From Sea to Shining Sea, U.S. Continues Renewable Energy Push with Biden Administration’s Latest Commitment to Offshore Wind

Husch Blackwell LLP

The momentum behind offshore wind has continued to grow since our February 2021 post on the topic. Last week, the U.S. Department of the Interior announced plans to open seven more offshore wind leases by 2025 off both coasts of the U.S. These potential leases will cover projects in federal waters in the Gulf of Mexico, Gulf of Maine, and off the Mid-Atlantic, the Carolinas, California, and Oregon. The agency’s announcement follows a March 2021 commitment by the Biden Administration to deploy 30 gigawatts (30,000 megawatts) of offshore wind by 2030. The agency’s announcement also came on the same day the Department of Energy set aside $13.5 million to support continued research on the impact of offshore wind on birds, bats, and marine mammals.

As we detailed in our previous post, offshore wind development presents a unique set of legal issues not always raised by onshore wind. These issues include Bureau of Ocean Energy Management (BOEM) project approval, federal and state land leases, National Environmental Policy Act (NEPA) review, and consultations with U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NMFS).

Another challenging piece of the offshore project puzzle is acquiring land for the project’s onshore components. This onshore infrastructure, including buried transmission lines and substations, requires the lease or purchase of what is most often heavily developed, protected, and expensive waterfront real estate. Obtaining regulatory approval for these onshore components also entails careful navigation of coastal zone management and waterfront revitalization programs, which balance water quality, erosion, and wildlife habitat protection with development goals.

Despite the clear support from the current administration, offshore wind faces potential challenges from the tourism, recreation, seafood industries, and coastal landowners. We have seen some of these challenges already, including a commercial fishing group’s petition for review of BOEM’s approval of the “Vineyard Wind 1” Project, a 62-turbine project 12 miles south of Martha’s Vineyard, Massachusetts. While the petition is not an official complaint and, instead, only a request for the appellate court to hear the case, fishing groups common concerns about offshore wind development include disruption to ocean ecology, fishery health, and boat navigation. Though historically, wind developers have worked with fishing groups to mitigate some of these concerns by spacing turbines one mile apart and orienting them in the same direction to avoid interference with navigation.

To help facilitate the ambitious clean energy goals amidst those challenges, BOEM is developing guidelines to identify suitable Wind Energy Areas (WEAs) for future leases.  Establishing WEAs requires BOEM to engage with state and local government agencies, tribes, and industry groups to find agreeable locations for development. BOEM is also considering adding lease provisions consistent with labor and U.S. domestic supply chain investment goals created under the 1953 Outer Continental Shelf Lands Act.

BOEM has approved the above-mentioned Vineyard Wind 1 Project, the first major commercial offshore wind farm in the U.S., and two other areas for offshore wind leases in Central and North California. However, given the aggressive 2030 timeline, we can expect a rush of developers and investors jockeying for coveted queue positions as more lease locations gain approval.

Moving forward, developers and investors interested in exploring offshore wind opportunities should engage early and often with both governmental agencies and onshore landowners. However, all parties involved should expect some uncertainty and delays, as the playbook remains mostly unwritten.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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