[*PG285]THE WORLD’S LARGEST WIND ENERGY FACILITY IN NANTUCKET SOUND? DEFICIENCIES IN THE CURRENT REGULATORY PROCESS FOR OFFSHORE WIND ENERGY DEVELOPMENT
Abstract: Cape Wind Associates’ proposal to build the first offshore wind facility in Nantucket Sound has exposed a regulatory void resulting from the lack of a federal management program designed to govern the development of offshore wind energy projects. Though there are statutes that govern offshore oil and gas development, thermal energy conversion, and deepwater port construction, no such law exists for offshore wind energy development. In the face of this lack of federal management, Cape Wind seeks to freely use the lands and waters of Nantucket Sound with no property right or grant of permission other than a simple permit authorizing an impediment to navigation under Section 10 of the Rivers and Harbors Appropriation Act of 1899. No permits for projects like Cape Wind’s proposal should be issued until a comprehensive program is developed; this program should make possible the orderly, expeditious, and environmentally sound consideration of offshore wind energy projects with full return to the federal government.
On November 21, 2001, Cape Wind Associates (Cape Wind), a private energy development company, submitted to the New England District of the U.S. Army Corps of Engineers (Corps) an application for a navigability permit under section 10 of the Rivers and Harbors Appropriation Act of 1899 (section 10 or RHA) to develop a massive [*PG286]wind energy plant in Nantucket Sound.1 Located on federal lands and waters approximately five miles from Cape Cod, nine miles from Martha’s Vineyard, and thirteen miles from Nantucket, the project that Cape Wind proposes would be the first offshore wind energy plant in the United States, and one of the largest offshore wind energy plants in the world.2 The most recent proposal calls for the wind plant to cover twenty-four square miles of the Sound. The project will consist of 130 wind towers and turbines, each over 400 feet tall, connected to the mainland by means of an underground cable carrying electricity from a transmission station located in the midst of the wind plant.3
It is easy to understand why Cape Wind or another private entrepreneur would propose such a project. In Massachusetts, large subsidies are available for wind energy. The Commonwealth has adopted a renewable portfolio standard, which requires that a minimum percentage of retail electricity sales in Massachusetts come from renewable energy sources starting in 2003.4 The purpose of the standard is to create a market for renewable energy that would otherwise be uncompetitive. Massachusetts also imposes a 0.0005 dollar per kilowatt hour tax on electricity to support the development and promotion of renewable energy projects.5 In addition to the commonwealth’s subsidies, federal subsidies include a 1.8 cent per kilowatt hour tax credit and accelerated depreciation on capital investments.6 Thus, there exists the potential to make large economic gains from the project.
The choice of Nantucket Sound as the site is also understandable from the perspective of a private developer. The wind resource is good, [*PG287]the water shallow, and the distance to shore and to a power grid is relatively short.7 Most of all, however, the site is federal.8 All factors optimize private profit.
In its pursuit of these financial gains, Cape Wind seeks to exploit a regulatory void. It is counting on the absence of an established federal management program designed to govern the development of offshore wind energy projects to make it possible to both use and occupy federal lands and waters without payment of rent or royalties, participation in competitive bidding, or acquisition of a property right, as well as to achieve a reduced level of federal scrutiny because there are no standards to govern offshore wind energy. The loophole Cape Wind seeks to exploit is the lack of existing law authorizing the use and occupancy of federally controlled offshore lands and waters for wind energy projects. While such laws have been enacted for oil and gas development under the Outer Continental Shelf Lands Act (OCSLA),9 thermal energy conversion,10 and deepwater port construction,11 no similar program exists for wind energy plants. Cape Wind takes this to mean that the lands and waters of Nantucket Sound are freely open to wind energy projects and subject to development for private purposes with no property right or grant of permission other than a simple permit authorizing an impediment to navigation under section 10.
On the basis of this theory, Cape Wind has already built a 200-foot data tower on federal lands and waters in the Sound and is pushing forward aggressively with its section 10 application for the entire wind energy project.12 Seeing this opportunity presented by the Cape Wind model for private offshore wind energy development, other companies have rushed to try to secure their own section 10 permits. Within one year of Cape Wind’s proposal, nearly two dozen sites had been staked out from New England to Virginia for large-scale wind energy plants.13 [*PG288]All of these proposals seek to follow the same regulatory path of least resistance defined by the Cape Wind application, involving the minimal level of review provided under section 10 and lacking any form of land use authorization. As a result, over the last year a veritable land rush has arisen to claim, without competitive bidding, sites for huge offshore wind energy projects.14
The Cape Wind proposal has generated extraordinary opposition and controversy, distinctly out of proportion to what might be expected for an alternative energy project favored by public policy.15 In summary, it may be a good idea, but it is in the wrong place. Nantucket Sound is a cherished ecological, commercial, and recreational resource of regional, national, and international significance. The threat posed by the Cape Wind project to all of these values has mobilized a massive opposition effort in which virtually every affected interest has come forward in opposition to either this project or the manner in which it is being processed in the absence of an adequate regulatory program.16
As discussed below, there is no question that the current regulatory program for offshore wind energy projects is lacking. Section 10 provides for a navigation permit, but not for regulation of the commercial activity or authorization of private use of federal lands.17 The Cape Wind project review stands as an anomaly in federal land and natural resource law.18 Nowhere else under federal law can a situation be found where private developers are allowed to proceed on an ad [*PG289]hoc basis to use and occupy federally controlled land and water without permission, without the benefit of a comprehensive resource-specific review, and without making payments to the United States.19 When a resource as valuable as Nantucket Sound is at stake, such a haphazard and insufficient process is clearly inadequate.
Cape Wind argues that the Nantucket Sound wind energy plant proposal should be considered under existing law based on the premise that the public interest review conducted by the Corps to issue navigability permits under section 10, combined with the procedures of Massachusetts law and the National Environmental Policy Act (NEPA), are sufficient to ensure a reasoned decision.20 This premise is flawed on numerous counts.
