Regulatory Tracker

Federal Offshore Wind Deployment

Quick Take

The Bureau of Ocean Energy Management (BOEM) manages the selection and leasing of offshore wind development sites and permitting of offshore wind projects. At this time, BOEM has fully approved two offshore wind projects in New England representing nearly 1 gigawatt (GW) of capacity and is currently reviewing the construction and operation plans (COPs) for eleven more projects, which is the final step before approval. BOEM has identified at least seven additional sites for potential wind project development around the US. With an eye towards achieving the Biden administration’s goal of deploying 30 GW of offshore wind energy by 2030, BOEM has streamlined its site designation and permitting processes.

Why it Matters

The US has identified vast resource potential for offshore wind in the federal waters of the outer continental shelf (OCS) but offshore wind deployment in the US has struggled to take off. When President Biden took office in 2021, the US had one commercial offshore wind farm in operation (30 megawatts) while the cumulative global offshore wind capacity reached nearly 33 GW. The Biden administration has set ambitious goals to reach 100 percent carbon pollution-free electricity in the US by 2035, electrify buildings, and deploy electric vehicles. Reaching these goals will require a significant increase in renewable generation resources. While continued development of onshore solar and wind is needed, offshore wind is an alternative to finding sites for large land-based developments for states on the seacoasts and Great Lakes. In addition, many states have required their electric utilities to develop or facilitate development of offshore wind facilities to reach their clean energy goals.

The Department of Interior’s (DOI) BOEM manages the development of marine renewable energy projects in the OCS under the Energy Policy Act of 2005’s amendment to Outer Continental Shelf Lands Act (OCSLA) of 1953. The OCSLA provides that the OCS is a national resource that “should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.” 43 U.S.C. § 1332(3). The OCS begins three nautical miles off the state shoreline, with the exception of Texas and the Florida Gulf Coast where it starts nine nautical miles beyond the coast and extends out 200 nautical miles from the shoreline. Offshore wind energy resources in the Great Lakes is managed by the abutting states in coordination with federal agencies.

Pursuant to OCSLA, BOEM has standardized its review and authorization process of offshore wind development in the OCS. First, following outreach with project developers and interested parties, BOEM proposes a Wind Energy Area (WEA). As part of the WEA assessment process, BOEM conducts environmental reviews and consultants with stakeholders. Second, BOEM conducts an auction and awards the lease. Third, the lessee submits its Site Assessment Plan (SAP), which outlines pre-development activities to evaluate meteorological conditions, and its COP that details all project development activities. Finally, BOEM reviews the developer’s submittals to determine if they are consistent with federal environmental laws. A lessee may begin construction once BOEM approves their COP and resolves any objections raised during the public comment period.

BOEM’s development actions must comply with a suite of federal laws that play a significant role in approving offshore renewable energy projects. These include the National Environmental Policy Act (NEPA), Marine Mammals Protection Act (MMPA), and the Endangered Species Act (ESA). These federal regulations require processes that are time- and resource-intensive and have historically stalled offshore wind permitting processes and led to litigation, which further delayed offshore wind development in the US. For more information on the offshore wind federal permitting challenges, read our blog here.

Current Status

On March 29, 2021, the Biden administration announced its goal to deploy 30 GW of offshore wind projects in the OCS by 2030 and for BOEM to review 16 COPs by 2025. As of June 6, 2022, BOEM had approved two COPs, started conducting environmental review of COPs for eleven additional projects, and initiated the process for offshore wind leases in at least seven other areas.

The passage of the Inflation Reduction Act (IRA) in August 2022 creates significant economic incentives for the further development of offshore wind  and ends Trump era moratoriums on leasing in the Southeastern United States. For more information on the IRA’s impact on offshore wind, read our blog here. On September 15, 2022, the Biden administration announced a goal to deploy 15 GW of floating offshore wind by 2035 as BOEM makes progress towards deploying floating turbines in the deep waters on the West Coast.

OBAMA ADMINISTRATION
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Feb. 17, 2009 The American Recovery and Reinvestment Act of 2009 provides more than $90 billion in clean energy investments and tax incentives. The Act does not reference offshore wind specifically, however, the Act includes funding for domestically produced wind turbine components and wind related tax credits.

Feb. 7, 2011 Department of Energy (DOE) in collaboration with DOI releases the nation’s first offshore wind strategic guide titled A National Offshore Wind Strategy: Creating an Offshore Wind Energy Industry in The United States. The interagency initiative outlines a plan for reducing the cost of offshore wind energy and reducing the deployment timeline.

