The Massachusetts Ocean Management Task Force Report and Recommendations (2004), available at http://www.state.ma.us/czm/MOMI/finalrpts.htm (last visited Mar. 31, 2004); 2 Mass. Office of Coastal Zone Mgmt., supra note 106.
160 Nantucket Sound had previously been nominated for designation as a National Marine Sanctuary in the early 1980s. Press Release, Congressman Bill Delahunt, Reilly/Delahunt Seek Romney Help to Protect Nantucket Sound (Feb. 26, 2003), available at http://www.house.gov/delahunt/nantucketsound.htm (last visited Mar. 31, 2004). In October 2002, U.S. Representative Delahunt requested a review of existing literature pertaining to the biological resources and environmental protection of water of Nantucket Sound. See Ctr. for Coastal Studies, Review of State and Federal Marine Protection of the Ecological Resources of Nantucket Sound, at i (2003), http://www. coastalstudies.org/coastalsolution/CCS_Report_1-28-03.pdf (last visited Feb. 21, 2003). Representative Delahunt’s district includes, in part, Cape Cod and the Islands of Martha’s Vineyard and Nantucket. See Congressman Bill Delahunt, Home, at http://www.house. gov/delahunt/welcome.htm (last visited Mar. 5, 2004).
161 H.R. 1183, 108th Cong. � 2(b) (2003); see infra text accompanying notes 198–219.
162 Stephanie Ebbert, Kennedy Retreats on Wind Farm Amendment, Boston Globe, July 31, 2003, at B1. Senator Kennedy had initially supported draft legislation that would have given a state’s governor veto power over offshore wind farms. See id.

Kennedy, describing himself as “a strong supporter of renewable energy,” cited rising oil costs, looming war with Iraq and air pollution as reasons that “wind energy must obviously be further explored as an important source of clean energy.”

But, he said, gaps in federal policy need to be corrected before proposals such as a Nantucket Sound wind farm should be built.

