* (c) 2003 Robert H. Russell, J.D., Harvard Law School. Mr. Russell teaches environmental law in the graduate program at Tufts University, and has taught energy regulation, environmental law and policy, and property law at other universities and law schools in the Boston area. He also consults with nonprofit organizations and government agencies on environmental matters.
1 Robert Lowell, Near the Ocean 20 (Farrar, Straus & Giroux) (1967).
2 Bill McKibben, Serious Wind: Why Environmentalists Should Be Careful What They Wish For, Orion, July–Aug. 2003, at 14, 15.
3 The distinction was fleeting. In 1945, the wind turbine atop Grandpa’s Knob, a 1976-foot hillock northwest of Rutland, Vt., threw its eight-ton blade 750 feet, then lapsed into disrepair. Its foundations remain today. See Kim R. York & Richard L. Settle, Potential Legal Facilitation or Impediment of Wind Energy Conversion System Siting, 58 Wash. L. Rev. 387, 400 (1983); Telephone Interview with Gordon Cawood, Electrical Engineer and Trip Leader for the Green Mountain Club, Breadloaf Section (Dec. 8, 2003); Telephone Interview with Larry Dodds, Power Systems Operator, Central Vermont Public Service (Dec. 8, 2003).
4 J.F. Manwell et al., An Offshore Wind Resource Assessment Study for New England, 27 Renewable Energy 175, 175 (2002).
5 Id.; E-mail from James F. Manwell, Director, Renewable Energy Research Laboratory, University of Massachusetts, Amherst, to Rusty Russell (Dec. 8, 2003, 10:15:04 EST) (on file with author).
6 Total installed capacity of the New England grid is more than 31,000 megawatts. ISO New England, at http://www.iso-ne.com/ (last visited Jan. 12, 2004). For several offshore wind power proposals, see Winergy, at http://www.winergyllc.com/ (last visited Jan. 12, 2004). By July 12, 2003, Winergy had proposed twenty wind projects totaling more than 12,000 megawatts in federal and state waters off of six states from Massachusetts to Virginia—although the company subsequently withdrew some of its proposals. Id. Additionally, Cape Wind Associates has proposed a controversial 130-turbine, 420-megawatt wind project on Horseshoe Shoal, a shallow area located in federal waters between Cape Cod, on the Massachusetts mainland, and the islands of Martha’s Vineyard and Nantucket. Cape Wind Assocs., at http://www.capewind.org (last visited Jan. 12, 2004). For a definition of capacity, see infra note 20.
7 In 2002, for example, coal-fired power plants supplied 59.5% of the megawatt-hours of electricity that utilities sold to U.S. consumers; nuclear units provided 19.9%; and natural gas fired generators provided 9%. See U.S. Energy Info. Admin., Electric Power Monthly 9 tbl.1.2 (Apr. 2003), http://tonto.eia.doe.gov/ftproot/electricity/epm/02260304.pdf (last visited Jan. 12, 2004).
8 As of October 27, 2003, total U.S. wind capacity was 5325.7 megawatts, a tiny fraction of the nation’s electric generation capacity. See Am. Wind Energy Ass’n, Wind Energy Projects Throughout the United States of America, at http://www.awea.org/pro-jects/ (last visited Jan. 12, 2004) [hereinafter Wind Energy Projects]; see also infra note 20. As of 2002, total U.S. capacity was approximately 903,000 megawatts. See U.S. Energy Info. Admin., Annual Energy Review 2002, at 243 tbl.8.7a (2002), available at http:// www.eia.doe.gov/emeu/aer/pdf/03842002.pdf (last visited Jan. 12, 2004).
9 See generally U.S. Dep’t of Energy & U.S. Dep’t of the Interior, White House Report in Response to the National Energy Policy Recommendations to Increase Renewable Energy Production on Federal Lands (Aug. 2002), available at http://www. doi.gov/news/pdf/FinalWhiteHouseReportwithAppendicies.pdf (last visited Jan. 12, 2004) [hereinafter National Energy Policy Recommendations].
10 A number of states add a small surcharge to consumer electric bills to fund efforts to stimulate renewable resource development or require electricity retailers to obtain a specified percentage of their power from clean resources by a certain date. Massachusetts, for instance, has both a fund and a portfolio standard (4% of all megawatt-hours sold in state by 2009). Other states with one or both include: Connecticut, Maine, Maryland, New Jersey, New York, Oregon, Pennsylvania, and Rhode Island. See U.S. Energy Info. Admin., Status of State Electric Industry Restructuring Activity, Public Benefits Programs as of February 2003, at http://www.eia.doe.gov/cneaf/electricity/chg_str/pbp.html (last visited Jan. 12, 2004); Union of Concerned Scientists, State Clean Energy Maps and Graphs, at http://www.ucsusa.org/clean_energy/renewable_energy/page.cfm?pageID=895 (last visited Jan. 12, 2004).
11 See generally Mark Z. Jacobson & G.M. Masters, Exploiting Wind Versus Coal, 293 Sci. 1438 (2001); Soren Krohn, Danish Wind Industry Ass’n, Offshore Wind Energy: Full Speed Ahead, at http://www.windpower.org/en/articles/offshore.htm (Oct. 2002).
12 The environmental benefits of wind generation are significant. With the minor exception of the manufacturing and scrapping processes, wind is essentially non-polluting. Cristina Archer & Mark Z. Jacobson, Spatial and Temporal Distributions of U.S. Winds and Wind Power at 80 m Derived from Measurements, 108 J. Geophysical Res., No. D9, May 2003, at 1. For a concise summary of all of its benefits, see AWS Scientific, Inc., Long Island’s Offshore Wind Energy Development Potential: A Preliminary Assessment 3 (Apr. 2002) (on file with author) [hereinafter Long Island’s Wind Potential]. The environmental downsides are few; indeed, some seem rather speculative or ephemeral. The main ones are the potential threat to birds in certain locations and the question of aesthetics. Christine Real de Azua, The Future of Wind Energy, 14 Tul. Envtl. L.J. 485, 495 n.59 (2001). With regard to the latter, compare Margot Roosevelt, Not in My Back Bay, Time, Sept. 30, 2002, at 62 (turbines are “big and bizarre-looking”), with David Armstrong, Blow Hard Wind-generated Power Is Back. Will It Make Money This Time Around?, Forbes, Jan. 2001, at 217 (turbines’ “apparent visual loveliness”), and Wendy Williams, Princeton Repowering; A Proud Town of Revolutionaries, Windpower Monthly, Feb. 2003, at 29 (“majestic towers . . . [are] so gorgeous”).
13 The power blackout that began on the afternoon of August 14, 2003—which took down approximately 61,800 megawatts of capacity that served 50 million people—is a recent example. Mike McIntire, The Blackout: Measurements; How Many in the Dark? Evidently Not 50 Million, N.Y. Times, Aug. 17, 2003, � 1, at 29.
14 See, e.g., James McKinley, Political Memo; Lawmakers Step Lightly Along a Nuclear Tightrope, N.Y. Times, Aug. 7, 2003, at B1.
15 D.L. Elliot et al., U.S. Dep’t of Energy, Report PNL-7789/UC-261, An Assessment of the Available Windy Land Area and Wind Energy Potential in the Contiguous United States (1991) (on file with author) (concluding that the available potential in the nation’s three most wind-rich states—North Dakota, Kansas and Texas—could meet the entire then-current U.S. electricity demand).
16 16 U.S.C. �� 1451–1465 (2003).
17 Joseph J. Kalo et al., Coastal and Ocean Law: Cases and Materials 192 (2d ed. 2002). This is the length of coast regulated under state and federal coastal zone management programs. It includes the U.S. shore of the Great Lakes as well as the coastlines of five U.S. territories.
18 National Energy Policy Recommendations, supra note 9, at 6.
19 Id.; Real de Azua, supra note 12, at 486.
20 A generator’s capacity is usually measured in megawatts, abbreviated hereinafter as MW. The concept refers to the ability to supply a given level of electric power at a given moment. Conversely, the actual volume of power, the “energy,” is a product of the capacity multiplied by the duration that this capacity is available. Thus, a 100 MW power plant operating at full capacity for an hour will generate 100 megawatt-hours (MWh) of energy. One MW of electricity from a conventional power plant generally is sufficient to meet the needs of 750–1000 average residences. Wind generators typically operate 15% to 55% less than conventional plants. See Real de Azua supra note 12, at 497 n.61; see also Peter J. Howe, Record Power Use Looms, Boston Globe, July 30, 2002, at D1.
