*Symposium Editor and Solicitations Editor, Boston College Environmental Affairs Law Review, 2003–04.
1 See Madelaine Drohan, Worldview OECD: Economists Say Global Environmental Crisis Possible, American Political Network Green Wire, May 30, 1997, at WL 5/30/97 APN-GR 19.
2 Id.; David J. Jhirad, An Energy Policy for the 21st Century, 28 Can.-U.S. L.J. 315, 317 (2002) (“For the first time in history, the developing countries, as a group, will equal the industrialized countries in their energy demands. . . . Much of this growth is due to the rapidly growing energy needs of India and China.”).
3 Drohan, supra note 1, at 19; Jhirad, supra note 2, at 315 (“Once again (this time due to September 11th), energy security has come to center stage.”).
4 See Christine Real de Azua, The Future of Wind Energy, 14 Tul. Envtl. L.J. 485, 486 (2001); Bertram Wolfe, September 11 and Our Energy Future, World & I, Feb. 1, 2002, 2002 WL 9015505.
5 Danielle Knight, Environment: Wind Power is Fastest-Growing Energy Sector, Inter Press Service, Jan. 15, 2002, at 2002 WL 4912505 (quoting Lester Brown, president of Earth Policy Institute).
6 Real de Azua, supra note 4, at 486.
7 Paul Brown, Wind Power Use Grows by 30%, The Guardian (London), Jan. 10, 2002, at 15 (stating that global wind power electric generating capacity rose in 2001 from 17,800 megawatts in 2000 to 23,300 megawatts, creating enough energy for 23 million people).
8 Pamela Ferdinand, Windmills on the Water Create Storm on Cape Cod, Wash. Post, Aug. 20, 2002, at A3.
9 Real de Azua, supra note 4, at 490.
10 Id. at 486.
11 Outer Continental Shelf Energy Leasing: Hearing on H.R. 3090, H.R. 4, and H.R. 5156 Before the House Res. Comm. Subcomm. On Energy and Mineral Res., 107th Cong. (2002) (statement of Jamie Steve, Legislative Director American Wind Energy Association), 2002 WL 25098174.
12 Outer Continental Shelf Lands, Federal Coal Resources: Hearing on H.R. 793 Before House Res. Comm. Subcomm. On Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President AWS Scientific, Inc.), 2003 WL 11715983.
13 Cape Wind Associates and Winergy are examples of developers currently planning offshore wind power generation facilities. Their proposals are posted at http://www. capewind.org/, and http://www.winergyllc.com.
14 Besides Cape Wind’s proposal, Winergy has proposed wind farm developments on 21 separate sites. Winergy, Wind Farm Status, at http://www.winergyllc.com/sites.shtml.
15 Maintenance of an adequate wind speed is critical to the viability of a wind power generation facility; even variations of only a few miles per hour can affect the success of a wind farm. Kim R. York & Richard L. Settle, Potential Legal Facilitation or Impediment of Wind Energy Conversion System Siting, 58 Wash. L. Rev. 387, 388 (1983).
16 See discussion infra Part III.A.
17 Ferdinand, supra note 8, at A3.
18 Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. �� 1331–1343 (2000).
19 Ferdinand, supra note 8, at A3. Cape Cod, Massachusetts has some of the strongest sustained winds in the United States, evidenced by the fact that it had more than 1000 working windmills during the nineteenth century. Id. The waters off the Cape are also among the shallowest in the country, facilitating offshore turbine placement. Id.
20 Cape Wind Assocs., Project Overview: Project at a Glance, at http://www. capewind.org/ (last visited Dec. 9, 2003). Winergy of Shirley, N.Y., has proposed to build an even larger wind farm off the coast of Nantucket that would include up to 250 turbines on one of two sites on the OCS. Beth Daley, 2D Firm Proposes Nantucket Windfarm, Boston Globe, July 25, 2002, at B1; Winergy, Nantucket 1, at http://www.winergyllc. com/nantucket_1.shtml (last visited Feb. 27, 2004); Winergy, Nantucket 2, at http://www.winergyllc.com/nantucket_2.shtml (last visited Feb. 27, 2004). This company has proposed eighteen total projects in federal and state waters off the coast of Massachusetts, New York, Pennsylvania, Maryland, and Virginia. Winergy, Wind Farm Status, at http://www.winergyllc.com/sites.shtml (last visited Feb. 27, 2004).
21 Cape Wind Assocs., Project Overview: Project at a Glance, About the Cape Wind Project, at http://www.capewind.org/ (last visited Dec. 9, 2003).
22 Id.
23 Outer Continental Shelf Lands Act, 43 U.S.C. � 1331(a) (2000) (stating that the federally-controlled OCS includes all submerged lands lying seaward of a line three miles from the states’ coasts) (referring to 43 U.S.C. � 1301 (2000)).
24 Cape Wind Assocs., Frequently Asked Questions: Questions about the Cape Wind Project: How Much Green Electricity will Cape Wind Produce and Where Will it Go?, at http://www.capewind.org/learning/ (last visited Dec. 9, 2003); Cape Wind Assocs., Project Overview: Project at a Glance: About the Cape Wind Project, at http://www.capewind.org/ (last visited Dec. 9, 2003).