Mar. 24, 2011 DOI launches the “Smart from the Start” program focused on bringing offshore wind to market. Its central components involve identifying low conflict, high potential leasing areas, coordinating task forces, reducing and combining the processes involved, and creating more certainty for the public and industry stakeholders.

June 25, 2013 The Obama administration releases its Climate Action Plan which sets goals for domestic carbon reduction and climate change preparation as well as international engagement. This plan announces the administration’s increased efforts in accelerating clean energy permitting on public lands. While not specifically referencing the OCS, this comprehensive plan led to six competitive lease sales covering over one million acres in federal waters.

July 30, 2013 and Dec. 9, 2013 After receiving an unsolicited application for an OCS research lease from the Virginia Department of Mines, Minerals, and Energy (DMME), BOEM publishes a Public Notice of an Unsolicited Request, a Request for Competitive Interest, and a Request for Public Comment in July 2013. BOEM publishes a Notice of Determination of No Competitive Interest in December 2013 and awards the research lease to DMME.

Apr. 14, 2014 BOEM finalizes a rule extending the amount of time lessees and grantees have to submit a SAP or General Activities Plan (GAP) following an auction. The rule grants both lease holders and grantees twelve months to submit their proposals opposed to the previous rule which gave six months for lessees and sixty days for grantees and proved impractical.

Mar. 24, 2015 BOEM approves the country’s first Research Activities Plan (RAP) submitted by the Virginia DMME. Designed to further the Climate Action Plan initiative, the RAP includes a plan for a grid-connected, 12 MW offshore wind test facility to provide data and information for the benefit of future offshore wind production.

Dec. 4, 2015 The Fixing America’s Surface Transportation (FAST) Act is signed into law (42 U.S.C. § 4370m). FAST-41 creates a governance structure, procedures, and funding authorities designed to improve the federal environmental review and authorization for covered infrastructure projects, including offshore wind.

July 5, 2016 The Court of Appeals for the D.C. Circuit finds BOEM in violation of its obligations under NEPA to take a “hard look” and consider every significant aspect of the environmental impact of a proposed action. The COP submitted for the Cape Wind project fails to assess the geological and geophysical environment of the Nantucket Sound. Public Employees for Environmental Responsibility v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016).

Sept. 9, 2016 DOE, in collaboration with DOI, publishes its second strategic guide titled A National Offshore Wind Strategy: Facilitating the Development of the Offshore Wind Industry in the United States. This strategy lays out 34 different actions that DOE and DOI can take to facilitate offshore wind development in the country. Within the publication, DOE launches a series of investments totaling more than $250 million in targeted research and DOI announces the development of a initiative to facilitate the siting, leasing, and construction of new projects.

Dec. 12, 2016 The United States’ first offshore wind farm off of Block Island, Rhode Island begins delivering energy to the power grid. The 30 MW project consists of five turbines located in state waters and utilizes an eight nautical mile-long right of way grant issued from BOEM on December 19, 2014.

Dec. 16, 2016 BOEM publishes A Citizens Guide to the Bureau of Ocean Energy Management’s Renewable Energy Authorization Process which outlines opportunities for public engagement, its coordination efforts with other federal agencies, the role of Intergovernmental Renewable Energy Task Forces, along with other information.

TRUMP ADMINISTRATION
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Feb. 15, 2017 Upon review of BOEM’s plan to lease a parcel of the OCS off the coast of New York, the D.C. Circuit holds that a NEPA obligation only matures once a critical stage of planning has been reached and will result in an irreversible action affecting the environment. Pre-construction agreements and environmental assessments do not trigger NEPA. Fisheries Survival Fund v. Jewell, No. 16-cv-02409 (D.D.C. filed Feb. 15, 2017).

Aug. 15, 2017 President Trump issues Executive Order 13807 which establishes a “One Federal Decision” plan to streamline the review and permitting of major infrastructure projects, including offshore wind. BOEM created its “Design Envelope” approach to COPs consistent with this order.

Feb. 2018 BOEM publishes a report on the status of and plan to strengthen Intergovernmental Renewable Energy Task Forces for the deployment of offshore wind.

May 10, 2018 Cape Wind Associates relinquishes its OCS lease. The project began in November 2001 as the United States’ first attempt at constructing an offshore wind farm off the coast of Massachusetts. The Cape Wind Energy Project was challenged in over 32 lawsuits.

Sept. 30, 2018 The D.C. District Court grants BOEM’s motion for summary judgement finding the four-phased leasing process, as exercised in New York’s Statoil Wind lease, compliant with OSCLA and NEPA. Fisheries Survival Fund v. Jewell, No. 16-cv-02409 (D.C. Cir. filed Sept. 30, 2018).