Jack Coleman, Kennedy Withholds Support, for Now: Senator says Federal Control a Must in Offshore Projects, Cape Cod Times, Mar. 15, 2003, http://www.capecodonline.com/special/ windfarm/kennedywithholds15.htm (last visited Feb. 22, 2004).
163 See Sam Dealey, Wind Farm is an Issue for Kerry, The Hill, June 18, 2003, http:// www.hillnews.com/news/061803/kerry.aspx (last visited Feb. 22, 2004); Stephanie Ebbert, Senate Votes for Panel on Energy, Boston Globe, July 11, 2003, at B1.
164 See Stephanie Ebbert, On Wind, Some Blow Hot and Cold, Boston Globe, June 17, 2003, at A1. Walter Cronkite, a Martha’s Vineyard homeowner, once served as a poster-child for the wind farm’s critics, vehemently opposing Cape Wind in television and radio advertisements sponsored by the Alliance. See id. He later asked the Alliance to pull the advertisements; Cronkite said he began reconsidering his position in late August 2003, “after reading that the Bush administration intended to relax Clean Air Act standards for coal-fired power plants—a move he considered ‘a terrible blow’ to the hope of reducing pollutants in the atmosphere.” Stephanie Ebbert, Cronkite Urges Full Review of Wind Farm Proposal, Boston Globe, Aug. 29, 2003, at B1. In August 2003, after meeting with Cape Wind president Jim Gordon, he stated “that the heated opposition to the project is ‘premature,’ and that he would withhold further judgment until an environmental impact study is complete.” Id.
165 See Alliance to Protect Nantucket Sound, Save our Sound Allies: Who’s Concerned, at http://www.saveoursound.org/allies.html (last visited Mar. 19, 2004).
166 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of Army, 288 F. Supp. 2d 64, 67, 78 (D. Mass. 2003) (challenging Cape Wind’s project on the basis of environmental concerns as well as the lack of a regulatory framework governing its construction).
167 See Alliance to Protect Nantucket Sound, Frequently Asked Questions, at http://www.saveoursound.org/faq.html (last visited Feb. 22, 2004).
168 See Alliance To Protect Nantucket Sound, Inc. v. U. S. Dep’t of the Army, 288 F. Supp. 2d 64, 69 n.27 (D. Mass. 2003).
169 Id.
170 See generally Alliance to Protect Nantucket Sound, Local News and Opinion, at http://www.saveoursound.org/localopp.html (last visited Mar. 19, 2004). For example, the Alliance used the caption “they are anything but ‘small masts’ on the horizon” to describe their photo simulations of the wind farm from Hyannis. Id. Cape Wind asserts that the Alliance’s photographs exaggerate the view from the shore because they allegedly magnified a portion of the shore and inserted 130 turbines into the small area depicted. Press Release, Cape Wind Associates, LLC, Alliance is Altering and Distorting Visual Simulations, (Oct. 7, 2003), available at http://www.capewind.org (last visited Feb. 22, 2004). In March, 2004, Cape Wind filed a lawsuit alleging that the former research director for the Alliance maligned the company by sending a fraudulent press release to an on-line information system. Jack Coleman, Wind Farm E-mailer Hit with Restraining Order: A Founder of the Opposition Group Agrees Not to Destroy Evidence He Tried to Defame Cape Wind, Cape Cod Times, Mar. 5, 2004, http://www.capecodonline.com/special/windfarm/windfarm045.htm (last visited Mar. 31, 2004); Beth Daley, Ploy Roils Wind Farm Debate: Official Resigns Over Bogus Story, Boston Globe, Mar. 4, 2004, at B3.
171 Complaint for Declaratory and Injunctive Relief, Alliance To Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003) (No. 02-11749). A separate citizens group brought a lawsuit against Cape Wind in state court, which was removed to the U.S. District Court for the District of Massachusetts. Ten Taxpayers Citizen Group v. Cape Wind Assocs., 278 F. Supp. 2d 98, 99 (D. Mass. 2003). In that case, in light of the federal government’s exclusive jurisdiction over waters more than three miles from shore—and the absence of any applicable delegation of that jurisdiction—Judge Tauro issued an opinion rejecting the plaintiffs’ argument that Cape Wind was required to secure a license under chapter 91 of the Massachusetts General Laws prior to constructing the test tower. See id. at 99–101. The plaintiffs appealed Judge Tauro’s decision and the case is currently pending in the U.S. Court of Appeals for the First Circuit. Ten Taxpayers Citizen Group v. Cape Wind Assocs., 278 F. Supp. 2d 98, (D. Mass. 2003), appeal docketed, No. 03-2323 (1st Cir. Sept. 26, 2003). The Alliance also intervened in the proceedings before the Massachusetts Energy Facility Siting Board (EFSB) regarding the transmission line to connect the wind farm to the New England power grid. Cape Wind Assocs., No. 02-2/02-53 (Mass. Energy Facility Siting Bd./Dep’t of Telecomm. & Energy filed Nov. 27, 2002), available at http://www.state.ma.us/dpu/siting/reladepact.htm (last visited Feb. 22, 2004). Discussion of the EFSB proceedings is beyond the scope of this paper.
172 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 66–67 (D. Mass. 2003). While the subject matter of this lawsuit is limited to the data tower, the arguments presented and the courts’ decision address many of the issues and claims that could arise in future litigation involving the wind farm. See Seth Kaplan, Conservation Law Found., Statement of CLF Clean Air and Climate Change Project Director Seth Kaplan Regarding August 18, 2003 Decision by Judge Joseph Tauro on Cape Wind Lawsuit (2003), at http://www.clf.org/hot/cape_wind_data_tower_statement. htm (last visited Feb. 22, 2004).
173 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 72.
174 See id. at 77–78.
175 See id. at 78. The Plaintiffs alleged that the Corps: (1) failed to circulate certain documents for public comment; (2) did not adequately consider alternatives to the data tower; (3) acted improperly in reviewing the data tower application separate from the wind farm application; and (4) did not consider the environmental effects of removal of the data tower. See id. at 78–82.
176 See generally Alliance to Protect Nantucket Sound, Legal Concerns, at http://www.saveoursound.org/legal.html (last visited Mar. 19, 2004).
177 Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 66. Referring to Ten Taxpayers Citizen Group v. Cape Wind Associates, Judge Tauro noted that Plaintiffs’ challenge to the Corps’s decision to issue Cape Wind a permit was the “second skirmish” in the battle between Cape Wind and its opponents decided in federal court. Id.
178 Id. at 72 (citing PUD No. 1 v. Wash. Dep’t of Ecology, 511 U.S. 700, 722 (1994)).
179 Id. at 72–73.
180 Id. at 74–76.
181 Id. at 75.
182 Id. at 77–78 (citing Pls.’ Br. at 11).
183 Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 77.
184 Id. at 78–82 (outlining NEPA’s requirements and finding that (1) “[t]he Corps, therefore, did not act unreasonably in deciding not to circulate a draft FONSI or EA” for public comment; (2) “[t]he Corps’ treatment of project alternatives was reasonable”; (3) “the Corps did not act wrongfully in considering the two permit applications separately from one another,” or “in any way seek to avoid its NEPA requirements in considering the data tower application apart from the wind energy plant application”; and (4) “[p]laintiffs’ unsupported allegations that the towers’ removal will cause environmental impacts beyond those associated with its construction are not enough to overcome the Corps’ reasonable conclusion to the contrary”).
185 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 78–82 (D. Mass. 2003).
186 See id. According to Seth Kaplan, a lawyer for the Conservation Law Foundation, “Congress could eventually decide that wind projects would need to pay rent to use federal waters. ‘(But) until Congress speaks one way or another, you can’t say they are prohibited from being out there.’” Jon Chesto, Reilly: Congress Must OK Windmills: No Rules Guide Cape Cod Project, Filing Says, Boston Herald, Mar. 12, 2004, at 35.
187 See Appellants’ Designation of the Contents of the Appendix and Statement of Issues, Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003), appeal docketed, No. 03-2604 (1st Cir. Nov. 24, 2003). The following issues were set out by the Alliance:

