Energy Musings - January 9, 2025
From an opinion article on offshore wind and a response from the head of Rhode Island's CRMC, we are learning of the heavy-handed power of federal regulators to push offshore wind farms.
Favoritism For Offshore Wind
The response to an opinion article on offshore wind energy development should open people’s eyes to how the Biden administration is ignoring the rules. The violation may have a long-term impact on the Rhode Island economy and two iconic industries – commercial and recreational fishing. However, since the state possesses little power to combat the heavy-handed tactics of the offshore wind industry and its federal regulators, the public’s awareness and action are crucial. The public is hurt by the sole organization empowered to protect these industries is violating state rules.
In mid-December, Rich Hittinger, president of the Rhode Island Saltwater Anglers Association (RISAA), authored an article on the environmental website ecoRI.com about offshore wind energy development. His article generated a recent response from Jeffrey Willis, executive director of the Rhode Island Coastal Resources Management Council (CRMC), a party to the regulation and approval of offshore wind developments and the organization charged with protecting the commercial and recreational fishing industries.
Willis’ response detailed how offshore wind developer Ørsted was able to get the Bureau of Ocean Energy Management (BOEM), its federal regulator, to alter the approval process enabling the development of wind farms on and surrounding Cox Ledge, a prime fishing habitat off the Rhode Island and Massachusetts coastlines. These wind farms risk the future of Rhode Island’s commercial fishing industry and potentially its recreational fishing.
Hittinger discussed the role of his organization in creating the Ocean Special Area Management Plan (OSAMP) in 2009 and 2010. This plan facilitated the construction of the six-turbine Block Island Wind Farm. Hittinger wrote that RISAA members observed a “considerable decrease in catch of bottom fish within 3 to 5 miles of the construction site.” They also observed an increase in small fish immediately surrounding the legs of the platforms that supported the wind turbines. Such an increase is not surprising based on the experience of fish populations surrounding oil and gas platforms in the Gulf of Mexico.
Things changed in 2017 when offshore wind developers announced they planned to use monopile structures in the future rather than four-legged jackets as used at Block Island. RISAA wrote to the regulators about its concerns but received no response.
It also commented on the level of underwater noise generated by the pounding of the monopiles into the ocean floor while such structures provided little benefit for marine life. Again, RISAA’s concerns about the proposed installation of wind turbines on the habitat value of Cox Ledge received no response from regulators. RISAA asked for alternatives to the proposed plan. It also objected to the plan to move boulders as part of the turbine and cable installation, a move that would disrupt the delicate balance of marine life in the area.
Another regulatory twist emerged with the plan for the South Fork Wind farm. It was to be developed in an area carved out of a larger lease area purchased by Ørsted. These wind turbines were to be placed entirely on the “prime habitat” of Coxes Ledge. Coxes Ledge is equidistant from Cape Cod, Block Island, and Montauk. It is a prime fishing area known for bluefin tuna and cod. It also supports butterfish, small squid, sand eels, hake, and small mackerel. Hittinger noted that neither CRMC nor BOEM raised any issues over the lease subdivision and the placement of the wind turbines.
Willis challenged Hittinger’s statement about the lack of response from CRMC to the lease subdivision. However, Ørsted and BOEM’s interaction regarding the South Fork approval is not disputed. That interaction prompted the mass resignation of the CRMC Fisheries Advisory Board (FAB), an event that shocked Rhode Island politicians. In their letter of resignation, the members wrote, “We will not allow our names to be connected in any way to Council approvals now amounting to wholesale ocean destruction.” In their view, “Rhode Island is supposed to be the Ocean State, not the Windmill State.”
The fallout from this resignation continues to taint all subsequent offshore wind farm approvals. We will get to that in a moment.
There were many months of discussions involving CRMC, Ørsted, and members of the FAB. The final terms for the CRMC “permit,” called a “consistency determination,” were agreed to over a weekend with no input from the FAB in violation of state law. CRMC’s permit was issued for South Fork to be built on Cox Ledge.
Almost immediately after approving South Fork, BOEM began the review process for Revolution Wind. It surrounds South Fork and is partially on Cox Ledge and north, south, and west of Coxes. The FAB identified potential alternatives that were never considered by CRMC or Revolution Wind’s developer Ørsted. Like South Fork, many months and meetings transpired before CRMC issued its consistency determination, allowing Revolution Wind to be built around the Cox Ledge area.
In his response, Willis states that the assumption that CRMC raised no issues placing the South Fork wind turbines on Cox Ledge or the subdivision of the larger Revolution Wind lease area by BOEM is “incorrect.” He claims that CRMC only learned of the action from “industry news.” CRMC had to contact BOEM to see if the news was accurate, which was correct. BOEM notified CRMC about its decision to subdivide the Revolution Wind lease “after it had already done so,” wrote Willis. “Wind farm developer Ørsted requested the subdivision of the larger Revolution Wind lease area to create a new wind farm (i.e., SFW), and BOEM proceeded with that action without consulting any of the involved coastal programs or other agencies.” [Italics in the original.]
