While many areas around the country are still in the planning stages on offshore wind energy initiatives, Louisiana appears poised to launch major efforts on both federal and state levels.
On July 20, 2023, the Department of the Interior announced it will hold the first-ever offshore wind energy lease sale in the Gulf of Mexico. The areas to be auctioned by the Bureau of Ocean Energy Management (“BOEM”) on August 29, 2023, have the potential to generate approximately 3.7 GW, and power almost 1.3 million homes with clean, renewable energy. The areas to be auctioned include a 102,480-acre area in federal offshore waters off Lake Charles, Louisiana. DOI plans to deploy 30 gigawatts (GW) of offshore wind energy by 2030 and reach a carbon-free electricity sector by 2035.
Louisiana’s federal offshore wind program may not proceed as quickly as many hope. This is because BOEM’s federal program along the nation’s coasts has progressed slowly and cautiously so as to take into account potential environmental impacts from both the construction and operation of the turbines, as well as the deployment of cables on the sea bottom which transmit the generated power to shore based facilities. Because this program constitutes a “major federal action” under the National Environmental Policy Act (“NEPA”), a comprehensive Environmental Impact Statement (“EIS”) was performed which resulted in many scientific studies on impacts to marine mammals, fisheries and avian species including both seabirds and migratory birds in many areas along the Atlantic coast.
Many birds are adversely affected by wind turbines due to: (1) displacement or loss of habitat; (2) barrier effects which can have energetic costs if birds reroute daily movements to foraging grounds or seasonal migratory movements to avoid wind turbines; and, (3) direct injury leading to sublethal impairment or mortality, such as through collision with the turbines. The birds affected include shorebirds as they fly parallel to the coast, seabirds which stay primarily offshore but may pass through wind farms to nest onshore, as well as migratory species which enter coastal waters in one season and depart in another.
As a result of the environmental studies and the preventative measures taken to reduce adverse impacts, it normally requires a seven (7) year process from the initial lease to the Record of Decision from BOEM allowing the project to proceed. As of summer 2023, there are only two (2) operating turbines in federal waters off Virginia, and those are merely experimental in nature. Many other federal offshore wind energy projects are in various planning or approval phases along the coasts of New York, New Jersey, Massachusetts, Maryland and elsewhere.
In contrast, state programs in some areas are proceeding quickly. The Block Island Wind Farm built in 2016 already has five (5) operating turbines in state waters. That project was made possible because Rhode Island had developed a Special Area Management Plan (or “Ocean SAMP”) ahead of time which serves as a federally recognized coastal management and regulatory tool. Using the best available science, the Ocean SAMP provides a balanced approach to the development and protection of Rhode Island’s ocean-based resources. It should be noted that Louisiana fabrication yards, contractors and lift-boats built much of that farm and should be ready to assist in the Louisiana wind energy efforts.
Meanwhile, on August 10, 2022, in a 6-1 decision, the Ohio Supreme Court ruled in favor of the Icebreaker Wind Project on Lake Erie, affirming that project’s state permit was correctly granted, and allowing that project to proceed. Ohio’s Icebreaker Wind is a unique wind energy project – the first offshore wind facility in the Great Lakes, the first freshwater wind farm in North America, and only the second state near shore wind project in the entire U.S.
Louisiana is now moving at an even faster pace than RI and Ohio. The Advocate recently quoted Governor John Bel Edwards as saying, “I believe they can be set up in state waters several years before they would be successful in federal waters.” The Advocate also reported that DNR records indicate the state is negotiating offshore wind lease agreements with Mitsubishi-owned Diamond Offshore Wind; Kontiki Winds, a Norwegian company operating in Louisiana under the name Pelican Winds; and the Danish global energy firm Vestas. Other companies are expected to pursue projects in Louisiana as well. As a result, near shore areas are now being considered in state territorial waters of Cameron, Vermilion, St. Mary, Terrebonne and Lafourche Parishes.
This was all made possible because in 2022, the Legislature passed Act 443 sponsored by Representative Jerome Zeringue, which amended and reenacted La. R.S. 41:1732 et seq. so as to implement a formal state wind leasing program. The Act also amended La. R.S. 30:209 to allow the State to enter into “operating agreements” with private entities for wind projects. LDNR then issued a Notice of Intent (“NOI”) issued earlier this year announcing rulemaking for regulations under that Act which will provide guidelines for the wind energy leasing program. But there is trouble in the Sportsman’s Paradise.
Unlike the federal programs and the RI programs which undertook major studies of environmental impacts before leasing began, Louisiana is implementing its wind energy program in reverse if not backwards. The State has undertaken few studies to determine the environmental impacts of near shore wind farms but is still preparing to issue leases immediately. More to the point, the State is already negotiating “operating agreements” with several companies at locations of their choosing which remain undisclosed to the public as do the terms and conditions of the actual agreements. Of particular concern is that there is no indication that there was any consideration of environmental impacts when these companies chose their respective project sites.
If these operating agreements become the chosen approach, it appears they will circumvent the entire competitive bid process but more significantly, it appears they will circumvent the entire wind lease program and all of its statutory requirements. Indeed, under the operating agreements, LDNR will be administering itself: LDNR will act as landowner; LDNR’s Office of Mineral Resources will be the regulator; and LDNR’s Office of Coastal Management will issue the CUP Permits to LDNR. It is difficult to see how this situation does not constitute a conflict of interest, and suggests a likely environmental disaster if allowed to proceed.
This is because one of the largest migratory bird flyways in the world passes through the waters off Cameron Parish and multiple other migratory flyways for any number of species pass through Louisiana territorial waters. While several environmental non-governmental organizations (“ENGO’s”) strongly support wind energy, they have submitted comments in response to the NOI on the wind energy lease program asking the State to conduct studies, surveys and monitoring using radar, tagging, LIDAR, auditory recordings, satellite imagery, and remote sensing, as well as other technology, so as to select the best locations to construct the wind farms before the operating agreements and/or leases issue.
It remains to be seen how the State will address the environmental issues. If the State refuses to undertake serious scientific research to determine appropriate sites from an environmental standpoint beforehand, litigation will likely result during the permitting process which may bring Louisiana’s nascent wind energy program to a screeching halt.