As a threshold matter, the Corps lacks jurisdiction to issue section 10 permits in offshore waters.21 Even if it had such authority, a section 10 permit does not confer the property rights necessary to use and occupy federal lands.22 The area Cape Wind seeks to use for its power plant is subject to federal ownership and control and cannot be exploited as proposed here without express federal authorization. No mechanism exists to grant such approval. The standard approach under federal law for allowing the private use of public resources requires, under the Property Clause of the United States Constitution, that Congress expressly authorize the disposition of U.S. property.23 It is also standard for compensation to be made to the United States, typically through a competitive bidding process.24 No such payment structure exists for the Cape Wind project, and the developer seeks to use this land for free.25
[*PG290] Even if the Corps has jurisdiction and a section 10 permit suffices to allow use and occupancy of these lands, the RHA is an inadequate mechanism for decisionmaking. No standards exist to govern the Corps’s decisions. Instead, only a laundry list of factors to be taken into account is enumerated in a single, one-paragraph regulation.26 Similar decisions made under other federal statutes require the application of specific decision criteria, usually articulated in detail by Congress and tailored to the issues associated with the proposed activity.27 The Corps lacks the expertise to make these judgments in the area of energy development and public land use, and it should not be allowed to do so in the absence of clearly articulated standards. In addition, there are numerous defects, beyond the scope of this Article, in the environmental review the Corps is actually undertaking for the Cape Wind project.28
The first section of this Article explains in greater detail the reasons why section 10 falls far short of the regulatory approach used in every comparable context. The second section of this Article contains a proposal for a comprehensive federal program that would protect areas like Nantucket Sound while simultaneously promoting alternative energy. The intense controversy and divisive debate over Cape Wind’s proposal is proving to be a setback to responsible alternative energy development. The Cape Wind project is perhaps the worst possible poster child for offshore wind energy development, and the baggage it is carrying is detracting from efforts to develop consensus on how best to proceed with the review and approval of such projects. The proposed program for wind energy would cure the deficiencies of the current system and protect Nantucket Sound and similar areas while ensuring the expeditious assessment of the potential for wind [*PG291]energy development in the marine environment and the best locations, on balance, for such facilities.
In United States v. Maine, the Supreme Court held that the United States is possessed of paramount rights in the offshore lands underlying the Atlantic Ocean, from three nautical miles from the coast seaward to the edge of the Outer Continental Shelf (the OCS), and further held that this rule is confirmed by both the Submerged Lands Act (SLA) and the Outer Continental Shelf Lands Act (OCSLA).29 There is no doubt that “paramount rights,” or “the power of disposition,” include ownership.30 In Maine, the Supreme Court expressly relied on three seminal cases:31 United States v. California,32 United States v. Louisiana,33 and United States v. Texas.34
In California, the Court held that the federal government has “paramount rights in and full dominion and power over” the lands of the three-mile marginal sea.35 Here the Court characterized its task as determining which sovereign “owns” the three-mile belt, and assumed that the Property Clause of the Constitution gave Congress authority to protect the federal interest.36 It also suggested that the federal rights being recognized went beyond ownership, explaining that: “[t]he crucial question on the merits is not merely who owns the bare legal title to the lands under the marginal sea. The United States here asserts rights in two capacities transcending those of a mere property owner.”37
[*PG292] Any doubt about whether federal rights in offshore-submerged lands extended beyond the traditional three mile territorial sea38 disappeared with the Supreme Court’s subsequent decisions in Louisiana39 and Texas.40 Louisiana and Texas both claimed title to submerged lands even beyond the three mile territorial sea and the United States filed original actions alleging that it is “‘the owner in fee simple of, or possessed of paramount rights in, and full dominion and power over, the lands, minerals, and other things underlying the Gulf of Mexico, lying seaward of the low-water mark’” on the coasts of those states.41 Again the Court held for the federal government saying that: “[i]f, as we held in California’s case, the three-mile belt is in the domain of the Nation rather than that of the separate States, it follows a fortiori that the ocean beyond that limit also is.”42 The Court decreed that “[t]he United States is now, and has been at all times pertinent hereto, possessed of paramount rights in, and full dominion and power over, the lands, minerals and other things underlying the Gulf of Mexico” to the twenty-seven mile limit of Louisiana’s claim,43 and to the edge of the continental shelf, as claimed by Texas.44
In Texas, the State had sought to distinguish itself from the California precedent by the fact that it had been a sovereign nation prior to entering the Union and, as such, had held title to the submerged lands within its three league—nine nautical miles—offshore boundaries.45 As such, “prior to annexation Texas had both dominium (ownership or proprietary rights) and imperium (governmental powers of regulation and control) as respects the lands, minerals and other products underlying the marginal sea.”46 Texas claimed in the litigation that upon entering the Union it “retained the dominium over the marginal sea . . . and transferred to the National Government only her powers of sovereignty—her imperium—over the marginal sea.”47 The Court acknowledged Texas’s prior title to the seabed, but denied [*PG293]that the State retained that title upon joining the Union, holding that when Texas joined the Union it transferred some of its sovereignty to the federal government, and “as an incident to the transfer of that sovereignty any claim that Texas may have had to the marginal sea was relinquished to the United States.”48 After quoting its decision in California, the Court went on to say that “although dominium and imperium are normally separable and separate, this is an instance where property interests are so subordinated to the rights of sovereignty as to follow sovereignty.”49 The Court further stated that “[p]roperty rights must then be so subordinated to political rights as in substance to coalesce and unite in the national sovereign. . . . If the property, whatever it may be, lies seaward of low-water mark, its use, disposition, management, and control involve national interests and national responsibilities.”50 In short, “paramount power” includes both sovereignty and title, and the United States owns the OCS, in every sense of the word.51
Congress enacted the OCSLA in 1953 to assert federal jurisdiction over OCS lands and to establish a regulatory framework for the extraction of minerals, primarily oil and gas, from those lands.52 The OCSLA authorizes the exploration, development, and production of minerals from the OCS, and establishes a comprehensive regulatory program for granting the property rights to do so through leases and collecting royalties.53
In contrast, the development of non-extractive energy resources on the OCS is not contemplated in the OCSLA. Rather, Congress has provided for the authorization and regulation of some other specific activities of this type in separate legislation.54 There is no legislation [*PG294]covering offshore wind energy projects. This fact has been noted by the agency that administers the OCSLA, the Department of the Interior (DOI), which recognized that “mechanisms do not currently exist by which an applicant can obtain approval from the Federal Government to utilize the OCS for non-oil and gas related activities.”55 In light of that fact, the DOI proposed legislation to amend the OCSLA for this purpose.56 Ms. Johnnie Burton, Director of the Minerals Management Service, reiterated these concerns when she testified before the House of Representatives and stated that there exists “no clear authority within the federal government to comprehensively review, permit, and provide appropriate regulatory oversight of such projects.”57
