Sturm College of Law
Wind energy development, Regulation
The United States has vast offshore wind resources—nearly double the total electricity consumption of the country—ideally located in close proximity to the largest population centers. This abundance has remained stubbornly untapped for over a decade, without a single commercial scale wind project built in federal waters as of early 2021. In contrast to obstruction by the Trump administration, President Biden, in his first days in office, singled out offshore wind development as one of his priorities for tackling the climate crisis. As a result, the United States may soon see an offshore wind rush. Onshore, the United States is a world leader in wind energy, but that development has come at the price of heavy waste of the resource. A common law rule of capture like the one applied in the early days of oil and gas development has fostered competitive and protectionist practices. Individual wind developers have an incentive to maximize energy recovery within their own wind farms, but they have no incentive to maximize recovery of the entire resource. There is even more reason than in the oil and gas context to maximize recovery of the entire U.S. offshore wind resource. While maximizing an oil and gas field simply contributes more greenhouse-gas-producing product, maximizing carbon-free energy production benefits the U.S. public, as well as the world, by helping mitigate climate change. Furthermore, offshore wind in federal waters is an asset collectively owned by all U.S. citizens, and maximizing production can generate maximum royalty payments to the public. As with oil and gas development, regulation is required to prevent waste and to force consideration of the correlative rights of other developers in a common pool. Uniformity of ownership by the federal government should facilitate consistent, cooperative wind development that is not possible on land because of the competing priorities of different owners. Lessons learned from common law waste and state oil and gas waste statutes, as well as the federal regulations on the topic, can inform the promulgation of regulations that will best facilitate the development of offshore wind. In this regard, two criteria should guide offshore wind development—maximizing the quantity of resource recoverable and avoiding the construction of unnecessary infrastructure to harvest it. This article is the first to address the unique qualities of wind energy development and to comprehensively combine the science with the law. The federal statute that regulates offshore oil and gas waste is the very vehicle Congress chose for offshore wind energy development. Consequently, this piece provides a foundation, first, by exploring the history of waste law in general and then waste in the context of oil and gas. A thoughtful application of the lessons learned in those contexts can help transform this federal offshore wind rush into a model for efficient and climate-friendly wind development worldwide.
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K.K. DuVivier, Preventing Wind Waste, 71 Am. U. L. Rev. 1 (2021).