Dec. 7, 2018 BOEM Publishes an Notice of Availability of a Draft Environmental Impact Statement (DEIS) for Vineyard Wind’s proposed offshore wind facility off the coast of Massachusetts. Vineyard originally won its lease at auction in January 2015 and submitted a COP to BOEM in December 2017.

Apr. 11, 2019 David Bernhardt replaces Ryan Zinke as the U.S. Secretary of the Interior. Secretary Zinke had expressed repeated interest in the development of a U.S. offshore wind industry while Secretary Bernhardt’s record of representing oil and gas companies concerns industry stakeholders.

Aug. 9, 2019 DOI Secretary David Bernhardt announces an expansion of the EIS review process to assess the cumulative impacts of OCS development weeks before construction is set to begin. The delay places additional financial risk on Vineyard Wind which anticipated support from a federal tax credit system set to expire at the end of 2019.

Aug. 12, 2019 Vineyard Wind releases a statement affirming its commitment to the Massachusetts offshore wind project despite the delay brought by DOI’s decision to undertake a supplemental draft EIS.

Spring 2020 BOEM publishes an offshore wind permitting review in 2020 as a deregulatory action.

June 12, 2020 BOEM publishes a Notice of Availability for a supplement to the DEIS resubmitted by Vineyard Wind for public review and comment. This document addresses the information requested by DOI in August 2019, including fishing data and the cumulative effects of offshore wind farms. For more on the Vineyard Wind project, read our blog post here: Vineyard Wind is One Step Closer to Construction: Will Anything Else Get in the Way?

Sept. 8, 2020 President Trump signs a memorandum withdrawing from energy disposition, including for offshore wind development, off the coasts of Florida, Georgia, and South Carolina for ten years starting on July 1, 2022.

Sept. 25, 2020 President Trump signs a memorandum withdrawing from energy disposition, including for offshore wind development, certain areas along the coast of North Carolina for ten years starting on July 1, 2022.

Dec. 14, 2020 Daniel H. Jorjani issued Solicitor Opinion M-37059 offering an interpretation of 43 U.S.C. § 1337(p)(4)(I). The Solicitor states the DOI Secretary has an obligation to prevent all interferences of reasonable uses of the exclusive economic zone, such as fishing and navigation, that would lead to unreasonable interferences in those uses. The Secretary does not have an obligation to prevent de minimis or reasonable interferences to those uses that accompany the generation of power through wind farms.

BIDEN ADMINISTRATION
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Jan. 27, 2021 President Biden issues Executive Order 14008 directing the Secretary of the Interior to review siting and permitting processes on public lands and in offshore waters to identify steps that can be taken to increase renewable energy production.

Mar. 29, 2021 The Biden administration announces a target to “deploy” 30 GW of offshore wind in the US by 2030, and specific actions for federal agencies to advance offshore wind projects, including a directive to BOEM to “complete review” of at least sixteen COPs by 2025, as well funding for technology, fisheries research, and port infrastructure. For more information, read our blog: The Problems and Opportunities of Offshore Wind: Recommendations for Collaborative Governance.

Apr. 9, 2021 DOI Principal Deputy Solicitor Robert Anderson issues a legal opinion (M-37067) revoking a Trump-era legal opinion (M-37059) that interpreted subsection 8(p)(4)(I) of the OCSLA. Solicitor Anderson’s Opinion M-37067 concludes that the Secretary retains the authority to balance two or more conflicting goals associated with the exclusive economic zones. This revocation signals a clear intent to move forward with projects based on the Secretary’s consideration of several and potentially competing factors.

April 2021 BOEM releases guidance describing BOEM’s methodology to assess whether a project’s visual impacts are consistent with NEPA, which may help to mitigate litigation risks.

Apr. 22, 2021 The Biden administration sets goals to reach 100 percent carbon pollution-free electricity in the US by 2035, electrify buildings, and deploy electric vehicles. This commitment signals a significant need for new renewable energy generation resources. While continued development of onshore solar and wind is needed, offshore wind is a key focus for states on the coasts and Great Lakes.

May 11, 2021 BOEM approves the COP of the 880 MW Vineyard Wind project, which is the first large-scale offshore wind project in the US. This will contribute to the Biden administration’s goal of reviewing 16 COPs by 2025 and deploying 30 GW of offshore wind energy by 2030.

May 25, 2021 DOI announces an agreement with California and the Department of Defense that “opens up the West Coast for offshore wind development for the first time in history,” by identifying priority areas that are compatible with the Department of Defense’s training and testing operations in a manner that protects fisheries resources and marine life.

