* Guy R. Martin is a partner in the Washington, D.C., office of the law firm of Perkins Coie LLP.
** Odin A. Smith is an associate in the Washington, D.C., office of the law firm of Perkins Coie LLP.
1 See Cape Wind Associates, LLC, Application for Department of the Army Permit, New England District, for Section 10 Permit (Nov. 21, 2001) (on file with author), http://www.nae.usace.army.mil (last visited Jan. 23, 2004).
2 See Frederick Melo, Wind Farm Delay Urged, Cape Cod Times, Nov. 3, 2003, available at http://www.capecodonline.com/special/windfarm/delayurged7.htm; see also Cape Wind, Energy for Life, at http://www.capewind.org/ (last visited Dec. 17, 2003) (providing general information about Cape Wind Associates (Cape Wind)).
3 See Melo, supra note 2; see also Cape Wind, supra note 2.
4 See Mass. Gen. Laws ch. 25A, � 11F (2002).
5 See id. ch. 25, � 20 (2002).
6 This is a federal tax credit, last extended in Pub. L. No. 107-147, which expired on December 31, 2003. Job Creation and Worker Assistance Act of 2002, Pub. L. No. 107-147, 116 Stat. 21 (2002). A further extension is found in the omnibus energy bill, which may or may not pass, but it is expected that even if the energy bill does not pass, the tax credit will eventually be passed in some other legislative vehicle, with retroactive effect. See generally Union of Concerned Scientists, Update on Tax Credits for Renewables (2002) (detailing the extension of the tax credit for wind energy through December 31, 2003), at http:// www.ucsusa.org/clean_energy/renewable_energy/page.cfm?pageID=121 (last modified Oct. 29, 2002).
7 See generally Cape Wind, Project Overview: Table of Contents, at http://www. capewind.org (last visited Feb. 27, 2004) (providing general information about the Cape Wind project).
8 See 43 U.S.C. � 1333(a)(1) (2000).
9 43 U.S.C. �� 1331–1332 (2000).
10 Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. �� 9101–9168 (2000).
11 Deepwater Port Act, 33 U.S.C. �� 1501–1524 (2000).
12 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), appeal docketed, No. 03-2604 (1st Cir. Nov. 24, 2003).
13 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 (indicating that a speculator from Winergy has identified another seventeen potential plant sites along the East Coast and has indicated that his company’s intent is to “corner the best offshore sites for future wind-farm development”); see also Cape Cod Times, Proposed Nantucket Sound Wind Farms (2004) (posting the most recent developments regarding the controversy generated by Cape Wind’s project proposed for Nantucket Sound), at http://www.capecodonline.com/special/windfarm (last visited Jan. 23, 2004).
14 See Leaning, supra note 13; see also Cape Cod Times, supra note 13.
15 See Charles M. Sennott, Denmark’s Windmills Flourish as Cape Cod Power Project Stalls, Boston Globe, Sept. 22, 2003, at A1 (describing the picturesque beauty of wind power facilities in Europe, where they are seen as a “proud symbol” of environmental consciousness, and the surprise of Cape Wind executives that a similar project in Nantucket Sound has met such vehement opposition).
16 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 67, 78 (challenging Cape Wind’s project on the basis of environmental concerns as well as the lack of a regulatory framework governing its construction); see also Alliance to Protect Nantucket Sound, Save our Sound—Protecting Nantucket Sound from Industrialization (2004) (detailing the arguments asserted by this group of “dedicated environmental and business professionals who have long ties to the Cape” against permitting the construction of the wind energy plant in Nantucket Sound), at http://www.saveoursound.org (last visited Jan. 24, 2004).
17 See 33 U.S.C. � 403 (2000).
18 See discussion infra Part III and accompanying notes.
19 See discussion infra Part III and accompanying notes.
20 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 72, 77–78.