(1) Did the U.S. Army Corps of Engineers . . . exceed its authority under the Outer Continental Shelf Lands Act in issuing a permit under Section 10 of the Rivers and Harbors Act of 1899 for a structure on the [OCS] which is not related to the exploitation of mineral resources?

(2) Did the Corps violate its own regulations by issuing a Section 10 permit for a structure on the OCS for which the applicant indisputably does not, and, short of an Act of Congress, cannot, possess the requisite property interests to construct?

(3) Did the Corps violate the National Environmental Policy Act by failing to circulate the Environmental Assessment and Finding of No Significant Impact for public comment?

Id. at 2.
188 See Appellants’ Brief, Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003), appeal docketed, No. 03-2604 (1st Cir. Nov. 24, 2003). Even if the Alliance did not pursue its appeal, there are numerous other forums in which the Alliance and other opponents could potentially challenge the wind farm. For example: (1) the Alliance will have an opportunity to comment on the Draft Environmental Impact Statement, 40 C.F.R. � 1503 (2004); (2) the Alliance has intervened in Cape Wind’s proceedings before the Massachusetts Energy Facility Siting Board; (3) the Alliance could pursue its belief that the proposal would violate the commonwealth’s Ocean Sanctuaries Act, chapter 132A, sections 12A–16F and 18 of the Massachusetts General Laws and 302 Mass. Regs. Code � 5.00, and/or seek to designate Nantucket Sound as a National Marine Sanctuary, 16 U.S.C. � 1431 (2000); and (4) numerous other permits are required, such as a permit from the Massachusetts Department of Environmental Protection pursuant to chapter 91 of the Massachusetts General Laws, and local wetlands permits from the Barnstable and Yarmouth Conservation Commissions. Mass. Gen. Laws ch. 40, � 8C (2002).
189 Appellants’ Brief, supra note 188, at 18.
190 Id. at 18–19.
191 Id. at 19.
192 Id. at 19.
193 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003), appeal docketed, No. 03-2604 (1st Cir. Nov. 24, 2003).
194 See Alliance to Protect Nantucket Sound, Legal Concerns, at http://www. saveoursound.org/legal.html (last visited Mar. 5, 2004). “There are currently at least 19 other similar proposals pending from coastal Maine to Virginia. There must be a moratorium on this development until all legal issues . . . are resolved.” Id.
195 See Hearing on H.R. 793 (Testimony of Peter Shelley, Vice President, Conservation Law Foundation), available at http://www.clf.org/hot/HR_793_Congressional_Testimony. pdf (last visited Mar. 5, 2004). Mr. Shelley stated that:

[O]ur organizations do not believe Congress should impose an economically and potentially environmentally damaging moratorium on offshore wind development pending enactment of such a comprehensive statutory framework.

The absence of a federal asset management framework for renewable energy does not compromise environmental protection of the [OCS] and its resources from the impacts of development. Given existing permitting authority and environmental regimes, it would be a mistake to put review of offshore wind proposals on hold. Together with the National Environmental Policy Act, the Army Corps of Engineers’ Section 10 regulations provide clear authority to conduct a comprehensive environmental review process and to issue permits after consultation with all relevant agencies and entities. If these authorities are used together, and used thoughtfully and in combination with state environmental reviews, we believe they provide an adequate process until appropriate legislation can provide additional clarity and establish a process for addressing various aspects of a developer’s relationship with the federal government, such as leases and royalties.

