Offshore Wind Worldwide 2022 edition - Flipbook - Page 145
Offshore Wind Worldwide 2022
V. Real estate
A.Rights over land to be secured
Under the New Act, the selected business
operator has its plan certified by METI
under the FIT Act, MLIT will grant
occupancy right for the designated
Promotion Zone for up to 30 years.
For other rights over land (onshore,
nearshore, offshore), this will vary
depending on the projects’ sites and areas.
Please refer to our response in section II.B.
above.
B. Cost and risk of legal challenges
Under the New Act, if a Council (which
includes fishery organizations among its
members) confirms that a project will create
an obstacle to fisheries, METI/MLIT will not
designate that area as a promotion zone.
During Council meetings, the stakeholders
(including fisheries and the business
operator) will be granted opportunities to
engage in discussions. What is unclear is the
nature or level of an obstacle tabled by
fisheries that will be determinative in METI/
MLIT’s not designating the area as a
promotion zone. One mitigant to gain
transparency into this process is that METI/
MLIT will disclose the minutes of Council
meetings frequently and as soon as
practicable. This disclosure requirement
should assist participants in obtaining a
better understanding of the Council
members’ positions.
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Even if METI/MLIT designates an area as a
Promotion Zone and grants occupancy
rights, METI/MLIT cannot guarantee that
fisheries will not litigate against the business
operator in the future. Ultimately, the
business operator will have to assume this as
a risk. Thus, before the auction process
commences, the business operators should
communicate with all stakeholders affected
by the project as much as possible. This is
critical, particularly since the Guidelines
prohibit business operators from
communicating with stakeholders once the
auction process commences.
The auction will be initiated, and the
business operators will submit occupancy
plans. Lastly, METI/MLIT will select the
most appropriate business operator and an
occupancy permit for up to 30 years will be
granted by MLIT.
Even after the occupancy permit is issued,
there are no assurances that fisheries will
not bring claims against the business
operator, and there are no assurances of
achieving a guaranteed level of revenues
(which depends on actual wind conditions).
Therefore, losses due to uncertain future
events should be borne by the Selected
Business Operator. After the selection
process but before granting the occupancy
permit, the Selected Business Operator
should conduct a detailed investigation of
the promotion zone to minimize the loss
from such uncertain events.