June 14, 2021 BOEM and the Army Corps of Engineers (Corps) announce a new agreement to work together on planning and review of renewable energy projects, allowing the Corps to provide additional technical and scientific resources to advance permitting.

July 18, 2021 Thomas Melone and Allco Renewable Energy Ltd. file a lawsuit in the US District Court of Massachusetts against Deb Haaland as acting secretary of the Interior for approving the Vineyard Wind Project COP. Melone is president of Allco Renewable Energy, a small solar energy developer, and previously brought an unsuccessful lawsuit against the Cape Wind Project. Allco Renewable Energy Ltd. v. Haaland, No. 21-cv-11171 (D. Mass. filed Aug. 25, 2021).

Aug. 25, 2021 Two Nantucket residents file a lawsuit against BOEM opposing the approval of the Vineyard Wind Project COP. The complaint alleges BOEM failed to take a “hard look” at the potentially devastating effects construction could have on the North Atlantic Right Whale population. ACK Residents Against Turbines v. BOEM, No. 21-cv-11390 (D. Mass. filed Aug. 25, 2021).

Oct. 13, 2021 DOI announces a leasing strategy to hold up to seven offshore wind auctions by 2025.

Oct. 19, 2021 The Responsible Offshore Development Alliance (RODA) issues a Notice of Intent to Sue the DOI based on the Vineyard Wind 1 Project’s impacts to the local fishing industry.

Dec. 8, 2021 President Biden issues Executive Order 14057 advancing additional climate goals and renewable energy targets including 100 percent net carbon free electricity by 2030.

Jan. 12, 2022 BOEM and NOAA enter into a ten year MOU to coordinate and streamline the development of offshore wind. Both agencies serve fundamental roles in approving COPs and their coordination will reduce inconsistencies between authorities throughout the licensing process.

Jan. 18, 2022 BOEM approves the COP for the 130 MW South Fork Wind Farm and South Fork Export Cable Project. This is the second COP that BOEM has approved in advancing the Biden administration’s goal to review 16 COPs by 2025. For more information, read our blog on The Implications of BOEM’s Decision on the South Fork Wind Farm and listen to our podcast, CleanLaw—Lowry Yankwich and Doug Christel Talk about the South Fork Wind Project.

Jan. 31, 2022 RODA files a complaint in the United States District Court for the District of Columbia against DOI. The complaint alleges DOI violated several federal statutes, including OCSLA, the Clean Water Act, the Endangered Species Act, and NEPA, in approving Vineyard Wind’s COP. Responsible Offshore Development Alliance v. United States Department of the Interior, No. 22-cv-00237 (D.D.C. filed Jan. 31, 2022).

Feb. 25, 2022 BOEM holds a record-breaking wind lease sale in the New York Bight achieving a major milestone toward the Biden Administration’s goal of 30 GW by 2030.

Mar. 28, 2022 The National Renewable Energy Laboratory (NREL) releases a report titled The Demand for a Domestic Offshore Wind Energy Supply Chain, which outlines the supply chain needs required to reach President Biden’s 30 GW offshore wind goal.

Apr. 14, 2022 The U.S. Customs and Border Protection Agency issues a ruling that narrows the scope of the Jones Act to promote the construction of offshore wind facilities. Previously, the Jones Act, which limits the transportation of merchandise between U.S. ports to U.S. owned and operated vessels, had complicated offshore wind farm installation because it prohibited the use of readily available foreign wind turbine installation vessels. This ruling provides the industry with clarity and more options moving forward.

June 7, 2022 DOI sends its proposed Renewable Energy Modernization rule to the Office of Management and Budget for interagency review before publication. This rule would facilitate “safe and environmentally sound renewable energy production” to help the Biden administration meet its offshore wind goals and carry out its objectives in Executive Order 14008.

June 13, 2022 The US District Court for the District of Massachusetts grants the government’s motion to sever Allco Renewable Energy’s complaint against the South Fork Wind Project from its complaint against the Vineyard Wind Project. Allco argued the regulatory approvals for both projects were granted by the same administration under the same administrative standards and therefore its complaints should be heard concurrently. The court held the projects varied significantly in size, scope, and timeline creating unique questions of law which could not be joined. Allco Renewable Energy Ltd. v. Haaland, No. 21-cv-11171 (D. Mass. filed June 13, 2022).

June 22, 2022 BOEM releases its Process for Identifying Alternatives for Environmental Reviews of Offshore Wind Construction and Operation Plans pursuant to the National Environmental Policy Act. This document is a collaborative effort between several federal agencies that participate in BOEM’s environmental reviews and seeks to establish a standard screening criteria for alternatives within COPs.

