Legal Terrain

While efforts by the U.S. could help to slow or even reverse the impacts of climate change we already are experiencing, if we keep up and double down on our efforts, we may well avoid reaching the 2 degrees Celsius tipping point.  A recent guest essay in the New York Times on November 18, 2023, “I’m a Climate Scientist.  I’m Not Screaming Into the Void Anymore,” by a co-author of the recent Fifth National Climate Assessment, seems just short of optimistic about our efforts … so far.  But the efforts to mitigate climate change and its impacts swing from encouraging to discouraging, often rising and falling quickly.

Just days before the guest essay appeared in the New York Times, The Boston Globe published an article highlighting the efforts of residents of Cape Cod communities to block the installation of transmission cables from planned offshore wind turbine projects onto community beaches buried some fifty feet below the surface, then through neighborhoods to connect to the regional energy grid, “Cape Cod Residents Say No to Offshore Wind Transmission Lines Under Beaches.”  The organized efforts have drawn hundreds of residents to town halls, raising concerns about health impacts, electromagnetic fields, and environmental and construction impacts on those communities. The Globe article also cites economic factors, including disruptions in the supply chain and interest rate hikes, as impacting and even leading to the cancellation of several planned offshore wind projects.

Just days after the New York Times guest essay, four separate lawsuits were filed in federal court in Washington, D.C. appealing the issuance of the permits issued to stop the planned development of two wind projects off the coast of Rhode Island. These suits assert violations of the National Environmental Policy Act and National Historic Preservation Act and cite adverse impacts on historic “viewsheds” and tourism, amounting to “industrialization” of ocean views. These suits were outlined and linked in the Boston Globe article “Newport, Block Island Preservation Groups Seek Relief from Wind Farms’ Anticipated ‘adverse effects.”

The outlook for success in siting offshore wind projects is consistently fraught elsewhere along the shores of North America.  Earlier in November, Ørsted abandoned its Ocean Wind I and II projects, promising 2.2 gigawatts of power, off the southern New Jersey coast, citing supply chain issues, substantial cost increases, high interest rates and insufficient tax credit relief.  Similarly, three cancelled projects off the southern New England coast may account for 3.2 megawatts of lost alternative energy power. Similar challenges have delayed or sidelined efforts to site offshore wind farms in the Great Lakes. A combination of protracted environmental regulatory proceedings, litigation (often backed by fossil fuel and coal interests) and energized local resistance have combined with dramatic cost increases to defeat many projects simply by delay.

However, the Biden Administration’s goal of generating 30 gigawatts by 2030, while elusive, may be approachable. Vineyard Wind (13 megawatts) off the coast of Massachusetts, and South Fork Wind (132 megawatts) off Rhode Island and New York are under construction.  Several of the delayed or cancelled projects may be recast based on current costs covered by new power purchase agreements with power distribution utilities.

In the meantime, local opposition is growing to siting offshore wind farms within the sight of those living along the coasts. Over the horizon and beyond the view through the viewshed would relocate the wind turbines, which rise as much as 900 feet above the ocean bottom and 1,200 feet to the tip of the rotor blades, making it viewable 30 miles and more from the shore and beyond the horizon.  The offshore wind industry is facing strong head winds, including the re-emergence of the U.S. as the number one oil producer in the world, moderating global oil prices, and even reducing demand for electric vehicles.

At the recent opening of the U.N. conference on climate change, COP28, the Secretary General confirmed 2023 as the warmest year ever. The Secretary General also asserted holding to the 1.5° global temperature increase limit is “… only possible if we stop burning fossil fuels …, not reduce, not abate …” Meanwhile the UAE, which is hosting this 28^th session in Dubai chaired by the president of its national oil company, has committed to increasing oil production 40% by 2030, while committing to stop adding planet-warming gases by 2050. Continued or increased reliance on fossil fuels and carbon based energy sources will not delay or avoid the expanding accumulating impacts of climate change on coastal communities, commercial and recreational ports, wastewater treatment plants, stormwater infrastructure, homes, businesses, beaches, etc., etc. …, or heightened weather impacts well inland and throughout the world.

For much of our modern history, the U.S., states and local communities have enjoyed support for a host of public infrastructure and similar projects, often with decisive public support for bond issues to cover design, permitting and construction costs:  roads, bridges, wastewater and water treatment, and distribution facilities, neighborhood schools and higher education facilities. Offshore wind farms should similarly be accepted as climate protection infrastructure necessary to support our way of life. The Department of the Interior, coastal states and communities, and the offshore wind energy industry should recognize the likely dire future implications of defeating offshore wind power by delay and commit to a cooperative effort to balance the desire to preserve all the benefits of working together we have enjoyed for other important infrastructure projects.  Offshore wind power may remain the most impactful alternative to meeting the challenges of climate change, and perhaps the last best hope to avoid being left screaming into the void.