Winslow Taylor
Energy Law
December 14, 2011
Winds of Change in North Carolina?
Looking at the United States energy needs, there is no question a change has to be made. The problem lies in what change, and if we, as citizens, can afford this change. Similarly a collective action problem arises, because even if the United States drastically alters and cleans up our energy problem, what about the rest of the world? It would be an expensive undertaking, which will only be a drop in the global bucket. TheUnited Statesis the second largestenergyconsumer in terms of total use in 2010, and the majority of this energy is derived fromfossil fuels: in 2009, EIA data showed 37% of the nation's energy came frompetroleum, 21% fromcoal, and 25% fromnatural gas.Nuclear powersupplied 9% and renewable energysupplied 8%, which was mainly fromhydroelectric dams;although other renewables are included such aswind power,geothermal,and solar energy.
Although the United States is not in a “per se” energy crisis, we are not far from one. The United States is heavily dependent on foreign oil. In 2010 the United States imported 11.8 million barrels per day (MMbd) of crude oil and refined petroleum products. We also exported 2.3 MMbd of crude oil and petroleum products during 2010, so our net imports (imports minus exports) equaled 9.4 MMbd. Although we are the third largest crude oil producer, about half (49%) of the petroleum we use is imported. With a barrel of crude oil hovering around $100 dollars, and the threat of global warming, we need to focus on alternative energy sources which will not only benefit the global environment, but also the citizens of the United States. We need to look to the future, in terms of developing alternative/renewable energy sources, and one source is the wind turbine. In particular this article will be discussing the issue of wind turbine “farms” in the coastal waters of North Carolina.
If there is one place where the wind is constantly blowing in North Carolina, it is off our coastal waters. North Carolina’s geography positions itself close to the Gulf Stream, which leads to constant breezes primarily from the southwest and the northeast. Wind resources are strong and consistent in coastal and offshore waters, the energy source is non-polluting, and water-based wind energy projects have a significant advantage over land-based projects because the developer of a water-based project only has to deal with one landowner, either the State or, if the project is sited more than three miles from shore, the federal government. In theory our offshore winds would provide an excellent source of renewable, clean energy, while providing a boom in economic activity, but there are many difficult issues surrounding North Carolina offshore wind turbine development.
In June of 2010, the National Renewable Energy Laboratory (NREL) releaseda reportcalled “Assessment of Offshore Wind Energy Resources for the United States.” This report found that North Carolina had 140 GW of total offshore wind capacity. Although the NREL study found North Carolina’s potential to be 140 GW, a more detailed University of North Carolina study found that we have about 50 GW of offshore wind capacity, taking into account developmental constraints like the Department of Defense, wildlife migratory patterns, and accessibility. Id. This is still a significant amount of power, but the report spots some problems relating to offshore wind power.
First, we will look at the difficult issues facing offshore turbine development, and then we will discuss the positive impacts that this development will have on the environment and the economy. The first problem is the actual construction of these massive structures in an offshore environment. This would involve heavy construction totally isolated from the mainland in constantly changing sea conditions. With the close proximity to the fertile gulfstream waters, North Carolina’s coastal waters are known as the “Graveyard of the Atlantic” for just these reasons. Construction cost for offshore construction would be double the cost for land based wind turbines, and manufacturers are unsure how their turbines would perform in these deepwater environments. pg. 1832. Furthermore, even with government subsidies the cost of offshore power generation is not competitive with traditional onshore facilities. Id. The infrastructure associated with the offshore power production would possibly clash with the onshore tourist industry. Also, North Carolina is home to two major ports, in Wilmington and Morehead City, which generate significant commercial maritime shipping activity. The large expanse of offshore wind turbines would negatively affect shipping and commerce. Furthermore, Eastern North Carolina’s airspace is heavily restricted due to numerous military practice bombing ranges, and these would put height restrictions on wind turbines. Finally, other problems include commercial fishing operations, wildlife, beach quality, and the weather.
With the constant offshore breezes, which would support powering these wind turbines, comes the threat of hurricanes and north-easters. These powerful storms can hit with winds well in excess of 100 mph, and created 50+ foot waves. The question of a hurricane hitting one of the turbine farms, would be a “when” and not “if” scenario. Furthermore, the salty open ocean environment is one of the harshest on earth. The salt would be a nightmare for these highly complex machines, not only on the actual turbines, but also on the undersea cables linking the turbine production to the energy grid back on shore.