On the most basic level, offshore wind projects should not even be entertained under the RHA, as the Corps does not have jurisdiction over the offshore waters for wind energy projects. This issue is the subject of ongoing litigation filed by the Alliance to Protect Nantucket Sound (the Alliance), a local grassroots opposition group, challenging the Corps’s issuance of the section 10 permit for the data collection tower that Cape Wind has built on the federal lands and waters of Nantucket Sound.58 The initial decision on this issue found in favor of the Corps, but an appeal of that decision is imminent.59
The Corps’s stated basis for issuing a permit for the data tower is its authority over obstructions to navigation under section 10 of the RHA.60 The Corps’s jurisdiction under the RHA, however, extends only three nautical miles offshore.61 Because the data tower is clearly [*PG295]beyond three miles, the Corps relies on an extension of its RHA jurisdiction to certain activities on the OCS by the OCSLA.62 The OCSLA by its express terms, however, does not extend the Corps’s jurisdiction for activities on the OCS other than to those related to the extraction of minerals.63
In the OCSLA, Congress specifically delineated the extension of the Corps’s jurisdiction under section 10 of the RHA. The original grant of jurisdiction in 1953 was quite broad, extending “[t]he authority of the Secretary of the Army to prevent obstruction to navigation in the navigable waters of the United States . . . to artificial islands and fixed structures located on the Outer Continental Shelf.”64 In 1978, however, Congress amended this grant of authority, expressly narrowing the scope of the Corps’s jurisdiction. As amended, the Corps’s authority to prevent obstruction of navigation is extended to “the artificial islands, installations, and other devices referred to in subsection (a) of this section.”65 Subsection (a) refers to
all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or a vessel) for the purpose of transporting such resources.66
“Resources” is not defined in the OCSLA,67 but “exploration,” “development,” and “production” are all defined in terms of “minerals,” [*PG296]which is defined as “includ[ing] oil, gas, sulphur, geopressured-geothermal and associated resources, and all other minerals which are authorized by an Act of Congress to be produced from ‘public lands’ . . . .”68 The Corps’s authority to issue section 10 permits for offshore installations is therefore limited to those installations erected for the extraction of minerals from the OCS.
The absence of Corps jurisdiction over non-mineral activities is not surprising, given the purpose of the OCSLA. Congress enacted the law in 1953 for the purpose of asserting federal jurisdiction over the OCS lands and to establish a regulatory framework for the extraction of minerals—primarily oil and gas—from those lands.69 The OCSLA authorizes the exploration, development, and production of minerals from the OCS, and establishes a comprehensive regulatory program for granting leases and collecting royalties.70 In contrast, the OCSLA does not provide for the development of non-extractive energy resources on the OCS. Rather, Congress has provided for the authorization and regulation of other specific activities of this type in separate legislation, such as the Deepwater Port Act,71 and the Ocean Thermal Energy Conversion Act of 1980.72 Significantly, Congress has not delegated to the Corps section 10 jurisdiction on the OCS for these uses. Instead, under the Deepwater Port Act, the Secretary of Transportation is only required to consult with the Department of the Army regarding navigation issues before issuing a license for such uses.73 Under the Ocean Thermal Energy Conversion Act, the Administrator of the National Oceanic and Atmospheric Administration (NOAA) must only consult with the Coast Guard regarding navigation issues before issuing a license.74 Clearly, Congress in no way intended the Corps to exercise general authority over uses of the OCS, much less any default authority over uses that Congress has not even authorized.
[*PG297] In Alliance to Protect Nantucket Sound, however, the district court held that Congress’s clear intent in the language of 43 U.S.C. � 1333(a)(1) was to extend the Corps’s authority to “‘all artificial islands, and all installations’” on the OCS.75 The court further held that the phrase “‘which may be erected thereon for the purpose of [exploiting mineral resources]’” is no limitation at all, reading “may be” to mean “including, but not limited to.”76 In this interpretation, the court was guided by the “predominant importance”77 of the legislative history of the 1978 amendments, which states that the 1978 changes were “technical only,” and that “[i]t is not the intention of the conferees to limit the authority of the Corps of Engineers as to structures used for the exploration, development, removal, and transportation of resources.”78 On appeal, a central issue will be whether the plain language of a statutory amendment can be outweighed by legislative history which is not only inconsistent with the amendment, but is in fact in direct contradiction to the plain language and effect of the amendment.79
A second issue in the current litigation is the lack of property rights to use and occupy offshore lands for wind energy purposes.80 The Corps’s regulations require section 10 permit applications to be signed by the applicant as an “affirmation that the applicant possesses or will possess the requisite property interest to undertake the activity proposed in the application.”81 The provision clearly appears to require that an applicant have sufficient property rights as a prerequisite for a permit. The Corps’s regulations further state that a permit “does not convey any property rights, . . . or any exclusive privileges” [*PG298]and “does not authorize any injury to property or invasion of rights or any infringement of federal, state or local laws or regulations.”82
Under current law, there are no means by which a private party such as Cape Wind may obtain property rights from the United States to occupy federal submerged offshore lands for activities such as those Cape Wind proposes. The DOI, which bears primary responsibility under the OCSLA for administering the regulatory program for the exploitation of OCS mineral resources, formally represented the state of the law in its letter to Vice President Cheney, cited above.83 Therefore, at the time it issued the permit, the Corps had certain knowledge that Cape Wind did not and would not possess the requisite property interest to undertake the activity contemplated by the application. Only an act of Congress could grant such an interest. No agency of the executive branch may authorize the use of federal lands without congressional authorization, as such power is reserved to Congress under the Property Clause of the Constitution.84
Nonetheless, the district court held that the Corps’s regulations do not require an applicant to have sufficient property rights as a prerequisite for a permit.85 The court interpreted the regulations to require only that an applicant “‘affirm[] that the applicant possesses or will possess the requisite property interest.’”86 The court further held that “even if the Corps had doubted the sufficiency of Cape Wind’s property interest in the OCS lands in issue, it would not have had the authority to consider Plaintiffs’ property interest argument in its review of the data tower permit application.”87 The court based its conclusion on Corps regulations which provide that the Corps should not enter into disputes over property interests,88 and disputes over property interests should not enter into the Corps’s public interest review.89 In simple terms, and even though the Corps’s regulations [*PG299]specifically require an applicant’s representation on property interest, the Corps is thereafter indifferent on the subject.90
