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Fracking and Alternative Energy

A Provisional Winner of an Offshore Wind Lease is Announced and that Means the Goal Line is Still Far Off

By J. Wylie Donald

Offshore wind took another small step forward when US Wind was announced as the provisional winner of the US Bureau of Ocean Energy Management's auction of development rights to nearly 80,000 acres off of Maryland. The price? $8.7 million.

According to the BOEM press release, and other reports the few million to be ponied up by US Wind (or by its Italian parents, Renexia and Toto S.p.A.) is more than was bid for offshore leases in Virginia and Massachusetts and apparently is justified by the substantial financial carrot established by the O'Malley administration: $1.7 billion in construction subsidies.

So what does it mean to be a provisional winner? It means the Attorney General and the FTC have 30 days to complete an antitrust review, following which US Wind can sign the lease, file the required financial assurance and pay the balance of the lease bid. And then it's all downhill, right? Well, not so fast.

First, a lot has been done to get to this point:

November 2010 – BOEM issued Request for Interest to gauge industry’s interest in obtaining offshore Maryland commercial wind leases. Commercial interests, for example, showed no interest in offshore Maine.
February 2012 - BOEM published a Call for Information and Nominations to solicit lease nominations and request public comments.
February 3, 2012 - BOEM published in the Federal Register a Notice of Availability of an Environmental Assessment, and a Finding of No Significant Impact (FONSI) for “commercial wind lease issuance and site assessment activities on the Atlantic OCS offshore New Jersey, Delaware, Maryland, and Virginia.”
June 2012 - BOEM published a Finding of No Historic Properties Affected.
December 18, 2013 - BOEM published a Proposed Sale Notice and took comments.
July 3, 2014 –BOEM published a Final Sale Notice scheduling the August 19, 2014 sale.

These steps have completed the first two phases of BOEM’s program for outer continental shelf leasing: (1) planning and analysis, (2) lease issuance. So in a little over 3 and a half years an entity interested in pursuing an offshore wind project, is poised, but poised for what?

It is poised for phases 3 and 4, site assessment, and construction and operations, as BOEM further explains in its fact sheet. There is an ominous word in the fact sheet, however: “BOEM conducts environmental and technical reviews of SAP [Site Assessment Plan], eventually deciding to approve, approve with modification, or disapprove” (emphasis added). A Site Assessment Plan “describes the activities (installation of meteorological towers and buoys) a lessee plans to perform for the assessment of the wind resources and ocean conditions of its commercial lease area.” That BOEM will eventually complete its review, does not suggest alacrity, or even timeliness. Once the SAP is approved, another plan must be submitted, the COP, the construction and operations plan. The same ominous term, "eventually," shows up as well in the description of the approval process of the COP. And then, only after the COP is approved, can construction begin.

What struck us as we reviewed all of this is that at least four sessions of Congress will have passed from when BOEM’s 2010 Request for Interest emerged before a single joule of energy will make its way from some mid-Atlantic zephyr into a Maryland household. And it would not surprise us if it were six or eight sessions. In other words, success in offshore wind may depend nearly as much on the political winds, as the meteorological ones.

    J. Wylie Donald, a partner at McCarter & English, LLP, counsels and litigates for clients on insurance coverage, environmental and products liability matters. Mr. Donald co-chairs the firm's Climate Change and Renewable Energy Practice. He draws on his substantial environmental experience, his prior non-legal technical work, and his deep involvement in risk management to assist clients in understanding and controlling the coming regulatory and non-regulatory impacts of climate change. He has tried cases and argued appeals in the state courts in New Jersey and Maryland, conducted private arbitrations and mediations, and argued motions in federal courts across the nation.

Read more at Climate Lawyers Blog by McCarter & English, LLP.

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