Id.; see also Press Release, The Cape & Islands Renewable Energy Collaborative, Supporters of Renewable Energy Jointly Oppose Moratorium on Offshore Projects (Feb. 10, 2003), available at http://www.vma.cape.com/~relweb/CIREC_moratorium_statement.pdf (last visited Mar. 5, 2004). “A moratorium would needlessly delay national, regional, state, and local strategies that are attempting to address pressing societal concerns by accelerating the transition to renewable sources of energy.” Id. The final report of the Massachusetts Ocean Management Task Force, released in March 2004, did not call for a moratorium on projects within state jurisdiction; the report reasoned that a moratorium would potentially chill appropriate development. 1 Mass. Office of Coastal Zone Mgmt., supra note 159, at 31; see also John Leaning, Task Force Resisted Block to Wind Farm, Cape Cod Times, Mar. 25, 2004, http://www.capecodonline.com/cctimes/taskforce25.htm (last visited Mar. 31, 2004).
196 H.R. 793, 108th Cong. (2003) (amending the Outer Continental Shelf Lands Act (OCSLA) to authorize the Secretary of the Interior to grant “easement[s] or right[s]-of-way of the Outer Continental Shelf for activities not otherwise authorized in this Act”). House Bill 793 is substantially similar to House Bill 5156, introduced by Representative Cubin in July, 2002. H.R. 5156, 107th Cong. (2002) (creating a program for offshore development in the secretary of the interior).
197 The Minerals Management Service now administers offshore programs such as gas and oil leasing pursuant to authority delegated by the Secretary of the Department of the Interior. See Minerals Mgmt. Serv., About the Minerals Management Service, at http://www.mms.gov/aboutmms/ (last visited Mar. 5, 2004).
198 Hearing on H.R. 793 (testimony of Johnnie Burton, Director, Minerals Management Service).
199 See id. (testimony of Peter Shelley, Vice President, Conservation Law Foundation), available at http://www.clf.org/hot/HR_793_Congressional_Testimony.pdf (last visited Mar. 5, 2004).
200 H.R. 1183, 108th Cong. � 2(b) (2003). If enacted, House Bill 1183 would have amended the Coastal Zone Management Act to expand statutory procedures and policies for the location of renewable energy facilities in the marine environment. Id. � 101. It prescribed licensing requirements for the operation of renewable energy facilities in waters under federal jurisdiction seaward of the coastal zone. Id. � 314. It also instructed the Secretary of Commerce, through NOAA, to identify and evaluate locations within such waters that have the greatest potential for producing energy from renewable energy facilities. Id. � 2(b).
201 Hearing on H.R. 793 (testimony of Bruce H. Bailey, President, AWS Scientific, Inc.), available at http://www.awea.org/policy/documents/BaileyTestimony030603.pdf (last visited Mar. 5, 2004). Land-based wind projects developed on federal property are subject to rental fees assessed by the Department of the Interior’s Bureau of Land Management (BLM). See Bureau of Land Mgmt., U.S. Dep’t of the Interior, Instruction Memorandum, Pub. No. 2003-020, Interim Wind Energy Development Policy (2003). The BLM is currently preparing a programmatic EIS to evaluate issues associated with wind energy development on Western public lands administered by the BLM. Notice of Intent to Prepare a Programmatic Environmental Impact Statement, 68 Fed. Reg. 59,814 (Oct. 17, 2003); see also Wind Energy Dev. Programmatic EIS Info. Ctr., Homepage, at http://windeis.anl.gov/index. cfm (last visited Mar. 5, 2004).
202 See Hearing on H.R. 793 (testimony of Bruce H. Bailey, President, AWS Scientific, Inc.), available at http://www.awea.org/policy/documents/BaileyTestimony030603.pdf (last visited Mar. 5, 2004); see also Bureau of Land Mgmt., supra note 201. In contrast to House Bill 793, Delahunt’s bill would have required the federal government to identify priority locations for renewable energy facilities in the coastal zone and established a competitive bidding process. See H.R. 1183, 108th Cong. (2003).
203 See Hearing on H.R. 793 (testimony of Bruce H. Bailey, President, AWS Scientific, Inc.), available at http://www.awea.org/policy/documents/BaileyTestimony030603.pdf (last visited Mar. 5, 2004).

It is requested that offshore wind projects already underway not be disadvantaged by new rules that would cause unnecessary and expensive delays or the need to begin a new application process. Considerable effort has already been taken to work with state and federal agencies to fulfill permitting requirements in an environmentally responsible way.