While there may be sound reasons for a general policy discouraging the Corps from entering into private land disputes, in the case of offshore lands, there is no dispute about who owns the OCS lands. If the court’s decision is upheld on appeal, the rather absurd conclusion will be that there is no federal agency which can even consider the fact that there is currently no mechanism by which an applicant such as Cape Wind can acquire any property rights to use and occupy the offshore lands for wind energy purposes. The foreseeable consequences of this decision are that private parties will proceed—as indeed they already have—to occupy federal lands on the OCS for non-mineral extraction purposes, on the sole basis of a section 10 permit, issued in a regulatory vacuum, without any property interest in, or authorization to occupy, those lands. This predictable result will clearly thwart congressional policy, as expressed in the OCSLA, to exercise “power of disposition” over the OCS, and provide for its “orderly development.”91 Under any standard, issuing a permit on this basis would seem to be arbitrary and capricious.92
In the OCSLA, Congress declared a policy that “the outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.”93 Implicit in this statement is the need for express authorization of any use of the OCS for any purpose. Similarly, the declared intent of Congress in the Ocean Thermal Energy [*PG300]Conversion Act is to “authorize and regulate the construction, location, ownership, and operation of ocean thermal energy conversion facilities,”94 and in the Deepwater Port Act, to “authorize and regulate the location, ownership, construction, and operation of deepwater ports in waters beyond the territorial limits of the United States.”95 Clearly, Congress considers express authorization to be a necessary prerequisite for use of the offshore area.96
If the Alliance court is correct, then section 10 serves as authority for any kind of development in offshore waters not subject to an existing statute, undermining the entire premise of the extensive body of laws governing the federal estate that such use, occupancy, and development cannot be allowed without express authorization. If section 10 can be used for a massive wind energy project, it also can be used for any other development, including other activities that have been proposed previously, such as large-scale aquaculture, liquefied natural gas terminals, and resorts and floating casinos. Even the legitimate interest in promoting alternative energy is not worth such a wholesale abdication of the federal interest in OCS lands, with its attendant precedent for a host of environmentally harmful activities. As a result, until such authority has been established by Congress, there is no reason to invest administrative resources in the review of specific permit applications.
Reference to all other federal statutes used to authorize comparable uses of federal lands and waters demonstrates the deficiencies in the proposition that section 10, NEPA, and commonwealth law bring into play all of the relevant decisionmaking considerations necessary to review offshore wind projects.
As an initial matter, it is clear that the RHA was not intended to serve this purpose. Rather, the purpose of that law is to regulate obstructions to navigation.97 In fact, Congress initially enacted section 10 [*PG301]in 1890,98 after the Supreme Court held that in the absence of federal legislation, the federal government was powerless to protect the nation’s navigable waters from obstruction, including obstacles created by state-authorized projects.99 This section, with minor changes, became section 10 of the 1899 RHA. Two decades later, the Corps failed in an attempt to use the RHA to object to a proposed sewer in New York City, when the judge ruled that the only purpose of the law was regulation of obstacles to navigation.100
The basis for Cape Wind’s argument that the section 10 process is adequate arises from a single provision in the Corps’s regulations: 33 C.F.R. � 320.4(a). This provision calls for the application of a generalized and vague “public interest” test.101 That test simply provides that, in making a section 10 decision, enumerated factors relevant to a proposal to impede navigation must be considered, including issues such as conservation, economics, aesthetics, fish and wildlife, historic preservation, and energy needs, among others.102 Based upon this generic listing of factors to consider, Cape Wind argues that a sound decision will be made regarding uses of the coastal and offshore waters for virtually any kind of project, including an unprecedented and massive wind energy facility.103
Cape Wind’s premise may be valid for run-of-the-mill projects within the ambit of section 10, where what is at issue is the construction of a structure that would be located in waters of the United States and impede navigation, such as a pier, bulkhead, buoy, jetty, or similar facility. Cape Wind’s premise is wholly inadequate, however, for major [*PG302]uses of federal lands and waters for projects that will exploit natural resources for private gain. In such a context, more detailed guidance and, as Ms. Burton has stated, comprehensive regulatory review and oversight is called for.104
Reference need only be made to the numerous other federal programs that provide the basis for the use and occupancy of federal lands or the extraction and use of natural resources for an illustration of how such programs are typically structured.105 This includes programs for the use of offshore lands and waters, as well as onshore uses of alternative energy resources.
In every such instance, Congress has established programs that go far beyond the kind of review called for by the single paragraph of the Corps’s regulation.106 All of the other programs contain common elements missing from section 10 review. These include: (1) resource-specific environmental standards; (2) enumerated criteria upon which a decision must be made, not mere factors to be considered; (3) standards to guide decisionmaking on the balancing of interests in making decisions; (4) delegation of power to the appropriate agencies with the relevant expertise; (5) land use authorization mechanisms; (6) competitive bidding procedures to attain use of federal resources; (7) fair market value requirements to ensure return to the government and the taxpayers for the use of public trust resources; (8) specification of areas to be off-limits to development; (9) due diligence requirements for the development and use of the resource to ensure efficiency and public health and safety; (10) enforcement and citizen suit provisions; and (11) mandatory roles for state and local governments.107 All of these elements are missing from section 10.108 The RHA was never intended to be the basis upon which land use or energy project decisions would be made. Nor does the “public interest” test of 33 C.F.R. � 320.4(a) pro[*PG303]vide adequate constraints for informed agency decisionmaking.109 It makes no provision, for example, for the disciplined consideration of alternative sites, including those deemed not appropriate for development.110 It is simply a list of issues to consider relative to the question of whether to allow an impediment to navigation.111
One of the best examples of the proper and accepted approach to authorizing the use of federal offshore lands, waters, and resources is the OCSLA.112 This statute is the original charter for uses of offshore lands and waters.113 As originally promulgated, and then further developed in its 1978 amendments, the OCSLA sought to encourage and facilitate the extraction of oil, gas, and other minerals from the OCS.114 Despite the focus on oil and gas, the OCSLA also delineates a general framework to govern future policy decisions with respect to all uses of the OCS.115
In developing the OCSLA, Congress noted how important it is to establish specific standards governing uses of these lands and waters.116 Recognizing the unique nature of federal offshore areas, Congress made it clear that business as usual under generic federal authorities such as the RHA was not enough.117
To carry out this comprehensive approach to uses of offshore lands and waters, Congress articulated guiding principles in sec[*PG304]tion 1332, entitled “Congressional Declaration of Policy.”118 This section also establishes the form federal control over the OCS is to take.119 In essence, it comprises a list of the objectives the OCSLA is meant to accomplish. While general in nature, collectively they serve as a set of values to guide how the United States will allow the OCS to be used.120 They describe the values that shape the United States’ relationship to the OCS for all purposes, not just oil and gas.121 Under section 1332, the following general principles are of particular relevance.