21 Real de Azua, supra note 12, at 486.
22 Lester R. Brown, Earth Policy Inst., Wind Power Set to Become World’s Leading Energy Source at http://www.earth-policy.org/Updates/Update24_printable. htm (June 25, 2003). By January 2004, 73% of this capacity was sited in Europe, 17% in the U.S. and 10% elsewhere (approximately two-thirds of that in Asia). See Operating Wind Power Capacity, Windpower Monthly, Jan. 2004, at 66, 66.
23 Taylor Moore, Wind Power: Gaining Momentum, EPRI J., Winter 1999, at 8, 10.
24 Compare id. at 17 (wind power close to market competitiveness), with Real de Azua, supra note 12, at 490–93 (wind now competitive with conventional power plants). See Jacobson & Masters, supra note 11. These conclusions are exclusive of two energy sources sometimes claimed to be renewable—hydropower and solid waste combustion. Large, and sometimes small, hydro facilities as well as refuse-to-energy plants pose a significant risk to habitat and to human health. Jacobson & Masters, supra note 11 (accounting for environmental benefits can make wind cost effective).
25 Moore, supra note 23, at 10; see also Brown, supra note 22 (“[T]he energy future belongs to wind.”).
26 See U.S. Energy Info. Admin., Net Generation: Total (All Sectors), 1949-2002, at http://www.eia.doe.gov/emeu/aer/txt/ptb0802a.html (preliminary figures) (last visited Jan. 14, 2004); In 2002, wind accounted for 12.5% of non-hydro renewable energy generation, with most of the remainder derived from other “traditional” renewables like biomass, solar, and geothermal power. Id.
27 Id.
28 See, e.g., Real de Azua, supra note 12, at 493–94, 497–518. California led the way with installed capacity of 1987.9 MW, approximately 37% of the U.S. total. Other leaders include Texas (~1096 MW), Iowa (~423 MW), Minnesota (~401 MW), Washington (~228 MW), Oregon (~218 MW), Wyoming (~141 MW) and Kansas (~114 MW). See Wind Energy Projects, supra note 8. Of these, California, Washington, and Oregon—accounting for nearly half the national wind capacity—are not even among the 15 jurisdictions with the greatest wind resource potential. See Am. Wind Energy Ass’n, Wind Energy: An Untapped Resource, http://www.awea.org/pubs/factsheets/WindEnergyAnUntappedResource.pdf (last visited Jan. 12, 2004).
29 See Operating Wind Power Capacity, Windpower Monthly, Jan. 2004, at 66, 66. A single 660 kW turbine on the shore in Hull, Massachusetts, a town of 11,000 located on a peninsula just southeast of Boston, is perhaps the most prominent example of coastal wind power generation in the Northeast. For a description of the Hull turbine, and other Massachusetts municipalities that are attempting to follow Hull’s lead, see, for example, Peter DeMarco, Tide Turns for Wind Turbines, Boston Globe, Oct. 9, 2003, at Globe North 1 and Scott Kirsner, Wind Power’s New Current, N.Y. Times, Aug. 28, 2003, at G1.
30 Indeed, offshore wind’s potential has gone largely unnoticed in the policy literature. An extensive 2002 analysis of the future of renewable energy in the United States, for example, does not mention it at all. See Richard L. Ottinger & Rebecca Williams, 2002 Energy Law Symposium: Renewable Energy Sources for Development, 32 Envtl. L. 331 (2002); cf. Archer & Jacobson, supra note 12, at 19 (concluding “[t]he greatest previously uncharted reservoir of wind power in the continental United States is offshore and onshore along the southeastern and southern coasts.”); Jack Jackson, Americans Seek Offshore Answers, Windpower Monthly, Jun. 2003, at 66, 66 (offshore “a very juicy area of opportunity” (quoting Dr. Robert W. Thresher, director of U.S. National Wind Technology Center)).
31 Recent national wind studies suggest that the offshore resource is more favorable in the Northeast than originally believed. Archer & Jacobson, supra note 12, at 1, 19 (wind power potential in the United States may be “substantially greater than previously estimated”); see, e.g., Mass. Tech. Collaborative, Wind Energy Resource and Coastal Bathymetry Map of Massachusetts, at http://www.mtpc.org/RenewableEnergy/ green_power/Map7_Massachusetts.pdf (last visited Jan. 12, 2004); Pac. N.W. Nat’l Lab., Wind Energy Resource Atlas of the United States, http://rredc.nrel.gov/wind/ pubs/atlas/maps/chap3/3-21m.html (last visited Jan. 12, 2004); see also Manwell et al. supra note 4, at 185 (stating that offshore wind speed projections in New England “are encouraging”). Further, a recent analysis of wind potential off the southern shore of Long Island in New York identified a 135-square mile area less than three miles from shore with waters shallower than fifty feet that would offer sufficiently strong winds to provide 2250 MW of capacity—enough to meet almost a third of the electricity needs of Long Island’s nearly three million people. Long Island’s Wind Potential, supra note 12, at Exec. Sum. i, 12. Initial examination of the wind potential in the Mid-Atlantic region and Carolinas also appears encouraging. One recent Virginia study, for example, found that 83% of the state’s utility-scale wind resources lie within a 400-square mile area located within Virginia state waters and in Chesapeake Bay. See George Hagerman, Virginia Polytechnic Institute, Presentation at 1st Virginia Wind Energy Workshop (Mar. 21, 2003) (on file with author). Utility-scale winds and relatively shallow waters off the North Carolina coast also suggest “tremendous potential.” Telephone Interview with Bob Leker, Renewable Program Manager, North Carolina Energy Office (Aug. 26, 2003).
32 See, e.g., Bruce Bailey, AWS Scientific, Inc., Offshore Wind Energy Development in the US, http://www.nationalwind.org/events/offshore/020925/presentations/ bailey.pdf (last visited Jan. 12, 2004). This presentation includes a map on a page titled “Offshore Development Potential” showing offshore wind speeds measured at 230-foot elevations along the Eastern seaboard at water depths of fifty feet or less. Average speeds of seventeen miles per hour have been identified over significant portions of this area. These are generally considered to be very promising for utility-scale development. See National Energy Policy Recommendations, supra note 9, at 6. Nonetheless, one should not assume that wind energy can be harnessed in every one of these locations. Resource variability, lack of transmission access, conflicting uses, danger to wildlife, and the regulatory issues discussed in Part III, infra, could inhibit or preclude development in specific areas.
33 Offshore cable connections can cost $1 to $2 million per mile. Sally D. Wright, Anthony L. Rogers, James F. Manwell & Anthony Ellis, Renewable Energy Research Lab, University of Massachusetts, Transmission Options for Offshore Wind Farms in the United States 9 (2002). In contrast, landside cable connections may cost only $100,000 per mile. Armstrong, supra note 12, at 217.
34 See Bailey, supra note 32.
35 See Drew Robb, Offshore Wind Struggles to Gain Foothold in North America, Power Engineering, Aug. 2002, at 44, 48 (stating that deep-water technology is “still in its infancy”); Long Island’s Wind Potential, supra note 12, at 11, 27 (stating that wind farms in water 50–100 feet deep “would not be economically viable in the foreseeable future.”).
36 An offshore cable linked to the landside grid generally must have a capacity of 115 kilovolts (kV) or more. Long Island’s Wind Potential, supra note 12, at 6.
37 By 1990, about 53% of the U.S. population lived in coastal counties. Nat’l Sci. & Tech. Council, Comm. on Env’t and Natural Res., Setting a New Course for U.S. Coastal Ocean Science—Final Report of the Subcommittee on U.S. Coastal Ocean Science (July 1995), http://www.cop.noaa.gov/pubs/suscos/1-intro.html (last visited Jan. 12, 2004) [hereinafter Setting a New Course]. Coastal density in New England is even more extreme, given the region’s small size and large population. For instance, approximately two-thirds of Maine’s residents live in coastal communities. Barbara A. Vestal, Dueling with Boat Oars, Dragging Through Mooring Lines: Time for More Formal Resolution of Use Conflicts in States’ Coastal Waters? 4 Ocean & Coastal L.J. 1, 22 (1999).
38 See supra note 31; U.S. Energy Info. Admin., Renewable Potential Maps: New England Division, at http://www.eia.doe.gov/emeu/reps/rpmap/rp_new-eng.html (last visited Jan. 12, 2004).
39 See Long Island’s Wind Potential, supra note 12, at 4; Krohn, supra note 11. A key element is that offshore wind speeds are not simply higher on average, but that their inevitable variations are more tightly clustered around the mean. This increases reliability as well as power available for use. See Krohn, supra note 11.