25 Cape Wind Assocs., Frequently Asked Questions: Questions about the Cape Wind Project: How Much Green Electricity will Cape Wind Produce and Where Will it Go?, at http://www.capewind.org/ (last visited Feb 27, 2004). This demand equals approximately 420 megawatts of electricity. David Arnold, Wind Proposals Sweeping Region, Some Worries Remain on Aesthetic Impact, Boston Globe, Mar. 4, 2003, at B1.
26 Cape Wind Assocs., Project Overview: Project at a Glance, About the Cape Wind Project, at http://www.capewind.org/ (last visited Apr. 18, 2003).
27 Real de Azua, supra note 4, at 494 (“Power plants are responsible for about three-fourths of the sulfur dioxide emitted in the nation, one-third of carbon dioxide and nitrogen oxide emissions, and one- fourth of the particulate matter and toxic heavy metals such as lead and mercury released into the nation’s environment.”); Cape Wind Assocs., Project Overview: Project at a Glance, Clean, Natural Energy, at http://www.capewind.org/ (last visited Dec. 9, 2003). On average, a single large-scale wind turbine can displace over 2,000 tons of carbon dioxide, 14 tons of sulfur dioxide, and 8 tons of nitrogen oxides. Outer Continental Shelf Lands, Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc.), 2003 WL 11715983.
28 Outer Continental Shelf Lands, Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President AWS Scientific, Inc.), 2003 WL 11715983; Cape Wind Assocs., Project Overview: Project at a Glance, Energy Savings, at http://www.capewind. org (last visited Dec. 9, 2003).
29 International Wildlife Coalition, Nantucket Sound Wind Farm Raises Controversy (2002), at http://www.iwc.org/IWC_at_work/windfarm/nantucket.pdf (last visited Feb. 27, 2004). A number of groups including the Humane Society of the United States, the International Fund for Animal Welfare, the International Wildlife Coalition, and the Ocean Conservancy seek to block the Cape Wind proposal because they believe it poses significant risks for fish and wildlife on Nantucket Sound. Id.; Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 1, at http://www.iwc.org/IWC_at_work/windfarm/statement_of_concerns.pdf (last visited Feb. 27, 2004).
30 See Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 1, at http://www.iwc.org/IWC_at_work/windfarm/statement_of_concerns.pdf (last visited Feb. 27, 2004).
31 Plaintiff’s Brief in Support of Plaintiff’s Motion for Summary Judgment at 2, Alliance to Protect Nantucket Sound v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003) (No. 02-117499 JLT ) [hereinafter Plaintiff’s Brief].
32 Plaintiff’s Brief, supra note 31, at 2.
33 Brief of Amici Curiae Humane Society of the U.S. at 9, Alliance to Protect Nantucket Sound v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64 (D. Mass. 2003) (No. 02-117499 JLT) [hereinafter Humane Society Brief]
34 Humane Society Brief, supra note 33, at 9.
35 See Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 1, at http://www.iwc.org/IWC_at_work/windfarm/statement_of_concerns.pdf (last visited Feb. 27, 2004).
36 Id. at 2.
37 Id.
38 Humane Society Brief, supra note 33, at 9; Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 1, at http://www.iwc.org/IWC_at_work/windfarm/statement_of_concerns.pdf (last visited Feb. 27, 2004).
39 Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 2, at http://www.iwc.org/IWC_at_work/windfarm/statement_of_concerns.pdf (last visited Feb. 27, 2004).
Turbine operation may be a significant hazard to migratory birds ranging from large hawks to small song birds. For example, large numbers of raptors died as a result of collisions with turbine blades at a wind farm in California. Lights, which are required for security reasons, may disorient birds that use a form of celestial navigation for flying at night.
Id.
40 Id. at 1.
41 Id. at 2.
42 Humane Society Brief, supra note 33, at 12.
43 Id. at 11 (stating that proposed wind farm would be located in an area designed as “essential fish habitat” under the Magnuson Stevens Conservation Management Act).
44 Id. at 12.
45 Under the Submerged Lands Act (SLA), the submerged land between the shores of coastal states and a three-mile boundary are reserved for the states. 43 U.S.C. � 1301(a)(2) (2000).
46 Barry Hart Dubner, Problem on the United States Continental Shelf—Measuring the Environmental “Effectiveness” of the Outer Continental Shelf Act (OCSA), 34 Nat. Resources J. 519, 520 (1994).
47 Id.
48 Id. The continental shelf of the fifty states measures about 760,000 square nautical miles, but when the South Pacific islands under the jurisdiction of the United States are included, the United States claims the largest continental shelf in the world with 2.3 million square nautical miles. Id. “The United States’ land mass nearly doubles when the United States extends jurisdiction over this submerged land.” Id.