21 See discussion infra Part II.A.
22 See discussion infra Part II.B.
23 See discussion infra Part I.A.
24 See, e.g., 43 U.S.C. � 1332 (2000).
25 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 67 (outlining the controversy surrounding the Corps’s issuance of a section 10 permit to Cape Wind pursuant to 33 U.S.C. � 403). Other federal legislation, such as the Outer Continental Shelf Lands Act (OCSLA), establish comprehensive regulatory provisions governing private development of federal lands regarding granting property rights, subjecting entities to a competitive bidding process, and collecting royalties from private entities that use them. See generally 43 U.S.C. � 1331–1356. No such regulatory framework exists for wind energy projects, and the federal government would collect no revenue from Cape Wind. See Letter from Rebecca W. Watson, Assistant Secretary of the Interior for Land and Minerals Management, to the Honorable Richard B. Cheney, President of the Senate 1 (June 20, 2002) (discussing the lack of federal regulations regarding the utilization of the Outer Continental Shelf (OCS) for non-oil and gas related activities) (on file with author) [hereinafter Watson Letter].
26 See 33 C.F.R. � 325.3(c)(1) (2003) (mandating that the Corps consider “the cumulative effects” of issuing section 10 permits, including “conservation, economics, aesthetics, [and] general environmental concerns”).
27 See discussion and notes infra Part III.A.
28 See, e.g., Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 78. In challenging the Corps’s issuance of a section 10 permit to Cape Wind, Plaintiffs allege that the Corps
failed to comply with [the National Environmental Policy Act] in the following ways: (1) it did not circulate the [environmental assessment] and [finding of no significant impact statement] for public comment, (2) it did not adequately consider alternatives to the data tower, (3) it acted improperly in reviewing the data tower application apart from the wind energy plant application, and (4) it did not consider the environmental effects of removal of the data tower.
Id.
29 420 U.S. 515, 524–27 (1975) (citing the Submerged Lands Act (SLA), 43 U.S.C. � 1301, and the OCSLA, 43 U.S.C. � 1332(a)).
30 Id. at 526–28.
31 Id. at 518–19 (looking to the three prior cases and declining to overrule their holdings, stating “California, Louisiana, and Texas rule the issues before us.”).
32 332 U.S. 19, 19 (1947), supplemented by 332 U.S. 804, 805 (1947) (order and decree).
33 339 U.S. 699, 699 (1950), judgment entered by 340 U.S. 899, 899 (1950).
34 339 U.S. 707, 707 (1950), judgment entered by 340 U.S. 900, 900 (1950).
35 332 U.S. at 38–39. “[P]aramount rights” and “full dominion” encompass “ownership.” Id.
36 See id. at 26–27.
37 Id. at 29.
38 The territorial sea has since been extended to 12 nautical miles by President Reagan in 1988. Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988). The Proclamation, however, specifically declined to “extend[] or otherwise alter[] existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom.” Id.
39 Louisiana, 339 U.S. at 705.
40 Texas, 339 U.S. at 717–20.
41 Louisiana, 339 U.S. at 701; Texas, 339 U.S. at 709.
42 Louisiana, 339 U.S. at 705.
43 United States v. Louisiana, 340 U.S. 899, 899 (1950).
44 United States v. Texas, 340 U.S. 900, 900–01 (1950).
45 See Texas, 339 U.S. at 711.
46 Id. at 707, 712.
47 Id. at 713.
48 Id. at 718.
49 Id. at 719 (emphasis added).
50 Id.
51 See Texas, 339 U.S. at 719–20.
52 See 43 U.S.C. � 1332 (2000) (detailing congressional policy regarding federal jurisdiction over the OCS).
53 See generally 43 U.S.C. �� 1331–1356.
54 See, e.g., 33 U.S.C. �� 1501–1524 (authorizing regulatory authority regarding “the location, ownership, construction, and operation of deepwater ports in waters beyond the territorial limits of the United States”); 42 U.S.C. �� 9101–9168 (outlining regulations regarding “the construction, location, ownership, and operation of ocean thermal energy conversion facilities connected to the United States by pipeline or cable, or located in whole or in part between the high-water mark and the seaward boundary of the territorial sea of the United States”).
55 Watson Letter, supra note 25, at 1.
56 Id.; see H.R. 5156, 107th Cong. (2002).
57 Administration Legislation on Energy Related Uses of the OCS: Hearing on H.R. 5156 Before the House Subcomm. on Energy and Mineral Res., Comm. on Res., 107th Cong. 4 (2002) (statement of Johnnie Burton, Director, Minerals Mgmt. Serv.), available at http://www.mms. gov/ooc/newweb/congressionalaffairs/testimony72502.htm (last visited Jan. 23, 2004).