40 Long Island’s Wind Potential, supra note 12, at 4; Krohn, supra note 11 (stating that energy yield can be up to 73% higher offshore, but that “economically optimised” offshore turbines will generally produce 50% more energy than those at nearby land locations).
41 Long Island’s Wind Potential, supra note 12, at 4; S.C. Pryor & R.J. Barthelmie, Comparison of Potential Power Production at On- and Offshore Sites, 4 Wind Energy 173, 173, 180 (2001); Robb, supra note 35, at 44; Krohn, supra note 11.
42 Long Island’s Wind Potential, supra note 12, at 6 (estimating that total installed cost of an offshore wind farm may be 50% greater than the land-based equivalent). Nevertheless, the average cost of wind power in the U.S. has dropped from $0.35–0.38/kWh in the early 1980s to $0.03–0.06/kWh today. See Archer & Jacobson, supra note 12, at 1; Real de Azua supra note 12, at 490; Brown, supra note 22.
43 U.S. Army Corps of Eng’rs, Public Information Meeting 13 (Oct. 29, 2003) (rejecting review of alternate sites in northern New England for Cape Wind project due in part to transmission constraints), http://www.nae.usace.army.mil (last visited Jan. 12, 2004); John Leaning, Report Questions Power Line Limits, Cape Cod Times, Nov. 8, 2003 (stating that “one major factor in rejecting sites in northern New England was the inability of existing transmission systems to absorb the additional energy that would be produced by a wind farm”), http://www.capecodonline.com/special/windfarm/reportquestions8.htm (last visited Jan. 23, 2004).
44 U.S. Energy Info. Admin., Reg’l Energy Profile, New England Data Abstract (supporting the proposition that New England has few if any fossil fuel resources), at http://www.eia.doe.gov/emeu/reps/abstracts/new_eng.html (last visited Jan. 12, 2004).
45 Gail Rajgor, Slightly Cautious on Growth Prediction, Windpower Monthly, May 2003, at 59, 59–60 (indicating that installed offshore wind power almost tripled worldwide in 2002).
46 Ireland’s appears to be the largest: a 200-turbine, 520-MW wind farm 3.5 miles offshore on a sand bank in the Irish Sea south of Dublin. Janice Massy, UK and Ireland Poised to Build; Full Steam Ahead in Friendly Waters, Windpower Monthly, Mar. 2003, at 68, 69. The project would supply 10% of the nation’s electricity. Robb, supra note 36, at 44; see also L.W.M Beurskens & M. de Noord, Offshore Wind Power Developments, An Overview of Realisations and Planned Projects 5, 7 (2003), http://www.ecn.nl/docs/lib-rary/report/2003/c03058.pdf (last visited Jan. 12, 2004).
47 Edward F. Maroney, Gordon: Danes Feel Great About Off-shore Wind Parks, Barnstable Patriot (Barnstable, Mass.), June 27, 2003, available at http://www.barnstablepatriot. com/06-27-03-news/gordon.html (last visited Mar. 2, 2004); see Krohn, supra note 11. Other Danish wind farms now in operation are: Vindeby (4.5 MW) and Tunoe Knob (5 MW), both pilot projects; Middelgrunden (40 MW); and Samsoe (23 MW). Nysted (158 MW) was to be operational by the end of autumn, 2003. Krohn, supra note 11. At 160 MW, Horns Rev is reported to be the largest offshore wind farm in the world. Maroney, supra. Jack Jackson, All Eyes on Scandinavian Progress; Denmark Centre of Offshore Attention, Windpower Monthly, Mar. 2003, at 68, 68; Presentation by Carsten H. Nielsen, Engineer, Elsam (Danish Independent Power Producer) in Esbjerg, Denmark (Jan. 16, 2004) (notes on file with author).
48 See Krohn, supra note 11.
49 Id.
50 See Svend Auken, Issues and Policy: Answers in the Wind: How Denmark Became a World Pioneer in Wind Power, 26 Fletcher F. World Aff. 149, 149, 156 (2002).
51 Germany accounts for approximately one-third of all wind power capacity in the world. DW-World.de, Storm Brewing over the Question of Wind Energy (Aug. 27, 2003), at http://www.dw-world.de/english/0,3367,1446_A_957029_1_A,00.html (last visited Jan. 12, 2004).
52 Brown, supra note 22.
53 Janice Massy, Fast Track Permitting of Offshore Wind, Windpower Monthly, Apr. 2003, at 25, 25; Janice Massy, Wind in a New League off British Coast, Windpower Monthly, Jan. 2004, at 28, 28.
54 Robb, supra note 35, at 48.
55 See Krohn, supra note 11.
56 See Robb, supra note 35, at 46; Krohn, supra note 11. Today, the largest turbines have a capacity of 2 to 2.5 MW, and a rotor diameter 25% wider than the wingspan of a Boeing 747. See id. Some manufacturers are testing turbines of more than 5 MW. Robb, supra note 35, at 46.
57 See Long Island’s Wind Potential, supra note 12, at 6.
58 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 64, 68 (D. Mass. 2003) (stating that wind generators proposed for Horseshoe Shoal would ascend 423 feet from base to blade tip).
59 See, e.g., Alliance to Protect Nantucket Sound, Inc., at http://www.saveour sound.org/ (last visited Jan. 12, 2004) (providing an example of a vocal organization opposed to the Cape Wind proposal in Massachusetts).
60 See Timothy Beatley et al., An Introduction to Coastal Zone Management 102 (2d ed. 2002).
61 See Vestal, supra note 37, at 24–28.
62 Erin R. Englebrecht, Comment, Can Aquaculture Continue to Circumvent the Regulatory Net of the Magnuson-Stevens Fishery Conservation and Management Act?, 51 Emory L.J. 1187, 1234 (2002).
63 See Ronald J. Rychlak, Coastal Zone Management and the Search for Integration, 40 DePaul L. Rev. 981, 984 (1991) (noting federal involvement in erosion control at Fort Moultri, S.C., in 1829).
64 Setting a New Course, supra note 37, at introduction; see also Robin Kundis Craig, Taking the Long View of Ocean Ecosystems: Historical Science, Marine Restoration, and the Oceans Act of 2000, 29 Ecology L.Q. 649, 652 n.10 (2002) (excluding Alaska, average coastal population density increased from 187 people per square mile in 1960 to 273 per square mile in 1994. By 2015, the number is expected to grow 20% to 327 people per square mile).
65 See Beatley et al., supra note 60, at 283.
66 See Setting a New Course, supra note 37, at http://www.cop.noaa.gov/Images/ suscos%20gifs/fig2.gif (last visited Jan. 12, 2004).
67 Several jurisdictional bands exist (and to an extent overlap) within the 200-nautical mile limit. State waters generally extend three statute miles from the shoreline (except in Texas and Florida, where the boundary is about ten miles from shore). Federal waters stretch from the seaward edge of state waters to the outer boundary of the Exclusive Economic Zone (EEZ). The U.S. territorial sea extends twelve nautical miles offshore. The EEZ consists of the entire area between the outer edge of the U.S. territorial sea and the 200-nautical mile limit. See Biliana Cicin-Sain & Robert W. Knecht, The Future of U.S. Ocean Policy: Choices for the New Century 21 fig.1.2 (2000).
68 Setting a New Course, supra note 37, at introduction.
69 On land, these are known as LULUs (locally undesirable land uses). Here, perhaps, they should be called LUCAs (locally undesirable coastal activities).
70 See Craig, supra note 64, at 658–71.
71 16 U.S.C. �� 1451–1465 (2000). The CZMA was overwhelmingly approved by Congress and subsequently signed into law by President Richard M. Nixon on October 27, 1972.
72 See Beatley et al., supra note 60, at 102 (CZMA is the “cornerstone of federal efforts to protect and manage our nation’s coastlines”).
73 Markus G. Puder & John A. Veil, Issue in Environmental Law: The Discrete Charm of Cooperative Federalism: Environmental Citizen Suits in the Balance, 27 Vt. L. Rev. 81, 97 (2002) (statutes promoting cooperative federalism “have dominated the environmental regulatory arena since the 1970s.”).
