Energy Updates

Offshore Wind Approvals: Pushing the Scope of Federal Agency Discretion

U.S. Secretary of the Interior Deb Haaland is wrongly using this Executive Order as the basis to approve offshore wind projects while ignoring major negative environmental impacts.
By David T. Stevenson, Director
Center for Energy & Environmental Policy
 NEWARK, DE (August 23, 2022) -- President Biden established by Executive Order a goal to build 30 gigawatts of offshore wind by 2030 to reduce carbon dioxide emissions and reduce global temperature increases.  However, his climate czar, John Kerry, admitted in a White House Press Briefing that zero U.S. carbon dioxide emissions would have no impact on climate change. U.S. Secretary of the Interior Deb Haaland is wrongly using this Executive Order as the basis to approve offshore wind projects while ignoring major negative environmental impacts.
Thousands of Chrysler Building-sized wind turbines could cover an area the size of Connecticut.  The wind turbines would be located at every major beach from South Carolina to Maine. They would be:  positioned on top of prime fishing and boating grounds, impacting 40 million tourists annually, and would threaten endangered species. Approval of the offshore wind projects rests on how much discretion Interior Secretary Haaland has to ignore admittedly major negative impacts.
Records of the Decision and Environmental Impact Statements published by the Bureau of Ocean Energy Management (BOEM) highlight just how intrusive the turbines will be. BOEM expects commercial fishing enterprises to abandon fishing in industrial wind projects over concerns of safety, equipment losses, and higher insurance rates. Vessel collisions will increase in and near the projects at the same time, and U.S. Coast Guard search and rescue operations will be hampered, resulting in more injuries and deaths. The presence of offshore wind turbines would change the perception of ocean scenes from natural and undeveloped to developed and would be an unavoidable presence in views from the coastline dominating the skyline. Some current scientific studies would cease, such as determining annual "take" limits for seafood.
The Trump Administration's Solicitor General wrote an opinion it was the Secretary's duty to prevent interference with reasonable historic uses in federal waters, such as fishing, navigation, and the viewshed, by denying offshore wind projects in accordance with the Outer Continental Shelf Lands Act. Specifically, the opinion stated the Secretary is required "to prevent interference with reasonable uses in a way that errs on the side of less interference rather than more interference," including by "preventing all interference if the proposed activity would lead to unreasonable interference."
Of course, the Biden Administration's Solicitor General reversed that opinion stating, "the Act does not require the Secretary to ensure that the goals are achieved to a particular degree, and she retains wide discretion to determine the appropriate balance between two or more goals that conflict or are otherwise in tension."  It is left to federal judges to decide whose opinion is right in numerous cases already filed.
There is a long-standing debate about how much discretion federal agencies have to interpret regulations. In 1984 in deciding the Chevron, U.S.A., Inc. v. National Resource Defense Council Inc. et al case, the U.S. Supreme Court established wide discretion for federal agencies when there was ambiguity in the law, and the agency decision was considered reasonable. According to the National Law Review, recent decisions appear to reign in that discretion.  The U.S. Supreme Court recently indirectly weighed in on this issue in deciding in favor of West Virginia's arguments against the U.S. Environmental Protection Agency's (EPA) Clean Power Plan.  The EPA attempted to force the closure of coal-fired electric generating plants to reduce carbon dioxide emissions using an obscure section of The Clean Air Act.  Carbon dioxide control legislation has never passed the U.S. Congress.  The U.S. Supreme Court ruled the EPA could not use such a tactic to address a "major question" not specifically addressed by Congress. 
Interior Secretary Haaland claims in approving projects, she must follow the President's Executive Order and the urgency of limiting climate change.  Clearly, the major negative impacts of offshore wind cannot be ignored by Interior Secretary Haaland following an Executive Order on a major question not addressed by Congress.