58 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).
59 Id. at 82.
60 See id. at 70–71.
61 See 33 C.F.R. �� 329.12(a), 320.2(b) (2003). Compare 33 C.F.R. � 322.3(a)(2003), with 33 C.F.R. � 322.3(b). Section 10 prohibits unauthorized obstructions to “the navigable capacity of any of the waters of the United States.” 33 U.S.C. � 403. Congress, in enacting the RHA (which replaced the Rivers and Harbors Act of 1890, and used the same language as the 1890 Act), “adopted the judicial definition of those waters as of 1890.” United States v. Stoeco Homes, Inc., 498 F.2d 597, 609 (3d Cir. 1974); see also Minnehaha Creek Watershed Dist. v. Hoffman, 597 F.2d 617, 622 (8th Cir. 1979). As of 1890, the navigable waters of the United States extended seaward three nautical miles, the extent of the territorial sea, beyond which were the high seas. See United States v. California, 332 U.S. 19, 32–33 n.16 (1947) (summarizing the history of the three-mile territorial sea, and noting that the first official American claim to a three-mile territorial sea was made in 1793 and has since won general international acceptance).
62 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 72–73 (citing 43 U.S.C. � 1333(a)(1),(e) (2000)); see also 33 C.F.R. �� 329.12(a), 322.3(b), 320.2(b) (recognizing section 10 jurisdiction as extending beyond the three-mile territorial sea limit on the OCS).
63 See 43 U.S.C. � 1333(a)(1), (e) (2000).
64 See 43 U.S.C. � 1333(f) (1953).
65 43 U.S.C. � 1333(e) (2000) (emphasis added).
66 Id. � 1333(a)(1) (extending federal law to such installations) (emphasis added).
67 “Natural resources” as defined in the Submerged Lands Act, companion legislation to the OCSLA, “includes, without limiting the generality thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life but does not include water power, or the use of water for the production of power.” Id. � 1301(e) (emphasis added).
68 Id. � 1331(k)–(m), (q). Not surprisingly, wind energy projects on non-OCS public lands are not considered the extraction of minerals, but rather are permitted as grants of rights-of-way under Title V of the Federal Land Policy and Management Act of 1976. Id. �� 1761–1771 (2000); Instruction Memorandum No. 2003–020 from Kathleen Clarke, Director of the Bureau of Land Management, to All Field Officials (Oct. 16, 2002), available at http://www.blm.gov/nhp/efoia/wo/fy03/im2003-020.htm (last visited Feb. 11, 2003).
69 See 43 U.S.C. � 1332.
70 See generally id. �� 1331–1356.
71 33 U.S.C. �� 1501–1524.
72 42 U.S.C. �� 9101–9168.
73 33 U.S.C. � 1503(c)(7).
74 See 42 U.S.C. � 9111(c)(3).
75 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 75 (D. Mass. 2003) (quoting from 43 U.S.C. � 1333(a)).
76 Id (quoting from 43 U.S.C. � 1333(a)).
77 See id. at 73.
78 See id. at 73–74 (citing H.R. Conf. Rep. No. 95-1474, at 82 (1978), reprinted in 1978 U.S.C.C.A.N. 1674, 1681).
79 Controlling law is quite clear that the unambiguous language of the statute controls if it is in conflict with an interpretation suggested in legislative history or claimed by the Corps. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992) (“When the words of a statute are unambiguous, then, . . . ‘judicial inquiry is complete.’”); Ciampa v. Sec’y of Health & Human Servs., 687 F.2d 518, 525 (1st Cir. 1982) (stating that legislative history should be used “‘to resolve ambiguities and not to create them’” (quoting Mass. Fin. Servs., Inc. v. Sec. Investor Prot. Corp., 545 F.2d 754, 757 n.7 (1st Cir. 1976))).
80 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 76–78.
81 33 C.F.R. � 325.1(d)(7)(2003).
82 Id. � 320.4(g)(6).
83 See H.R. 5156, 107th Cong. (2002); Watson Letter, supra note 25, at 1.
84 See U.S. Const. art. IV, � 3, cl. 2 (“The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .”). The Court has clarified the meaning of this clause, stating that “the power over the public land thus entrusted to Congress is without limitations.” See Kleppe v. New Mexico, 426 U.S. 529, 539 (1976).