74 Indeed, nearly all other major federal coastal and ocean legislation focuses on a single resource or a specific environmental challenge. Examples include the Clean Water Act, 33 U.S.C. �� 1251–1387 (2000); the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. �� 1801–1883 (2000); the Marine Mammal Protection Act of 1972, 16 U.S.C. �� 1361–1421h (2000); and the Oil Pollution Act of 1990, 33 U.S.C. �� 2701–2761 (2000). Even the National Environmental Policy Act (NEPA), 42 U.S.C. �� 4321–4370f (2000), though integrative in approach, is triggered only by “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. � 4332(C) (2000). Moreover, NEPA is a procedural measure that does not directly command specific outcomes. See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 370–71 (1989). The National Estuary Program, 33 U.S.C. � 1330 (2000), and the National Marine Sanctuaries Act, 16 U.S.C. �� 1431–1445c-1 (2000), have integrative elements, but their geographic scope is considerably narrower than the CZMA’s (and where these statutes overlap, the result may be further inconsistency). This jurisdictional balkanization has attracted the criticism of numerous commentators. See, e.g., Beatley et al., supra note 60, at 286–91; Cicin-Sain & Knecht, supra note 67, at 97–99, 287; Jack H. Archer & M. Casey Jarman, Sovereign Rights and Responsibilities: Applying Public Trust Principles to the Management of EEZ Space and Resources, 17 Ocean & Coastal Mgmt. 253, 262 (1992); Vestal, supra note 37, at 22.
75 How much devolution actually has occurred in practice—at least when a project or issue draws intense federal attention—has been questioned. See Cicin-Sain & Knecht, supra note 67, at 201 (“[T]he goals of increased state control and enhanced stakeholder . . . participation are visible everywhere. However, . . . . [w]ith regard to . . . implementation, . . . little actual devolution of authority or of funds to the states has taken place.”).
76 Rychlak, supra note 63, at 983.
77 Marc J. Hershman et al., The Effectiveness of Coastal Zone Management in the United States, 27 Coastal Mgmt. 113, 115 (1999).
78 Hope M. Babcock, Dual Regulation, Collaborative Management, or Layered Federalism: Can Cooperative Federalism Models from Other Laws Save Our Public Lands?, 3 W.-N.W. J. Envtl. L. & Pol’y 193, 205–08 (1996). Perhaps the key indicator is that thirty-four of thirty-five eligible coastal states and territories have developed coastal zone management programs that have been approved by the federal Office of Ocean and Coastal Resource Management (OCRM) pursuant to 16 U.S.C. � 1454 (2000). Office of Ocean and Coastal Res. Mgmt., Federal Consistency Requirements 14 (2003), http://www.ocrm.nos.noaa.gov/ pdf/fedconreqmts.pdf (last visited Jan. 12, 2004) [hereinafter Federal Consistency Requirements].
79 16 U.S.C. �� 1451–1452 (2000). The Act declares a national policy of promoting “wise use” of the coastal zone, including its ecological, cultural, historic, and esthetic values, “as well as the needs for compatible economic development.” Id. � 1452(2).
80 See Beatley et al., supra note 60, at 289.
81 As defined by the CZMA, the “coastal zone” extends seaward to the outer limit of state “title and ownership” (usually three statute miles), and landward as far as the state or other participating jurisdiction deems necessary to “control shorelands, the uses of which have a direct and significant impact on the coastal waters.” 16 U.S.C. � 1453(1) (2000). In practice, the inner boundary varies widely. For instance, in Massachusetts the zone generally extends 100 feet inland of the landward side of identified coastal roads, but also includes all of Cape Cod and its offshore islands. See Mass. Regs. Code tit. 301, � 21.99 (2003). Conversely, Florida, with the second-longest U.S. coastline, includes all thirty-five of its shoreland counties; thus, its coastal zone encompasses the entire southern tip of the state, about 100 miles across. See State of Fla., State of the Coast Report 3 (Dec. 1998), http:// www.dep.state.fl.us/secretary/legislative/coastal/publications/coast_report.pdf (last visited Jan. 12, 2004); see also Bruce Kuhse, The Federal Consistency Requirements of the Coastal Zone Management Act of 1972: It’s Time to Repeal This Fundamentally Flawed Legislation, 6 Ocean & Coastal L.J. 77, 82–83 (2001) (describing how various states have interpreted CZMA’s vague definition of “coastal zone”).
82 16 U.S.C. � 1451(b) (2000).
83 See Cicin-Sain & Knecht, supra note 67, at 65–68 (enumerating the many tensions within the CZMA—among them, development versus conservation—worsened by the absence of substantive program requirements and lack of guidance on how to balance national, state, and local interests).
84 See Kalo et al., supra note 17, at 192, 208.
85 For example, in the mid-1990s Massachusetts was one of the few states to address aquaculture. See Alison Rieser, Defining the Federal Role in Offshore Aquaculture: Should It Feature Delegation to the States?, 2 Ocean & Coastal L.J. 209, 221 (1997); see also Mass. Office of Coastal Zone Mgmt., Massachusetts Coastal Zone Management. Plan 86 (Mar. 2002) (illustrating the Mass. CZMP’s treatment of aquaculture), http://www.state.ma.us/ czm/managementplan.pdf (last visited Jan. 12, 2004) [hereinafter Mass. CZMP].
86 Va. Elec. & Power Co., 59 Fed. Reg. 28,061 (Dep’t Commerce May 31, 1994) (CZMA objection appeal); see Kalo et al. supra note 17, at 242. “There are no national standards under the CZMA. Instead, because of the unique coastal resources of each state, the CZMA encourages each state to develop its own standards . . . to implement the [CZMA’s] policies and goals . . . .” Kalo et al. supra note 17, at 242; see Rychlak, supra note 63, at 988.
87 See Beatley et al., supra note 60, at 289 (stating that federal programs “fail[] to evaluate coastal states against a clear set of performance standards.”); Cicin-Sain & Knecht, supra note 67; Archer & Jarman, supra note 74, at 255 (finding “no unifying and controlling principle of resource management informs and guides” the legal regime in the Exclusive Economic Zone); Babcock, supra note 78, at 207.
88 See Lt. Patrick J. Gibbons, J.A.G.C., U.S.N., Too Much of a Good Thing? Federal Supremacy & the Devolution of Regulatory Power: The Case of the Coastal Zone Management Act, 48 Naval L. Rev. 84, 89, 96 (2001). The more comprehensive bill was supported by President Richard M. Nixon.
89 This was the U.S. Commission on Marine Science, Engineering and Resources, chaired by former MIT President Julius A. Stratton. The so-called “Stratton Commission” was established by the Marine Resources and Engineering Development Act of 1966, 33 U.S.C. �� 1101–1108 (2003). The commission’s report, Our Nation and the Sea: A Plan for National Action, H.R. Doc. No. 91-42 (1969), is one of several influential coastal studies released in the early 1970s, and is credited as the primary impetus for passage of the CZMA. Cicin-Sain & Knecht, supra note 67, at 61; Kalo et al., supra note 17, at 191.
90 Cooperative federalism has also been called “contractual federalism” for its reliance on a set of quid pro quos. John A. Duff, The Coastal Zone Management Act: Reverse Pre-Emption or Contractual Federalism?, 6 Ocean & Coastal L.J. 109, 112 (2001); infra Part II.C. Other terms used are “layered federalism,” for the multiple and not always coordinated regulatory regimes and public supervisors, and “interactive federalism,” since it has not been all that cooperative. Martin H. Redish, The Constitution as Political Structure 29 (Oxford Univ. Press ed., 1995) (“interactive federalism”); Babcock, supra note 78, at 207 (“layered federalism”).
91 See Kalo et al., supra note 17, at 192; Rychlak, supra note 63, at 1002, 1005.
92 See Rychlak, supra note 63, at 1004 & n.137.
93 See Kalo et al., supra note 17, at 192.
94 See Beatley et al., supra note 60, at 103–04, 286. In the early 1970s, funding consisted mainly of program development and program administration grants, and totaled about $30 million annually. Kuhse, supra note 81, at 83. From 1972–80, during which time most state programs were developed and approved, funding rose to over $101 million annually. See Kalo et al., supra note 17, at 192–93. With the 1980 CZMA amendments, this was cut back approximately 15%. Id. Funding now totals about $50 million a year, exclusive of the 50% local matching requirement for general administrative grants. Hershman et al., supra note 77, at 116; Rychlak, supra note 63, at 987. For the period 1972–2001, funding for all CZMA programs totaled $1.18 billion, most of it in the form of program administration grants ($844.1 million) and appropriations for the National Estuarine Research Reserves ($130.1 million). Beatley et al., supra note 60, at 103. In other words, most federal support has been directed at process, or narrowly focused on research and related activities within twenty-five estuaries located in twenty-one coastal states. See id. at 114–15.
95 See infra Part III.C.
96 Kalo et al., supra note 17, at 211; see Gibbons, supra note 88, at 101; Rychlak, supra note 63, at 987–88, 1004.
97 The CZMA requires that state performance be subject to “continuing review.” 16 U.S.C. � 1458(a) (2000). Such review occurs every three years or so. Kalo et al., supra note 17, at 219.