49 United States v. California, 332 U.S. 19, 38 (1947) (“The question of who owned the bed of the sea only became of great potential importance at the beginning of this century when oil was discovered there.”); Milner S. Ball, Good Old American Permits: Madisonian Federalism on the Territorial Sea and Continental Shelf, 12 Envtl. L. 623, 627 (1982). This conflict became popularly known as “the Seaweed Rebellion.” Edward A. Fitzgerald, The Seaweed Rebellion: Federal-State/Provincial Conflicts Over Offshore Energy Development in the United States, Canada, and Australia, 7 Conn. J. Int’l L. 255, 255 (1992).
50 Fitzgerald, supra note 49, at 257.
51 Ball, supra note 49, at 624. Congress admitted coastal states to the Union specifying the three-mile offshore boundary, and before the 1930s, the executive branch’s Department of the Interior (DOI) declined to issue oil and gas leases in this area. Fitzgerald, supra note 49, at 257.
52 Fitzgerald, supra note 49, at 257.
53 Id.
54 Id. (citing Proclamation No. 2667, 10 Fed. Reg. 12,303 (Sept. 28, 1945)).
55 Proclamation No. 2667, 10 Fed. Reg. 12,303 (Sept. 28, 1945).
56 United States v. California, 332 U.S. 19, at 38–39 (1947) (referring to the territorial sea as the marginal belt); see also United States v. Louisiana, 339 U.S. 699, 704 (1950) (reaffirming United States v. California); United States v. Texas, 339 U.S. 707, 717–18 (1950) (same).
57 Outer Continental Shelf Lands Act of 1953, Pub. L. 67-212, 67 Stat. 462 (1953) (codified at 43 U.S.C. �� 1331–1343 (2000)).
58 Submerged Lands Act of 1953, ch. 56, 67 Stat. 29 (1953) (codified at 43 U.S.C. �� 1301–1303, 1311–1315 (2000)).
59 See United States v. Maine, 420 U.S. 515, 524 (1975) (stating that in the SLA “Congress transferred to the states the rights to the seabed underlying the marginal sea; however, this transfer was in no wise inconsistent with the paramount national power [established by United States v. California] but was merely an exercise of that authority”).
60 OCSLA defines the OCS as “all submerged lands lying seaward and outside of the area of lands beneath navigable waters.” 43 U.S.C. � 1331(a). “Navigable waters” is understood for the purposes of the Act as defined by the SLA 43 U.S.C. � 1301, which states that “land beneath navigable waters” means “all lands permanently or periodically covered by tidal waters . . . seaward to a line three geographical miles distant from the coast line of each such State.” 43 U.S.C. � 1301(2); 43 U.S.C. � 1331(a). Although the territorial sea was expanded by presidential proclamation to 12 miles by President Ronald Reagan and then 24 miles by President William Clinton, these proclamations explicitly state that they do not amend OCSLA or SLA. Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988) (“Nothing in this Proclamation: (a) extends or otherwise alters existing Federal or State law or any jurisdiction, rights, legal interests, or obligations derived therefrom . . . .”); Proclamation No. 7219, 64 Fed. Reg. 48701 (Aug. 2, 1999) (“Nothing in this Proclamation: (a) amends existing Federal or State law . . . .”).
61 43 U.S.C. � 1332(1).
62 Carolyn Elefant, Ocean Energy Development in the 1990s, 14 Energy L.J. 335, 343 (1993); U.S. Department of the Interior, Minerals Management Service, Outer Continental Shelf Definition, at http://www.mms.gov/aboutmms/ocsdef.htm (last visited Feb. 29, 2004) (explaining that the seaward limit of federal jurisdiction is “defined under accepted principles of international law . . . as the farthest of 200 nautical miles seaward of the baseline from which the breadth of the territorial sea is measured or, if the continental shelf can be shown to exceed 200 nautical miles, a distance not greater than a line 100 nautical miles from the 2,500-meter isobath or a line 350 nautical miles from the baseline”).
63 43 U.S.C. � 1337.
64 Dubner, supra note 46, at 522.
65 H.R. Rep. No. 95-590, at 57 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1464.
66 Shively v. Bowlby, 152 U.S. 1, 14–15 (1894); Martin v. Waddell, 41 U.S. 367, 411 (1842); see discussion infra Part III.
67 Fitzgerald, supra note 49, at 256.
68 Ball, supra note 49, at 649, 677.
69 H.R. Rep. No. 95-590, at 103 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1509; Ball, supra note 49, at 652.
70 Edward A. Fitzgerald, The Seaweed Rebellion: The Battle Over Section 8(g) Revenues, 8 J. Energy L. & Pol’y 253 (1988).
71 G. Kevin Jones, Understanding the Debate Over Congressionally Imposed Moratoria on Outer Continental Shelf Oil and Gas Leasing, 9 Temp. Envtl. L. & Tech. J. 117, 118 (1990).
72 Fitzgerald, supra note 49, at 262.
73 H.R. Rep. No. 95-590, at 53 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1460. (stating that by 1977 the United States obtained 50% of its oil from foreign sources, making it vulnerable to another embargo).
74 Ball, supra note 49, at 663 (citing 9 Weekly Comp. Pres. Doc. 1312, 1317 (Nov. 10, 1973); 10 Weekly Comp. Pres. Doc. 72, 83–84 (Jan. 26, 1974)).
