Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 298
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environmentalists or opponents in the region. The U.S. defends the projects through
the Department of Justice, and developers
can also seek to intervene in these cases.
Remedies typically include a remand to the
agency to correct any errors absent direct
and imminent risk of harm to protected
species.
The U.S. has also recently undergone
permitting reform efforts to streamline the
process for major infrastructure projects,
including offshore wind. Congress recently
enacted some reforms intended to improve
the permitting process. There could be additional legislative changes in the future, which
warrants close monitoring.
2. THE REGULATORY FRAMEWORK OF THE OFFSHORE
WIND SYSTEM
The Energy Policy Act of 2005 (EPAct)
authorizes BOEM to issue leases for renewable energy developments on the OCS. 5 In
issuing leases, BOEM oversees a competitive
or non-competitive process that includes
a variety of environmental and technical
assessments. To engage states and obtain
public input on projects, BOEM has established Intergovernmental Renewable Energy
Task Forces in several states. 6
United States
At the heart of the regulatory framework
is the Outer Continental Land Shelf Act
(OCSLA), which sets forth a number of
factors that BOEM considers in authorizing
offshore wind projects.7 BOEM must also
ensure that projects comply with a variety
of environmental and natural resources
laws, including the National Environmental
Policy Act (NEPA), the Endangered Species
Act (ESA), the National Historic Preservation
Act (NHPA), the Migratory Bird Treaty Act
(MBTA), and the Coastal Zone Management Act (CZMA). 8 BOEM must also work
in concert with the National Oceanic and
Atmospheric Association (NOAA) to ensure
compliance with the Marine Mammal Protection Act (MMPA) and coordinate with the
National Marine Fisheries Service (NMFS)
on incidental take authorizations for marine
mammals.9
The U.S. Army Corps of Engineers and the
Environmental Protection Agency also must
permit aspects of the project with regard to
impacts to navigable waters, civil works, and
air emissions. There also are species consultations overseen by wildlife agencies such as
the Fish & Wildlife Service.
Another regulation that affects offshore
wind projects is the Jones Act, which is
designed to protect the U.S. shipbuilding
industry. The Act is more than 100 years old,
and it requires that coastwide trade in the
United States (waterborne trade between
5 Energy Policy Act of 2005, 42 USCS ยง 15801 (2005).
6 Regulatory Framework and Guidelines | Bureau of Ocean Energy Management (boem.gov).
7 43 U.S.C. 1331.
8 Environmental Assessment | Bureau of Ocean Energy Management (boem.gov).
9 NOAA Role | Bureau of Ocean Energy Management (boem.gov).