98 See 16 U.S.C. � 1458(c); Babcock, supra note 78, at 207 n.131.
99 See California v. Mack, 693 F. Supp. 821, 825–26 (N.D. Cal. 1988).
100 See Beatley et al., supra note 60, at 291.
101 This approach was approved early on:
The Court agrees with defendants that Congress never intended that . . . a management program . . . provide a “zoning map” which would inflexibly commit the state in advance of receiving specific proposals to permitting particular activities in specific areas. Nor did Congress intend . . . to require that such programs establish such detailed criteria that private users be able to rely on them as predictive devices for determining the fate of projects without interaction between the relevant state agencies and the user.
Am. Petroleum Inst. v. Knecht, 456 F. Supp. 889, 919 (C.D. Cal. 1978), aff’d, 609 F.2d 1306, 1315 (9th Cir. 1979). The court concluded that the national interest in siting offshore energy facilities, even as strengthened by the 1976 CZMA amendments, did not require state coastal plans to address national energy objectives more precisely. Id. at 919, 926.
102 See Gibbons, supra note 88, at 102–03.
103 For instance, the Massachusetts plan attempts to link (i.e., to “network”) a number of state programs, each of which has its own staff, its own regulations, and its own internal policies and operating procedures. See infra note 130.
104 Babcock, supra note 78, at 207 n.131; see N.J. Dep’t of Envtl. Prot. and Energy v. Long Island Power Auth., 30 F.3d 403, 421–22 (3d Cir. 1994).
105 See Babcock, supra note 78, at 206 (noting that a “state administers its coastal zone program without federal intrusion or even participation”).
106 16 U.S.C. � 1455(d)(8) (2000).
107 See Beatley et al., supra note 60, at 288.
108 “Inasmuch as Federal agencies are given a full opportunity to participate in the planning process, the Committee deems it essential that Federal agencies administer their programs . . . consistent with the States’ coastal zone management program[s].” Kuhse, supra note 81, at 85 n.55 (quoting the 1972 Senate Report); see also Kalo et al., supra note 17, at 203 (focus is on adequacy of state planning process, not substantive result); Gibbons, supra note 88, at 102.
109 See Robert D. Kahn, Siting Struggles: The Unique Challenge of Permitting Renewable Energy Power Plants, Electricity J., Mar. 2000, at 21, 25.
110 Because plenary federal review occurs only when a plan is first submitted or formally amended, the CZMA creates an incentive for states to prefer the general to the particular, and to prefer interpretation to revision. Others have noted that this federal-state tension appears to be endemic. See Hershman et al., supra note 77, at 116–17.
111 See Beatley et al., supra note 60, at 291 (noting a “wide variation in state responses”); Rychlak, supra note 63, at 985 & n.23 (noting the wide variety of concerns addressed by the CZMA).
112 See Hershman et al., supra note 77, at 116 n.5 (describing the five general program types identified in a National Oceanographic and Atmospheric Administration (NOAA) study).
113 Other examples are Rhode Island, Connecticut, New Jersey, South Carolina, and Louisiana. A recent but unofficial program classification was provided to the author on Aug. 21, 2003 by David W. Kaiser, Federal Consistency Coordinator, Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration (table on file with author).
114 See, for example, the North Carolina Coastal Area Management Act, N.C. Gen. Stat. �� 113A-100 to 113A-134.3 (1999), which is administered by the Division of Coastal Management of the North Carolina Department of Environment and Natural Resources.
115 More than 70% of approved state programs are networked. A fifth of these (Alaska, Hawaii, New York, Oregon, and Washington) include an enforceable local coastal component.
116 The CZMA itself provides for three basic arrangements: (1) direct state regulation; (2) state criteria guiding local implementation, backed by state review and enforcement; and (3) state review of program decisions for consistency with state coastal policy, with authority, after a hearing, to reject inconsistent decisions. 16 U.S.C. � 1455(d)(11) (2000).
117 This is not necessarily to agree with these allegations of harm, only to acknowledge them. If wind power is considered benign, the special problems of coastal regulation may recede. For all types of wind projects, though, the need for supportive federal policies and more direct demonstration of benefits will remain.
118 Beatley et al., supra note 60, at 297; Kahn, supra note 109, at 27 & n.21.
119 Cf., Gibbons, supra note 88, at 109 (noting that coastal management plans “encode state cost considerations”—which is another permutation of the spillover effect).
120 The point is that a relatively high percentage of coastal property not only is in private hands, but also is in the hands of a particularly affluent constituency. In Massachusetts, for instance, 73% of all coastal land was privately owned in 1990, with public access limited to an average of one spot every mile in urban areas and one every three miles in rural areas. The percentage of privately-owned land may have decreased to 59% by 2001, however. See Surfrider Found., State of the Beach 2003 (Massachusetts Summary), at http://beach.com/stateofthebeach/6-state/beach_access.asp?state=MA (last visited Jan. 12, 2004). Coastal settings can have a significant positive effect on property values and real estate prices. See Tenn. Valley Auth., Final Environmental Assessment—20-MW Windfarm and Associated Energy Storage Facility, app. F (Apr. 2002), http://www. tva.gov/environment/reports/windfarm/appendix_f.pdf (last visited Jan. 12, 2004); Okmyung Bin & Stephen Polasky, Valuing Inland and Coastal Wetlands in a Rural Setting Using Parametric and Semi-Parametric Hedonic Models 4–5, 18 (2003) (unpublished working paper) (finding large premium in property values for “ocean or sound frontage and for proximity to the ocean”), http://www.ecu.edu/econ/wp/03/ecu0305.pdf (last visited Jan. 12, 2004).
121 Telephone Interview with David W. Kaiser, Federal Consistency Coordinator, Office of Ocean and Coastal Resource Management, National Oceanic and Atmospheric Administration (Aug. 21, 2003) [hereinafter Kaiser interview].
122 Most of these seven documents were signed in 1977, a year before the Massachusetts coastal zone program obtained federal approval. They are very general in nature. For instance, the state Energy Facility Siting Board (EFSB), which must approve proposals to build all major power plants, has agreed to coordinate with the state’s coastal zone management office, recognize the state’s coastal plan, and act consistently with its policies. Mass. CZMP, supra note 85, at app. E. But the coastal plan imposes only one specific requirement on the EFSB—heightened review of projects in areas of critical environmental concern—and this has minimal if any impact on offshore wind power. Id. at 77. And the most specific requirement in the EFSB’s undated two-page memorandum of understanding with the coastal management office is that the former will require developers of proposed coastal power plants to suggest at least one inland alternative site. Id., at app. E. In mid-2003, all seven of the MOUs were in the process of revision. E-mail from Jane W. Mead, Senior Project Review Coordinator, Massachusetts Office of Coastal Zone Management, to Rusty Russell (Aug. 21, 2003, 19:36:01 EST) (on file with author).
123 Mass. CZMP, supra note 85, at app. E.
124 See Mass. Gen. Laws ch. 30, �� 61–62H (2002). The Massachusetts Environmental Policy Act (MEPA), unlike its federal counterpart, can require the mitigation of specified project impacts. Id. � 61; Mass. Regs. Code tit. 301, � 11.07(6)(j) (1998); see, e.g., Ellen Roy Herzfelder, Executive Office of Envtl. Affairs, Certificate of the Secretary of Environmental Affairs on the Final 2000 L.G. Hanscom Field Environmental Status and Planning Report, EOEA No. 5484/8696, at 5–6 (Aug. 14, 2003), http://www.state.ma. us/envir/mepa/pdffiles/certificates/FESPR8696.pdf (last visited Jan. 23, 2004).
125 Although the EFSB no longer assesses the need for proposed generating projects, it continues to review their environmental impacts and consistency with state energy policies. See Mass. Gen. Laws ch. 164, �� 69G, 69J, 69J1/4 (2002). As with other agency review involving coastal resources, the siting board typically relies on data developed in the MEPA environmental impact assessment process. Id.� 69L1/2. But, unlike other agencies, it is not required to do so. Id. � 69K1/2.
126 See, e.g., Mass. Regs. Code tit. 310, � 9.33(1) (2003); Mass. Office of Coastal Zone Mgmt., Executive Office of Envtl. Affairs, Environmental Permitting in Massachusetts 2–3 (2003), http://www.state.ma.us/czm/envpermittoc.htm (last visited Jan. 12, 2004).