75 See, e.g., Sierra Club v. Morton, 510 F.2d 813, 817 (5th Cir. 1975); NRDC v. Morton, 458 F.2d 827, 830 (D.C. Cir. 1972); California v. Morton, 404 F. Supp. 26, 28–29 (C.D. Cal. 1975).
76 Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, 92 Stat. 629 (codified as amended in scattered sections of 16, 30, & 43 U.S.C.); Fitzgerald, supra note 49, at 263.
77 43 U.S.C. � 1801(1) (2000).
78 Id. � 1801(4).
79 H.R. Rep. No. 95-590, at 112 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1518.
80 43 U.S.C. � 1802(1). During the 1970s, U.S. offshore oil production had declined while oil prices rapidly increased worldwide. Jones, supra note 71, at 117–118. Some, including the Republican Party, believed that the restrictive leasing policy under the OCSLA stifled domestic petroleum development, which in turn worsened the trade deficit and jeopardized national security by increasing dependence on OPEC. See id. at 127.
81 43 U.S.C. � 1801(8).
82 Id. � 1801(7).
83 H.R. Rep. No. 95-590, at 53 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1460.
84 H.R. Rep. No. 95-590, at 46 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1453. Congress found that “lessees and permittees will face more and stricter regulations and enforcement as a result of this legislation. However, they will also enjoy less red tape, fewer delays, and greater certainty about the political environment in which they are operating.” H.R. Rep. No. 95–590, at 48 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1455.
85 H.R. Rep. No. 95-590, at 52 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1459 (“The whole OCS process, from preparation of a leasing program, selection of tracts for leasing, promulgation, and enforcement of regulations, and review of activities must consider environmental consequences—to the waters, to the air, to adjacent coast areas, and to the living resources.”).
86 H.R. Rep. No. 95-590, at 113 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1519–1520.
87 Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. No. 95-372, � 205(a), (b), 92 Stat. 640, 644 (codified at 43 U.S.C. � 1337).
88 43 U.S.C. � 1337 (2000).
89 “The Secretary is authorized to grant to the highest responsible qualified bidder or bidders by competitive bidding, under regulations promulgated in advance, any oil and gas lease on submerged lands of the outer Continental Shelf . . . .” Id. � 1337(a)(1).
90 Jones, supra note 71, at 118.
91 Id.
92 Id. (stating that planning areas could include up to 50 million acres of OCS land).
93 Id. at 128–29.
94 California v. Watt, 712 F.2d 584, 611 (D.C. Cir. 1983) [Watt II].
95 Id. at 592.
96 43 U.S.C. � 1344 (2000).
97 Watt II, 712 F.2d at 592.
98 Id.
99 43 U.S.C. � 1337(a)(1); see, e.g., id. � 1337(a)(1)(C) (“[C]ash bonus bid, or work commitment bid based on a dollar amount for exploration with a fixed cash bonus, and a diminishing or sliding royalty based on such formulae as the secretary shall determine as equitable to encourage continued production from the lease area as resources diminish, but not less than 12 1/2 per centum at the beginning of the lease period in amount or value of the production saved, removed, or sold . . . .”); Id. � 1337(a)(1)(D) (“[C]ash bonus bid with a fixed share of the net profits of no less than 30 per centum to be derived from the production of oil and gas from the lease area . . . .”); Id. � 1337(a)(1)(F) (“[C]ash bonus bid with a royalty at not less than 12 1/2 per centum fixed by the Secretary in amount or value of the production saved, removed, or sold and a fixed per centum share of net profits of no less than 30 per centum to be derived from the production of oil and gas from the lease area . . . .”).
100 Dubner, supra note 46, at 523–24.
101 Robert B. Wiygul, The Structure of Environmental Regulation on the Outer Continental Shelf: Sources, Problems, and the Opportunity for Change, 12 J. Energy Nat. Resources & Envtl. L. 75 (1992) (citing Min. Mgmt. Serv., Dep’t of Interior, Federal Offshore Statistics: 1987, Leasing, Exploration, Production, & Revenues 69 (1989)).
102 43 U.S.C. � 1337(m) (“All moneys paid to the Secretary for or under leases granted pursuant to this section shall be deposited in the Treasury in accordance with section 1338 of this title.”); Ball, supra note 49, at 643 (“This practice is at odds with the allocation of revenue derived from mineral leases on federal lands within the state boundaries; half of the receipts from these leases are paid to the states.”) (citing 43 U.S.C. � 191 (1976)).
