On March 30, 2012, 10 Federal agencies and the governors of
Illinois, Michigan, Minnesota, New York and Pennsylvania signed a
new Memorandum of Understanding (MOU) to develop a roadmap within
15 months that would describe the regulatory review process and
data needed to "inform efficient review" of proposed
offshore facilities in the Great Lakes. The intent is to establish
common priorities and to develop a blueprint to streamline the
regulatory review of proposed projects without sacrificing
environmental and safety standards.
According to the U.S. Department of Energy (DOE), the Great
Lakes' region is home to the largest offshore wind potential of
any U.S. waters – 742.5 GW, or one-fifth of all potential
wind energy in the United States. Each gigawatt of offshore wind
power installed could produce electricity for 300,000 homes.
While there have been few proposed offshore wind developments in
the Great Lakes, interest in Great Lakes offshore wind development
has risen in the past several years, as has the opposition to
offshore development in the region. Some recent examples of the
increased interest and opposition are as follows:
A Cleveland consortium has announced plans for a 5-20 MW
offshore wind demonstration project in Lake Erie about seven miles
north of Cleveland, and appears to have good local support for its
Conversely, a Norwegian-based company led a group that proposed
a 1000 MW offshore wind project to be located in Lake Michigan
waters two to four miles off Ludington, Michigan, but that project
has stalled, in part because of voracious local opposition.
Development of offshore wind projects in the U.S. Great Lakes
waters may be more complicated than offshore wind development in
U.S. coastal waters for two reasons:
First, the bottomlands of the Great Lakes are owned by each
state within its respective boundary. Because both Federal and
State regulatory authorities have jurisdiction, any proposals to
develop offshore wind projects in the Great Lakes will require
decisions by a number of Federal and State entities. State
ownership of the bottomlands means that the states will have
independent authority under their own laws to determine whether to
approve specific projects. In addition, an offshore wind developer
will need a U.S. Army Corps of Engineers permit to erect wind
turbines, and will face the review of its plans by 10 Federal
Second, because the Great Lakes are freshwater, they freeze over
in the winter and offshore technology to address ice has not been
fully developed, although there is a pilot offshore wind project in
a lake in northern Sweden. The University of Michigan, among other
universities, is conducting two DOE-funded studies to explore the
effect of ice loading on offshore wind turbines and their
The MOU represents a solid step forward in addressing the first
issue. Depending on the extent to which the Federal agencies and
participating states develop a coherent roadmap for regulatory
approvals and actually collaborate with one another in the review
of proposed offshore projects, the regulatory approval processes
should become less cumbersome to navigate and perhaps less costly
for developers of offshore wind projects. The one thing the MOU
does not do is eliminate any of the State or Federal approvals that
would be necessary for an offshore wind project.
It should be noted that Indiana, Ohio and Wisconsin declined the
invitation to sign the MOU, but Obama administration officials have
indicated that these states could become parties at a later
This article is presented for informational purposes only
and is not intended to constitute legal advice.
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The Supreme Court of Texas recently held that a liquidated damages provision in a contract for renewable energy was unenforceable because it operated as a penalty without having any reasonable relationship to actual damages.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
The Mintz Levin Energy & Clean Technology practice group worked on over 45 transactions in 2013 and helped energy and clean technology clients on a wide range of matters, including financing transactions, joint ventures and other arrangements with investors and global corporations from the United States, China, Russia, Europe, India and Japan.