By: Samuel Scott
The battle to protect the environment in a world of evolving technology is producing much legal debate over the transition to renewable energy. In recent years, New Jersey has highlighted this fact as the state is working in conjunction with the federal government to green light multiple coastal wind energy projects. However, these projects are sparking backlash from many questioning the potentially detrimental effects these initiatives will have on the coastline, marine life, and residents.
New Jersey has solidified itself as one of the nation’s leaders in renewable energy. Early into his tenure as Governor, Phil Murphy signed an executive order to revive subsidies for the development of wind power in New Jersey. Shortly thereafter, the state began soliciting bids for offshore wind energy projects. In 2022, Murphy signed another executive order which increased New Jersey’s offshore wind goal to 11,000 megawatts by the year 2040. Lastly in early 2023, Murphy accelerated the 100% clean energy target date from the year 2050 to 2035.
These clean energy initiatives and wind turbine projects have many legal barriers to hurdle before coming to fruition. The first major environmental protection law considered during the review process for these projects is the Coastal Zone Management Act of 1972 (“CZMA”). The goal of the CZMA is to “preserve, protect, develop, and…restore or enhance the resources of the nation’s coastline.” Under this federal act, individual states develop enforceable policies that are legally binding as it pertains to control over coastal use and resources. The National Oceanic and Atmospheric Administration (“NOAA”) is a federal scientific and regulatory agency charged with approving state plans in conjunction with the Coastal Zone Management Act.
Additionally, the New Jersey Coastal Management Program (“NJCMP”) was established in 1978 under the CZMA as the state authority on coastal matters. The NJCMP holds similar goals to the federal government in ensuring the conservation of coastal resources and ecosystems. Often times this agency works with the New Jersey Board of Public Utilities (“NJBPU”) which is the state agency overseeing utility regulation – electricity in this instance – within the state jurisdiction. The Bureau of Ocean Energy Management (“BOEM”) is also important in this conflict. BOEM operates within the United States Department of the Interior to manage the development of offshore energy resources on the outer continental shelf (where New Jersey’s proposals are located) promoting economic development and environmental protection. Put simply, approval by these regulatory agencies would mean a project has satisfied the legal requirements to proceed.
Another legal component relevant in the proposal of industrial wind farms is the National Historic Preservation Act of 1966 (“NHPA”). The National Historic Preservation Act “establishes a national preservation program and a system of procedural protections, which encourage both the identification and protection of historic resources…at the federal level and indirectly at the state and local level.” Before the construction of large wind turbine plants off the coast of New Jersey can begin, an analysis of the adverse effects of alteration of the natural coastal landscape on the continental shelf and visual impacts to historic sites on land must be completed. A statement from BOEM acknowledges adverse effects on historic landforms and on-land sites but did not find a strong enough impact to reject the turbine initiative.
There are multiple wind turbine development projects going through the planning process right now. One site initially approved for construction is the Atlantic Shores South project, which is expected to utilize over 100,000 acres of coastal space. The Final Environmental Impact Statement published by BOEM in May of 2024 lists 200 offshore wind turbine generators and foundations, ten offshore substations and foundations, one meteorological tower and foundation, interlink cables for turbines, onshore as well as offshore export cable systems, two landfall locations in Sea Girt and Atlantic City, two onshore substations, and connections to the electrical grid as the base plan. The equipment is designed to operate for 30 years upon complete installation. After this period, removal must occur within two years.
Coalition groups have formed in order to block the production and installation of these large-scale wind farms in New Jersey through lawsuits. Perhaps the largest and most vocal is Save Long Beach Island, a not-for-profit “dedicated to protecting our oceans and New Jersey Shore communities.” Dr. Bob Stern, an engineer with experience in environmental law and the U.S. Department of Energy is the leader of this opposition group. They have one lawsuit pending and at least seven other legal challenges alleging violations of environmental protection laws they plan to bring forward.
BOEM stated in their Final Environmental Impact Statement that the Atlantic Shores South project will have major impacts on the critically endangered right whale population and moderate impacts on other marine mammal species. Scientific evidence, however, seems to point towards collisions with seagoing vessels as the primary reason for this trend. Experts in favor of the turbine projects believe this to be the result of the mammals entering busier waters due to climate change. They view this technological advancement as a means to combat climate change. The opposition, however, points to the recent wind turbine failure in Nantucket, MA – where a turbine blade fractured leaving fiberglass and styrofoam debris in the ocean – to show the potential adverse effects and legal issues of installing wind turbines along the coast.
Based on recent federal approval for the Atlantic Shores South project by the U.S. Department of the Interior, it appears unlikely that these projects will be stopped by legal challenges unless quantifiable environmental evidence can be produced to support the negative impact these projects are alleged to have. Instead, the process may experience additional delays from petitions and lawsuits before beginning construction. These delays, along with adverse economic conditions, appear to be the true threat to the realization of the 100% clean energy initiative in the Garden State. Major Danish energy company Orsted pulled out of their billion-dollar wind turbine project off the New Jersey coast in October of 2023 citing supply chains issues, soaring interest rates, and lack of tax credits as reasons for cancelling their project. With commercial fishing and tourism industries also expected to decline upon the construction of these projects, locals are wary about the unforeseen effects this initiative may cause.
The ongoing conflict along the New Jersey coastline serves as a reminder that evolving energy technology provides ethical quandary over the correct path forward. Many parties to these legal issues hold the same goals in mind: protecting the environment and improving the United States energy industry. There remains uncertainty over which outcome, approval or disapproval, would cause greater adverse effects. The legal repercussions will become clear in the coming months as New Jersey decides the fate of their wind turbine proposals.
Student Bio: Samuel Scott is a second-year law student at Suffolk University Law School and staff writer on the Journal of High Technology Law. Samuel received a Bachelor of Science in Marketing with a minor in Political Science from Providence College in 2022.
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.