June 23, 2022 BOEM publishes its Draft Fisheries Mitigation Strategy. This document is an effort to develop guidance for offshore wind companies throughout the process of deployment regarding the concerns of fishing communities. Previous projects, such as the Vineyard Wind Project, stalled because of litigation and uncertain fishing related impacts. In addition, President Biden announces a Federal-State Offshore Wind Implementation Partnership, which will enhance collaboration on the East Coast to build a US-based supply chain for offshore wind development.

June 27, 2022 The federal district court for the District of Columbia grants DOI’s motion to transfer lawsuits against its permitting of the Vineyard Wind Project to the District of Massachusetts. The Court finds local interests and the location of the project proper justification for the transfer. Responsible Offshore Development Alliance v. United States Department of the Interior, No. 22-cv-00237 (D.D.C filed June 27, 2022); Responsible Offshore Development Alliance v. US Department of the Interior, No. 22-cv-11172 (D. Mass. filed July 20, 2022).

June 30, 2022 The US District Court for the District of Massachusetts grants the government and Vineyard Wind’s motion to dismiss Allco Renewable Energy’s complaints under OCSLA and the Endangered Species Act. In both claims plaintiff Thomas Melone failed to provide the statutorily required notice prior to the start of the lawsuit. Allco Renewable Energy Ltd. v. Haaland, No. 21-cv-11171 (D. Mass. filed June 30, 2022).

July 20, 2022 President Biden directs the Secretary of the Interior to advance clean energy development in the Southeast in an effort to eliminate uncertainty regarding President Trump’s executive order prohibiting leasing in the region from July 2022 to 2032.

Aug. 10, 2022 The Supreme Court of Ohio rejects an appeal from two local residents for a certificate of environmental compatibility and public need issued by the Ohio Power Siting Board. The project consists of a six-turbine wind farm set for construction eight to ten miles off the coast of Lake Erie. In re Application of Icebreaker Windpower, Inc., Slip Opinion No. 2022-Ohio-2742 (Aug. 10, 2022).

Aug. 15, 2022 Congress passes the Inflation Reduction Act (IRA), which includes measures for the production of 120,000 wind turbines in the US. The IRA includes several provisions which support offshore wind project development through clean energy tax credits, bonus credits for projects that meet certain labor requirements, and other credits for domestic production of offshore wind components. Additional funding has also been granted to DOI to facilitate development and conduct environmental reviews. The IRA also opens offshore regions in the Southeast US for development which were previously protected by Trump era moratoriums. For more information, read our blog The IRA Offshore Energy Leasing Provisions’ Potential Impacts.

Aug. 23, 2022 Allco Renewable Energy files its second amended complaint against the Vineyard Wind Project. This complaint addresses the District of Massachusetts’s prior decisions by only including claims under the Marine Mammal Protection Act. Allco Renewable Energy Ltd. v. Haaland, No. 21-cv-11171 (D. Mass. filed Sept. 8, 2022).

Sept. 8, 2022 The US District Court for the District of Massachusetts finds that General Electric has infringed upon Siemens Gamesa’s patent for their wind turbine designs. An agreement between the parties and the court however “carves out” an exception for 62 of GE’s turbines to be used in the Vineyard Wind Offshore Wind Project set to begin construction soon. GE is considering an appeal. Siemens Gamesa Renewable Energy v. General Electric Co., No. 1:21-cv-10216 (D. Mass. filed Sept. 8, 2022).

Sept. 15, 2022 The Biden administration launches a strategy to develop floating offshore wind platforms along with a 15 GW goal by 2035. This target comes in addition to the administration’s previous 30 GW goal by 2030. In addition to this announcement, DOE launches its Floating Offshore Wind Array Design Project funded by the Bipartisan Infrastructure Law to help develop several turbine designs.

Oct. 13, 2022 The American National Standards Institute publishes its Offshore Compliance Recommended Practices report. The report is the culmination of five years of regulatory research and offers industry stakeholders guidance during all stages of development.

Oct. 18, 2022 BOEM announces its first-ever offshore wind lease sale in the Pacific will be held on December 6, 2022 for areas off of California.

Oct. 21, 2022 BOEM and NOAA propose a draft North Atlantic Right Whale and Offshore Wind strategy. Comment here by Dec. 4, 2022

Oct. 26, 2022 New Jersey becomes the first state to integrate offshore wind transmission objectives with the regional grid’s regional planning and development process.

Nov. 2022 Environmental justice NGOs publish Principles for a Just Transition in Offshore Wind Energy to help center frontline solutions and co-governance for energy affordability and resiliency.