fromcfact
David Wojick
Under administrative law, controlling offshore wind energy to offshore winds will be a complex process that few people understand. As a result, there can be a lot of confusion and misunderstanding. Some of them will be interesting.
A good example, actually, was during the Senate confirmation hearings for Governor Doug Burgum as Secretary of the Interior. The vehicle for this confusion was an exchange between Maine Senator Angus King and Burgum. In-house is the main agency leasing offshore wind sites and overseeing their development.
King essentially asked Burgum to commit to continuing the Interior Department's offshore wind leasing division on Gulf of Maine and offshore wind projects.
Burgum responded: “I'm not familiar with every project that's going on internally, but I definitely look at all of them and if they make sense and are already well-known, then they will continue.”
It sounds like Burgum agrees with King, but given President Trump’s stated policy of halting offshore wind development it probably isn’t. It all depends on what “legal” means.
In particular, “legally” may mean that the project already has all required federal licenses and approvals. There are a number of such projects already under construction and it would be difficult to stop them at this stage. The government will have to buy them by force.
At the same time, almost all of the forty or so offshore wind projects are not at this “legal” stage. Many projects are just at the beginning of the approval process, including three projects in Maine. As far as I know, two of these projects don't even have much less approval.
If the interpretation of “already in law” is correct, then what Burgum really said to King was “Not a chance, Senator.” This will be really interesting, especially since offshore wind press reports Burgum agrees with King.
The deeper confusion is the perception that the future of offshore wind depends on Burgum. While it holds the lead internally and has major approvals for several other basic endorsements. In some cases, the entire institution must agree to approve.
A big example is the central issue of wind development capturing whales. The main agency in the area of whale conservation is NOAA Fisheries, which is in the Department of Commerce rather than the Interior Department. I haven't seen the Secretary of Commerce mention it in the discussion of offshore wind policy.
The Whale Conservation Authority was widely shared. NOAA's authority to protect all whales is the Marine Mammal Protection Act. In particular, they must approve alleged harassment of whales caused by various stages of offshore wind development. I say so-called because what is sanctioned is actual harm, which goes beyond harassment.
However, NOAA Fisheries also has authority under the Endangered Species Act (ESA) to protect endangered whales from offshore winds. Here, the approval mechanism is called a biological opinion. It must be said that adverse environmental impacts do not violate the ESA.
NOAA Fisheries has the lead, but six different federal agencies must sign off on biological opinions approving offshore wind projects. Two are indoors, one is in commerce, defense and transportation, and the EPA. Any one of these agencies can kill approval.
There are undoubtedly other necessary approvals that I'm not aware of yet. Some of these agencies may even be hostile to offshore wind development.
For example, I've heard that the Coast Guard, with good reason, considers offshore winds a threat to navigation as well as a threat to search and rescue. Both the Navy and the Air Force are concerned about the adverse effects on defensive radar systems and much more.
The Biden administration is able to bring all of these agencies into line as it approves a wave of offshore wind projects. Trump may just have to free up his agency to do its proper job, and approvals will be significantly reduced. Time will tell.
In the meantime, enjoy the confusion as it will also help end the wind bug. Please stay tuned to CFACT for continued coverage of this historic process.
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