Subsection 1332(3) states that the OCS is a “vital national resource reserve held by the Federal Government for the public” whose development should be subject to “environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.”122 Obviously, the RHA was not considered to be sufficient, or such a provision would not have been necessary.123 Subsection 1332(3) therefore provides that any use to which the OCS might be put must conform to a certain level of environmental safeguards.
Subsection 1332(3) also requires that any program providing for development of the OCS be in the public interest, and be consistent with principles of competition and other national needs.124 At the very least, that would require that the United States receive fair market value for any private use of its property.125 The importance of such a requirement is apparent in the offshore wind energy context, where large amounts of federal land are now subject to private claims under [*PG305]section 10.126 Clearly, the United States is foregoing considerable revenue by allowing these lands to be used without compensation.
Subsection 1332(4) insists that states receive sufficient assistance in dealing with any adverse consequences that may result from a given use of the OCS.127 Further, subsection 1332(5) requires that “the rights and responsibilities of all States and, where appropriate, local governments, to preserve and protect their marine, human, and coastal environments . . . should be considered and recognized.”128 These two subsections insist that any federal policy with respect to the OCS take the interests of state and local governments into account, thereby insuring that such policy will not be made in isolation.129 They therefore stand for the general proposition that federal OCS policy must be cognizant of the interests of affected state and local governments.130
These are the key elements of the OCSLA’s blueprint for OCS use. They do not articulate every detail; rather, they define the space within which the details must fit, and out of this a balanced and comprehensive program is derived.131 However the federal government chooses to develop the OCS, the applicable policies and programs must be consistent with these principles.
The general and categorical character of the standards in section 1332 is emphasized in the legislative history. In a section headed “Purposes of the Legislation,” the House Report states:
Congress has a special constitutional responsibility to make all needful rules and regulations respecting the territory or other property belonging to the United States. . . . The [OCSLA] is essentially a carte blanche delegation of authority to the Secretary of the Interior. The increased importance of OCS resources, the increased consideration of environmental and onshore impacts and emphasis on comprehensive land use [*PG306]planning, require that Congress detail standards and criteria for the Secretary to follow in the exercise of his authority.132
This passage acknowledges that the OCSLA makes the OCS a “property” of the United States.133 It goes on to suggest that insofar as the OCS is such a property, Congress has a constitutional obligation under the Property Clause of the United States Constitution to make “all needful Rules and Regulations” to govern it.134 The passage then suggests that Congress understands itself to be fulfilling that obligation by setting out certain general “standards and criteria.”135 To the extent that the Cape Wind project is a use of the OCS, the Property Clause requires that the standards in section 1332 apply to it.136 Section 10 of the antiquated 1899 RHA is no substitute for this comprehensive and contemporary approach to managing offshore lands.
Another passage in the 1977 House Report makes the same point even more explicitly:
In addition, policy statements are included to make it clear that in administering not only the Outer Continental Shelf Lands Act, but also any other act applicable, directly or indirectly, to activities on the [OCS], responsible Federal officials must insure that activities in the shelf are undertaken in an orderly fashion, so as to safeguard the environment . . . and take into account impacts on affected States and local areas.137
The passage states unambiguously that these principles are meant to govern any and all activities involving the OCS.138 It leaves no doubt that the OCSLA establishes a form of federal stewardship over the OCS to be shaped by those principles.139 This has been the intent of Congress for the past fifty years.140
Having stated these general principles applicable to all uses of the OCS, Congress went on to create a specific management program for oil and gas.141 That program consisted of detailed requirements [*PG307]found nowhere in the 1899 RHA that is argued by Cape Wind to suffice for offshore wind energy plants.142 In addition, pursuant to these standards, the DOI has developed extensive, highly detailed implementing regulations.143
In the OCSLA itself, Congress dictated the basic framework for allowing uses of offshore areas for oil and gas. The central elements of this program are:
In addition to these statutory requirements, the DOI’s OCSLA regulations provide additional detail and requirements on how to make leasing and permitting decisions, and how to ensure environmental protection. For example, the regulations specify performance [*PG308]standards, lease requirements, and reporting requirements, and provide for disqualification, special approvals, rights-of-way and easements, suspensions, extensions, and cancellations of leases for oil and gas operations.151 The regulations also detail requirements for exploration, development, and production plans, pollution prevention and control, safety systems, and safety training.152 Other regulations govern exploration and prospecting, oil spill response and financial responsibility requirements, and operations for minerals other than oil and gas.153 Procedures for the administration of offshore leasing programs are especially detailed, including requirements for the participation of affected states, local governments, and other interested parties, the special consideration of areas of concern, a competitive bidding process, and environmental studies.154
When this highly specific and detailed authority is compared to the simplistic and generalized paragraph from the Corps’s regulation that Cape Wind relies upon, it becomes abundantly clear how deficient the current regulatory program is to allow the use of offshore lands and waters for massive wind energy plants like Cape Wind’s.155 While it may not be necessary to have a regulatory program for wind energy as highly detailed as that for oil and gas, it cannot reasonably be argued that such significant activities can be permitted merely under a vague public interest principle guided by no standards of decisionmaking, no articulated balancing test, and no established environmental safeguards and criteria.156
To the extent, therefore, that the OCSLA does not currently address a specific potential use of the OCS or its resources, the following steps must be satisfied as a threshold matter: (1) Congress must authorize the use of the OCS for such purpose; (2) Congress must delegate responsibility to implement and oversee a program for such purpose; and (3) the agency in the executive branch to which the responsibility is delegated must implement such a program.157
[*PG309] Reference to other laws concerning the use of federal lands and resources further highlights the inadequacy of the RHA’s section 10 approach. In the onshore context, one of the principal sources of authority allowing the use of public lands for mineral extraction and other uses is the Federal Land Management and Policy Act (FLPMA).158 Like the OCSLA, this law establishes extensive requirements for authorization of use of public lands,159 delegation of authority to the federal agencies with appropriate expertise,160 detailed requirements for land use decisionmaking,161 special protection for specific areas,162 and requirements for payment to the federal government.163 The Bureau of Land Management (BLM) governs wind energy uses of the public lands under Title V of the FLPMA, which authorizes rights-of-way on federal public lands for “systems for generation, transmission, and distribution of electric energy.”164 The BLM has issued a detailed interim policy to guide wind energy development on the public lands while it undertakes a two-year programmatic review of the impacts associated with such a program.165 The BLM’s Interim Policy and programmatic review are examples of the kind of regulatory program elements which should be implemented in the offshore wind context.