103 Dubner, supra note 46, at 530. Dubner also points out that “[s]tates make a lot of income from related continental shelf support services. While states are interested in the environment, they have financial interests at stake from exploiting their shelves.” Id. at 534. Congress amended the OCSLA in 1985 to provide for the distribution of a portion of an OCS lease’s revenue to a coastal state when the lease contains tracts, “wholly or partially within three nautical miles of [its] seaward boundary.” Outer Continental Shelf Lands Act Amendments of 1985, sec. 1803, � 8(g), 100 Stat. 82 (codified as amended at 43 U.S.C. � 1337(g)). The Secretary is required to provide states with “all information from all sources concerning the geographical, geological, and ecological characteristics of such tracts,” which was intended to help coastal states negotiate with the DOI over oil and gas lease revenue. 43 U.S.C. � 1337(g)(1) (2000). Under section 1337, the Secretary must then make an offer to the state prior to the lease sale, and if the state does not accept within ninety days, the lease sale would go forward, with all revenue deposited in the federal treasury until an agreement is reached, or until a federal court determines the disposition of the revenue. 43 U.S.C. � 1337(g).
104 Outer Continental Shelf Lands Act Amendments of 1978, sec. 205, � 8, 92 Stat. 629 (codified as amended at 43 U.S.C. � 1337 (2000)).
105 43 U.S.C. � 1337(a)(3)(A).
106 Id. � 1337(a)(3)(B); see also id. � 1337(C)(i).
107 H.R. Rep. No. 95-590, at 74 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1481. The issue came to the forefront again over a four-month period in 1976 and 1977 when 45 men were killed and 22 million gallons of oil were spilled in U.S. waters. H.R. Rep. No. 95-590, at 107 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1514.
108 H.R. Rep. No. 95-590, at 89 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1496.
109 United States v. Maine, 420 U.S. 515, 516–17 (1975).
110 Id. at 522.
111 H.R. Rep. No. 95-590, at 89–90 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1496–97.
112 See, e.g., Sierra Club v. Morton, 510 F.2d 813, 817 (5th Cir. 1975); NRDC v. Morton, 458 F.2d 827, 830 (D.C. Cir. 1972); California v. Morton, 404 F. Supp. 26, 28–29 (C.D. Cal. 1975).
113 H.R. Rep. No. 95-590, at 53 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1460.
114 Jones, supra note 71, at 144.
115 Dubner, supra note 46, at 527 (stating that “the environment is playing second fiddle to the revenue concerns of the state and federal governments”).
116 43 U.S.C. � 1345(c) (2000).
117 Id. � 1345(d).
118 Id.
119 Jones, supra note 71, at 129.
120 See id.
The Reagan administration’s continued support for the areawide leasing concept and its refusal to delete areas of environmental sensitivity and economic importance from lease sales was perceived by coastal states and environmental groups as a resource program weighted heavily towards energy production, irrespective of legitimate state concerns for balanced OCS development. The administration’s opposition to continued funding for state coastal management programs, OCS revenue sharing, and consistency requirement lead states and local citizens to conclude that they were taking all the risks of OCS activity but receiving none of the benefits in return.
Id. at 144.
121 Id.
122 Statement on Outer Continental Shelf Oil and Gas Development, 26 Weekly Comp. Pres. Doc. 1006 (June 26, 1990); H. Josef Herbert, National Adviser: Rethink Offshore Drilling, Sun-Sentinel (Ft. Lauderdale, Fla.), May 23, 2001, at 15A.
123 Memorandum on Withdrawal of Certain Areas of the United States Outer Continental Shelf from Leasing Disposition, 25 Weekly Comp. Pres. Doc. 1111 (June 22, 1998).
124 A number of groups including the Humane Society of the United States, the International Fund for Animal Welfare, the International Wildlife Coalition, and the Ocean Conservancy have sought to block the Cape Wind proposal because they believe it poses significant risks for fish and wildlife on Nantucket Sound. See Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 1, at http://www.iwc.org/IWC_at_work/ windfarm/statement_of_concerns.pdf (last visited Mar. 7, 2004).
125 See discussion supra Part I.C.
126 Plaintiff’s Brief, supra note 31, at 1.
127 Alliance to Protect Nantucket Sound v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 69 (D. Mass. 2003).
128 Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. � 403 (2000). Under section 10 of the Act, the building of any structure within waters of the United States is prohibited without congressional approval, and excavation or fill within navigable waters of the United States requires the approval of the Chief of Engineers. Id.
129 43 U.S.C. � 1333(a)(1), (e) (“The authority of the Secretary of the Army to prevent obstruction to navigation in the navigable waters of the United States is extended to the artificial islands, installations, and other devices referred to in subsection (a) of this section.”). Corps regulations require that an oil or gas structure must obtain a permit before it may be placed on the OCS. Navigation and Navigable Waters, 33 C.F.R. � 322.1 (2002).
130 33 C.F.R. � 325.1 (d)(7) (stating that the signature of an applicant for an RHA permit affirms that the applicant possesses or will possess the requisite property interest).
131 43 U.S.C. � 1331(k) (“The term ‘exploration’ means the process of searching for minerals . . . .”).
132 Id. � 1331(l) (“The term ‘development’ means those activities which take place following discovery of minerals in paying quantities, including geophysical activity, drilling, platform construction, and operation of all onshore support facilities, and which are for the purpose of ultimately producing the minerals discovered.”).
133 Id. � 1331(m) (“The term ‘production’ means those activities which take place after the successful completion of any means for the removal of minerals . . . .”).
