A Lesson from Cape Wind: Implementation of Offshore Wind Energy in the Great Lakes Should Occur through Multi-State Cooperation

The aftermath of the April 2010 explosion of the Deepwater Horizon oil-drilling rig in the Gulf of Mexico has caused the United States to reevaluate its energy production. In the wake of the tragic oil spill, now known to be the worst environmental disaster in the nation’s history, a new source of energy has gained momentum; offshore wind technology is taking hold. On October 6, 2010, the U.S. Secretary of the Interior issued the first offshore renewable energy lease in United States history to Cape Wind Associates, signaling the beginning of a new era in domestic electricity production. While this first lease has sparked a race among states to be the first to implement offshore wind technology, the legal framework that enabled the issuance of the lease remains problematic in one key respect: it applies only to federal bottomlands and therefore fails to provide prospective offshore wind farm developers with access to bottomlands under state control. While this may prove to be only a minor speed bump in an otherwise streamlined process for states on the coasts, it leaves states in the Great Lakes region at a severe disadvantage. Because all land within the Great Lakes is controlled by the surrounding states, the leasing process that allows offshore wind development on the coasts does not apply within the Great Lakes, leaving a gray area in the law. While the Great Lakes region is home to enormous wind resources and political drive for renewable energy, the implementation of offshore wind technology in the region will likely be hampered or significantly delayed due to the regulatory confusion that remains in the absence of an established permitting process.In light of this shortcoming in the federal statute, this Comment analyzes the potential for successful implementation of offshore wind farms in the Great Lakes given the current state-level regulatory framework, and proposes that the Great Lakes states join in multi-state action to establish a streamlined permitting process and attract offshore wind development to the region. In order to provide adequate perspective on the matter, Part II provides a broad overview of the state and federal regulatory incentives established to encourage development of renewable energy and examines the legal claims that have operated as disincentives to the implementation of offshore wind technology. Part III then discusses the federal procedures for issuing offshore renewable energy leases, and describes the geographic and regulatory limitations that confine these procedures to the coasts. Next, Part IV uses Illinois as an example to analyze the extent and causes of the regulatory uncertainty that remains at the state level, and specifically in the Great Lakes region, concluding that, when faced with the threat of costly and time-consuming litigation, prospective developers will avoid siting projects in the Great Lakes. Finally, Part V proposes that the states in the Great Lakes region join together in multi-state action to remedy the shortcoming in the federal law by establishing a permitting process applicable to the state-controlled bottomlands in the Great Lakes.