Wind turbine projects will be extraordinarily expensive to construct, roughly ranging from$800 million to $2 billion, if not higher in some areas. Id at 1834. Second, wind turbines will occupy a large surface area on the water, in the range of twenty to thirty square miles,and present a number of potential user conflicts. Id. Third, it is not economically feasible to place the turbines in waters much deeper than twenty to thirty meters using existing technology; therefore, the facilities, for better or worse, may be visible from the shore. Id. The depth limitations pose another challenge, in the northern outer banks the limitations would be a maximum distance of 5 miles offshore, while south of Cape Hatteras the continental shelf is shallow, and the maximum distance would be around 25-30 miles offshore.
Another idea is to use North Carolina’s shallow sounds, such as the eastern Pamlico Sound, but this poses its own set of challenges. Significant areas of the Pamlico Sound are restricted military space, in some areasany structure greater than 200 feet are prohibited. Id at 1835. Depth is an issue as well, twelve feet is the minimum depth required for barges used to install wind turbine foundations, and this poses problems as much of the sound’s are shallower than 12 feet. Id. These requirements eliminate a significant portion of the sounds as potential wind turbine facility sites, but assuming these challenges can be worked out, North Carolina’s protected sounds provide a much more feasible location, as the waters are more sheltered, they are closer to the power grid, and the elements are not as harsh as an open ocean environment.
In order to understand some of the problems, one needs to understand the different bodies of water and jurisdictional limits they impose. There are three major groups of water in North Carolina. First we have the water that is located between barrier islands and the mainland, these sounds are located within North Carolina, and are under state jurisdiction. Once we venture out of the inlet, out to three nautical miles, these too are regulated by the state. From three nautical miles out to twelve nautical miles there is a mix of state and federal jurisdiction, and finally, the area from three nautical miles out to the edge of the Exclusive Economic Zone (200 nm) is federally controlled waters.
Both coastal states and the federal government have laws in place to regulate activities on navigable waters of the United States. As seen in the above paragraph, where the jurisdiction falls depends, when and where you attempt to locate these structures. There are three major issues that will affect coastal jurisdiction; these are the Coastal Zone Management Act (CZMA), leasing submerged land, and navigable waters. Id.
The CZMA was passed in 1972 to encourage coastal states to develop and implement coastal zone management plans. This act was established as national policy to preserve, protect, develop, and where possible, restore or enhance, the resources of the nation's coastal zone for this and succeeding generations. An individual or agency desiring anactivity within the coastal zone of a state must first demonstrate the activity complieswith the state’s coastal management plan. In other words, the activity must be “consistent” with the state’s needs. Once a determination is made, it is submitted for review to theappropriate state agency responsible for implementing the state coastal managementplan. If the state determines the activity is consistent with the plan, then the permits are issued, if not the individual or agency has the right to appeal to the Federal Secretary of Commerce. In today’s world of protest and bureaucracy, acquiring the permit would be difficult. In order to acquire the necessary permits it would take a unified front willing to make sacrifices in order to better our environment.
The next speed bump would be the process of leasing the submerged land. As seen earlier, the state owns the land out to three nautical miles. The state is allowed to lease these underwater lands to interested parties for a fee, and for those party’s interested in land beyond three nautical miles they have to lease the land from the Department of the Interior, due to federal jurisdiction. Id. Typically, the actual leasing of the submerged land is not a problem, the issue is that the state/federal governments typically will not start the process until all the necessary state/federal permits are acquired.
The navigable waters are controlled to some extent by both the state and federal government. The United States Army Corps of Engineers (USACE) hasregulatory jurisdiction over the United State’s navigable waters and Section 10 of the FederalRivers and Harbors Act states that structures or work in or affecting United States navigablewaters requires a permit from the USACE. Id. Although there are cross-jurisdictional issues, the Army Corps permit is fairly easy to obtain, but again it is the little things that makes these large projects so difficult to accomplish.
The National Environmental Policy Act (NEPA) governs federal jurisdiction and
NEPA’s intent is to have all federal agencies consider environmental issues and potentialenvironmental impacts by opening the permitting decision making process to all
stakeholders, including state and local agencies, the general public, private organizations, andIndian tribal governments. Id. NEPA is triggered by a federal action, such as granting a federalpermit. If there is no federal decision involved in a project or activity, the NEPA process isnot required. Id. One of the factors that will significantly slow the permitting process is an Environmental Assessment (EA), and if there are any environmental issues, then an Environmental Impact Statement (EIS) will have to be filed. All environmental statutes and regulations are taken into consideration during the preparation of an EIS. These include:Fish and Wildlife Coordination Act, Clean Water Act, Clean Air Act, National Historic Preservation Act, Endangered Species Act, Executive Orders, and tribal and local statutes and regulations. Id. The failure to consider the impact of any of these acts/ regulations can stalemate a project for years. So again this boils down to citizens understanding our need for a clean/renewable energy source, if we understand the severity of our situation wind turbines may provide a viable energy source, but it will take everyone’s agreement, which will be one of hardest goals to achieve.
