LAW 360: “US Offshore Wind Review Delay Roils Waters for Developers”
By Keith Goldberg Law360, August 16, 2019 –
The Trump administration’s recent move to delay approval of the first commercial-scale offshore wind project in the U.S. in order to conduct a broader review underscores the regulatory headwinds the budding industry faces, though experts say it’s too soon to tell if the government’s actions will choke off other projects in the pipeline.
Weeks before it was expected to finalize the environmental impact statement for the 800-megawatt Vineyard Wind project in Massachusetts, the U.S. Department of Interior said on Aug. 9 that it’s extending its timeline. The DOI’s Bureau of Ocean Energy Management said it will put together a supplemental EIS that examines the cumulative impacts of several offshore wind projects that have recently been proposed along the Atlantic coast, most notably on the commercial fishing industry.
BOEM said it “has determined a greater build out of offshore wind capacity is more reasonably foreseeable than was analyzed in the initial draft EIS” and that it hopes to complete the supplemental EIS by year’s end or early next year.
The news prompted Vineyard Wind’s developers, which have power purchase deals with Massachusetts utilities in hand and were hoping to start construction this year, to announce Monday that it “must revise the project as the original timeline is no longer feasible.”
The scope of BOEM’s supplemental review also has the potential to upset the timelines of offshore wind projects that have recently been awarded solicitations from other coastal states, including New York and New Jersey.
Vineyard Wind, which started the federal and state permitting process in 2017, is poised to be the first commercial-scale wind farm built in federal waters. Experts say BOEM’s actions highlight the fact that while the federal government may be bullish on offshore wind, the permitting process remains both lengthy and unpredictable.
“This eleventh hour announcement introduces an additional regulatory hurdle into what was a lengthy but somewhat predictable process,” said Pillsbury Winthrop Shaw Pittman LLP counsel Bryan Stockton, who works on permitting issues for wind and other electric generation projects.
The combination of federal, state and local approvals — which don’t necessarily proceed in unison — creates a multiyear timeline for offshore wind developers to finance and build their projects. Indeed, long-gestating projects like Cape Wind in Massachusetts and the Fishermen’s Energy Atlantic City Windfarm in New Jersey ultimately foundered amid state and local opposition.
But coastal states have recently moved to solicit large-scale offshore wind projects in order to meet increasingly aggressive clean energy goals. Massachusetts selected the Vineyard Wind project last year and approved power purchase agreements with the state’s utilities in April, while Rhode Island signed off in May on power contracts for the 400-MW Revolution Wind project being developed by Ørsted AS and Eversource Energy.
In June alone, New York awarded contracts to Equinor ASA’s 816-MW Empire Wind project and the 880-MW Sunrise Wind project being build by Ørsted and Eversource, while New Jersey awarded a
contract to Ørsted for its 1,100-MW Ocean Wind project.
Rapid progress at the state level has shifted the focus back to the federal permitting process, which is why BOEM’s move to extend and expand its review of Vineyard Wind has unsettled developers.
“Now the rubber’s really meeting the road, when the [federal renewable] tax credits are on the line and when there are large procurements in place with the various states,” Stockton said. “They’ll certainly be watching this closely to see if this is more of a one-time development for Vineyard Wind, or … signals a shift in how the draft EISes will be developed.”
Massachusetts officials are putting a brave face on the situation.
Brendan Moss, a spokesman for Massachusetts Gov. Charlie Baker, told Law360, “The administration remains committed to advancing Massachusetts as a national leader in offshore wind energy and will keep working with Vineyard Wind and the Bureau of Ocean Energy Management during the federal permitting process so this project and future procurements can deliver reliable, cost-effective clean energy that will create local jobs, stabilize the cost of energy and reduce greenhouse gas emissions.”
Other states that have signed off on offshore wind projects are cautiously optimistic.
“We are monitoring the situation closely and at this time do not have any reason to believe that this decision will delay development of New York’s recently awarded offshore wind projects,” a spokesperson for the New York State Energy Research & Development Authority, the state agency responsible for procuring and contracting offshore wind projects, told Law360.
Taking a close look at the cumulative impacts of several offshore wind projects in the Atlantic is something that BOEM should be doing, said Kit Kennedy, senior director of the Natural Resources Defense Council’s climate and clean energy program. But Kennedy said the draft EIS for Vineyard Wind already contains a cumulative impacts analysis and BOEM’s last-minute decision to do a supplemental EIS is troubling.
She said a generic, programmatic EIS of planned Atlantic offshore wind development could have assuaged BOEM’s concerns over cumulative impacts, while still requiring a more specific analysis in the environmental reviews for individual projects.
“It would give developers and stakeholders a high-level look at the build-out that’s planned, without delaying Vineyard Wind or any other project,” said Kennedy, whose organization helped broker a deal with Vineyard Wind to protect endangered right whales during the project’s construction.
BOEM’s delay even has some offshore wind advocates suggesting a double standard from the Trump administration, which has taken steps to accelerate fossil fuel infrastructure development. President Donald Trump did little to assuage those fears when he bashed wind power during a Tuesday speech at a Pennsylvania petrochemical plant.
“One of the many ironies is that the Trump administration has gone to great lengths to tout their ability to approve environmental impact statements super quickly and cut through the red tape,” Kennedy said. “So here they are delaying the first large-scale offshore wind project, despite all of that rhetoric of cutting to the chase.”
Still, others aren’t ready to accuse the administration of deliberately dragging its feet.
“The honest-to-God truth here is that there has never been a utility-scale offshore wind farm that has gone through the federal permitting process to conclusion at this point,” said Stephanie McClellan, who directs the Special Initiative for Offshore Wind at the University of Delaware. “The federal process is still so opaque for utility-scale offshore wind farms.”
And Stockton noted that even before BOEM sinks its teeth into its review, the onus is on developers to assess and gain control of the sites they want to build on, as well as outline the size and scope of their projects and develop construction and operation plans.
“It’s millions of dollars of work that can’t be compressed into weeks or months,” Stockton said.
“Getting all of that right takes time.”
Experts say if there’s a silver lining to BOEM performing a more expansive review, it’s a sign of how much traction the offshore wind industry has gained in just the past year or two. And if BOEM can quickly push out a supplemental EIS that provides a robust analysis of Atlantic offshore wind development’s cumulative impacts and wrap up its approval of Vineyard Wind, there will be a clearer regulatory template for future projects.
“Developers understand the time frames, they’re looking for the predictability,” Stockton said. “Whatever the process is, they can plan around it if it’s predictable.”
–Editing by Rebecca Flanagan and Marygrace Murphy.
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