How convenient for BOEM not to alert the other players involved in the regulatory process to its proposed actions. BOEM knew those coastal programs and other agencies would have objections. BOEM could not allow any slowdown in offshore wind application approvals if it were to fulfill the Biden administration’s goal of installing 30 gigawatts of offshore wind generating capacity by 2030.
While Willis claims CRMC raised “strong objections” once it was informed of BOEM’s action, it has limited recourse, which is true. That is because CRMC is under the supervision of the National Oceanic and Atmospheric Administration (NOAA), which is involved in the approval process for offshore wind farms. In January 2022, BOEM and NOAA signed an interagency memorandum outlining how they would work together in support of the Biden administration’s offshore wind goal.
Willis also claims BOEM’s actions limited CRMC’s ability to propose the relocation of turbines within South Fork and to negotiate project changes to minimize the impact on the Cox Ledge marine habitat. Unsurprisingly, BOEM’s response to CRMC’s criticisms was to promise not to repeat adjusting lease areas for future projects. However, it continued with its existing process for approving Revolution Wind.
BOEM relied on the “oh, we won’t do it again” defense. Moreover, by failing to notify the other state reviewers of its actions, BOEM could continue to approve offshore wind projects that were likely to have been exposed to serious challenges. Therein lies the issue of the mass resignation of the FAB members. No new members have been appointed to the FAB.
The Rhode Island Code of Regulations – Rhode Island Department of State – established the FAB. The specific reference is found in TITLE 650 – COASTAL RESOURCES MANAGEMENT COUNCIL, CHAPTER 20 – COASTAL MANAGEMENT PROGRAM, SUBCHAPTER 05 – OCEAN SPECIAL AREA MANAGEMENT PLAN, PART 5 – Commercial and Recreational Fisheries.
The regulations begin by noting:
“The commercial and recreational fishing industries, and the habitats and biological resources of the ecosystem they are based on, are of vital economic, social, and cultural importance to Rhode Island’s fishing ports and communities. Commercial and recreational fisheries are also of great importance to Rhode Island’s economy and to the quality of life experienced by both residents and visitors. The Council finds that other uses of the SAMP area could potentially displace commercial or recreational fishing activities or have other adverse impacts on commercial and recreational fisheries.”
CRMC is mandated to appoint a standing FAB. It is designed as an advisory board, which “shall provide advice to the Council on the siting and construction of other uses in marine waters.”
Additionally, the CRMC is given a strong mandate to protect the commercial and recreational fishing industries. The regulations state:
“The Council shall prohibit any other uses or activities that would result in significant long-term negative impacts to Rhode Island’s commercial or recreational fisheries. Long-term impacts are defined as those that affect more than one or two seasons.”
CRMC must act when it finds potential impacts on the commercial or recreational fishing industries.
“The Council shall require that the potential adverse impacts of offshore developments and other uses on commercial or recreational fisheries be evaluated, considered, and mitigated as described in § 5.3.2(D) of this Part.”
Any proposed mitigation of impacts of offshore developments “shall be negotiated between the Council staff, the FAB, the project developer, and approved by the Council.” In other words, there must be mutual agreement among the parties as to what mitigation actions are required to approve the offshore development.
Another mandated responsibility of CRMC is that it “shall protect sensitive habitats where they have been identified through the site assessment plan or construction and operation plan review processes for offshore developments as described in §11.10.5 of this Subchapter, The Policies of the Ocean SAMP.”
We call the reader’s attention to the frequent use of the word “shall” in the text outlining CRMC’s responsibilities and duties. These quotes are only representative of the many rules CRMC must follow.
According to Bar and Bench, the first definition of “shall” in Black’s Law Dictionary is “Has a duty to; more broadly, is required to.” The writer noted, “This is the mandatory sense that drafters typically intend and that courts typically uphold.” In other words, when instructed that you shall do something, it means you have a duty to do it or are required to do it. You cannot dodge the requirement.
From the Hittinger and Willis opinion pieces, CRMC is not following the rules and its mandates. How? By not having appointed new members to the FAB, it could not fulfill its requirements in support of CRMC’s review and approval process for offshore developments and cable landing approvals. Specifically, CRMC approved New England Wind without a meeting between the FAB and the developer. It is now engaged in the consistency review for South Coast Wind’s application to lay transmission cables up the Sakonnet River without the FAB’s involvement.
Given the limited readership of the RISAA opinion article and the Willis commentary, Rhode Islanders are likely unaware of how the federal government ignored the rules put in place by the state to protect its commercial and recreational fishing industries and the jobs they support. If the public knew of the potential destruction of these industries and the harm done to the state’s tourist appeal from offshore wind developments, they might want different policies. This is another example of the climate change and offshore wind agendas of politicians hurting innocent people. The public is ignorant of what is happening but will soon be handed the bill.