134 Id. � 1331(q) (“The term ‘minerals’ includes 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’ . . . .”).
135 Id. �� 1331(c), 1332(3).
136 Id. �� 1331–1343.
137 See Elefant, supra note 62, at 343.
138 Id.
139 See Plaintiff’s Brief, supra note 31, at 11.
140 Guess v. Read, 290 F.2d 622, 625 (5th Cir. 1961).
141 See Elefant, supra note 62, at 343–44.
142 43 U.S.C. � 1301(e) (2000).
143 43 U.S.C. � 1332(3).
144 See Kent M. Keith, Laws Affecting the Development of Ocean Thermal Energy Conversion in the United States, 43 U. Pitt. L. Rev. 1, 27–28 (1981).
145 Alliance to Protect Nantucket Sound v. U.S. Dep’t of the Army, 288 F. Supp. 2d 64, 72–74 (D. Mass. 2003) (“It is not the purpose 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.”) (quoting H.R. Conf. Rep. No. 95-1474, at 82 (1978), reprinted in 1978 U.S.C.C.A.N. 1674, 1681).
146 Id. at 75 (quoting 43 U.S.C. � 1331(a)(1)(emphasis added)).
147 Id. at 76–77 (“[T]his court finds that the Corps is entitled to Chevron deference in its interpretation of the scope of section 10 authority on the OCS.”).
148 Id. at 77; see Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. (2003).
149 Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. (2003).
150 Id. � 1(b).
151 Id. � 1(a)(1).
152 Id. � 1(a)(3).
153 Id. � 1(a)(7).
154 See id.
In determining whether such easement or right-of-way shall be granted competitively or noncompetitively, the Secretary shall consider such factors as prevention of waste and conservation of natural resources, the economic viability of an energy project, protection of the environment, the national interest, national security, human safety, protection of correlative rights, and the potential return for the easement or right-of-way.
Id.
155 Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. (2003).
156 Id.
157 Id.
158 Id.
159 Id.
160 See generally, Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 473 (1970). The origins of the public trust doctrine in American common law actually occurred in the nineteenth century. See Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 222–23 (1845); Martin v. Wadell, 41 U.S. (16 Pet.) 367, 4100–11 (1842).
161 Peter Manus, To a Candidate in Search of an Environmental Theme: Promote the Public Trust, 19 Stan. Envtl. L.J. 315, 321, 333 (2000) (“[T]oday’s public trust still faces the challenge of infusing the law with a sense of the government’s overarching sovereign duty to protect the environmental rights of citizen beneficiaries from the exploitive tendencies of the beneficiaries themselves.”).
162 Don Frost, Amoco Production Co. v. Village of Gambell and Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.: Authority Warranting Reconsideration of the Substantive Goals of the National Environmental Policy Act, 5 Alaska L. Rev. 15, 42, 45 (1988).
163 491 P.2d 374, 380 (Cal. 1971).
164 Timothy Patrick Brady, Note, “But Most of It Belongs to Those Yet to Be Born:” The Public Trust Doctrine, NEPA, and the Stewardship Ethic, 17 B.C. Envtl. Aff. L. Rev. 621, 642 (1990) (arguing that the National Environmental Policy Act of 1969 (NEPA) incorporates the public trust doctrine into federal law and therefore should serve as a vehicle to bring the stewardship ethic into law); Frost, supra note 162, at 45.
165 The U.S. Constitution gives Congress “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” U.S. Const. art. IV, � 3, cl. 2; see United States v. California, 332 U.S. 19, 27 (1947); In re Steuart Transp. Co., 495 F. Supp. 38, 40 (E.D. Va. 1980).
166 U.S. Const. art. IV, � 3, cl. 2.
167 See, e.g., Ill. Cent. R.R. v. Illinois, 146 U.S. 387, 452 (1892) (“[T]he state holds title to the lands under the navigable waters of Lake Michigan. . . . It is a title held in trust for the people of the state, that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties.”).
168 United States v. 1.58 Acres of Land, 523 F. Supp. 120, 124–25 (D. Mass. 1981), (holding that when the federal government takes title to tidelands it does so subject to public trust duty to retain control over the property to protect the public interest); Steuart Transp. Co., 495 F. Supp. at 40 (“Under the public trust doctrine, . . . the United States [has] the right and duty to protect and preserve the public’s interest in natural wildlife resources.”).
169 Knight v. United Land Ass’n, 142 U.S. 161, 181 (1891).
170 Susan D. Baer, Comment, The Public Trust Doctrine—A Tool to Make Federal Administrative Agencies Increase Protection of Public Land and Its Resources, 15 B.C. Envtl. Aff. L. Rev. 385, 394 (1988).
171Id. at 385. “For example, the Multiple-Use Sustained-Yield Act directs the Forest Service to administer national forests for as many uses as will achieve maximum public benefit . . . . [T]he Forest Service frequently favors high revenue use over other uses.” Id. at 386 (citing 16 U.S.C. �� 529–531 (1982)).