Id.; see also Bureau of Land Mgmt., supra note 201.
204 H.R. 6, 108th Cong., � 321 (2003).
205 See id.
206 Id. The amendments do not apply to any of the fourteen designated National Marine Sanctuaries on the OCS, including Stellwagen Bank, a rich commercial and recreational fishing ground off the coast of Massachusetts. See Nat’l Ocean Serv., Nat’l Oceanic & Atmospheric Admin., National Marine Sanctuaries, at http://www.sanctuaries. nos.noaa.gov/ (last modified Dec. 15, 2003).
207 H.R. 6, 108th Cong., � 321 (2003).
208 Id.
209 Id. � 321(a)(1)(B)–(C); see John Leaning, Wind Farm’s Regulatory ‘Gap’ Filled, Cape Cod Times, Sept. 25, 2003, http://www.capecodonline.com/special/windfarm/windfarmzxs25.htm (last visited Mar. 5, 2004). The amendment also allows these property interests to be granted for limited other purposes, such as exploration, development, production, transportation, or storage of oil, natural gas, or other minerals. Id. As a result, the bill has been criticized for potentially opening the OCS to energy projects other than renewable energy, such as oil and gas. Id.
210 See H.R. 6, � 321(a)(2).
211 See id. � 321.
212 Id. � 321(a)(6).
213 Id. � 321(a)(7).
214 See John Leaning, Bill May Create a Shift in Wind: Authority for Offshore Turbines Could be Moved to the Minerals Management Service, Cape Cod Times, Nov. 4, 2003, http:// www.capecodonline.com/special/windfarm/billmay4.htm (last visited Mar. 5, 2004). Walter Cruickshank, Deputy Director of MMS, stated that “[t]he day we get the authority, we’ll be on the phone with the Army Corps of Engineers, with Cape Wind and with the state to set up a meeting on how to work through the transition.” Id. Karen Adams, wind farm project review manager for the Corps, stated: “[i]f any other agency does have jurisdiction, it will be in addition to ours.” John Leaning, Interior Agency Set to Oversee if Bill Approved, Cape Cod Times, Nov. 26, 2003, http://www.capecodonline.com/special/windfarm/interioragency26.htm (last visited Mar. 5, 2004) [hereinafter Interior Agency Set to Oversee].
215 See Interior Agency Set to Oversee, supra note 214. According to Mr. Cruickshank, project location, lease conditions, rental fees, bonding requirements, and similar issues would evolve throughout NEPA’s continuing EIS process. Id.
216 H.R. 6, 108th Cong. � 352(b)(1)(B)–(C) (2003). Along with the mandates set out above, section 352 of House Bill 6 required that “the Secretary of the Interior shall contract with the National Academy of Sciences to . . . study the potential for the development of wind, solar, and ocean energy . . . on the [OCS].” Id. � 352(b)(1)(A).
217 See id. � 321(a)(4)(B)(i)–(vii).
218 See id. � 321(c).
219 Compare id. � 321(a)(1)(A)–(B) (giving the Secretary of the Interior the authority to grant limited property interests on the OCS to “support exploration, development, production, transportation, or storage of oil, natural gas, or other minerals”), with H.R. 793, 108th Cong. � 1(a)(2) (2003) (providing “an administrative framework for the oversight and management of energy-related activities on the Outer Continental Shelf, consistent with other applicable laws”).
220 Jack Coleman, What’s in Bill for Wind Farm? Wording in the Federal Energy Measure is Open to Conflicting Interpretation from Parties Involved, Cape Cod Times, Jan. 3, 2004, http://www.capecodonline.com/special/windfarm/whatzxsbill3.htm (last visited Mar. 5, 2004).
221 Id. Both the Cape Wind project and the LIPA project would have satisfied the savings clause criteria. Id. Pursuant to the section 10 permit issued by the Corps in August 2002, Cape Wind constructed a data test tower in Horseshoe Shoal that is currently collecting information regarding wind, wave, tide height, current, and water temperature. See Cape Wind Measuring Offshore Conditions, supra note 90. In January 2003, the LIPA released a Request for Proposals to develop an offshore wind park consisting of twenty-five to fifty offshore wind turbines that would produce approximately 100–140 MW of electricity. See LIPA RFP, supra note 101, at 1.
222 John Leaning, Energy Bill Will Not Have Loophole: Amendment on Offshore Projects Will Apply to Cape Wind, Official Says, Cape Cod Times, Jan. 12, 2004, http://www.capecodonline.com/special/windfarm/energybill12.htm (last visited Mar. 19, 2004)
223 Id.
224 See S. 2095, 108th Cong. � 321 (2004).