By: Sarah McLaughlin
In the United States, wind turbines are becoming an increasingly popular method in which wind is utilized in combination with turbines, generators, and wires to create useable electricity. Due to dramatic natural changes in air pressure between the ocean and shore, thus producing strong winds, the government and private wind power companies alike are exploring the construction of offshore turbines with increased fervency. While they may appear like minor additions to the United States coastlines from afar, a standard offshore wind turbine has grown about 73% in size since the start of the 21st century. What was once roughly the size of a Boeing 747 (~170 feet) in 1999, is now standing around the same height as the Statue of Liberty (~305 feet) and is expected to grow to the size of the Washington Monument (~555 feet) by 2035, as the bigger the turbine, the more wind that is able to be “collected.” As of 2021, the US Wind Turbine Database estimates that a single offshore wind turbine generates enough energy to power 940 average American homes per month.
In 2016, Block Island Wind Farm became the first offshore wind farm in the United States, generating enough electricity each year to power 17,000 homes in Rhode Island. In 2022, Massachusetts Governor Charlie Baker signed bill H.5060: An Act driving clean energy and offshore wind, with the goal of establishing 5,600 megawatts (MW) of offshore wind by June 30, 2027. Currently, in Massachusetts, there are four offshore wind farms that have either been approved for construction or are in the process of being built, totaling 3,241 MW of available output—enough to power hundreds of thousands of homes in the state. For these projects to be approved, all potential farm sites are subject to an environmental impact statement (EIS) under the National Environmental Protection Act (NEPA) which is triggered any time there is proposed federal action (or one that requires federal consent) that has the potential for significant impact on the environment. When conducting the EIS, NEPA mandates a “hard look standard” that requires strict and thorough consideration of environmental impacts, even after a project has received initial approval. This means that in addition to providing a full report on environmental impact findings, NEPA requires that the results of the EIS be published with a record of decision that includes the investigation outcome, proposed alternatives that might better consider the environment, and potential harm mitigation methods—and then allow for a period of public comment to ensure transparency, address concerns, and encourage community dialogue.
Those in support of offshore wind cite the many environmental benefits, including the obvious movement towards renewable energy, increased turbine size with less land interference, and the development of “turbine reefs”—reefs that develop on the turbine structures permanently submerged in the ocean. However, critics of offshore turbines argue that despite the numerous advantages offered, there are also significant concerns and arguments against its widespread implementation. This contention is currently being exemplified in Nantucket Residents Against Turbines v. United States Bureau of Ocean Energy Management in which the petitioners argue that the 2018 EIS final decision issued for the “Vineyard Wind Project” was inadequate in considering the environmental damage and air quality damage, and therefore a violation of NEPA. The “hard look” standard prescribed by NEPA does not mandate that projects with adverse environmental impacts be halted, rather, it allows for the oversight agencies to consider whether the benefits provided by the project under review (after considering all alternatives) outweigh the environmental detriments. In response, the Nantucket Residents Against Turbines filed a petition to argue that the installation of the turbines, among other concerns, is a violation of the Endangered Species Act as the pile driving required to install the turbines, plus the noise and vibration levels from their operation will disturb the sea floor and risk severely disrupting marine species, particularly marine mammals (more specifically, the endangered North Atlantic right whale), who use vibration to navigate.
The issue raised in Nantucket Residents is likely to become more common in future litigation as courts are forced to decide if immediate environmental degradation is “worth” the investment in long-term renewable energies and technology. In presenting their alternative options for the project, BOEM noted that while canceling the Vineyard Wind project might appear to be immediately more beneficial to the environment, the long-term impacts of not being able to harness offshore wind power would be more harmful—as Massachusetts residents would be losing out on a power source that many feel needs to be urgently implemented in the effort to combat climate change. It is estimated that the Vineyard Wind farm in its full capacity (62 turbines) will generate enough electricity to power 400,000 homes and reduce carbon emissions to the equivalent of removing 325,000 cars from the roads. In this case, the U.S. District Court decided in May 2023 that the Vineyard Wind farm adequately considered the potential environmental impacts with construction and ruled against the Nantucket Residents Against Turbines, thus giving the green light for turbine construction to begin.
Renewable energy is something that certainly needs to be more seriously utilized in the fight against climate change. As the technology advances and becomes more widely implemented, it will be interesting to see how the legal system reacts when courts are put in the place of deciding which scientific and environmental factors are “more important” in implementing “eco-friendly” practices.
Student Bio: Sarah McLaughlin is a second-year law student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law and is the current President of the Environmental Law Society. Sarah received a Bachelor of Arts Degree in Political Science and Justice Studies from the University of New Hampshire.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