85 Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 77.
86 See id. (quoting 33 C.F.R. � 320.4(g)(6)).
87 Id. at 77–78.
88 33 C.F.R. � 325.1(d)(7) (2003).
89 See id. � 320.4(g)(6).
90 See id. (“The applicant’s signature on the application [for a section 10 permit] is an affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application.”). Despite this provision, the Corps has insisted that, based on its own interpretation of its regulations, it was not required to address the property issue surrounding the Cape Wind Project. See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 77.
91 See 43 U.S.C. � 1332(1), (3) (2000).
92 See AT&T v. FCC, 836 F.2d 1386, 1388, 1390 (D.C. Cir. 1988). Here, the court of appeals held an administrative order to be arbitrary and capricious because its predictable result would be to undermine the agency’s own policy. Id.; accord Ohio Bell Tel. Co. v. FCC, 949 F.2d 864, 873 (6th Cir. 1991); see also Roman v. Korson, 918 F. Supp. 1108, 1114 (W.D. Mich. 1995) (holding regulatory loophole to be arbitrary and capricious because “its end result is as predictable as it is dire”); Boston & Me. R.R. v. United States, 202 F. Supp. 830, 837 (D. Mass. 1962) (finding administrative order lacking in rational basis in part because it would lead to an absurd result if pressed to its logical conclusion).
93 43 U.S.C. � 1332(3) (emphasis added).
94 42 U.S.C. � 9101(a)(1) (emphasis added).
95 33 U.S.C. � 1501(a)(1) (emphasis added).
96 Indeed, any unauthorized use of the OCS would constitute common law trespass. 43 U.S.C. � 1333(a)(2)(A) (extending as federal law the criminal and civil laws of adjacent states to the OCS).
97 See, e.g., Wilson v. Hudson County Water Co., 76 A. 560, 565 (N.J. Ch. 1910).
Section 10 may be searched in vain for the discovery of any affirmative grant of right or power for the construction of any instrumentality of commerce. The section is entirely negative and prohibitive in character. It is intended to prevent obstruction to navigation, and that alone. . . . To say that it is authority for the prosecution of a work or works in or under any of the navigable waters of the United States, unless those works have first been affirmatively authorized by proper authority, either state or federal, is in my judgment to give the section a meaning which is unsupported by any rule of construction known to the law.
Id.
98 See Rivers and Harbors Appropriation Act of 1899, ch. 907, � 10, 26 Stat. 426, 454 (codified as amended at 33 U.S.C. � 403 (2000)).
99 See Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 12 (1888).
100 See U.S. Army Corps of Eng’rs, Brief History: Environmental Activities, at http://www.usace.army.mil/history/brief3.htm (last visited Jan. 24, 2004).
101 33 C.F.R. � 320.4(a) (2003).
102 See id.
103 See Watson Letter, supra note 25, at 1.
104 See H.R. 5156, 107th Cong. (2002); Watson Letter, supra note 25, at 1.
105 See, e.g., 43 U.S.C. �� 1331–1356 (2000).
106 See Deepwater Port Act, 33 U.S.C. �� 1501–1524 (2000); Ocean Thermal Energy Conservation Act, 42 U.S.C. �� 9101–9168 (2000); Outer Continental Shelf Lands Act, 43 U.S.C. �� 1331–1356 (2000).
107 See 33 U.S.C. �� 1501–1524; 42 U.S.C. �� 9101–9168; 43 U.S.C. �� 1331–1356.
108 See 33 U.S.C. � 403 (mandating that “[t]he creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited . . . except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army” but failing to offer the specific guidelines found in other statutes regarding the development and use of federal lands).
109 See 33 C.F.R. � 320.4(a) (2003). For example, in Alliance to Protect Nantucket Sound, the court affirmed the Corps’s authority under the OCSLA to regulate non-extractive structures, stating that 33 C.F.R. � 320.4(a) simply requires that it “should consider, among other things environmental factors.” See 288 F. Supp. 2d 64, 76 (D. Mass. 2003).
110 See 33 C.F.R. � 320.4(a)(2) (stating that “[w]here there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work” will be considered, but focusing on the issue of navigability and not necessarily other concerns such as aesthetics).