127 For instance, the state’s Public Waterfront Act, Mass. Gen. Laws ch. 91, �� 1–63 (2002), may effectively bar near-shore wind projects unless they are deemed to be coastal uses. See Mass. Regs. Code tit. 310, �� 9.01 (definition of “infrastructure crossing facility”), 9.12, 9.21, 9.32(1)(a), 9.36(4), 9.51(2), 9.51(3)(a), 9.51(3)(e) (2000). Recently, the state’s Department of Environmental Protection (DEP), which administers chapter 91, determined that none of the pending proposals off the Massachusetts coast, see supra note 5, are water dependent, and therefore must obtain a variance, a cumbersome and uncertain process. See Letter from Philip Weinberg, Acting DEP Commissioner, to Ellen Roy Herzfelder, Secretary of the Massachusetts Executive Office of Environmental Affairs (May 26, 2003) (on file with author). The enforceable portion of the state’s coastal zone plan, however, is more ambiguous on this score. Compare Mass. CZMP, supra note 85, at 78 (stating that an energy facility is coastally dependent if, inter alia, it transmits energy from an energy facility in the coastal zone to an inland location), with Mass. CZMP, supra note 85, at 79 (energy facilities are not coastally dependent with the exception of those using ocean thermal, wave, or tidal power to generate electricity), and Mass. CZMP, supra note 85, at 81 (“wind power generation[] may be determined to be coastally dependent based on the nature of the specific project proposal”). Although the EFSB, to which the coastal plan’s offshore power provisions most directly relate, has the authority to waive virtually all state and local requirements, it has not done so for wind power. Mass. Gen. Laws ch. 164, �� 69K, 69K1/2 (2002). Conversely, the unenforceable portion of the state’s coastal plan “encourage[s] . . . the use of alternative [energy] sources such as solar and wind power,” provided they have “minimal impacts on coastal resources and uses.” Mass. CZMP, supra note 85, at 85 (Energy Management Principle #1). It even endeavors to “assist in locating appropriate sites . . . .” Id. Management principles are not enforceable coastal zone policies, and thus have no legal force. Id. at 11. On the other hand, the Ocean Sanctuaries Act, Mass. Gen. Laws ch. 132A, �� 12A–16F (2002)—which also is networked into the Massachusetts coastal program—expressly prohibits the construction of offshore electricity generating stations in the Cape Cod Ocean Sanctuary, which encompasses all of Cape Cod Bay and the state waters adjacent to the remainder of the Cape and its offshore islands. Although the relevant regulations are contradictory on this score, the Ocean Sanctuaries Act also may sharply limit or prohibit such development elsewhere. See Mass. Regs. Code tit. 302, �� 5.07–.08 (2003) (compare �� 5.07(1)(b) and 5.08(1) and (4)). Nearly all of the state’s waters are in one of five designated ocean sanctuaries. Telephone interview with Michael Gildesgame, Director, Office of Water Resources, Massachusetts Department of Conservation and Recreation (Aug. 8, 2003).
128 See Long Island’s Wind Potential, supra note 12, at Executive Summary i; see also supra note 35 and accompanying text.
129 The enforceable standards that network to other regulatory programs are expressed in such general terms as: “preserve,” “protect,” “restore,” “enhance,” “ensure that . . . potential adverse effects are minimized,” “giv[e] due consideration to,” “obtain the widest possible public benefit,” and “weigh the environmental and safety impacts.” Mass. CZMP, supra note 85, at 32, 38, 49, 57, 77. Although standards are essential to all regulatory systems, the breadth of these particular standards may impede efficient resolution of increasingly intense conflicts among diverse coastal interests.
130 See infra note 132 and accompanying text.
131 See infra note 132 and accompanying text.
132 See Kuhse, supra note 81, at 105 (observing that “[t]he CZMA encourages redundancy in local, state, and federal agencies . . . . The divided, excessive authority is costly, inconvenient, and erodes public confidence in government.”). Other commentators, if less insistent, have hardly been less critical. See, e.g., Beatley et al., supra note 60, at 286–87; Babcock, supra note 78, at 207.
133 Data in the table were collected by the author from the sources noted. In March 2003, Massachusetts Governor Mitt Romney announced an Ocean Management Initiative, followed in June by the appointment of a twenty-three-member Ocean Management Task Force. The task force is to “provide a structure for developing ocean management plans within state waters,” while reviewing existing conflicts and recommending regulatory changes. Near-shore wind power is one of a number of issues expected to influence discussion. See John Leaning, Ocean Protection Plan Outlined, Cape Cod Times, Dec. 5, 2003, http://www.capecodonline. com/special/windfarm/oceanprotection5.htm (last visited Jan. 23, 2004); Press Release, Executive Office of Envtl. Affairs, Massachusetts Ocean Management Task Force Named (June 4, 2003) http://www.state.ma.us/envir/eoea/pressreleases/060303_Ocean_Manage-ment_tf.pdf (last visited Jan. 12, 2004); Mass. Office of Coastal Zone Mgmt., Executive Office of Envtl. Affairs, Massachusetts Ocean Management Task Force, at http:// www.state.ma.us/czm/omitaskforce.htm (last visited Jan. 12, 2004).
134 See 16 U.S.C. � 1456(c) (2000).
135 Review standards and procedures differ slightly depending on whether the project is conducted directly by the federal government, or whether it is federally licensed, permitted, approved, or funded. Because the typical wind power project is privately promoted and seeks several federal permits and approvals, this Article will focus on licensing, permitting, and approvals under 16 U.S.C. � 1456(c)(3)(A) and (c)(3)(B). Whether a project is inside or outside of state waters, the most likely federal approvals are a section 10 permit from the U.S. Army Corps of Engineers under the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. � 403 (regarding construction in any navigable waterway), a determination from the Federal Aviation Administration under 14 C.F.R. �� 77.5(a), 77.13(a)(1), 77.23, 77.33(a)(2) (2003) (regarding structures more than 200 feet high), authorization from the U.S Coast Guard under 33 C.F.R. � 64.21 (regarding potential navigational hazards), and at least some review under the National Environmental Policy Act (NEPA), 42 U.S.C. �� 4321–4370d. See Mass. Regs. Code tit. 301, � 21.07(2) (1999) (listing activities requiring federal licenses because of their likely effect on the coastal zone). At this point, the contours of the regulatory process for offshore wind development are not fully charted. See Long Island’s Wind Potential, supra note 12, at 21.
136 With regard to federal permitting, the exact language is: “[a]fter final approval by the Secretary [of Commerce] of a state’s [coastal zone] management program, any applicant for a required Federal license or permit to conduct an activity, in or outside of the coastal zone, affecting any land or water use or natural resource of the coastal zone of that state shall provide . . . certification that the proposed activity complies with the enforceable policies of the state’s approved [coastal zone management] program . . . .” 16 U.S.C. � 1456(c)(3)(A) (2000). The provisions of section 1456(c)(3)(B), which apply to exploration and development of the Outer Continental Shelf, are similar. See id. � 1456(c)(3)(B). “Effect” is defined broadly to mean anything “reasonably foreseeable” that has an impact on coastal resources or coastal uses. 15 C.F.R. � 930.11(g) (2003). For a useful official summary of the entire process, see Federal Consistency Requirements, supra note 78.
137 E.g., Gibbons, supra note 88, at 101–10; Vestal, supra note 37, at 56–58. Compare Kuhse, supra note 81, and Scott C. Whitney et al., State Implementation of the Coastal Zone Management Consistency Provisions—Ultra Vires or Unconstitutional?, 12 Harv. Envtl. L. Rev. 67 (1988), with Jack Archer & Joan Bondareff, Implementation of the Federal Consistency Doctrine—Lawful and Constitutional: A Response to Whitney, Johnson & Perles, 12 Harv. Envtl. L. Rev. 115 (1988), and Duff, supra note 90, at 112–17.
138 The mere fact that consistency review exists could reasonably be expected to discourage or force the revision of some proposals. Nevertheless, as is true of NEPA, effects of this type are difficult to isolate, and even harder to subject to controlled study. See Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government’s Environmental Performance, 102 Colum. L. Rev. 903, 911 & n.25 (2002).
139 Cicin-Sain & Knecht, supra note 67, at 100 (“[F]or the first time, states could influence the conduct of federal activities inside and [at times] outside of state waters.”).
140 Compare Babcock, supra note 78, at 205 (stating that consistency provisions give states “considerable leverage”), with Kalo et al., supra note 17, at 217 (finding “little evidence that the states have abused any preemptive authority [consistency] may have given them”).
