The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Energy & Environment

Are Biden Administration's Offshore Wind Plans Just a Fantasy?

Without attention to the onerous permitting process for offshore wind and other energy projects, efforts will be plagued by costly delays.


The Department of the Interior plans to auction off leases for offshore wind development all along the nation's coastline.  From a New York Times report:

Speaking at a wind power industry conference in Boston, Interior Secretary Deb Haaland said that her agency will begin to identify, demarcate and hope to eventually lease federal waters in the Gulf of Mexico, Gulf of Maine and off the coasts of the Mid-Atlantic States, North Carolina and South Carolina, California and Oregon, to wind power developers by 2025.

The announcement came months after the Biden administration approved the nation's first major commercial offshore wind farm off the coast of Martha's Vineyard in Massachusetts and began reviewing a dozen other potential offshore wind projects along the East Coast. On the West Coast, the administration has approved opening up two areas off the shores of Central and Northern California for commercial wind power development.

Taken together, the actions represent the most forceful push ever by federal government to promote offshore wind development.

This may be "the most forceful push ever" for offshore wind, but it will take far more than offering offshore leases to actually get meaningful amounts of offshore wind development. Offering leases for commercial wind development is but the first step in a long, and often quite expensive and conflict-ridden process.

Silll, there is no guarantee that companies will lease space in the federal waters and build wind farms. Once the offshore areas are identified, they will be subject to lengthy federal, state and local reviews. If the potential sites could harm endangered species, conflict with military activity, damage underwater archaeological sites, or harm local industries such as tourism, the federal government could deem them unsuitable for leasing.

As they have in response to other offshore wind farms, commercial fishing groups and coastal landowners will likely try to stop the projects. In the Gulf of Mexico, where oil and gas exploration is a major part of the economy, fossil fuel companies could fight the development of wind energy as a threat to not only their local operations but their entire business model.

In 2002, federal regulators said that the Cape Wind project in Nantucket Sound would have all its necessary permits within three years, but it never happened. Local NIMBY activists and other project opponents tied the proposal up in knots for years. Eventually, in 2017, the project's funders gave up. Over fifteen years of investments and efforts could not navigate the regulatory permitting process when faced with concerted opposition.

The news is better here in Ohio, where it looks like LEEDCo's Icebreaker wind project in Lake Erie is nearing the finish line, but it is absurd that this small project, envisioned over a decade ago, has taken so much time and effort. Again, an onerous regulatory environment that makes it easy for project opponents to gum up the works is largely to blame.

To the Administration's credit, a January Executive Order on climate policy identified the need to "review siting and permitting processes on public lands and in offshore waters to identify . . . steps that can be taken, consistent with applicable law, to increase renewable energy production on those lands and in those waters." The new announcement said little about this, beyond pledging to "facilitate a pipeline of projects that will establish confidence for the offshore wind industry." More is necessary.

If meaningful amounts of offshore wind or other renewable energy development, and associated infrastructure, is going to get built, there needs to be far greater attention to the regulatory and permitting processes that delay and obstruct energy projects, including from Congress. Though well-intentioned, these processes are easily weaponized by project opponents. Fostering delay is often enough to kill a project, and to discourage investors from pursuing new ventures. There is also only so much federal agencies can do to fix the problem.

For all the talk about "Building Back Better" and funding green technology through a "Green New Deal," policymakers (and legislators in particular) have given too little attention to the regulatory environment in which such investments will be made. If the Biden Administration wants to truly be effective at fostering investment in and deployment of low-carbon technologies, it will need to devote greater attention to reform of permitting processes, streamlining and rationalizing NEPA reviews, and limiting the ability of small organized groups to throw sand in the regulatory gears.  Indeed, if there were enough attention to making the permitting process more streamlined and certain, there would be more private investment in such projects, and less need for federal government largesse.

In the end, we will know whether Congress is serious about offshore wind and fostering investment in low-carbon energy based on the degree to which it addresses the permitting and regulatory environment. Without such a focus, the rest will just be for show, and we will have little clean energy to show for it.