111 See id.
112 See 43 U.S.C. �� 1331–1332.
113 See H.R. Rep. No. 413, at 1–2 (1953), reprinted in 1953 U.S.C.C.A.N. 2177, 2177–78.
114 See Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, 92 Stat. 629 (1978) (codified at 43 U.S.C. � 1801(7)) (“[T]he Outer Continental Shelf contains significant quantities of oil and natural gas and is a vital national resource reserve which must be carefully managed so as to realize fair value, to preserve and maintain competition, and to reflect the public interest . . . .”).
115 See H.R. Rep. No. 413, at 1–2 (1953), reprinted in 1953 U.S.C.C.A.N. 2177, 2177–78.
116 See Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, 92 Stat. 629 (1978) (codified at 43 U.S.C. � 1332(4)) (recognizing the need for “effective management” of the OCS and providing specific guidelines to achieve this end).
117 See id.
118 See 43 U.S.C. � 1332 (2000). This provision outlines the role of federal, state, and local government in the development of the OCS. Id. It also requires that these lands be developed “in a safe manner by well-trained personnel using technology, precautions, and techniques sufficient to prevent or minimize the likelihood of blowouts, loss of well control, fires, spillages, physical obstruction to other users of the waters or subsoil and seabed, or other occurrences which may cause damage to the environment or to property, or endanger life or health.” Id. � 1332(6).
119 See id. � 1332.
120 See id.
121 See id.
122 See id. � 1332(3).
123 See id.
124 Id.
125 See 43 U.S.C. � 1332.
126 See Melo, supra note 2; see also Cape Wind, supra note 2 (indicating that Cape Wind’s project will cover twenty-four square miles of the OCS).
127 See 43 U.S.C. � 1332(4)(A)–(B).
128 Id. � 1332(5).
129 Id. � 1332(4)–(5).
130 Id.
131 See id. � 1332.
132 H.R. Rep. No. 95-590, at 54 (1977), reprinted in 1978 U.S.C.C.A.N. 1450, 1461 (emphasis added).
133 Id.
134 See id.; see also U.S. Const. art. IV, � 3, cl. 2.
135 See H.R. Rep. No. 95-590, at 54 (1977), reprinted in 1978 U.S.C.C.A.N. 1450, 1461.
136 See id.
137 See id. at 127.
138 See id.
139 See id.
140 See id.
141 See 43 U.S.C. � 1332 (2000).
142 See id. �� 1331–1356.
143 See generally 33. C.F.R. �� 350–382 (2003).
144 43 U.S.C. � 1344(a).
145 Id.
146 Id. � 1344(a)(4).
147 Id. � 1344(b).
148 Id. � 1344(e).
149 Id. � 1344(f).
150 43 U.S.C. �� 1344(a)(3), 1345, 1346.
151 See generally 30 C.F.R. �� 250–282 (2003).
152 See id.
153 See id. �� 251–282.
154 See generally 30 C.F.R. � 256.
155 Compare 33 C.F.R. � 320.4(a), with 30 C.F.R. �� 250–282.
156 See 33 U.S.C. � 403 (2000).
157 See 43 U.S.C. �� 1344–1346 (outlining congressional guidelines regarding the use of the OCS for extracting oil and gas); H.R. Rep. No. 95-590, at 54, 127 (1977), reprinted in 1978 U.S.C.C.A.N. 1450, 1461 (detailing the congressional intent that use of the OCS for natural resources must be in an orderly fashion and under proper federal oversight).
158 43 U.S.C. �� 1701–1785.
159 Id. �� 1732(b), 1761(a).
160 Id. � 1712(a)–(c).
161 Id. � 1712.
162 Id. �� 1711(a), 1712(c)(3).
163 Id. �� 1734, 1751, 1764(g).
164 43 U.S.C. � 1761(a)(4).
165 See Instruction Memorandum No. 2003–020 from Kathleen Clarke, Director of the Bureau of Land Management, to All Field Officials (Oct. 16, 2002), available at http:// www.blm.gov/nhp/efoia/wo/fy03/im2003-020.htm (last visited Feb. 11, 2004); Notice of Intent, 68 Fed. Reg. 59,814 (Oct. 17, 2003).
166 42 U.S.C. �� 9101–9168.