In the context of the marine environment, the same principles are found in other laws. The Ocean Thermal Energy Conversion Act,166 for example, establishes the rules that govern the use of U.S. owned waters for thermal energy facilities. This law establishes a licensing system for the location of those facilities,167 and requires the involvement of other agencies with relevant expertise.168 It contains [*PG310]specific decisionmaking criteria169 and environmental safeguards.170 This law also delineates the specific role for coastal states.171
The Deepwater Port Act follows the same approach.172 Licenses are required to locate such ports.173 Authority to license these ports is vested in the Secretary of Transportation.174 Decisionmaking and environmental review criteria apply.175 The role of coastal states is provided for.176
Laws dealing with other uses of marine resources, besides land and water, apply similar principles. For example, the Fishery Conservation and Management Act, governing the use of public trust fishery resources of U.S. marine waters, recognizes the need for a comprehensive approach.177 This act sets forth: (1) national standards governing all uses of fishing resources;178 (2) a mechanism for authorizing private parties to harvest fish through comprehensive plans that often require specific permits;179 (3) a defined role for the states;180 and (4) special protection and jurisdiction for specific areas.181 In particular, Nantucket Sound is recognized as unique due to its geographic configuration; as a result, the Fishery Conservation and Management Act vested Massachusetts with jurisdiction over the entire Sound.182
Similar concepts and requirements are recognized in the alternative energy context. Under the Geothermal Steam Act, Congress sought to promote the use of this form of renewable, alternative energy.183 Despite the goal of promoting alternative energy, Congress still saw the need to establish a comprehensive program that addresses the same considerations implicit in the OCSLA.184 In the Geothermal Steam Act, Congress created a mechanism for authorizing the use and occupancy of federal lands,185 payments to the United States,186 areas [*PG311]off-limits to development,187 and delegation to the appropriate agency with substantive expertise.188 The fact that this program has been successfully implemented without needlessly burdening the development of this alternative source of energy is proof that this same approach can be used for offshore wind energy plants.
Numerous other examples exist in federal law.189 It is fair to say that it is impossible to find under the panoply of federal environmental and natural resources law any program comparable to what is being advocated by Cape Wind—a way to allow a private party to use and occupy federal property for private purposes, on a massive scale, to develop and produce energy from a public resource at no charge, with no express authorization to do so, and on the basis of a permit governed only by vague and general standards established by an agency lacking relevant expertise. As much as alternative forms of energy deserve public policy support, the deficiencies under the approach supported by the proponents of offshore wind power plants are far too significant to accept.
The Cape Wind Project is a private energy project, proposed for offshore waters, which is to be located on federal land, and which raises questions about the valuation of, and fair market return for, the use of public trust resources.190 It will require a balancing of energy benefits against unique environmental impacts on fish, birds, marine mammals, and aesthetic values. It will have serious adverse effects on historic preservation resources.191 Navigation is an important issue, but it is not what the Cape Wind project is primarily about.
[*PG312] In every one of these areas of interest, the Corps is not the federal agency that has the appropriate expertise or the resources to make the relevant decisions. Energy projects should be considered by agencies such as the Department of Energy,192 the Federal Energy Regulatory Commission,193 and the Minerals Management Service.194 Uses of offshore lands and waters should be considered by the NOAA195 and the Minerals Management Service. Decisions on valuation and fair market return also fall under the ambit of those agencies.196 Decisions regarding birds and living marine resources should be made by the U.S. Fish and Wildlife Service197 and the National Marine Fisheries Service.198 Historic resource impacts must be adjudged in consultation with the Advisory Council on Historic Preservation199 and in coordination with state historic preservation officers, a proce[*PG313]dure that the Corps says does not even apply to its section 10 permits in offshore waters.200
The Corps is neither authorized by mission nor staffed to make any of these judgments with the requisite degree of expertise.201 This is clear from the Corps’s mission statement and description of purpose. The Corps’s role is to: (1) plan, design, build, and operate water resources and other civil works projects; (2) design and manage the construction of military facilities for the Army and Air Force; and (3) provide design and construction management support for other defense and federal agencies.202 The Corps is not equipped to determine how and under what circumstances public resources will be available for private exploitation.203 The issue properly within the Corps’s expertise, impacts to navigation, is not the driving force for this project. Indeed, the Corps has expressed the view to the Alliance that it is not the agency that should have the lead on wind energy project development.204 Congress apparently agrees, as a bill introduced last year to create a program for offshore developments of this nature would vest this responsibility in the Secretary of the Interior.205
In addition to lacking the requisite expertise, the Corps does not have the resources to review this sudden proliferation of huge offshore wind projects.206 The complexity, controversy, and novel nature of these projects would be a challenge for any agency. This is especially true for the Corps, which has a tremendous existing regulatory burden for projects that properly belong under its area of expertise and jurisdiction.207 As a result, there is a serious risk that these proj[*PG314]ects, especially the forerunning and perhaps most damaging of all—the Cape Wind project—will not receive adequate review.
As discussed previously, a common feature of regulatory programs designed to address activities in the marine environment or making use of federal lands for development activities is the consideration of programmatic impacts and alternatives.208 These programs begin by looking at the big picture on a regional or even national basis.209 Such an approach is necessary to ensure that any development which may be approved is first subject to long-term planning to rule out certain areas from development and to ensure that a coordinated plan has first been established.