141 Sec’y of the Interior v. California, 464 U.S. 312, 315 (1984).
142 See Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, � 6201, 104 Stat. 1388, 1388-299 to -319 (1990); Andrew Solomon, Comment, Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990: Is There Any Point?, 31 Envtl. L. 151, 156 n.43 (2001).
143 It also extends landward to the inland edge of states’ coastal zones, the boundaries of which vary widely. See supra note 81. A large-scale wind farm sited in the terrestrial part of the coastal zone also would require federal approvals, see supra note 135, and most likely would “affect” the zone.
144 Compare Cicin-Sain & Knecht, supra note 67, at 198 (noting that consistency review “has worked well as a mechanism for ensuring harmony in the actions of federal and state agencies”), and Beatley et al., supra note 60, at 106 (concluding that “consistency doctrine . . . appears to strike a balance between state interests and national economic and security interests”), with Kuhse, supra note 81, at 78 (stating that the process is “fundamentally flawed,” “unfair and costly,” “superfluous,” and “obnoxious”).
145 As noted, developers will likely opt for sites in federal waters, if available. See supra note 128. Not only is federal permitting less politically and legally complex than its state counterparts, state regulations often will supply a number of independent bases for denying approval. See Rychlak, supra note 63, at 993. Many of these would do so even if they were not networked into the coastal program. In Massachusetts for example, much of the commonwealth’s territorial sea lies in one of five protected ocean sanctuaries, and its complex public trust protections, embodied in Mass. Gen. Laws ch. 91, apply to the entire seaward coastal zone. See supra note 127. At a more general level, a larger percentage of a given state’s coastal zone is likely to be subject to heavy regulation than the federal waters immediately beyond it. Even if this is not the case, the federal consistency mechanism may permit a state to review projects within its territorial waters, even projects it could not otherwise directly regulate. Finally, the consistency mechanism offers states some insurance against the potential preemptive effects of federal laws.
146 See, e.g., Sec’y of Commerce, Decision and Findings in the Consistency Appeal of the Virginia Electric and Power Company from an Objection by the North Carolina Department of Environmental, Health and Natural Resources 17 (May 19, 1994), http://www.ogc.doc.gov/ogc/czma/vepc.pdf (last visited Jan. 12, 2004); see also supra notes 145–46.
147 Kaiser interview, supra note 121.
148 16 U.S.C. �� 1453(16), 1456(c)(3)(A) (2000).
149 The test is whether “a defense or other national security interest would be significantly impaired were the activity not permitted . . . .” 15 C.F.R. � 930.122 (2003). This is a test not likely to be met by most civilian endeavors. Indeed, this provision has never been invoked to override a state finding. Federal Consistency Requirements, supra note 78, at app. D; Kaiser interview, supra note 121.
150 The Secretary must find that: (i) the proposal significantly or substantially furthers the national interest, as expressed in the CZMA’s congressional findings or declaration of policy, 16 U.S.C. �� 1451–1452 (both of which are very broad); (ii) the identified national interest outweighs the project’s adverse coastal impact; and (iii) no reasonable alternative exists that is consistent with the state’s enforceable coastal policies. 15 C.F.R. � 930.121. For the override petitions that have been denied (about half the total) the Secretary determined that the first criterion had not been met in 5% of the cases, the second one in 67% of the cases, and the third in 28% of them. Federal Consistency Requirements, supra note 78, at app. D.
151 The political winds also could be a major factor. Historically they have favored oil and gas, while shifting from mildly antagonistic towards, to modestly supportive of, wind power. In addition, wind developers are unlikely to match the resources that the oil and gas industry can marshal to prosecute consistency review before the Commerce Department. Finally, the regulations themselves contemplate an ad hoc review process—one not bound by precedent or even by the factual record developed before the state. See 15 C.F.R. � 930.121(c).
152 See Federal Consistency Requirements, supra note 78, app. D, at 1. This percentage is derived from all federal actions described by 16 U.S.C. � 1456(c)(1)(A), (c)(2), and (c)(3).
153 Federal Consistency Requirements, supra note 78, app. D, at 1, 5.
154 Id. at 5.
155 It has been noted, however, that large commercial projects may fare better than others in the consistency review process—at least if they involve offshore oil and gas exploration, an energy production strategy favored by several presidents. See Kuhse, supra note 81, at 101, 103.
156 See infra Part II.D. for further discussion of this point.
157 As the Ninth Circuit Court of Appeals recently noted, a license applicant may generally amend its application and resubmit it. California v. Norton, 311 F.3d 1162, 1171 (9th Cir. 2002).
158 Kaiser interview, supra note 121; see supra note 138.
159 Kalo et al., supra note 17, at 217.
160 15 C.F.R. � 930.4, added in 2000, directs applicants for federal licenses and permits to “cooperate with State agencies to develop conditions that, if agreed to [during state consistency review] . . . would allow the State agency to concur with the federal action.” 15 C.F.R. � 930.4(a) (2003). If bargaining fails, a state must describe the unsatisfied conditions in the consistency objection it makes to federal authorities. 15 C.F.R. � 930.4(b). For the state to prevail, those conditions must be needed to ensure consistency with enforceable state policies, although, as noted, enforceable policies may be derived from exceedingly broad standards. See supra notes 132–137 and accompanying text.
161 See Gibbons, supra note 88, at 101.
162 See, e.g., Stephanie Ebbert, Kennedy Retreats on Wind Farm Amendment, Boston Globe, July 31, 2003, at B1; Stephanie Ebbert, On Wind, Some Blow Hot and Cold, Boston Globe, June 17, 2003, at A1.
163 Kalo et al., supra note 17, at 193.
164 See Cicin-Sain & Knecht, supra note 67, at 103, 107–08; Gibbons, supra note 88, at 96.
165 Coastal Zone Management Act Amendments of 1976, Pub. L. No. 94-370, 90 Stat. 1013 (1976).
166 Am. Petroleum Inst. v. Knecht, 456 F. Supp. 889, 919, 922–23 (C.D. Cal. 1978), aff’d, 609 F.2d 1306 (9th Cir. 1979).
167 Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, � 6201, 104 Stat. 1388, 1388-299 to -319 (1990).
168 Potential impacts would, of course, include energy exploration on the Outer Continental Shelf. See Cicin-Sain & Knecht, supra note 67, at 114.
169 16 U.S.C. � 1456b(a)(8) (2000). The objectives on the list now number nine, and include the “[a]doption of procedures and policies to evaluate and facilitate the siting of public and private aquaculture facilities in the coastal zone . . . .” 16 U.S.C. � 1456b(a)(9). This provision was added in 1996. Coastal Zone Protection Act of 1996, Pub. L. No. 104-150, � 7(2), 110 Stat. 1380, 1382 (1996).
170 See Am. Petroleum Inst, 456 F. Supp. at 919 (“CZMA . . . [is] first and foremost a statute directed to and solicitous of environmental concerns.”); Gibbons, supra note 88, at 96.
171 See Coastal Zone Management Act Federal Consistency Regulations, 65 Fed. Reg. 77,124, 77,150 (Dec. 8, 2000) (codified at 15 C.F.R. pt. 930). This language may help to support consistency overrides under 15 C.F.R. � 930.121(a) (2003).
172 One factor that may exercise a subtle but continuing influence on perceptions of the CZMA is that this Act, unlike many other national environmental statutes, was fundamentally a creature of the legislative branch. Cicin-Sain & Knecht, supra note 67, at 101. It encompasses one of Congress’s earliest (and still one of its few) expressions of full-fledged environmental federalism. The irony of this extends beyond the Nixon administration. See supra notes 92–95 and accompanying text. States’ rights presidents like Ronald Reagan championed offshore oil and gas development, only to find themselves in head-to-head conflict with individual coastal states. Thus, the CZMA may continue to be relatively popular in part because it is viewed as a congressional gift of devolution.
173 While the capacity of poorly-sited wind generators to endanger birds cannot be dismissed, the fact remains that a number of recent, peer-reviewed studies conclude that fossil fuel generation shortens the lives of up to 60,000 people each year in the United States. See Abt Assocs., Inc., The Particulate-Related Health Benefits of Reducing Power Plant Emissions 6-4 (2000), http://www.catf.us/publications/reports/Abt_PM_report.pdf (last visited Jan. 12, 2004).
174 For an example of this, see Renewable Energy Policy Project, Offshore Wind Farm Approval Process, North Carolina 9 (undated report), available at http://www. repp.org/articles/static/1/binaries/REPP_Offshore_Wind_Approval.pdf (last visited Jan. 12, 2004).