167 See id. � 9111.
168 See id. � 9111(c).
169 See id. � 9111.
170 See id. �� 9117–9118.
171 See id. � 9115.
172 See 33 U.S.C. �� 1501–1524 (2000).
173 Id. � 1503.
174 See id. � 1503(b).
175 See id. �� 1505–1506, 1509.
176 See id. � 1508.
177 See 16 U.S.C. �� 1801–1883.
178 See id. � 1851.
179 See id. �� 1852–1853.
180 See id. � 1852.
181 See id. � 1855(b).
182 See id. � 1856(a)(2)(B).
183 See 30 U.S.C. �� 1001–1028.
184 Compare id., with 43 U.S.C. �� 1331–1332.
185 30 U.S.C. � 1002.
186 Id. �� 1003–1004.
187 Id. � 1014(c).
188 Id. � 1002.
189 See, e.g., National Forest Management Act of 1976 (NFMA), 16 U.S.C. �� 1600, 1611–1614, 472a, 512b (2000); Surface Mining Control and Reclamation Act of 1977 (SMCRA), Pub. L. No. 95-87, 91 Stat. 445 (codified as amended in scattered sections of 30 U.S.C.); Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. �� 1701–1782 (2000).
190 See 43 U.S.C. �� 1334–1344. In statutes such as the OCSLA, Congress has set out detailed guidelines regarding leasing fees and other revenue to be generated from private development of the OCS. Id. The section 10 permitting process lacks a similar scheme, and will not ensure that the federal government is fairly compensated for Cape Wind’s use of public lands. Compare 43 U.S.C. �� 1334–1344, with 33 U.S.C. � 403.
191 See Save Our Sound, The Worst Location, at http://www.saveoursound.org/ bestworst.html (last visited Feb. 6, 2004) (expressing concern that 130 turbines in Nantucket Sound will lessen the historic appeal of this area and lead to a loss of tourism).
192 See U.S. Dep’t of Energy, Mission (stating that the department’s overarching goal is to “advance the national, economic and energy security of the United States”), at http://www.doe.gov/engine/content.do?BT_CODE=AD_M (last visited Jan. 24, 2004).
193 See Fed. Energy Regulatory Comm’n, About FERC (indicating the mission of the department is to “regulat[e] and oversee[] energy industries in the economic and environmental interest of the American public”), at http://www.ferc.gov/about/about.asp (last visited Jan. 24, 2004).
194 See Minerals Mgmt. Serv., About the Minerals Management Service (“The Minerals Management Service (MMS), a bureau in the U.S. Department of the Interior, is the Federal agency that manages the nation’s natural gas, oil and other minerals resources on the outer continental shelf.”), at http://www.mms.gov/aboutmms/ (last visited Jan. 24, 2004).
195 See Nat’l Oceanic & Atmospheric Admin., Message from the Undersecretary—Annual Guidance Memorandum FY 06, 1 (2003) (indicating that this agency provides a vision in areas of ecosystems, climate, weather and water, and commerce and transportation), available at http://www.noaa.gov/images/agm.pdf (last visited Jan. 24, 2004).
196 See 33 C.F.R. � 320.4 (2003) (discussing the role these agencies play in evaluating the merits of private development of the OCS).
197 See U.S. Fish & Wildlife Serv., Conserving the Nature of America 2 (1999) (declaring the mission of the service to “conserve, protect, and enhance fish, wildlife, plants and their habitats”), http://training.fws.gov/library/Pubs/conserving.pdf (last visited Jan. 24, 2004).
198 Nat’l Marine Fisheries Serv., NOAA Fisheries (stating that the agency is “dedicated to the stewardship of living marine resources through science-based conservation and management, and the promotion of healthy ecosystems”), at http://www.nmfs.noaa. gov/ (last visited Jan. 24, 2004).
199 See Advisory Council on Historic Pres., About ACHP: General Information (2002) (declaring the organization’s mission to “promote the preservation, enhancement, and productive use of our Nation's historic resources, and advise the President and Congress on national historic preservation policy”), at http://www.achp.gov/aboutachp.html (last visited Jan. 24, 2004).
