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June 30, 2023

Stepbrothers: Can we reconcile the growing demand for offshore wind energy with marine conservation?

David E. Jennings

An urgent need for clean energy

Experts predict that global warming is likely to reach 1.5°C above pre-industrial levels between 2030 and 2052 if it continues unimpeded at current rates. Climate-related risks for natural and human systems will follow suit as a result. In light of predicted changes in climate and their associated risks, the Biden administration has been pressing for rapid increases in the development and utilization of renewable energy, particularly offshore wind (OSW). This includes the goal of harnessing 30 gigawatts of OSW power by 2030, as part of the administration’s commitment of reaching 100 percent clean electricity by 2035 and a net-zero-emissions economy by 2050.

At the time of this writing, there are only two operational OSW installations in the United States, comprising a mere seven turbines. These installations generate only 42 megawatts, meaning that 700 times this output will be required by the end of the decade to meet the Biden administration’s ambitious goals. Reaching this goal raises the important question of whether this massive increase in OSW development can be sufficiently harmonized with marine conservation under existing regulatory processes.

Wind versus whales?

Recent media attention has frequently framed the issue of massively increasing OSW development as a question of “wind versus whales,” which, unfortunately, is a vast oversimplification. To be sure, many taxa—including marine mammals—are affected, one way or another, by OSW development; but the affected species also include fish, benthic invertebrates, birds, and bats. While the fact remains that some 29 whales (among them endangered North Atlantic right whales) recently washed ashore on the east coast of the United States, a detailed discussion of these deaths is beyond the scope of this article. But notably, while the National Marine Fisheries Service (NMFS) declared that there is no link between the whale mortality and OSW development, findings from a recent Biological Opinion seem unlikely to assuage most concerns. Either way, there is no doubt that many of the mechanisms through which OSW turbines are installed (e.g., pile-driving) and subsequently operate (e.g., turbine blades turning) will affect marine mammals and other wildlife.

Risks of OSW development to marine taxa

Turbine installation generally poses the greatest hazard for marine taxa in OSW development. For example, the noise and vibrations from pile-driving, as well as the noise from construction and other vessel traffic, and the risk of vessel strikes, may adversely affect marine mammals. Turbine blades themselves, when operational, present a risk to birds, including seabirds and other migratory species. Migratory bats may also be adversely impacted by OSW turbine blades. While the number of bird deaths may be relatively “small” now, the Biden administration’s goal is for the United States to generate 700 times more energy from OSW than it currently does, which would require the installation of thousands more OSW turbines.

Benefits of OSW development to marine taxa

The effects of OSW development on species and associated habitats are not all negative. For example, OSW turbines can provide valuable habitat for sessile marine species. Fisheries exclusion zones around the turbines will likely have a positive effect on some species. Moreover, in the absence of climate change mitigation, the diversity and abundance of fish species in those areas is likely to change anyway. Therefore, given the uncertainty that remains regarding the magnitude and direction of the effects of OSW development on marine taxa, any revised regulations will need to be adaptable to accommodate rapid expansion of the OSW industry.

Current regulatory framework

OSW development currently implicates a patchwork of federal environmental statutes, such as the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), Migratory Bird Treaty Act, National Environmental Policy Act, Coastal Zone Management Act, and the National Historic Preservation Act. Various federal agencies are involved in applying these regulations to OSW development, such as the Bureau of Ocean Energy Management (BOEM), National Oceanic and Atmospheric Administration, NMFS, and U.S. Coast Guard. For instance, the ESA requires BOEM to consult with NMFS for species under NMFS’ jurisdiction, which includes several whale, turtle, and fish species. Meanwhile, the MMPA provides a general moratorium on the take of marine mammals but allows for various exceptions; most exceptions involving OSW typically implicate the underwater noise associated with turbine installation.

Acknowledging the need to update its regulations governing OSW for the first time since 2009, BOEM published the proposed Renewable Energy Modernization Rule on January 30, 2023. If enacted in substantially similar form as proposed, this rule would represent an important step toward streamlining the regulation of OSW development, without disregarding the potential risks to marine taxa. Significantly, proposed changes to 30 C.F.R. section 585.103, which governs when BOEM may prescribe or approve departures from the regulations, would add flexibility for when BOEM determines the regulations “[a]re impractical or unduly burdensome and the departure is necessary to achieve the intended objectives of the renewable energy program,” while maintaining existing flexibility for protecting the environment, wildlife, natural resources, and archaeologically or historically important sites.

Implementing an adaptive and coordinated management framework for OSW

A recurring theme throughout scientific literature is that many effects of OSW development on marine taxa simply remain unknown at this time. Therefore, an adaptive management framework is surely a necessary component of regulatory decisions going forward. Moreover, the patchwork of existing federal environmental statutes applicable to OSW development yet again highlights the need for a more unified governance framework for the oceans. The perceived conflict between OSW development and marine conservation is unnecessary and should largely be avoidable if more adaptive and robust regulations are put in place. BOEM’s proposed rule is a fine start. An adaptive and coordinated management framework should help facilitate the transition to greater reliance on OSW without sacrificing other environmental interests in marine conservation.

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    David E. Jennings


    David E. Jennings is an associate with the law firm Cain & Skarnulis PLLC. His practice includes a range of environmental, natural resources, and water law areas.