Such an approach is particularly important for offshore wind energy projects. As the “land rush” for section 10 permits over the last year demonstrates, developers are proceeding at an accelerated pace to lock-up sites for wind energy plants.210 The Corps is simply processing these requests on an individual permit basis. For example, a site off the coast of Virginia in a highly sensitive area is being reviewed by the Norfolk District, with no apparent coordination with the New England District.211 In fact, the Norfolk District has indicated that it would not even prepare an EIS on that project.212 Another project southeast of Nantucket is apparently being processed separately by the New England District.213 The Alliance is not aware of any plan to consider these projects, or the two dozen or so others proposed between Massachusetts and Virginia, in any comprehensive or cumulative way.214
This is more than a deficiency inherent in section 10 and the result of the absence of an adequate regulatory program. It is also a consequence of a deficiency in the NEPA process for the Cape Wind project. Simply put, the Corps is conducting far too narrow a review. It is limiting the scope to alternative energy projects in New England,215 even though the Atlantic coast stretching to Virginia has been subject to numerous proposals and the resultant electricity that would be produced can readily be sent throughout the region.216 In addi[*PG315]tion, there is no indication that the Corps will consider the cumulative effects of these projects, even though numerous species of birds, fish, turtles, and marine mammals migrate through this region and could be confronted with a gauntlet of massive offshore wind plants.
These are problems that would be solved under a comprehensive regulatory program. It is doubtful that the minimal procedures under section 10 could ever produce the necessary review.217 Certainly, as currently conducted, the review of the Cape Wind project fails to provide the necessary review and analysis.
The preceding discussion demonstrates the many serious deficiencies in the procedure currently being used to review Cape Wind’s application. The disputes and controversy engendered by the Cape Wind project have actually slowed down the reasoned evaluation of offshore wind projects.218 Therefore, in the interest of promoting reasonable development of offshore wind projects and the establishment of an adequate regulatory program, the following principles should be reflected in a comprehensive federal program to guide future decisions on offshore wind energy projects.
Because of the importance of establishing a comprehensive program for encouraging new alternative energy uses in federal offshore waters, Congress must exercise its responsibility to specify program elements and standards. The agencies with the relevant expertise on energy, public lands, and the marine environment must be delegated this power. Certain elements of the program, such as reliance on competitive bidding and the need for comprehensive planning to balance development against other resource values, deserve detailed authorization from Congress. The program authorization should not be so general that it leaves the substance of such an offshore program to the preferences of the policy leadership of departments, which will change over time.219
No permits should be issued under the RHA or any other law for such projects until a new federal program is in place. Cape Wind’s project, for example, already has received such a permit for its initial wind energy data gathering tower and has built it without obtaining any property right to do so.220 This facility is therefore trespassing on federal lands held in the public trust, and occupying this land and water without making any payment to the United States to reimburse taxpayers. As this action demonstrates, developers are not waiting for an adequate federal regulatory system to be developed; they are proceeding merely on the basis of a navigability permit. As a result, no further permits should be issued, and a moratorium should be put in place. This should be accomplished administratively as well, in advance of a new law, so there is no implication that the section 10 permit, or its process, creates any rights under the new law.221
Without question, alternative energy needs to be promoted. In the marine environment, however, there is little experience to draw upon to assess the feasibility or impacts of large-scale wind energy project development. Thus, while a comprehensive long-term program is implemented, progress also should be made on assessing the feasibility of offshore wind energy projects and refining the technology through the development of one or more pilot projects. Such projects could be undertaken by the private sector, subject to federal oversight and interim standards, in a properly-sited location that avoids the impacts and strong public opposition of a project like Cape Wind in Nantucket Sound.222
The use of coastal and offshore areas for these activities cuts across the areas of expertise and traditional jurisdiction of numerous federal agencies. Of these agencies, it is clear that the Corps is one of the least well-suited for making decisions regarding the use of offshore resources for energy purposes.
[*PG317] The Corps lacks the expertise or authority to assess the feasibility of energy projects, to determine appropriate uses of federal offshore lands and waters, and to assess adverse impacts on the marine environment.223 Indeed, under the OCSLA, the Corps lacks jurisdiction over offshore areas.224 Any new federal program will need to be vested in the proper agency or agencies. Decisions regarding authorization of plans for site-specific development and related activities should be made by the NOAA, and a stronger role should be established for states. The establishment of a leasing program and determination and collection of royalties, rent payments, and other charges should be the responsibility of the Minerals Management Service. This approach is comparable to the one used for private activities allowed on federal onshore lands, where decisions on permitting are made by the Bureau of Land Management or U.S. Forest Service and fiscal considerations are assigned to the Minerals Management Service.225
There is no prior experience in the United States with offshore wind energy production. There is no experience anywhere in the world with a project of the magnitude of the Cape Wind proposal. Indeed, the very technology to be employed is not even available at this time.226 Due to the novel nature of this kind of development, careful study is required. Such development should assess the potential benefits of offshore wind energy if undertaken correctly, the negative consequences if such projects are carried out in the wrong way or in the wrong location, and the economic and technological feasibility of such projects. As a result, before any development is undertaken, the National Academy of Sciences should be commissioned to conduct a technical review of the energy, environmental, and technological issues associated with offshore wind energy to ensure that any development that does occur is conducted so as to maximize benefits and avoid adverse impacts.227
Before site-specific offshore wind energy proposals are considered, a comprehensive review with broad input from government agencies, industry, states and localities, environmental organizations, fishery interests, tribes, and the public should be completed to identify federal coastal and offshore areas with significant potential for such development, as well as areas like Nantucket Sound that should be foreclosed from use as a result of environmental concerns or conflicts with alternative resource values.
