Too Much NEPA? An Offshore Wind Dilemma

The Bureau of Ocean Energy Management’s 352 page Environmental Assessment of plans to lease space off the New York coast was just released for comment. Better hurry with your comments: it’s going to be a long wait.

Just out this week was BOEM’s encyclopedic environmental assessment (EA) of its planned area for exploring the leasing space off the coast of New York for the development of utility-scale windfarms.  This isn’t an EA examining actual build/operate plans.  It isn’t even an EA examining rules or policies about eventual build/operate plans.  It’s an EA examining the environmental consequences of inviting proposals to that end within a delimited area—which entails allowing potential suitors to go out trial-and-error style throughout the area so they can decide whether they’ll have a go at building a utility-scale windfarm just a few dozen nautical miles from the continent’s largest electricity market.

Given our climate situation, you might think this is a no-brainer.  NYC can always use more electricity.  {See our story on the Champlain-Hudson Power Express project here.} Putting the windfarm offshore minimizes the potential land use conflicts sure to disqualify most sites in the metro area.  And the potential conflicts that have been identified seem relatively solvable by comparison: navigation, commercial fisheries and visual impacts.  (Hence the already quite delimited area shaded in green on the map.}BOEMs NY Call Area

BOEM’s preparation of this overstuffed EA speaks (literal) volumes to the state of offshore wind in the U.S., though.  This post explains that dilemma and how NEPA is factoring into it.

For Process Over Substance in NEPA, Look No Further than OCSLA

We’ve noted the challenges of assessing environmental impacts from offshore energy development under the Outer Continental Shelf Lands Act (OCSLA) before.

To be fair, the statute makes big allowances for NEPA impact assessments and their integration into the agency decision-making processes it requires.  Leasing space offshore for development—whether for fossil fuels or wind—entails multiple layers of impact assessment because, well, there are real opportunities for offshore energy projects to create serious environmental impacts.  Multiple, redundant environmental reviews can seem utterly logical.  But when one considers how unfocused and ultimately deleterious the Department of Interior’s NEPA analyses of deep water oil production in the Gulf of Mexico became leading up to the Deepwater Horizon disaster, this approach takes on an edge.  {See our post here.}

The biggest risks have the worst tendency to slip through unnoticed when NEPA analysts think they’re somebody else’s problem.  Add to that the downside risk that delaying carbon-neutral electricity generating capacity represents and this gets tricky very quickly.

To be clear, the “clean” energy possibilities offshore are still open to debate.  Whether current technology can generate grid competitive electricity and where is a hard question.  Mitigating wildlife kills from turbine installation and operation can present hard questions.  And even offshore, wind energy is intermittent, raising hard questions about what to do for a back-up.  All of which leads to the mother of all sue-to-delay-till-its-oblivion tales, Cape Wind.

Cape Wind: America’s First Offshore Windfarm Project that Never Was

The Cape Wind project in Nantucket Sound is by now (in)famous.  The battle it stirred was so bitter that books were written and films made about the vitriol with which the opposing residents and the Cape Wind firm punched it out.  (We even featured Cape Wind in a story last September dissecting the rhetoric of NEPA abuse.)

BOEM eventually issued Cape Wind its lease, only to watch the project sink into the pit of despair its many opponents had dug.

While the firm soldiered mightily to become fully permitted, it finally lost its power purchasing deal with the local grid operators last year.

Now, like a zombie, the record of Cape Wind’s ignominious defeat—and of the enormous costs the opponents were able to create through their delays—sits around, warding off wind farm capital.  One particularly onerous NEPA process and an especially thorny NEPA lawsuit sat right in the middle of it all.

Cost has already chased off one would-be developer in the New York area. Will this EA eventually morph into a “finding of no significant impact” for lack of any interest in pursuing such a lease?

Offshore Wind in the NYC Region?

As BOEM helpfully recounts in the draft EA now out for public comment, the agency has hardly been beating any speed records in making a wind farm off the coast of NYC into reality.  When the New York Power Authority approached BOEM about leasing space back in 2011, the agency took two years just to decide that they should solicit bids publicly.  After that request for proposals was published in January 2013, they took another year and a half to process the expressions of interest and determine that, yes, there might be sufficient interest and that soliciting the submission of site assessment plans (SAPs) would be the next step.BOEM NY Process  The graphic shows just how deliberately BOEM has proceeded here.  This latest move—announcing the area in which exploration will commence—may or may not elicit some NIMBY-based objection.

If it does, there is (on our informal review) little to target where NEPA is concerned.  This agency action has virtually no potential environmental consequences that are not considered in excruciating detail in BOEM’s voluminous EA.  And BOEM is inviting public comments (get yours in before August 5!), in accordance with the Second Circuit’s precedent, Brodsky v. U.S. Nuclear Regulatory Comm’n, 704 F.3d 113 (2d Cir. 2013).

Assuming a promising SAP is submitted, the lessee will proceed to a construction and operation plan (COP), whereupon a full environmental impact statement (EIS) would be prepared thereon.  But, of course, that could be many years in the future—and it will almost surely elicit some legal challenge(s).  BOEM’s lease sale notice appeared here.

The potential sites for a wind installation have already been narrowed significantly to minimize the risk of conflicts with fisheries, navigation and viewsheds.  One thing BOEM didn’t address, though: the likelihood that turbine technology will improve fast enough and significantly enough to be grid competitive by the time leasing in this region finally gets going.

{Image: Sheringham Shoal Windfarm, England, 2012  ©Wikipedia}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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