On North Carolina’s side, there are a plethora of state acts/agencies that would pertain to the development and implementation of offshore wind farms. The first act is the North Carolina Environmental Policy Act of 1971 (NCEPA), which functions similar to NEPA, except that it only applies to state actions. Id. The next act is called the Coastal Area Management Act (CAMA); this is a complex act, which relates to the federal Coastal Zone Management Act. Here, a state is allowed to require activities in its coastal zone to comply with the state’s federallyapproved state coastal management plan.North Carolina’s Division of Coastal Managementimplements North Carolina’s Coastal Area Management Act. CAMA Statute. Any federal or state action that would affect North Carolina’s coastal zone would need to comply with the act, which requires the review of ten state and four federal agencies. . Any activity, such as a wind farm, that occurs within North Carolina’s coastal waters must first obtain a CAMA permit. A “major” permit is usually required if there is any dredging or filling of water or marsh. Id. Building an offshore wind farm would most certainly require dredging, and possibly the filling of marsh, depending on the proximity to shore.
Although CAMA is the major state permit, there are hosts of other permits which include, Dredge and Fill permit (state), Easement to Fill (state), Water Quality Certification (state), Section 10 of the Rivers and Harbors Act (federal), and Section 404 of the Clean Water Act (federal). Id. Suffice it to say, the planning and construction, not withstanding the cost would be extremely difficult. Putting this in perspective, there has been a battle raging between environmentalist and locals regarding beach closures on the outer banks, a bird called the Piping Plover, has forced beach closures and threatened tourism. If individuals are so up in arms about driving 4x4’s on the beach, imagine if there were tractors, cranes, barges, diesel tanks, and other heavy machinery operating around the marshes and other maritime habitats. It would provide a substantial roadblock to development, injunctions would be filed and the project would be stalled before it even got off the ground. Although most of those issues relate to wind farms in the sounds, even if we had the ability to create wind farms far offshore, there still would need to be infrastructure on the barrier islands, such as substations and junction boxes from where the cables would meet the land. Again, in theory this would be a good idea, but to get citizens on board with this costly endeavor would be nearly impossible.
Not withstanding all the negatives, if we can come up with an effective way to harness our wind potential, North Carolina could provide a considerable amount of renewable energy to the grid. In 2008 North Carolina generated the vast majority of its electricity from coal and nuclear power plants– 60.5% and 31.7%. Offshore wind power has the potential to be a realistic and abundant energy source for our state. Id. The United States Department of Energy, in its “20% Wind by 2030” report, states thatNorth Carolina could install 10 GW of offshore wind capacity in the next 20 years, which is enough to power over 2 million homes. Id. That would mean that these wind turbines could provide enough electricity to power at least everyone east of I-95. Looking at a map really puts renewable energy potential in perspective; it would be amazing if renewable energy powered at least one-third of North Carolina’s geography with clean, sustainable, and renewable energy. Although the scope of this article is wind turbine electricity production, if wind generated power was coupled with other types of clean energy sources such as solar and nuclear it could be possible to power much of North Carolina with clean non-carbon energy in the next thirty to fifty years. Granted this would be a huge undertaking, but in the near future it will be necessary to shift away from coal and petroleum.
A huge impact of offshore wind farms in North Carolina would be the economic benefits of construction and maintenance on the wind turbines and the mainland infrastructure. A single offshore wind turbine requires over 8,000 component parts.This would create a robust offshore wind industry in North Carolina creating thousands of new manufacturing jobs, as well as hundreds of construction and infrastructure maintenance positions. Many of the turbine parts are too large to truck over long distances, so they must be manufactured near the water. For example, in 2010 the European Wind Energy Association reported that over 41,000 individuals were employed in the offshore wind industry. Id. According tothe United States Department of Energy,offshore wind in North Carolina could bring $2.7 million a year in payments to landowners and $10.7 million a year in local property tax revenue. The construction phase alone could create 1,628 new jobs, bringing $188.5 million into local economies. Id. If these wind farms were permitted there is no doubt it would be a huge economic influx into Eastern North Carolina, one of the poorest areas of the state. The massive undertaking would allow jobs to trickle down. An example would be providing North Carolina watermen who have lost their jobs due to the downturn in commercial fishing, as well as creating manufacturing and production jobs. Also, the state and/or federal government would benefit because the land for these wind farms would be leased from the state (if within 12 nm) or the federal government (father than 12 nm). These lease agreements would provide much needed money to the state. Not only would the wind turbines create clean energy, but also the construction and maintenance aspects would bring jobs to some of the poorest parts of the state.