Offshore Wind Momentum In The Aftermath Of Cape Wind

My introduction to offshore wind was in June 2009. I had just moved across the country from New Mexico to start my new job as solicitor of the U.S. Department of the Interior. The federal agency is known for its vast, and often conflicting, portfolio – from national parks and endangered species to energy development, Western water management, and Indian tribes. I was excited to learn what lay ahead, with Western natural resources and Native American law experience under my belt.

Upon my arrival, my boss, Secretary Ken Salazar, mapped out his priorities. Among an impressive list was the first offshore wind project in the Atlantic Ocean, called Cape Wind in Nantucket Sound. I quickly came to learn that the project had a bit of baggage from undue government delays and interagency turf battles that Salazar wanted to rectify under his watch.

Cape Wind had endured a tough row from the start. The lease application was first filed in November 2001 with the U.S. Army Corps of Engineers. In 2005, Congress transferred responsibility for offshore wind development to Interior. Then the project developer had to wait another four years until 2009 when Interior published its final offshore energy regulations.

After these interminable delays of nearly a decade, Interior finally issued the lease in October 2010 amid the Deepwater Horizon oil spill crisis in the Gulf. We felt we had achieved record-speed approval by simultaneously finalizing National Environmental Policy Act (NEPA) reviews with cultural resources, migratory bird and endangered species clearances, while also coordinating with our sister agencies like the Federal Aviation Administration, National Oceanic and Atmospheric Administration, and U.S. Coast Guard.

Yet, despite our best efforts, we could not overcome the doomed fate of Cape Wind. It was all over at the end of our tenure in 2017, after litigation losses and delays, state regulatory denials and non-renewal of power purchase agreements. At Interior, we felt we had given it our best shot, but in the end, our federal approval was not enough to deliver the first offshore wind in the Outer Continental Shelf. My tenure at Interior was wrapping up, with a new administration coming to town and an uncertain future for offshore wind.

Thankfully, multiple forces of innovation, energy and environmental policy, and economic drivers have brought the vision of offshore wind into reality. A number of factors have made this possible.

For starters, Interior learned a great deal from the Cape Wind experience, including that siting a project in a national historic area like Nantucket Sound is not a good idea!

We also left the hallowed halls of Interior with an established task force framework to engage with coastal states, identification of low-conflict Wind Energy Areas, and best-management practices that reduced or mitigated environmental impacts.

We also mapped out a four-phase leasing process with more in-depth environmental review occurring at the construction phase. I was pleased to see that this process was recently upheld by a federal district court in Washington, D.C., in the Fisheries Survival Fund v. Jewell case, involving an offshore wind lease that Interior issued to Statoil Wind US in offshore New York. Having a D.C. federal court validate the current process is good news, as it gives a real time indicator for developers as to what will survive legal challenge.

Likewise, Interior learned many important lessons from the Cape Wind litigation about how to pursue its various environmental, wildlife and cultural resources reviews, providing a road map for future projects.

With this valuable knowledge in tow, the current administration is exploring ways to further streamline the permitting process, including use of the “design envelope” method, single agency decisions under NEPA and reversal of the prohibition on migratory bird incidental take.

Since 2009, Interior has issued 16 leases, with preliminary efforts currently underway to consider the potential for offshore wind in the Pacific and offshore Hawaii. There is great momentum in the waters, with real investment and long-term commitment by multiple developers across the Eastern Seaboard.

More positive news was announced by newly confirmed Secretary David Bernhardt, who has paused the five-year planning process (2019-2024) under the Outer Continental Lands Shelf Act, which his predecessor, Ryan Zinke, announced would include consideration of oil and gas development in the Atlantic. This latest move gives additional comfort that the “American Energy Dominance” agenda of the current administration has a seat at the table for offshore wind.

In addition to Interior’s momentum, the coastal states are moving the clean energy agenda forward with renewable energy credits and portfolio standards. The advent of the first operational wind farm at Block Island, offshore Rhode Island, has also incentivized others to take the plunge.

And the market is slowly but surely shifting in the right direction, making renewable energy affordable and profitable when other conventional forms of energy, like coal and nuclear, are retiring their operations, particularly in the Northeast. But it will be important to match this growth and the changing face of domestic energy with commensurate support for research and development and further integration of offshore wind into existing markets, pricing frameworks and the transmission grid.

After a decade in this business, my sense is the winds are blowing in the direction of offshore wind and that government, industry and the energy market are now on board with charting a future course that makes America a leader in this nascent sector of our energy portfolio.

While the history books may cast the Cape Wind project as a failure, the offshore wind industry in the Outer Continental Shelf had to start somewhere, and I am thankful to have witnessed its birth.

Hilary C. Tompkins is a partner at law firm Hogan Lovells LLP in Washington, D.C.