[A]n offshore wind farm is a new concept. However, other coastal developments, such as oil and gas platforms, have been around for decades. . . . Offshore wind farms and oil/gas platforms are similar in that both (a) are energy-related activities, (b) require the installation of structures in U.S. navigable waters, (c) are potentially visible from the shoreline, and (d) may affect the coastal zone.
Id.
175 The range of activities that can affect the coastal zone may be expansive enough to encompass the aesthetic impacts of wind turbines. See 15 C.F.R. � 930.11(g) (2003); H.R. Conf. Rep. No. 101-964, at 970 (1990), reprinted in 1990 U.S.C.C.A.N. 2374, 2675 (“the term ‘affecting’ is to be construed broadly”). Indeed, states may be encouraged in this direction, given that the U.S. Army Corps of Engineers also interprets its section 10 jurisdiction very expansively—expressly considering aesthetics, for example. 33 C.F.R. � 320.4(a)(1) (stating that � 10 review requires “careful weighing of all those factors which become relevant in each particular case,” including aesthetics, economics, general environmental concerns, energy needs, navigation, and sixteen others); see supra note 136.
176 See National Energy Policy Recommendations, supra note 9, at 6, 21 (proposing increased use of renewable resources on federal lands, but barely mentioning offshore wind power).
177 See Beatley et al., supra note 60, at 102.
178 See Babcock, supra note 78, at 205–08.
179 E.g., Oliver A. Houck, Ending the War: A Strategy to Save America’s Coastal Zone, 47 Md. L. Rev. 358, 362 (1988) (“We have created a Dr. Seuss-like machine that produces occasionally good, but more often poor, compromises at the end of an elaborate pipeline.”).
180 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
181 Id (Brandeis, J., dissenting); see Babcock, supra note 78, at 207; Richard L. Revesz, Federalism and Environmental Regulation: A Public Choice Analysis, 115 Harv. L. Rev. 553, 558, 583 (2001) (contending that many state environmental initiatives are stronger than their federal counterparts).
182 See Babcock, supra note 78, at 208.
183 See supra Part II.B.3.b. Professor Revesz, who is no proponent of command-and-control regulation, observes: “The presence of interstate externalities is a compelling argument for federal regulation”—particularly in the face of “large-scale and complex environmental problems” and the “shifting composition of affected states”—either of which “makes cooperation even less likely.” Revesz, supra note 181, at 557 n.3; see Gibbons, supra note 88, at 100 (noting that decentralized approaches may fail to account for free-rider and holdout effects). In addition, decentralization action may exclude a significant number of citizens from essential decisionmaking processes. Id. at 99.
184 See Kahn, supra note 109, at 21–23.
185 See Beatley et al., supra note 60, at 283 (“current planning and management systems are . . . not up to the challenge” posed by contemporary coastal conflicts).
186 See D. Douglas Hopkins et al., An Environmental Critique of Government Regulations and Policies for Open Ocean Aquaculture, 2 Ocean & Coastal L.J. 235, 257–58 (1997); Rieser, supra note 85, at 231 (suggesting that National Oceanic and Atmospheric Administration (NOAA) alone, or NOAA, EPA, the U.S. Coast Guard, and the U.S. Army Corps of Engineers should oversee aquaculture); Englebrecht, supra note 62, at 1206 (proposing National Marine and Fisheries Service for this role).
187 See generally Archer & Jarman, supra note 74, at 253–71 (suggesting that the coastal management vacuum be filled by an invigorated public trust doctrine—a set of common law principles developed and enforced primarily by each coastal state’s court system).
188 See Cicin-Sain & Knecht, supra note 67, at 284 (stating that given existing contradictions and competing interests, “[i]t would be virtually impossible . . . to design and implement an ‘ideal’ multiple-use ocean management system in the United States.”).
189 Although offshore wind generators may earn points for helping to create artificial reefs or serving as tourist attractions, the major benefits they provide are not directly water-related. Given the distinct advantages of offshore siting, however, this does not mean that such generation should not constitute a water- or coastally-dependent use. See supra Part I and note 127.
190 See Beatley et al., supra note 60, at 287 (calling for a “national coastal management policy” that would adopt a “more integrative framework”).
191 See Rieser, supra note 85, at 231–34.
192 One way to do so would be to require a demonstration that significant environmental or other public benefits will be sacrificed unless those benefits are incorporated into the decisionmaking process. On the other hand, if this approach cannot be so limited, it may serve to promote less benign activities, such as the siting of offshore oil platforms or a nuclear power plant on the shore.
193 See Kahn, supra note 109, at 21–22. For renewables, “it is the site that chooses the project, not the reverse.” Id. at 22.
194 One should avoid irrational exuberance: the “best” areas from the standpoint of project economics and physics may be far from best in the eyes of some of the neighbors. That is apparently what has happened to the Cape Wind project off Cape Cod. See supra notes 6, 31.
195 Indeed, that a major objective of terrestrial zoning has been discriminatory exclusion is additional reason for an approach that does not simply copy the land-based model. See Richard Briffault, Our Localism: Part II—Localism and Legal Theory, 90 Colum. L. Rev. 346, 366–75 (1990). Contra Houck, supra note 179, at 366–67 & n.39.
196 See Renewable Energy Policy Project, Offshore Wind Farm Approval Process, North Carolina 3–4, 8, http://www.repp.org/articles/static/1/binaries/REPP_Off-shore_Wind_Approval.pdf (last visited Jan. 12, 2004) (discussing submerged land leases for projects sited on the sea bed in state waters, which could serve as a model for revenue-sharing requirements).
197 See Rusty Russell, Equity in Eden: Can Environmental Protection and Affordable Housing Comfortably Cohabit in Suburbia?, 30 B.C. Envtl. Aff. L. Rev. 437, 476 (2003).
198 Vestal, supra note 37, at 74, 76.
199 Id. at 75–76; see Or. Dep’t of Land Conservation & Dev., Statewide Planning Goals and Guidelines, Goal 19: Ocean Resources 3–4 (Dec. 1 2000), http://www.lcd. state.or.us/goalpdfs/goal19.pdf (last visited Jan. 12, 2004); cf. Or. Policy Advisory Council, State of Oregon Territorial Sea Plan, Part Two: Making Resource Use Decisions, A.2.e(2)(a)i, A.2.e(2)(a)vii (permitting limited pilot projects if solely to provide needed information), http://www.lcd.state.or.us/coast/offshore/otsp_2-a.pdf (last visited Jan. 12, 2004).
200 A commercial-scale “pilot”—from which much about the physics, environmental stewardship, economics, and regulatory design could be learned—would be an example of “adaptive management.” See Karkkainen, supra note 138, at 939 & n.148 (“[A]daptive management” is an “approach that seeks to respond to changing conditions or subsequently acquired knowledge.”). Here, such an approach would in effect create one or a limited number of vanguard projects, with the goal being to design (or at least refine) the regulatory program around their actual, rather than forecast, operation. See id.
201 See supra note 127 (discussion of Mass. Gen. Laws ch. 91, which embodies the commonwealth’s public trust doctrine).
202 See Beatley et al., supra note 60, at 298 (unified, top-down approach is “unfeasible politically and legally and probably . . . undesirable,” given that “[e]ach jurisdictional level has a special interest”).
203 See generally Jay Wickersham, Sacred Landscapes and Profane Structures: How Offshore Wind Power Challenges the Environmental Impact Review Process, 31 B.C. Envtl. Aff. L. Rev. 325 (2004).
204 Doubts on this score might be addressed by a brief review of current televised automobile advertising.
205 The contemporary challenge may no longer be how to protect an environment in crisis, but “[h]ow to integrate nature and humanity. . . . [T]o solve that problem, we must address what nature means in a world dominated by human impacts . . . .” Holly Doremus, The Rhetoric and Reality of Nature Protection: Toward a New Discourse, 57 Wash. & Lee L. Rev. 11, 15 (2000). “[T]he rhetoric of nature protection must include people in the picture. It cannot simply rely on the wilderness vision of nature . . . isolated from humanity . . . .” Id. at 66. With regard to offshore wind energy, much room for adaptation remains. See, e.g., Proposal for Incorporating Biological Significance into Wind Energy Macrositing Decisions, Memorandum from Judy K. Dunscomb, The Nature Conservancy, to attendees of Virginia Wind Energy Collaborative/Environmental Group Meeting (June 11, 2003) (on file with author).
206 They include instructive counter-examples. See, e.g., Nils Bolgen, Mass. Renewable Energy Trust, New England Wind Projects That Did Not Get Permitted or Built (Oct. 24, 2001), http://www.nationalwind.org/events/newengland/presentations/ bolgen.pdf (last visited Jan. 12, 2004).
207 See supra note 3 and accompanying text.