172 Id. (citing Wild Free-Roaming Horses and Burros Act of 1971, 16 U.S.C. �� 1331–1340 (1982); National Park Service Act, 43 U.S.C. � 1460 (1982 & Supp. 1985) Federal Land Policy Management Act of 1976, 43 U.S.C. �� 1701–1784 (1982 & Supp. 1986)).
173 Id. at 394.
174 Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 294–95 (1958); Marks v. Whitney, 491 P.2d 347, 380–81 (Cal. 1971) “[T]his power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine.” Ivanhoe Irrigation District, 357 U.S. at 294–95 (internal quotes omitted).
175 See Baer, supra note 170, at 394–95.
176 Manus, supra note 161, at 321 (“[T]he present juncture in American law and politics may be a particularly opportune time for the public trust to emerge as a benchmark against which environmental regulation goals and values may be measured.”).
177 Id. at 333.
178 See Frost, supra note 162, at 33.
179 Id. at 34. Frost argues that, “with NEPA Congress clearly intended to enact an environmental policy founded on duty-based environmentalism.” Id. at 50.
180 Id. at 42.
181 H.R. Rep. No. 95-590, at 89 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1496; see discussion supra Part II.C.
182 Wolfe, supra note 4.
183 Id.; Real de Azua, supra note 4, at 486.
184 Cape Wind Assocs., Project Overview: Project at a Glance, About the Cape Wind Project, at http://www.capewind.org/ (last visited, Dec. 9, 2003).
185 Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc.), 2003 WL 11715983; Cape Wind Assocs., Project Overview: Project at a Glance, Energy Savings, at http://www.capewind. org/ (last visited Mar. 10, 2004).
186 Beth Daley, N.E. Eyed as Natural Locale for Wind Power, Boston Globe, July 30, 2002, at A1 (“The alternative is to accept global warming and all of the environmental [problems] and aesthetics that come with it. We’re just not going to have impact-free energy development. It doesn’t exist yet.” (quoting Steve Burrington, General Counsel, Conservation Law Foundation)).
187 See discussion supra Part I.B.
188 See Humane Society et al., Statement of Concerns, Cape Wind Associates’ Proposed Windmill Farm: Possible Impacts on Wildlife in Nantucket Sound 2, at http://www.iwc.org/IWC_at_work/windfarm/statement_of_concerns.pdf (last visited Jan. 14, 2004) (describing Nantucket Sound).
189 See id. (describing Nantucket Sound).
190 Over twenty projects by private developers, including Cape Wind Associates, LLC and Winergy, are currently proposed along the Eastern Seaboard. See, e.g., Cape Wind Assocs., Project Overview: Project at a Glance, at http://www.capewind.org (last visited Dec. 9, 2003); Winergy, Winergy, at http://www.winergyllc.com/ (last visited Dec. 9, 2003). Steven Zwolinski, president of General Electric Wind Energy has stated that even “[t]he smaller [turbines] are like a football field turning on top of a 100-meter-tall tower.” Jeff Johnson, Blowing Green, Chemical & Engineering News, Feb. 24, 2003, at 29.
191 Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. On Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc.), 2003 WL 11715983. Cape Wind claims that newly designed turbines, which are much quieter than older models, will be installed using technologies that will minimize seabed disruption. Cape Wind Assocs., Frequently Asked Questions: Questions about Wind Turbines and Wind Energy: Are the Wind Turbines Noisy?, at http://www.capewind.org/ (last visited Dec. 9, 2003); Cape Wind Assocs., Frequently Asked Questions: Questions about Environmental and Tourism Impact: What Are the Impacts of Cape Wind on Fish and Fishing?, at http://www.capewind.org/ (last visited Dec. 9, 2003). The turbines will also minimize harm to birds because they will not have supporting wires and the blades will rotate slowly. Cape Wind Assocs., Frequently Asked Questions: Questions about Environmental and Tourism Impact: What Impact Will Cape Wind Have on Birds?, at http://www.capewind.org/ (last visited Apr. 18, 2003).
192 Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc.) 2003 WL 11715983.
193 Id.
194 Id. (statement of Massachusetts Attorney General Thomas F. Reilly).
195 See David Arnold, Reilly Urges More Review on Cape Wind Mills, Boston Globe, Oct. 18, 2002, at B4.
196 See discussion supra Part III.A.
197 Plaintiff’s Brief, supra note 31, at 1.
198 Id.
199 Ferdinand, supra note 8, at A3.
200 43 U.S.C. � 1332(3) (2000).
201 See discussion supra Part II.B.
202 43 U.S.C. � 1801(7).
203 Proclamation No. 2667, 10 Fed. Reg. 12,303 (Sep. 28 1945).
204 See id.
205 Id.(emphasis added).
206 See H.R. Rep. No. 95-590, at 53 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1460.
207 Outer Continental Shelf Lands Act Amendments of 1978, Pub. L. 95-372, 92 Stat. 629 (codified as amended in scattered sections of 16, 30, & 43 U.S.C.).