200 See U.S. Army Corps of Eng’rs, Environmental Impact Statement: Scope of Work, Wind Power Facility Proposed by Cape Wind Associates, LLC 6 (2002) (noting that the project needs to “fulfill the requirements of Section 106 of [the] National Historical Preservation Act including coordination with the State Historic Preservation Officer,” independent of its section 10 requirements), available at http://www.nae.usace.army.mil/ proects/ma/ccwf/windscope.pdf (last visited Feb. 6, 2004) [hereinafter Environmental Impact Statement].
201 See U.S. Army Corps of Eng’rs, Who we Are, at http://www.usace.army.mil/who. html#Mission (last modified Aug. 30, 2002).
202 See id.
203 See id.
204 See Leaning, supra note 13 (indicating that Corps officials have stated that they “don’t have the authority to conduct such a wide ranging assessment for the outer continental shelf”).
205 See H.R. 5156, 107th Cong. (2002).
206 See Leaning, supra note 13 (indicating that there are currently sixty wind energy projects awaiting review).
207 See U.S. Army Corps of Eng’rs, supra note 201.
208 See discussion supra Part III.A and accompanying notes.
209 See discussion supra Part III.A and accompanying notes.
210 See Leaning, supra note 13.
211 See U.S. Army Corps of Eng’rs, Army Corps of Engineers New England District, at http://www.nae.usace.army.mil/ (last visited Jan. 24, 2004).
212 See id.
213 See id.
214 See id.
215 See Environmental Impact Statement, supra note 200, at 2–3.
216 See Leaning, supra note 13.
217 See discussion supra Part III.A–B and accompanying notes.
218 See Alliance to Protect Nantucket Sound, Inc. v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 70–73 (D. Mass. 2003).
219 See discussion supra Part III.A–B and accompanying notes.
220 See Alliance to Protect Nantucket Sound, 288 F. Supp. 2d at 76–78.
221 See discussion supra Part II.A and accompanying notes.
222 See discussion supra Introduction, Part III.A, and accompanying notes.
223 See U.S. Army Corps of Eng’rs, supra note 201; Leaning, supra note 13.
224 See 33 C.F.R. � 329.12(a) (2003).
225 See discussion supra Part III.A and accompanying notes.
226 See Save our Sound, Quick Facts: Technical (2003) (asserting that the wind turbines proposed for Cape Wind’s project are experimental technology, and have not been put into actual production use), at http://www.saveoursound.org (last visited Feb. 6, 2004).
227 See discussion supra Introduction, Part III.A–B, and accompanying notes.
228 The National Oceanic and Atmospheric Administration is a division of the Department of Commerce. See U.S. Dep’t of Commerce, Site Map, at http://www.
commerce.gov/sitemap.html (last visited Feb. 6, 2004). The Minerals Management Service is a division of the Department of the Interior. See U.S. Dep’t of the Interior, DOI Home, at http://www.doi.gov/ (last visited Fed. 6, 2004).
229 See discussion supra Part III.A–B and accompanying notes.
230 See discussion supra Part III.A–B and accompanying notes.
231 See discussion supra Introduction, Part III.A–B, and accompanying notes.
232 See 43 U.S.C. � 1345 (2000).
233 See 16 U.S.C. �� 1455a–1456a.
234 See 16 U.S.C. �� 1852–1856.
235 See discussion supra Part III.A–B and accompanying notes.
236 See 33 C.F.R. � 320.4(a) (2003).
237 See, e.g., 43 U.S.C. � 1332.
238 See discussion supra Part III.A–B and accompanying notes.
239 See discussion supra Part III.A–B and accompanying notes.
240 See discussion supra Part III.A–B and accompanying notes.
241 See U.S. Army Corps of Eng’rs, Environmental Assessment and Statement of Findings, http://www.nae.usace.army.mil/projects/ma/ccwt/ea.pdf (last visited Feb. 7, 2004).
242 See discussion supra Part III.B and accompanying notes.
243 See discussion supra Part III.A and accompanying notes.
244 See 43 U.S.C. � 403 (2000).
245 43 U.S.C. � 1349.
246 42 U.S.C. � 9124(a).
247 33 U.S.C. � 1515.
248 See discussion supra Part III.A and accompanying notes.
249 See H.R. 5156, 107th Cong. (2002).
250 See id.
251 See, e.g., 43 U.S.C. �� 1331–1356.
252 See H.R. 5156, 107th Cong. (2002).
253 See, e.g., 43 U.S.C. � 1332.