Failure to look at the big picture in this manner will result in piecemeal, ad hoc decisionmaking, driven by individual profit-seekers, such as is occurring now under the RHA. Similar regional and national review programs have occurred in other contexts, such as offshore oil and gas, fisheries management, onshore timber harvest, onshore mineral energy development, and other resource utilization activities. The same principle should apply to the marine environment for alternative energy development. The best approach is to commission a comprehensive leasing program review conducted jointly by the Departments of Commerce and the Interior.228 That review would identify areas appropriate for development and subject them to a competitive bidding process. Once leases are issued, site-specific development plans should be reviewed and approved by the NOAA. Leasing and site-specific plan decisions should be made under rigorous environmental standards, with the involvement of all relevant agencies, including state and local governments.229
Offshore wind projects will require the use and occupancy of federal lands and waters. Private parties cannot simply seize federal land for their own use and profit motive, as Cape Wind already has done. An adequate federal regulatory program should establish a mechanism, to be applied in areas deemed suitable for possible development through a comprehensive review, for granting such property rights. This mechanism should rely upon competitive principles, [*PG319]through open competition among bidders, seeking a fair return for the government and taxpayers. The grant of such leases should be the result of a stringent environmental review program. It is this land use authorization decision that should be the focal point of federal environmental review and analysis, not the peripheral question of how such projects will affect navigability.230
The use of areas deemed appropriate for possible development should require payments for both use or occupancy of land or water, and making use of natural resources for private gain. This could best be done through competitive bids, rental for land use, and royalties for resource exploitation. Revenues should be shared with state and local governments. Incentives, such as reduced and deferred royalty payments, can be used to promote appropriately sited wind energy projects. At present, no such system exists, and private developers are reaping the benefits by proceeding with project development for private gain at no cost for the use of federal land or resources.231
Consistent with decisions made in other contexts involving coastal and ocean resources, the affected states and local governments must have a significant role in the decision process with the federal agencies. This principle is found in the OCSLA,232 the Coastal Zone Management Act,233 the Fisheries Conservation and Management Act,234 and other federal programs involving coastal and marine areas. This is particularly important because virtually all of these projects also require state and local government approval to transmit electricity to market. The role of state and local governments should be more than merely consultative or cooperative; it must call for sharing of authority and decisionmaking over all aspects of the review and ultimate decision. Where necessary, the Coastal Zone Management Act and other laws should confirm this enhanced role.235
Proposed uses of offshore areas have both benefits and adverse effects. The decisionmaking structure must define a process under which the federal, state, and local government review is charged with comparing the benefits of wind energy projects with the adverse impacts under carefully designed criteria. This cannot be a vague test, such as the one used by the Corps in its so-called public interest determination under the RHA.236 Instead, it must be a test that applies standards specifically designed for the marine environment. For example, large-scale industrial facilities in coastal and ocean areas will, in addition to environmental impacts, cause adverse economic impacts, through a reduction of property values, tourism, and fisheries,237 combined with recreational and scenic impacts. These impacts must be accorded significant weight in the decisionmaking process and should not be sacrificed in the absence of especially strong justification for the development activity in the specific location proposed. Moreover, this analysis should not be a simple cost-benefit analysis. Consideration also must be accorded to factors such as aesthetic, fish and wildlife, and historic preservation values. Such criteria are applied routinely for federal programs that involve the use of coastal and ocean resources, and there is no reason wind energy, or other new and currently unauthorized offshore uses, should evade the same review.238
Agencies with the requisite expertise must conduct the evaluation. For example, the Corps is not well-suited to balance the purported benefits of wind energy against the adverse impacts on marine life, birds, commercial and sport fishing, aviation safety, marine safety, aesthetics, tourism, and real estate values. Agencies qualified to make judgments balancing these factors must be in command of the process and charged with the mandate to apply expressly defined and suitable criteria. Such a test would, for example, readily defeat the massive Cape Wind project, which will destroy the pristine and highly valuable resources of Nantucket Sound for an insignificant increase in power through a subsidized program that is not needed by the local and regional energy market.239
Just as criteria for balancing the value of the proposed use against its impacts must exist, so too must specific and rigorous environmental compliance standards be established. These criteria would amount to performance standards. If a proposed activity cannot meet them, project approval should be denied. Such standards, if properly developed and rigorously applied, would ensure that areas like Nantucket Sound will not fall prey to developers seeking the cheapest location to build experimental wind plants or other development facilities.240
In addition, the Corps argues that the National Historic Preservation Act does not apply to permits beyond three nautical miles.241 While this conclusion is in error, it should be made clear that this applies to the review of offshore wind energy project proposals.242
The public must have an adequate role in decisionmaking. This should include public comment on all environmental documents, hearings held in impacted areas, adequate comment periods, and participation in decisionmaking through advisory bodies.243
Citizen suits should be provided for to allow for full enforcement of the environmental safeguards that would apply to such projects. No such system exists under the RHA,244 but one must be provided under a comprehensive coastal and offshore regulatory program. Such authority, and rules guiding its use, can be found in other laws concerned with the development of coastal and marine resources, such as the OCSLA,245 the Ocean Thermal Energy Conversion Act,246 and the Deepwater Ports Act.247 There is no basis to exclude such rights here.248
Many of the elements necessary for a comprehensive regulatory program for offshore wind energy are missing from the legislation currently pending in Congress to authorize alternative energy uses of the OCS. The proposed bill, which has been incorporated into the omnibus energy bill currently pending before Congress, would grant the Secretary of the Interior the authority to grant easements or rights-of-way on OCS lands for, among other things, activities that “produce and support the production, transportation, or transmission of energy from sources other than oil and gas.”249 The Secretary of the Interior is also directed to promulgate regulations establishing appropriate safety, environmental, and natural resource protections, including a fair return to the federal government for any easement or right-of-way. Surety bonds are to be required, and areas are excluded if they are units of the National Park Service or the National Wildlife Refuge System, or are a National Marine Sanctuary, or any National Monument.250 While this legislation would serve to authorize alternative energy uses of the OCS lands, its requirements are minimal, and fall far short of the comprehensive programs Congress has established for the use of other public natural resources, most relevantly for the use of offshore mineral resources in the OCSLA.251 In addition, the legislation would authorize those uses which are not currently authorized under existing law, leaving open the question of current jurisdiction.252 Measured by the policy standard established by congressional action in similar contexts, the legislation is inadequate.253
Offshore wind energy developers are attempting to exploit what they see as a regulatory loophole that will allow them to use and occupy federal lands and waters for free, and without adequate review. The game plan is to rush as many projects as possible through the Corps’s section 10 process before a comprehensive program is in place. The Corps is a willing, if oblivious, enabler of this plan. Developers have selected locations that maximize profits rather than minimize environmental harm. The environmental community, correctly [*PG323]insistent on a comprehensive program for other offshore uses, including oil and gas, is split on wind projects, with some willing to accept the immediate development of alternative energy, even in marine areas of high environmental value, as more important than a comprehensive and lasting process. The result is an extreme anomaly in federal natural resource law. A comprehensive program must be developed that makes possible the orderly, expeditious, and environmentally sound consideration of offshore wind energy projects with full return to the federal government. Until such a program is in place, no permits should be issued for projects like Cape Wind’s proposal. Ultimately, the long term conservation and management of the marine environment and the expeditious development of alternative energy will benefit from such a program.