208 H.R. Rep. No. 95-590, at 53 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1460.
209 Id.
210 43 U.S.C. � 1332(3) (2000). “Operations in the outer Continental Shelf should be conducted in a safe manner by well-trained personnel using technology, precautions, and techniques sufficient to prevent or minimize the likelihood of . . . occurrences which may cause damage to the environment or to property, or endanger life or health.” Id. � 1332(6).
211 H.R. Rep. No. 95-590, at 113 (1977), reprinted in 1978 U.S.C.C.A.N. 1453, 1519–1520.
212 See discussion supra Part II.B.2.
213 Jones, supra note 71, at 118, 130.
214 Id. at 130.
215 See, e.g., 43 U.S.C. � 1337(a)(3)(A), (a)(3)(C)(i).
216 See Jones, supra note 71, at 144.
217 Id. at 129.
218 Id. at 144.
219 Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. (2003).
220 See discussion supra Part II.C.
221 One of the stated purposes of the bill is to “expedite projects to increase the production, transmission, or conservation of energy on the Outer Continental Shelf.” Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. � 1(a) (2003).
222 The Secretary is granted the authority to determine what environmental protections are necessary. See Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. � 1(b) (2003) (The Secretary “shall prescribe any necessary regulations to assure . . . protection of the environment”) (emphasis added).
223 Id.
224 Id. (emphasis added).
225 Id.
In determining whether such easement or right-of-way shall be granted competitively or noncompetitively, the Secretary shall consider such factors as prevention of waste and conservation of natural resources, the economic viability of an energy project, protection of the environment, the national interest, national security, human safety, protection of correlative rights, and the potential return for the easement or right-of-way.
Id.
226 See Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc., arguing that this is appropriate), 2003 WL 11715983.
227 See Watt II, 712 F.2d 584, 611 (D.C. Cir. 1983).
228 Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. � 1(b) (2003).
229 43 U.S.C. � 1337(a)(3)(B) (2000).
230 See discussion supra Part I.B.
231 See discussion supra Part I.C.
232 Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Massachusetts Attorney General Thomas F. Reilly), 2003 WL 11715981.
233 Id.
234 Dubner, supra note 46, at 527.
235 Brady, supra note 164, at 630.
236 Id. (citing Lynton Keith Caldwell, Land and the Law: Problems in Legal Philosophy, 1986 U. Ill. L. Rev. 319, 332).
237 Some residents of Cape Cod have also expressed concern over the aesthetic impacts of the Cape Wind development. Jeffrey Krasner, Offshore Windfarm Blows into Cape View, Boston Globe, July 28, 2001, at A1 (“I think they’re out of their minds, . . . . This is one of the premier yachting areas in the world and we’re going to turn it into an obstacle course? That’s leaving aside the aesthetics of having these poles sticking up out of the water for miles.”) (quoting state Representative Eric T. Turkington, Democrat of Falmouth, MA). In response to aesthetic worries about offshore wind turbines, Seth Kaplan, a lawyer with the Conservation Law Foundation, pointed out that people should consider how the landscape will look in a century or less after factoring in climate change from global warming. Arnold, supra note 25, at B1. Spurred by the carbon emissions from fossil fuel power plants, warmer temperatures are expected to give New England the climate of the Carolinas. Id.
238 See Brady, supra note 164, at 633.
239 See discussion supra Part IV.B.
240 See discussion supra Part II.C.
241 Alternative Energy-Related Uses on the Outer Continental Shelf, H.R. 793, 108th Cong. � 1(b) (2003).
242 See, e.g., 43 U.S.C. � 1337 (2000).
243 York & Settle, supra note 15, at 388.
Maintenance of an adequate wind flow is critically important to a wind energy developer. Since the power in wind increases by a factor of eight as wind speed doubles, variation in wind speed of just a few miles per hour can be the difference between success and failure of a [wind farm].
Id.
244 Cape Wind Assocs., Project Overview: Project at a Glance, About the Cape Wind Project, at http://www.capewind.org/ (last visited Dec. 9, 2003).
245 Jones, supra note 71, at 118.
246 Id. at 130.
247 Watt II, 712 F.2d 584, 611 (D.C. Cir. 1983).
248 Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc.), 2003 WL 11715983.
249 Id.
250 Arnold, supra note 25, at B1. “[T]oday’s wind power entrepreneurs may tout environmental motives, but their eye is on the bottom line. Increasingly efficient turbines are making wind a serious competitor with fossil fuels, leading wind developers to spend tens of millions of dollars on proposals alone.” Id. (stating that in the last two decades, the cost of generating a kilowatt of electricity from wind has dropped by more than eighty percent).
251 Outer Continental Shelf Lands; Federal Coal Resources: Hearing on H.R. 793 Before the House Res. Comm. Subcomm. on Energy and Mineral Res., 108th Cong. (2003) (statement of Bruce Bailey, President, AWS Scientific, Inc.), 2003 WL 11715983.
252 See Arnold, supra note 25, at B1.
253 See id.
254 See discussion supra Part II.C.
255 43 U.S.C. � 1801(7) (2000).
256 See discussion supra Part I.B.
257 See discussion supra Part V.B.1.
258 See discussion supra Part V.C.
259 Id.
260 See Jones, supra note 71, at 144.